Appeal by defendant from Small and Strickland, Judges. Order entered 7 November 1978, and judgment entered 1 March 1979 in Superior Court, Pasquotank County. Heard in the Court of Appeals 21 August 1979.
Morris, Chief Judge. Judges Martin (Robert M.) and Webb concur.
The sole issue presented on appeal is whether there was sufficient evidence before the magistrate from which he could find probable cause to issue the search warrant challenged in this case. "Probable cause, as used in the Fourth Amendment and G.S. 15-25(a) [ now see G.S. 15A-244(2) and G.S. 15A-245], means a reasonable ground to believe that the proposed search will reveal the presence upon the premises to be searched of the objects sought and that those objects will aid in the apprehension or conviction of the offender." State v Campbell, 282 N.C. 125, 128-129, 191 S.E.2d 752, 755 (1972).
A judicial determination upholding the constitutional validity of a search warrant will be sustained so long as a substantial basis exists for the issuing magistrate to conclude contraband is probably present. Jones v. United States, 362 U.S. 257, 4 L. Ed. 2d 697, 80 S. Ct. 725, 78 A.L.R. 2d 233 (1960). In the case before us the issuing magistrate had the following affidavit of Elizabeth City police officers Curtis Moore and J. C. Spear before him when he authorized the search of defendant's residence.
Affiants Curtis Moore and J. C. Spear have this date, 10/6/78 arrested Vinton B. Turnburke, a white male, age 17, who resides with his parents at 1504 Rochelle Drive, Elizabeth City, N.C. upon charges of possession of marijuana and sale of marijuana; after advising said Turnburke of his rights under the Miranda decision, affiants asked Turnburke where he had obtained the marijuana which they had just confiscated during a search of his home and vehicle and Turnburke replied that on Monday, October 2, 1978, at approximately 3:30 p.m. he (Turnburke) went to the residence of "Hank" Harris, at 1707 Crescent Drive, and met "Hank" inside of the house, going in through the garage entrance; Turnburke further stated that he at that time purchased a 1/2 pound quantity of marijuana from "Hank" Harris for a price of $220.00, with "Hank" leaving Turnburke standing in one of the front or living rooms of the house while "Hank" went to another room of the house and shortly returned with the marijuana contained in a brown paper bag in a loose fashion; Turnburke delivered to affiants the brown paper bag which contained the marijuana delivered to him by "Hank"; Turnburke
further stated that he had previously purchased marijuana from "Hank" Harris on 3 or 4 prior occasions in smaller quanties [sic]; Turnburke described "Hank" Harris as a young white male who is a student at the College of the Albemarle; affiant Spears talked with Elizabeth City Police Officer, W. G. Williams, Jr., who said that he is personally acquainted with "Hank" Harris and that his full and correct name is Hilbert Walter Harris, Jr.; Moore is acquainted with "Hank's" father, Hilbert W. Harris, Sr., who is employed as a postman; both Turnburke and Officer Williams independently told affiant Spears that "Hank" customarily drove a 1976 or 1977 baige [sic] or light tan Jeep; Vinton B. Turnburke also gave affaints information concerning 6 marijuana sales which Turnburke had made to other people out of the 1/2 pound of marijuana purchased at the Harris house on 10/2/78, with your affaint's being unaware of these transactions until Turnburke told them about same; that affaint Spears has caused a "PIN" computer check run on "Hank" Harris and found that N.C. driver's license #5147583 was issued on 1/30/76 to Hilbert Walter Harris, Jr., with a residence of 1707 Crescent Drive in Elizabeth City, N.C. and a date of birth of 10/28/59.
Defendant argues that the information before the magistrate was insufficient to satisfy the two-pronged test expounded by the United States Supreme Court in Aguilar v. Texas, 378 U.S. 108, 114, 12 L. Ed. 2d 723, 729, 84 S. Ct. 1509, 1514 (1964):
Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, 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 . . . was "credible" or his information "reliable".
There is no question in the present case that the first prong of the Aguilar test has been met. The magistrate was told that
the basis of informant Turnburke's knowledge was Turnburke's own purchase of one-half pound of marijuana which Turnburke alleged occurred at the house owned by ...