State v. Miller , 16 N.C. App. 1 ( 1972 )

190 S.E.2d 888 (1972)

STATE of North Carolina
v.
Howard Mack MILLER.

No. 7226SC173.

Court of Appeals of North Carolina.

August 30, 1972.

Atty. Gen. Robert Morgan by Associate Atty. Gen. Walter E. Ricks, III, for the State.

Sanders, Walker & London by James E. Walker and Arnold M. Stone, Charlotte, for defendant appellant.

PARKER, Judge.

Defendant objected to testimony by the officers concerning what they observed on entering the house where the shooting occurred and moved to suppress any evidence which the officers obtained after entering the building on the grounds that the search warrant was invalid and the entry unlawful. After a voir dire examination, the trial judge concluded that the warrant, when interpreted with the affidavit, was sufficient to give the officers "at least color of authority to go upon the premises," that therefore the officers "were upon the premises legally, not as trespassers, and that from observing the gambling in the room or the playing of poker by those located at the first table, that the officers had a right and lawful authority to enter and seize the gambling apparatus in use, that is, the playing cards and the money." Upon these conclusions, the judge denied defendant's motion to suppress and overruled his objections to the testimony of the officers. In this there was error.

At the outset, it should be observed that we are not here concerned with any question of whether a search warrant, though defective, may nevertheless be sufficient "color of authority" to protect the officers atempting to serve it from civil liability or from a charge of criminal trespass. Our Supreme Court has held that if properly served, an arrest warrant, though defective, may still be sufficient to protect the officers from an action for false arrest, Alexander v. Lindsey, 230 N.C. 663, 55 S.E.2d 470, and this Court has held that police officers armed with process, if they are known to be officers or if they properly identify themselves, may not be lawfully resisted, though the writ be defective or irregular in some respect. State v. Wright, 1 N.C. App. 479, 162 S.E.2d 56. Such questions are not here presented. Rather, we are here concerned with the question whether defendant's Fourth Amendment rights, made available to him by Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081, and his statutory rights provided by Chapter 15, Article 4 of the General Statutes of North Carolina, were violated by the trial court's rulings. We hold that they were.

It is elementary that the Fourth Amendment right to be secure against unreasonable searches and seizures "extends to all equally: to those justly accused, as well as to the innocent." State v. Mills, 246 N.C. 237, 98 S.E.2d 329; that an "unlawful search does not become lawful by the discoveries which result from it"; State v. Hall, 264 N.C. 559, 142 S.E.2d 177; and that a search made without a valid search warrant under circumstances requiring a warrant is an unreasonable search within the meaning of the Fourth Amendment. State v. Vestal, 278 N.C. 561, 180 S.E.2d 755.

Defendant in the present case, as the agent of Scruggs, the lessee of the premises, and as a joint venturer with him in operating the gambling establishment thereon, was the person in charge of the premises at the time the search was made. Accordingly, he had sufficient standing to invoke the protection of the Fourth Amendment against an unlawful search of the premises. Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697; Commonwealth v. Rossetti, 349 Mass. 626, 211 N.E.2d 658.

The Fourth Amendment provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized." Essentially the same requirement is made by our statutes relating to search warrants. G.S. § 15-26 provides in part:

"(a) The search warrant must describe with reasonable certainty the person, premises, or other place to be searched and the contraband, instrumentality, or evidence for which the search is to be made"; and

"(b) An affidavit signed under oath or affirmation by the affiant or affiants and indicating the basis for the finding of probable cause must be a part of or attached to the warrant."

The affidavit in the present case would have been sufficient to support a finding of probable cause for issuing a warrant authorizing a search of the premises for gambling equipment. No such warrant was issued and nothing in the affidavit furnished any basis whatever for the finding of probable cause as contained in the warrant which was in fact issued, i. e., a finding of probable cause to believe that the occupants of the premises to be searched possessed thereon intoxicating liquor in violation of law. The record before us makes manifest that the magistrate, by simply signing without reading the paper which the police officer placed before him, utterly failed to perform the important judicial function which it was his duty to perform as a neutral and detached magistrate of making his own independent determination from the affidavit submitted to him as to whether probable cause existed for issuance of the search warrant which he signed. Had he performed his duty, it is inconceivable that the mistake would have occurred. We deal here not with mere clerical error, but with the safeguarding of fundamental constitutional rights which belong to all of us, rights which, in the first instance, it was the magistrate's high duty to defend. He failed to perform that duty. As a result, the search warrant which he signed was not merely technically defective; it was totally invalid since the finding of probable cause which he purported to make was in no way supported by the affidavit or evidence before him.

G.S. § 15-27(a) provides as follows:

"(a) No evidence obtained or facts discovered by means of an illegal search shall be competent as evidence in any trial." (Emphasis added.)

It should be noted that the language of the statute is broad enough to make the exclusionary rule applicable in any trial, not just in a trial for the offense by reason of which the illegal search was initially undertaken. The trial court's rulings in the present case violated this statutory exclusionary rule. They violated as well the Federal constitutional exclusionary rule announced in Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652, and which Mapp v. Ohio, supra, made binding upon the States.

