State v. Stinson , 39 N.C. App. 313 ( 1979 )

CLARK, Judge.

The sole question for determination by this Court is whether the trial court erred in ruling that the search warrant was invalid because the sworn affidavit did not provide the magistrate with facts and details sufficient to establish probable cause. If invalid, the Exclusionary Rule was properly invoked by the trial court to exclude as evidence at trial the fruits of the search.

The Exclusionary Rule was established in Weeks v. United States, 232 U.S. 383, 58 L.Ed. 652, 34 S.Ct. 341 (1914), as applicable to federal law enforcement officials and was made binding on the states in Mapp v. Ohio, 367 U.S. 643, 6 L.Ed. 2d 1081, 81 S.Ct. 1684 (1961). The Rule is a court-established remedy primarily for violation of the Fourth Amendment guarantee against “unreasonable searches and seizures” and is designed to remedy police misconduct.

The Rule has been subjected to periodic criticism. Chief Justice Burger in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 29 L.Ed. 2d 619, 91 S.Ct. 1999 (1971), in a dissenting opinion (403 U.S. at 411-24) severely criticized the use of the Rule, stating that “there is no empirical evidence to support the claim that the rule actually deters illegal conduct of law enforcement officials,” (403 U.S. at 416) and he felt that it should be replaced by a more effective deterrent. This dissent has had a narrowing tendency. The Court has been very careful to balance the deterrent effect of the Rule’s use against the cost to government and society of losing the use of probative evidence where the Rule’s application is attempted in those situations other than on initial criminal trial. In United States v. Calandra, 414 U.S. 338, 38 L.Ed. 2d 561, 94 S.Ct. 613 (1974), the court decided that a grand jury witness could not refuse to answer questions on the grounds that they were based on evidence obtained from an unlawful search and seizure. In United States v. Janis, 428 U.S. 433, 49 L.Ed. 2d 1046, 96 S.Ct. 3021 (1976), it was held that the Rule should not be extended to forbid the use in civil proceedings by one sovereign of evidence seized by a criminal law enforcement agent of another sovereign. In Stone v. Powell, 428 U.S. 465, 49 L.Ed. 2d 1067, 96 S.Ct. 3037 (1976), the court held that where the state has provided an opportunity for the full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained through unconstitutional means was introduced at trial.

Notwithstanding judicial misgivings about the effectiveness of the Rule and the denial of its application in peripheral proceedings, the use of the Rule in criminal proceedings remains as one of the fundamental safeguards against the infringement of the Bill of Rights in the American criminal law system.

A search warrant should not issue except upon probable cause — facts and circumstances sufficient to warrant a man of reasonable caution to believe that seizable objects are located at the place to be searched. 11 Strong’s N.C. Index 3d, Searches and Seizures, § 20; G.S. 15A-244.

In the case sub judice, the affiant was L. R. Snider, Vice Investigator, Charlotte Police Department, who in his application for issuance of the search warrant relied on his personal observation of circumstances on the day before and the day of the issuance of the search warrant. The affiant also relied on information from a “reliable informant.”

Where the affiant relies heavily on an informant’s tip the two-prong test of Aguilar v. Texas, 378 U.S. 108, 12 L.Ed. 2d 723, 84 S.Ct. 1509 (1964) and Spinelli v. United States, 393 U.S. 410, 21 L.Ed. 2d 637, 89 S.Ct. 584 (1969), must be met. The first prong of the test is that the affidavit must state sufficient underlying circumstances to permit a neutral and detached magistrate to understand how the informant reached his conclusion. The purpose of the first prong is to check the method by which the informant gathered the information, or, in the absence of a statement dealing with the method, to describe the accused’s criminal activity in sufficient detail that the magistrate may know that the information is reasonably reliable. The second prong of the test is that the affidavit must state sufficient underlying circumstances establishing the reliability or credibility of the informant. See, United States v. Harris, 403 U.S. 573, 29 L.Ed. 2d 723, 91 S.Ct. 2075 (1971), where factors considered in determining reliability of the informant included his declaration against his penal interest, the personal interview of the informant by the agent who judged him to be prudent, and the affiant’s prior personal knowledge of the accused.

In the case before us, the affidavit does not disclose the method by which the informant gathered the information, but the informant did describe the defendant’s criminal activity, ie., his picking up lottery tickets from writing houses and his switching vehicles often. Is this sufficient underlying circumstance to meet the first prong of the test? The affiant knew the informant and considered him reliable, and the informant had given him information which led to the arrest of Emanuel Brown for violation of the state lottery laws. Is this sufficient underlying information of reliability to satisfy the second prong of the test? We do not find it necessary to answer these two questions because, clearly, the affiant did not rely heavily on this hearsay information, and the magistrate’s finding of probable cause could not have been based primarily on the hearsay.

We find that the facts and circumstances recited by the affiant which were based on his personal observation of the defendant on the day before and the day of the search were more detailed and more reliable than the informant’s tip. On 14 February 1978, Officer Snider, an experienced vice investigator, observed defendant drive his vehicle to the designated place, go inside the building, stand at an adding machine and tally some white paper slips which he believed' to be lottery tickets. On the following day he observed the defendant’s vehicle and someone who resembled the defendant at the same place four minutes before the officer arrested the Clarks for violation of lottery laws and seized lottery tickets and money. Officer Snider had knowledge of defendant’s prior arrest record and reputation for lottery law violations. We conclude that there was sufficient data contained in the application to justify a finding of probable cause by the magistrate and his issuance of the search warrant. This data was based on the personal observation of the affiant and supported by information from a confidential informant, even though the informant’s tip may not have been sufficient in itself to justify a finding of probable cause by the magistrate. In Jones v. United States, 362 U.S. 257, 4 L.Ed. 2d 697, 80 S.Ct. 725 (1960), it was held that the finding of probable cause may be based upon hearsay evidence in whole or in part.

Many cases decided by both the North Carolina Supreme Court and Court of Appeals support the Jones decision. We do not consider it necessary to list these cases, but reference is made to the cases compiled in 11 Strong’s N.C. Index 3d, Searches and Seizures, §§ 19-31.

We do not agree with the conclusion of the trial court that the application does no more than suggest vaguely suspicious circumstances. It is noted that at the conclusion of the trial the judge ruled that the motion to quash was allowed on the grounds that the warrant on its face did not establish probable cause, and that “the defendant could have been arrested on the spot without a search warrant and his car searched at that time if the defendant was dealing in lottery tickets.” It appears that the trial judge concluded that there was probable cause for the arrest of the defendant, and a search of his person and car, when he was on the premises at the time the Clarks were arrested. If so, the statement in the application that defendant was present on the premises at the time of this arrest should be given great weight in determining that there was probable cause for the issuance of the search warrant.

This order appealed from is vacated and this cause remanded for proceedings consistent with this decision.

Vacated and remanded.

Judges Mitchell and Webb concur.