State v. Witherspoon

429 S.E.2d 783 (1993)

110 N.C. App. 413

STATE of North Carolina v. Charles Nathan WITHERSPOON, Jr.

No. 9226SC279.

Court of Appeals of North Carolina.

June 1, 1993.

*784 Atty. Gen. Lacy H. Thornburg by Associate Atty. Gen. Ronnie E. Rowell, Raleigh, for the State.

Goodman, Carr, Nixon & Laughrun by Theo X. Nixon, Charlotte, for defendant-appellant.

EAGLES, Judge.

Defendant brings forward three assignments of error. In his first two assignments of error, defendant contends that there was a lack of probable cause to support the magistrate's issuance of the search warrant because of the "insufficiency of reliable information provided by a 'concerned citizen'" and because of the "staleness of [the] information". In his last assignment of error, defendant argues that the trial court erred by failing to suppress the evidence "after applying a 'totality of circumstances' test to the information provided to the magistrate." After a careful review of the record, briefs, and transcript, we affirm.

In determining under the federal and state constitutions whether probable cause exists for the issuance of a search warrant, our Supreme Court has provided that the "totality of the circumstances" test enunciated in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983) is to be applied. State v. Arrington, 311 N.C. 633, 319 S.E.2d 254 (1984).

The totality of the circumstances test may be described as follows: The task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for ... conclud[ing]" that probable cause existed. Arrington, 311 N.C. at 638, 319 S.E.2d at 257-58 (quoting Illinois v. Gates, 462 U.S. 213, 238-39 [103 S.Ct. 2317-2332], 76 L. Ed. 2d 527, 548 [1983]). Under this test the question is whether the evidence as a whole provides a substantial basis for concluding that probable cause exists.

State v. Beam, 325 N.C. 217, 221, 381 S.E.2d 327, 329 (1989). See State v. Riggs, 328 N.C. 213, 218-19, 400 S.E.2d 429, 432-33 (1991).

Our inquiry commences with an examination of the reliability of the information presented in the 30 May 1991 affidavit.

In showing that information is reliable for purposes of obtaining a search warrant, the State is not limited to certain narrowly defined categories or quantities of information. What is popularly termed a 'track record' is only one method by which a confidential source of information can be shown to be reliable for purposes of establishing probable cause.

Riggs, 328 N.C. at 219, 400 S.E.2d at 433.

Here, the magistrate was presented a sworn affidavit signed by Officer Kolbay and Officer Hester. Their affidavit stated that Officer Sikes had been told by a concerned citizen that 100 marijuana plants were growing under a lighting system with automatic timers in the crawl space of defendant's home. "The police officer making the affidavit may do so in reliance upon information reported to him by other officers in the performance of their duties." *786 State v. Vestal, 278 N.C. 561, 576, 180 S.E.2d 755, 765 (1971) (citation omitted). The officers' affidavit reflected that the informant's information was based on the informant's personal observations and on the informant's "numerous" conversations with defendant concerning the cultivation of these marijuana plants. "Concerning the reliability of the informant's informationGates teaches that 'even if we entertain some doubt as to an informant's motives, his explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed firsthand, entitles his tip to greater weight than might otherwise be the case.' Gates [462 U.S.] at 234, 103 S. Ct. at 2330, 76 L. Ed. 2d at 545." State v. Barnhardt, 92 N.C.App. 94, 97, 373 S.E.2d 461, 463, disc. review denied, 323 N.C. 626, 374 S.E.2d 593 (1988).

Furthermore, the reliability of the informant is shown by the officers' sworn affidavit, which reflects that the informant told Officer Sikes that he (the informant) had used marijuana, thus admitting his (the informant's) possession and use of a controlled substance in the past. "Statements against penal interest carry their own indicia of credibility sufficient to support a finding of probable cause to search." Beam, 325 N.C. at 221, 381 S.E.2d at 330 (citing Arrington, 311 N.C. at 642, 319 S.E.2d at 260). In addition to his prior use of marijuana, the informant also stated that he had seen the cultivation of marijuana plants in the past. Barnhardt, 92 N.C.App. at 98, 373 S.E.2d at 463. Finally, the officers' investigation revealed that the informant correctly told Officer Sikes that defendant had been arrested on a prior occasion. Based upon our review of the information, supra, provided to the magistrate, we conclude that this information was sufficiently reliable.

Next, our inquiry turns to defendant's contention that the evidence was "stale" because the affidavit stated that the reliable informant had observed the marijuana plants growing "within the last 30 days." In State v. Lindsey, 58 N.C.App. 564, 565-66, 293 S.E.2d 833, 834 (1982), this Court stated that

[t]he test for "staleness" of information on which a search warrant is based is whether the facts indicate that probable cause exists at the time the warrant is issued. Sgro v. United States, 287 U.S. 206, 77 L. Ed. 260, 53 S. Ct. 138 (1932); State v. King, 44 N.C.App. 31, 259 S.E.2d 919 (1979). Common sense must be used in determining the degree of evaporation of probable cause. State v. Louchheim, 296 N.C. 314, 250 S.E.2d 630 (1979), cert. denied, 444 U.S. 836 [100 S. Ct. 71, 62 L. Ed. 2d 47] (1979). "The likelihood that the evidence sought is still in place is a function not simply of watch and calendar but of variables that do not punch a clock...." Andresen v. Maryland, 24 Md.App. 128, 172, 331 A.2d 78, 106, cert. denied, 274 Md. 725 (1975), aff'd, 427 U.S. 463, 49 L. Ed. 2d 627, 96 S. Ct. 2737 (1976).

