State of North Carolina v. Donald Dailey, No. 763SC1007 (N.C. Ct. App. July 6, 1977)

Factual and Procedural Background

On February 7, 1976, officers executed a search warrant at defendant Donald Dailey's apartment (Apartment 1, 607 East Main Street, Havelock, N.C.) and seized a large quantity of marijuana. Dailey was indicted for felonious possession of more than one ounce of marijuana. Prior to arraignment he moved to suppress the evidence obtained by the search; the trial court denied the motion. Defendant pled guilty and appealed from the judgment imposing a prison sentence. The affidavit supporting the warrant, sworn by Sergeant C.R. King the same day, described surveillance by local police and the U.S. Marine Corps CID of a residence at 44 Poplar Drive and of an individual, Orville Roland McCorn, who was under military charges for selling controlled substances. The affidavit recited that McCorn was seen to carry a large brown bag from 44 Poplar Drive into defendant's apartment, later was found with a suitcase containing approximately five pounds of marijuana, and that a search of 44 Poplar Drive produced a large quantity of marijuana.

Legal Issues Presented

Whether the affidavit supporting the search warrant was sufficient to establish probable cause to search defendant's apartment.
Whether the trial court erred in denying defendant's motion to suppress evidence obtained pursuant to that warrant.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. Campbell, 282 N.C. 125, 128-29, 191 S.E.2d 752, 755 (1972)	Definition of probable cause as "a reasonable ground to believe" the objects sought will be found and will aid in apprehension or conviction.	The court invoked Campbell to state the statutory and Fourth Amendment standard for probable cause and to evaluate whether the affidavit met that standard.
State v. Spillars, 280 N.C. 341, 350, 185 S.E.2d 881, 887 (1972)	Probable cause deals in probabilities, not certainties; factual and practical considerations govern.	The court relied on Spillars to justify assessing the affidavit under a probabilities standard rather than requiring certainty.
State v. Vestal, 278 N.C. 561, 180 S.E.2d 755 (1971)	A valid search warrant may be issued on an affidavit based on hearsay; the affidavit must show underlying circumstances supporting the informer's conclusions and credibility.	The court used Vestal to permit consideration of hearsay in the affidavit while requiring that the affidavit supply underlying circumstances showing reliability.
United States v. Ventresca, 380 U.S. 102, 13 L.Ed.2d 684, 85 S.Ct. 741 (1965)	An affidavit may be based on information reported by other officers and should be interpreted in a "commonsense and realistic fashion."	The court applied Ventresca to allow reliance on information from other officers and to direct a commonsense reading of the affidavit's factual allegations.
State v. Harvey, 281 N.C. 1, 187 S.E.2d 706 (1972)	Authority cited for principles about affidavits and reliance on other officers' information (as part of the Ventresca line).	Referenced alongside Ventresca and Vestal to support the proposition that an affiant may rely on other officers' reports when presenting probable cause.
State v. Banks, 250 N.C. 728, 110 S.E.2d 322 (1959)	Authority cited for the proposition that affidavits may rely on reports from other officers and informers under appropriate circumstances.	Used as supporting authority for permitting hearsay and officer-to-officer information in the affidavit.
State v. Spencer, 281 N.C. 121, 187 S.E.2d 779 (1972)	Provided as a case illustrative of probable-cause determinations supporting issuance of warrants.	The court cited Spencer as a precedent consistent with holding that the affidavit here supplied probable cause.
State v. Oldfield, 29 N.C. App. 131, 223 S.E.2d 573 (1976)	Another appellate decision cited as consistent authority on probable-cause and warrant sufficiency issues.	The court cited Oldfield as additional support for concluding the affidavit established probable cause.

Court's Reasoning and Analysis

The court framed the sole question as whether the affidavit sufficiently supported the magistrate's finding of probable cause for the search warrant. It noted statutory and Fourth Amendment standards, citing G.S. 15A-244 and -245 and State v. Campbell for the definition of probable cause, and emphasized that probable cause is a matter of practical probability (State v. Spillars).

The court reviewed Sergeant King's affidavit and identified the operative factual assertions: surveillance of the Poplar Drive residence and of Orville Roland McCorn (who was under military charges for selling controlled substances); observation on February 7, 1976 of McCorn leaving 44 Poplar Drive with a large brown bag and delivering it to defendant's apartment; McCorn's subsequent return to 44 Poplar Drive with a large suitcase; McCorn's being stopped and searched by CID agents, yielding approximately five pounds of marijuana; and a subsequent search of 44 Poplar Drive that produced a large quantity of marijuana. The affidavit also contained the CID agents' attestation that the bag delivered to the apartment was the same bag observed earlier.

Applying the cited principles (including that affidavits may be based on hearsay and on information from other officers per Vestal and Ventresca, and that affidavits should be read in a commonsense manner per Ventresca), the court concluded these facts supplied reasonable grounds to believe the brown bag brought into the apartment contained marijuana and that a search on the same day would likely reveal marijuana in the apartment. Thus, the affidavit supported the magistrate's finding of probable cause.

