State v. English

219 S.E.2d 549 (1975)

27 N.C. App. 545

STATE of North Carolina v. Donald Ray ENGLISH.

No. 7526SC609.

Court of Appeals of North Carolina.

November 19, 1975.

*550 Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. James L. Blackburn, Raleigh, for the State.

Elam & Stroud, by William H. Elam, Charlotte, for defendant-appellant.

*551 BRITT, Judge.

All of defendant's assignments of error relate to his contention that the affidavit upon which the search warrant was issued is defective for the reason that it does not set forth sufficiently detailed underlying circumstances. The contention has no merit.

The affidavit provides as follows:

"J. A. Bailey, Patrolman, Charlotte-Mecklenburg Vice Control Bureau being duly sworn and examined under oath, says under oath that he has reliable information and reasonable cause to believe that Donald English has on his premises/on his person controlled substances, to wit: Methamphetamine in violation of the North Carolina law. These illegally possessed controlled substances are located on the premises/on the person described as follows: two story brick building at 4419 Tuckaseegee Rd. Room 428 Days Inn, Charlotte, N. C. The facts which establish reasonable grounds for issuance of a search warrant are as follows: I have received reliable information from a reliable and confidential informer who states that a white male known to him as Don English has Methamphetamine at his room in the Days Inn at 4419 Tuckaseegee Rd. I have known this informer for approximately 2 years. He has furnished information which led to the arrest and conviction of David Norman Bridges for possession of barbiturates, Marijuana, and tylenol with Codine. Bridges was arrested 27 January 1973. He also gave information which led to the arrest and conviction of James David Redmon for possession of Marijuana. Redmon was arrested 6 May 1973. "This informer states that he has been with this Don English within the past 24 hours and has seen him in possession of Methamphetamine. This informer states that he knows what methamphetamine is and in fact says he has used it in the past."

Defendant concedes that the description of premises proposed to be searched is sufficiently set forth in the affidavit and that it contains sufficient information to substantiate the reliability of the confidential informant as far as barbiturates, marijuana, and tylenol are concerned. However, he argues that the affidavit does not contain sufficient facts from which the magistrate could reasonably conclude that the controlled substance for which the search warrant was issued would be found on the premises.

It is now well settled that a search warrant will not be issued except upon a finding of probable cause. State and federal decisions require the issuing magistrate to have before him circumstances which raise a reasonable ground to believe that the proposed search will reveal the presence of the objects sought upon the premises to be searched and that such objects will aid in the apprehension or conviction of the offender. State v. Campbell, 282 N.C. 125, 191 S.E.2d 752 (1972); State v. Vestal, 278 N.C. 561, 180 S.E.2d 755 (1971). The sufficiency of affidavits supporting search warrants has been discussed in several recent decisions: See State v. Edwards, 286 N.C. 162, 209 S.E.2d 758 (1974), and cases therein cited.

In Edwards, the Supreme Court pointed out, among other things, that probable cause cannot be shown by affidavits which are purely conclusory and do not set forth any of the underlying circumstances upon which that conclusion is based. The court held insufficient an affidavit by an informant stating that "there is non tax paid whiskey at above location at this time" for the reason that the informant did not state the basis for his conclusion.

In the case at hand, the informant provided the basis for his conclusionthat he had been with defendant "within the past 24 hours" and had seen him in possession of Methamphetamine. While the search of defendant and his motel room did not reveal the specific controlled substance stated in the affidavit, the search did reveal *552 other controlled substances and contraband, including a needle and syringe laced with an amphetamine residue. Defendant does not cite, and our research fails to disclose, any authority that would render the contraband found inadmissible when the search warrant and the supporting affidavit are legally sufficient.

We hold that the affidavit was sufficient to support the search warrant, that the search of defendant's motel room was legal, and that the admission of evidence with respect to contraband found in the room was proper. All of defendant's assignments of error are overruled.

No error.

VAUGHN and ARNOLD, JJ., concur.