State v. Chapman

211 S.E.2d 489 (1975)

24 N.C. App. 462

STATE of North Carolina v. Johnny Lee CHAPMAN.

No. 7427SC902.

Court of Appeals of North Carolina.

February 5, 1975.

*490 Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Diederich Heidgerd, Raleigh, for the State.

*491 Levine & Goodman by Arthur Goodman, Jr., Charlotte, for defendant-appellant.

CLARK, Judge.

The defendant contends that the trial court erred in denying his motion to suppress evidence seized at the defendant's house. The motion was made on the grounds that the search warrant was invalid because the affidavit upon which it was based was insufficient to enable a magistrate to make an independent determination of probable cause, and that, therefore, the search warrant was issued in contravention of the Fourth Amendment to the Constitution of the United States.

The affidavit of which the defendant complains and on which the search warrant was issued is as follows:

"AFFIDAVIT TO OBTAIN A SEARCH WARRANT STATE OF NORTH CAROLINA County of Cleveland STATE v. JOHNNY LEE CHAPMAN Rural Paved Road 1224, Holly Oak Park section Cleveland County N. C.

Harold E. Smith, Captain, Shelby Police Department being duly sworn and examined under oath, says under oath that he has probable cause to believe that Johnny Lee Chapman has on his premises certain property, to wit: Narcotics, Heroin, a controlled substance, the possession of which is a crime, to wit: G.S. 90-95(a)(3) on October 3, 1973 on his premises.

The property described above is located on the premises described as follows: A block residence with a brick front facing in a westerly direction. This residence is located between the intersections of Rural paved road 1224 and rural paved road 1287 and rural paved road 1224 and rural paved road 1241. This structure will be the first house on the left after passing the intersection of rural paved road 1224 and rural paved road 1287. This structure is on rural paved road 1224 facing a westerly direction. Cause for the issuance of a search warrant are as follows: The facts which establish probable cause for the issuance of a search warrant are as follows: A confidential source of information that affiant believes to be reliable stated to affiant on this date that this confidential source of information observed a white powder substance at the residence of Johnny Lee Chapman that is believed to be Heroin. This confidential source of information who affiant believes to be reliable further stated that Johnny Lee Chapman stated to this confidential source of information that Johnny Lee Chapman stated that this white powder was in fact Heroin. The above information was obtained by this confidential source of information who affiant believes to be reliable within the two days prior to the issuance of this search warrant. This confidential source of information who affiant believes to be reliable stated that this Heroin was contained in a ladies stocking hanging on a coat hanger under the bar located in the basement of the residence. This confidential source of information who affiant believes to be reliable further stated that this confidential source of information observed needles located above the light fixtures over the pool table located in the basement of the residence. This confidential source of information further stated that this confidential source of information has personally observed Johnny Lee Chapman cut this Heroin with sugar, this sugar being located at the bar in the basement of the residence. This confidential source of information further stated to affiant that this heroin cut with sugar was cut on the glass portion of a picture frame containing the pictures of two children and the glass of this picture frame is broken across the front. This confidential source of information who affiant *492 believes to be reliable further stated that on this date a person approached this confidential source of information on this date and stated to this confidential source of information that they had just purchased $10.00 worth of heroin at the residence of Johnny Lee Chapman on this date. Detective Paul Barbee of the Cleveland County Sheriff's Department further stated under oath before the magistrate that he has received information in the past that Johnny Lee Chapman has sold heroin in Cleveland County. Also James C. Woodard, Special Agent for the State Bureau of Investigation stated under oath before the magistrate that he has received information in the past that Johnny Lee Chapman has sold Heroin in Cleveland County.

s/HAROLD E. SMITH Affiant"

In support of his claim that the search warrant used by the officers was invalid, the defendant relies principally upon the case of Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964). In that case, Aguilar's conviction was reversed because certain requirements laid down by the Court for the issuance of search warrants were not met. The U. S. Supreme Court announced a two-pronged test to determine the sufficiency of affidavits upon which search warrants are issued. The Court said that "... the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant whose identity need not be disclosed, [citations omitted], was `credible' or his information `reliable.'" Aguilar v. Texas, supra, at 114, 84 S. Ct. at 1514, 12 L. Ed. 2d at 729. (Emphasis added). The constitutional policy being preserved here is the requirement that inferences from the facts be drawn by a neutral and detached magistrate.

In this case the first prong of the Aguilar test is met since the affidavit affirmatively shows that the informer was speaking from firsthand knowledge of the defendant's activity. He personally observed the defendant cutting heroin with sugar, utilizing the glass portion of a picture frame containing the pictures of two children. From a perusal of the remaining details recited in the affidavit concerning the exact location of needles, etc., in the basement of the defendant's residence, it is perfectly obvious that the informer was speaking entirely from firsthand observation. The underlying circumstances here clearly distinguish this case from State v. Edwards, 286 N.C. 162, 209 S.E.2d 758 (1974).

Regarding the second prong of the test, we believe it was similarly satisfied. In State v. Ellington, 18 N.C.App. 273, 196 S.E.2d 629 (1973), an affidavit recited that an informer was 100% reliable and that information obtained from him had previously led to the confiscation of other drugs in New York City. In reference to this recital, this Court said that "[e]ven in the absence of this statement the informant's reliability may reasonably be inferred from the very nature of his detailed report." State v. Ellington, supra, at 277, 196 S.E.2d at 632. We believe that this statement finds support in the emphasized portion of the Aguilar test quoted above and in the case of United States v. Ventresca, 380 U.S. 102, 108, 85 S. Ct. 741, 746, 13 L. Ed. 2d 684, 689 (1965), wherein it was stated that:

". . . [T]he Fourth Amendment's commands, like all constitutional requirements, are practical and not abstract.... [A]ffidavits for search warrants... must be tested and interpreted by magistrates and courts in a common sense and realistic fashion.... Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area."

Furthermore, the Supreme Court of the United States has never suggested that an averment of previous reliability is necessary. *493 The inquiry is whether the informant's present information is truthful or reliable. United States v. Harris, 403 U.S. 573, 91 S. Ct. 2075, 29 L. Ed. 2d 723 (1971).

We believe that when the detailed nature of the report and the fact that the officer swore that his informer was reliable are considered in a common sense and practical fashion, it would induce a prudent and disinterested magistrate to credit the report and conclude that the informant's information was reliable and not a casual rumor or a conclusory fabrication. In our opinion, the affidavit in the present case was sufficient to warrant a finding of probable cause to search the defendant's house.

The defendant next contends that the trial court erred in admitting into evidence the bag of heroin because it was inadequately identified as being related to the case. At trial, a chain of custody was established by the State from the moment the heroin was seized to the time it appeared in the courtroom and the bag was positively identified by the chemist who had tested the substance. We find that a sufficient foundation and chain of custody was established to warrant the admissibility of the bag and its contents.

The defendant further contends that the trial court erred in refusing to allow the defendant's counsel to play a recording of previous statements made by one of the State's witnesses at a preliminary hearing which contradicted certain testimony given by that witness at trial. As the record is devoid of any attempts by defendant's counsel to authenticate the recording or to actually offer the tape into evidence, it was not error for the trial court to refuse counsel's request to play it in front of the jury. See State v. Yoes, 271 N.C. 616, 157 S.E.2d 386 (1967).

The defendant's last assignment of error is that the trial court erred in denying his motions for judgment as of nonsuit. Reviewing the evidence in the light most favorable to the State, we find no error in denying these motions and submitting the case to the jury.

We find no error in the trial below.

BRITT and MORRIS, JJ., concur.