Our Supreme Court has stated that a number of variables are to be considered in determining whether probable cause still exists at the time a search warrant is issued, including inter alia the items to be seized and the character of the crime. Louchheim, 296 N.C. at 323, 250 S.E.2d at 636. If the marijuana was being grown for defendant's personal consumption, it is unlikely that he would consume such a large quantity within 30 days. Accordingly, at least a portion of it would likely remain in his home 30 days later when this search warrant was issued. Likewise, if the marijuana was being grown in defendant's home for purposes of sale, then the informant's statements indicate that defendant was engaged in the ongoing criminal activity of selling marijuana. Beam, 325 N.C. at 222, 381 S.E.2d at 330. Compare State v. Newcomb, 84 N.C.App. 92, 95, 351 S.E.2d 565, 567 (1987) (suppressing evidence arising from warrant where the officer's "affidavitcontain[ed] a mere naked assertion that the informant at some time saw a'room full of marijuana' growing in defendant's house" [emphasis added]). See Barnhardt, 92 N.C.App. at 98, 373 S.E.2d at 463 (discussing Newcomb). Furthermore, the officers' affidavit stated that defendant was suspected of growing marijuana using a "light system with automatic *787 timers." Hence, from the presence of a lighting system and timers, objects requiring installation and not subject to ready mobility, the magistrate could reasonably infer that the evidence would likely remain in defendant's home 30 days later.

One may properly infer that equipment acquired to accomplish the crime and records of the criminal activity will be kept for some period of time. When the evidence sought is of an ongoing criminal business of a necessarily long-term nature, such as marijuana growing, rather than that of a completed act, greater lapses of time are permitted if the evidence in the affidavit shows the probable existence of the activity at an earlier time.

U.S. v. Greany, 929 F.2d 523, 525 (9th Cir.1991) (citations omitted). See State v. Louchheim, 296 N.C. at 322-23, 250 S.E.2d at 635-36 (discussing probable cause in context of an ongoing business). We note that we find the information here not to be stale because the information concerned the informant's observation (within 30 days) of the cultivation of marijuana plants, the growth cycle of which lasts approximately 3 to 4 months according to the testimony presented at the suppression hearing. We further note that this factual situation differs substantially from an informant's observation of harvested or processed marijuana in a non-cultivation factual situation. Compare Lindsey, 58 N.C.App. at 567, 293 S.E.2d at 835 (non-cultivation case holding information stale where the police seized four ounces of marijuana stored in "plastic bags" from defendant's residence based upon "information concerning residential possession" received by the officer one year prior to the issuance of the warrant). We conclude that "there was a substantial basis for the magistrate to conclude that there was a fair probability that marijuana would be found at defendant's residence on the date the warrant was issued." Beam, 325 N.C. at 222, 381 S.E.2d at 330.

Accordingly, after having examined the reliability and timeliness of the information, we conclude that the evidence as a whole provided the magistrate a substantial basis for concluding that probable cause existed at the time the search warrant was issued. Beam, 325 N.C. at 221, 381 S.E.2d at 329.

"No more is required." Rugendorf v. United States, 376 U.S. 528, 533, 11 L. Ed. 2d 887, 891, 84 S. Ct. 825, 828 (1964). See also Andresen v. Maryland, 427 U.S. 463, 49 L. Ed. 2d 627, 96 S. Ct. 2737 (1976). Moreover, reviewing courts are to pay deference to judicial determinations of probable cause, Aguilar v. Texas, 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509 (1964), and "the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants." United States v. Ventresca, supra [380 U.S. 102] at 109, 13 L.Ed.2d [684] at 689, 85 S.Ct. [741] at 746 [ (1965) ].

Louchheim, 296 N.C. at 324, 250 S.E.2d at 636-37.

Finally, we conclude that, even assuming arguendo the information which served as the basis for the warrant was insufficient, the good faith exception to the exclusionary rule is applicable here. In State v. Welch, 316 N.C. 578, 588, 342 S.E.2d 789, 794-95 (1986), our Supreme Court stated:

In United States v. Leon, 468 U.S. 897 [104 S. Ct. 3405], 82 L. Ed. 2d 677 (1984), the Supreme Court carved out a good faith exception to the exclusionary rule stating that it should not apply when officers acted in objectively reasonable reliance on a warrant issued by a detached and neutral magistrate but subsequently found invalid. In Leon a search was conducted pursuant to a search warrant that was later determined to lack probable cause. In upholding the search, the Supreme Court stated that the exclusionary rule "operates as a 'judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the person aggrieved.'" 468 U.S. at 906 [104 S. Ct. at 3412], 82 L. Ed. 2d at 687. The exclusionary rule was designed to deter police misconduct, not a judge's errors. "Penalizing the officer for the magistrate's *788 error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations." 468 U.S. at 921 [104 S. Ct. at 3419], 82 L. Ed. 2d at 697. The Supreme Court concluded in Leon that the "suppression of evidence obtained pursuant to a warrant should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule." 468 U.S. at 918 [104 S. Ct. at 3418], 82 L. Ed. 2d at 695. Since the officer in Leon reasonably relied on a warrant issued by a detached and neutral magistrate, the Supreme Court concluded that the exclusionary rule should not be applied and that the evidence obtained pursuant to that warrant should be admissible.

Here, the officers reasonably relied on the search warrant that was issued by a "detached and neutral magistrate" and took every reasonable step to comport with the fourth amendment requirements. Welch, 316 N.C. at 589, 342 S.E.2d at 795. Accordingly, we find no error.

No error.

MARTIN and JOHN, JJ., concur.