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North Carolina v. Collins

Filed: March 16, 1982.

STATE OF NORTH CAROLINA
v.
KEITH EUGENE COLLINS



Appeal by defendant from Seay, Judge. Judgment entered 6 March 1981 in Superior Court, Forsyth County. Heard in the Court of Appeals 7 December 1981.

Morris, Chief Judge. Judges Hedrick and Martin (Robert M.) concur.

Morris

Defendant contends that his motion to suppress should have been granted. He asserts that the trial court's denial of the motion deprived him of his Fourth and Fourteenth Amendment right to be free from unreasonable search and seizure. Specifically, defendant argues that the application for the search warrant did not satisfy the two-pronged test of Aguilar v. Texas, 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509 (1964), because the issuing official was not sufficiently informed of the underlying circumstances from which the informant, Smith, concluded that there was contraband

on the premises, and because there was no showing that Smith was a credible informer or his information reliable.

"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, whose identity need not be disclosed, see Rugendorf v. United States, 376 U.S. 528, was 'credible' or his information 'reliable.' Otherwise, 'the inferences from the facts which lead to the complaint' will be drawn not 'by a neutral and detached magistrate,' as the Constitution requires, but instead by a police officer 'engaged in the often competitive enterprise of ferreting out crime,' Giordenello v. United States, supra, [357 U.S.] at 486; Johnson v. United States, supra, [333 U.S.] at 14, or, as in this case, by an unidentified informant." 378 U.S. at 114-15, 12 L. Ed. 2d at 729, 84 S. Ct. at 1514.

Quoted is State v. Hayes, 291 N.C. 293, 298, 230 S.E.2d 146, 149 (1976).

In the case sub judice, the issuing official had before him the affidavit of Detective Hutcherson, which we quote in part:

The applicant swears to the following facts to establish probable cause for the issuance of a search warrant: I am Detective V. J. Hutcherson of the Winston-Salem Police Dept. and as such, am empowered to search for and seize contraband as described in North Carolina General Statutes, Chapter 90. On Saturday, 10-18-80, at approximately 1630 hours, I was contacted by a white male known to me as "Mike". Mike stated that he could obtain some acid for me for $3.00 a hit. I advised Mike that I would like to purchase some acid. Mike got in my vehicle and directed me to 2722 Patria Street. I parked my vehicle at the intersection of Patria Street and Lemly Street. I gave Mike $20.00 and asked him to purchase me five hits. Mike left the vehicle and walked south to the above described location on Patria Street. I personally observed Mike enter the dwelling on Patria Street. In approximately four minutes, Mike exited from the same location

and walked directly back to my vehicle. Mike handed over $2.00 change and (6) hits of star acid. Mike stated that the person who sold him the acid had some more if I wanted to buy some more. Mike was then transported to a location and released.

An affidavit is generally deemed sufficient "if it supplies reasonable cause to believe that the proposed search for evidence of the commission of the designated criminal offense will reveal the presence upon the described premises of the objects sought and that they will aid in the apprehension or conviction of the offender." State v. Vestal, 278 N.C. 561, 576, 180 S.E.2d 755, 765 (1971).

We hold that Detective Hutcherson's affidavit contains facts sufficient for the issuing official to determine that there were reasonable grounds to believe that illicit drugs were present in the house on Patria Street. The personal observation of the officers was enough to sustain the finding of probable cause necessary for the issuance of a warrant. Detective Hutcherson averred that he observed Smith go into the house with instructions to buy LSD, and come out three or four minutes later with several "hits" of "star acid" which he gave to Hutcherson. This Court, in State v. McLeod, 36 N.C. App. 469, 244 S.E.2d 716, cert. denied, 295 N.C. 555, 248 S.E.2d 733 (1978), found in reference to an officer's affidavit containing an observation nearly identical to the one made by Hutcherson, that "[n]o more information was required in order to establish the probable cause necessary to support the search warrant issued. . . ." Id. at ...


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