State v. Langdon

380 S.E.2d 388 (1989)

STATE of North Carolina v. Vanna Elizabeth LANGDON.

No. 8818SC1064.

Court of Appeals of North Carolina.

June 20, 1989.

*389 Atty. Gen. Thornburg by Asst. Atty. Gen. Grayson G. Kelley, Raleigh, for the State.

McNairy, Clifford, Clendenin and Parks by Locke T. Clifford, Greensboro, for defendant-appellant.

EAGLES, Judge.

Defendant's first argument is that the trial court abused its discretion in summarily dismissing her first motion to suppress. Defendant's second argument is that the trial court erroneously denied her second motion to suppress. We find no prejudicial error.

A defendant who seeks to suppress evidence must comply with the procedural requirements of G.S. 15A-971, et seq. See State v. Satterfield, 300 N.C. 621, 624, 268 S.E.2d 510, 513 (1980). Our General Assembly may impose reasonable prerequisites on motions to suppress evidence, and the failure to meet those requirements constitutes a waiver of the right to challenge the admission of the evidence at trial on constitutional grounds. See State v. Detter, 298 N.C. 604, 616, 260 S.E.2d 567, 577 (1979). G.S. 15A-977(a) states that a motion to suppress evidence made before trial "must be accompanied by an affidavit containing facts supporting the motion. The affidavit may be based upon personal knowledge, or upon information and belief, if the source of the information and the basis for the belief are stated." G.S. 15A-977(c) provides that "[t]he judge may summarily *390 deny the motion to suppress evidence if: ... (2) The affidavit does not as a matter of law support the ground alleged." The decision to deny summarily a motion that is not accompanied by an affidavit is vested in the discretion of the trial court. See State v. Harris, 71 N.C.App. 141, 321 S.E.2d 480 (1984).

Defendant's first motion to suppress merely states that the "warrant was illegally issued because it does not show probable cause" and that "the information contained in the warrant was stale at the time the warrant was issued." This initial motion was unverified and not accompanied by an affidavit as required by statute. Because the motion as filed did not comply with the requirements of G.S. 15A-977, the motion was subject to being summarily denied. See State v. Holloway, 311 N.C. 573, 319 S.E.2d 261 (1984). We cannot say the trial court abused its discretion in denying defendant's initial motion to suppress.

Defendant's second motion to suppress was filed on the day defendant's case was calendared for trial, but prior to jury selection. This motion to suppress was timely. See G.S. 15A-976, and official commentary ("This Article does not define when a trial `begins,' but it is clear that the motion must be made before the jury is empaneled, as that is when jeopardy attaches."). Unlike the first motion, this motion was accompanied by an affidavit. Because defendant's second motion contained an additional allegation for suppression, the trial court erred in denying the motion on the premise that one trial court cannot overrule another in the same case. The additional allegation had not been presented to the trial court when it considered the first motion. However, defendant was not prejudiced by this error because the court could have summarily denied the motion under G.S. 15A-977(c), i.e., "[t]he affidavit does not as a matter of law support the ground alleged." See State v. Holloway, supra. The second motion to suppress alleges additionally that the application for search warrant and its attached affidavit "contained false information, the falsity of which was or should have been known to the applicants." G.S. 15A-978(a) provides that

[a] defendant, may contest the validity of a search warrant and the admissibility of evidence obtained thereunder by contesting the truthfulness of the testimony showing probable cause for its issuance.... For the purposes of this section, truthful testimony is testimony which reports in good faith the circumstances relied on to establish probable cause.

As this court has stated, G.S. 15A-978(a) permits a defendant to challenge only whether the affiant acted in good faith in including the information used to establish probable cause. State v. Kramer, 45 N.C. App. 291, 294, 262 S.E.2d 693, 694, cert. denied, 300 N.C. 200, 269 S.E.2d 627 (1980). The statute does not permit a defendant to attack the factual accuracy of the information relied upon to establish probable cause. Id. Although defendant's second motion to suppress questions the applicant's good faith, her affidavit in support of the motion merely attempted to point out factual inaccuracies in the officers' application for search warrant. Defendant's affidavit contains no facts to support her allegations of bad faith. Because defendant's affidavit failed to support the additional allegation contained in her motion, the motion was subject to being denied under G.S. 15A-977(c).

For the reasons stated, the judgment of the trial court is affirmed.

HEDRICK, C.J., and WELLS, J., concur.