We do not accept the trial judge's reasoning, contained in his order overruling defendant's motion to suppress, that "the officers had a right and lawful authority to enter and seize the gambling apparatus in use," because they could observe gambling in the room after the third door was opened. Such reasoning would tend to wipe out the Fourth Amendment altogether. After all, in almost every case an object will become in plain view once a search reveals its presence, but this fact does not dispense with the need for a valid search warrant if the object came within view of the officers under circumstances otherwise requiring one. The pertinent question in the present case is not what was in plain view of the officers once they were in a position to peer through the opened third doorway. Rather, the pertinent question is as to under what circumstances did the officers arrive at that position. In this case they did so while purporting to act under authority of an invalid search warrant and under circumstances in which a valid warrant was required.

Similarly, the fact that after the third door was opened the officers could then claim to have reasonable ground to believe that a misdemeanor, gambling, was being committed in their presence did not, in our opinion, serve to legalize their original entry or to justify a further intrusion into the premises for the purpose of making arrests. No contention has been made that the officers had any ground to believe that a felony had been or was about to be committed by any occupant of the room so as to make the provisions of G.S. § 15-43 or G.S. § 15-44 here applicable. And in our opinion G.S. § 15-41(1), which authorizes a peace officer to make an arrest without a warrant for a misdemeanor committed in his presence, was never intended to legalize a warrantless entry upon premises which could not otherwise be lawfully entered except under authority of a valid warrant. The crucial question still remains as to how the officers got into such position that they could observe a misdemeanor being committed in their presence.

We hold that the trial court committed prejudicial error in denying defendant's motion to suppress and in overruling defendant's objections to testimony by the officers as to what they saw upon entering the premises which was the subject of their search.

In view of our holding, we need not consider whether the search was illegal for the additional reason, urged by defendant, that, quite apart from any question of validity of the search warrant, entrance to the premises was made in an unlawful manner. We do point out, however, that our Supreme Court has cautioned that even though police officers have a valid search or arrest warrant, absent invitation or permission ordinarily they may not enter a private home unless they first give notice of their authority and purpose and make a demand for entry. State v. Sparrow, 276 N.C. 499, 173 S.E.2d 897. "Compliance with this requirement serves to identify the official status of those seeking admittance. The requirement is for the protection of the officers as well as for the protection of the occupant and the recognition of his constitutional rights." State v. Covington, 273 N.C. 690, 161 S.E.2d 140. While the evidence in the present case was conflicting as to whether the officers knocked before entering the third door and as to when and how clearly they announced their identity as police officers, all of the evidence discloses that the officers took precautions to conceal their presence on the premises until after they had passed through two doorways, that they wore no uniforms and displayed no badges of authority, and that they made no announcement of their identity or purpose until after they had stepped inside the room. Sergeant Treadaway, the first officer to enter the room, testified on cross-examination:

"I knocked lightly on the third door and it opened . . . I stepped back and opened the door around . . . and I walked in at a pretty rapid pace.. . .

"When I reached a point two or three feet beside of the refrigerator I said we were the police . . . I had taken one or two steps inside the room when I announced we were police. . . ."

* * * * * *

"I made no statement regarding a search warrant when I went into the room . . . never mentioned it to anybody . . . never heard anyone else mention it to anybody . . . never heard anyone else mention the words `search warrant' to anybody."

* * * * * *

". . . We had no warrant to arrest anyone. A search warrant authorizes a search for objects. What we really wanted to do, rather than search for objects, was to catch people in the process of violating the law."

To suppress a misdemeanor, the officers invited a felony. One of their own fell victim. Had they but observed the law themselves, in all probability the tragedy would not have occurred.

Appellant also assigns error to the trial court's rulings excluding testimony and exhibits with respect to beatings and injuries inflicted by the police upon the defendant and other occupants of the premises following the shooting. Defendant's counsel initially sought to elicit this testimony on cross-examination of the officers who testified as State's witnesses. "Cross-examination of an opposing witness for the purpose of showing his bias or interest is a substantial legal right, which the trial judge can neither abrogate nor abridge to the prejudice of the cross-examining party." State v. Hart, 239 N.C. 709, 80 S.E.2d 901. The excluded evidence was clearly competent to show the bias of the witnesses against the defendant, and the trial court committed prejudicial error in excluding it in this case. State v. Hart, supra; State v. Sam, 53 N.C. 150.

The trial court refused to permit defendant to testify concerning information he had received prior to the shooting as to robberies of gambling games in the Charlotte area in recent years. This testimony was relevant as bearing upon the reasonableness of defendant's apprehension that a robbery might have been in progress when he saw unidentified armed men walking rapidly into the room. While defendant obtained his information as to the robberies of the other gambling games from third parties, his testimony concerning their statements to him was not offered to prove the truth of their statements but only to show that the statements had been made to him. The exclusionary force of the hearsay rule is not applicable when the extrajudicial statement of a third person is not offered to prove the truth of the utterance, but only to show that the statement was made. In this case the fact that such statements had been made to defendant was independently relevant to defendant's state of mind quite apart from any question of the truth or falsity of the statements. Defendant suffered prejudicial error in the exclusion of this testimony.

Appellant has made other assignments of error, some of which appear to have merit. We do not discuss them, however, since the questions presented may not recur upon a new trial. For the errors noted above, defendant is entitled to a

New trial.

CAMPBELL and MORRIS, JJ., concur.