State v. Harris

213 S.E.2d 414 (1975)

25 N.C. App. 404

STATE of North Carolina v. Ceatrice HARRIS et al.

No. 7515SC5.

Court of Appeals of North Carolina.

April 16, 1975.

Appeal Dismissed June 26, 1975.

*415 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Walter E. Ricks, III, Raleigh, for the State.

Pearson, Malone, Johnson, DeJarmon & Spaulding by C. C. Malone, Jr., and W. G. Pearson, II, Durham, for defendants.

Appeal Dismissed by Supreme Court June 26, 1975.

CLARK, Judge.

After the jury had been empaneled but before any evidence had been introduced, the defendants made a motion to suppress all evidence seized at the Northampton Plaza. A voir dire was conducted in the absence of the jury. At the voir dire, Officer Tripp testified and on cross-examination was asked questions relating to the two prior convictions to which the informer's information had presumably led. These questions were asked with the obvious hope of impeaching the affiant with regard to his statements concerning the previous reliability of the informer. Objections to these questions were sustained, and defendants excepted.

*416 The initial application for a search warrant, required by G.S. § 15-26(b) to be in the form of an affidavit, is submitted to a magistrate. The affidavit alone, or the affidavit and supplementary sworn testimony, must allege underlying circumstances from which (1) the informant concluded the thing sought was where he claimed it was, and (2) from which the affiant concluded the informant was credible or his information reliable. Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964). The magistrate must be neutral and detached. Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971). In making his determination of probable cause the magistrate "must judge for himself the persuasiveness of the facts relied on by a complaining officer." Giordenello v. United States, 357 U.S. 480, 78 S. Ct. 1245, 2 L. Ed. 2d 1503, 1509 (1958). His determination should be paid great respect by a reviewing court. Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969). In making the determination the magistrate considers and passes upon the alleged circumstances, the credibility of the informant and the credibility of the affiant. The policy of the Fourth Amendment to protect against unreasonable searches and seizures is adequately served by those standards. To permit a defendant to challenge the truth or accuracy of the factual averments of the affidavit, or the credibility of the informant or the affiant, would open at trial an issue or issues, theretofore judicially determined, collateral to that of guilt or innocence.

We adopt the majority rule that where the search warrant is valid on its face, and the sworn allegations are sufficient to establish probable cause, the defendant may not dispute and attack the allegations, or the credibility of the affiant or his informant, in the voir dire hearing on the defendant's motion to suppress the evidence seized by law officers pursuant to the search warrant. State v. Salem, 17 N.C. App. 269, 193 S.E.2d 755 (1973), cert. denied, 283 N.C. 259, 195 S.E.2d 692 (1973). See also Annot., 5 A.L.R.2d 394 (1949).

In other decisions this court has used obiter language which is at variance with the majority view. We refer specifically to such language in State v. Wooten, 20 N.C. App. 139, 201 S.E.2d 89 (1973) and State v. Logan, 18 N.C.App. 557, 197 S.E.2d 238 (1973), and we disapprove this language insofar as it indicates that a defendant may attack the allegations of the search warrant, or the credibility of the affiant or informer; but we approve the language in both cases to the effect that if the facts set out in the affidavit are sufficient within themselves to justify the finding of probable cause, the affidavit is a sufficient showing on voir dire.

This rule of law should not be so broadly interpreted as to infer that under no circumstances can a defendant attack the validity of a search warrant which is valid on its face, or valid when the affidavit is adequately supported by a sworn statement. For example, one ground for attacking its validity is that the magistrate failed to properly perform a judicial function in finding probable cause, as in State v. Miller, 16 N.C.App. 1, 190 S.E.2d 888 (1972), modified, 282 N.C. 633, 194 S.E.2d 353 (1973), where the magistrate issued the search warrant without reading it.

The defendant Carl Harris was convicted on both charges of possession and possession with intent to manufacture and sell. In the case of State v. Aiken, 286 N.C. 202, 206, 209 S.E.2d 763, 766 (1974), the court said, "[P]ossession is an element of possession with intent to deliver and the unauthorized possession is, of necessity, an offense included within the charge that the defendant did unlawfully possess with intent to deliver." The crime of possession being a lesser included offense and an element of the crime of possession with intent to manufacture and sell, we find error in submitting the case to the jury on both charges. We reverse the conviction of Carl Harris below with regard to the charges of *417 possession and affirm the conviction of possession with intent to manufacture and sell.

Affirmed in part.

Reversed in part.

PARKER and HEDRICK, JJ., concur.

BROCK, Chief Judge, also concurs as follows:

I concur in the disapproval of the obiter language of State v. Logan, 18 N.C.App. 557, 558, 197 S.E.2d 238, 240 (1973), and State v. Wooten, 20 N.C.App. 139, 141, 201 S.E.2d 89, 90 (1973).