Holding and Implications

AFFIRMED.

Holding: The trial court did not err in denying defendant's motion to suppress; the affidavit provided sufficient probable cause for issuance of the search warrant, and the evidence seized was therefore properly admissible.

Implications: The direct effect is that the judgment imposing sentence was affirmed and the suppression motion was properly denied. The opinion applies existing precedents to resolve the sufficiency of the affidavit; it does not announce any new legal principle beyond applying those authorities to the facts of this case.

Show full summary ...

STATE OF NORTH CAROLINA v. DONALD DAILEY

Searches and Seizures 3 — search warrant — sufficiency of underlying affidavit Facts stated in an affidavit supported the magistrate's finding of probable cause that marijuana was in defendant's apartment where those facts tended to show that officers had a named house and a named individual under surveillance; at the time the affidavit was made, the individual was under military charges for two separate offenses of selling controlled substances, the individual who was under surveillance went into the house which was under surveillance, came out with a paper bag, and entered defendant's apartment with the bag; the individual returned to the house and came out with a suitcase; the individual was stopped and searched; the suitcase was full of marijuana; and the house was searched and revealed a large quantity of marijuana.

On 7 February 1976 officers of the Havelock Police Department, acting pursuant to a search warrant obtained that day, searched defendant's apartment and seized a large quantity of marijuana. As a result, defendant was indicted for felonious possession of more than one ounce of marijuana. Prior to arraignment, defendant moved to suppress the evidence obtained as result of the search. The motion was denied. Defendant then pled guilty and, from judgment imposing a prison sentence, appealed.

PARKER, Judge.

The sole question presented is whether the court erred in denying defendant's motion to suppress the evidence obtained by the search of his premises made pursuant to a search warrant. Appellate review of this question is authorized by G.S. 15A-979(b).

Defendant contends that the affidavit on which the warrant was issued is insufficient to support the magistrate's finding of probable cause. We do not agree.

The affidavit was made by Sergeant C.R. King of the Havelock Police Department and was sworn to on 7 February 1976. The affidavit named the property sought, marijuana, and described with particularity the premises to be searched, Apartment number 1, 607 East Main Street, Havelock, N.C., rented in the name of Donald Dailey. To establish probable cause for issuance of the warrant, Sergeant King swore to the following facts:

"After receiving information from several confidential sources known to be reliable survelliance (sic) was established by both this department and the Criminal Investigation Department of the Provost Marshall's Office of USMC, Cherry Point, North Carolina. The residence located at 44 Poplar Drive in the Slocum Housing area. Additionally survilleance (sic) had been conducted on the personal movements of one Orville Roland McCorn, black male, who is presently under military charges for two separate offenses of selling controlled substances. On this date, 2-7-76, subject McCorn was seen to enter the residence at 44 Poplar Drive and leave with a large brown bag. Subject McCorn delivered this bag to Apartment 1, 607 East Main Street, Havelock, North Carolina. Subject McCorn then proceeded back to 44 Poplar Drive and again left with a large suitcase. Subject was stopped and apprehended by CID agents on a military charge stemming from a previous sell of marijuana. Since subject vehicle was stopped in government housing military authorization was obtained for a search which resulted in confiscation of approximately 5 pounds of marijuana. Military authorization was then obtained for a search by CID agents of the quarters at 44 Poplar Drive. Results of this search was the confiscation of a large quantity of marijuana. CID agents who were survelling (sic) the movement of McCorn attest to the fact that the large bag brought from 44 Poplar Drive was the same bag which was taken into Apartment 1, 607 East Main Street, Havelock, North Carolina."

Probable cause, as that expression is used in the Fourth Amendment and in our statutes, G.S. 15A-244 and 245, "means a reasonable ground to believe that the proposed search will reveal the presence upon the premises to be searched of the objects sought and that those objects will aid in the apprehension or conviction of the offender." State v. Campbell, 282 N.C. 125, 128-29, 191 S.E.2d 752, 755 (1972). Probable cause does not deal in certainties but deals rather in probabilities "which are factual and practical considerations of everyday life upon which reasonable and prudent men may act." State v. Spillars, 280 N.C. 341, 350, 185 S.E.2d 881, 887 (1972). Moreover, a valid search warrant may be issued on the basis of an affidavit setting forth information which may not be competent as evidence in a criminal trial. State v. Vestal, 278 N.C. 561, 180 S.E.2d 755 (1971). Thus, "[t]he affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant; but the affidavit in such case must contain some of the underlying circumstances from which the affiant's informer concluded that the articles sought were where the informer claimed they were, and some of the underlying circumstances from which the affiant concluded that the informer, whose identity need not be disclosed, was credible and his information reliable." State v. Campbell, supra at 129. In this connection, 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. United States v. Ventresca, 380 U.S. 102, 13 L.Ed.2d 684, 85 S.Ct. 741 (1965); State v. Harvey, 281 N.C. 1, 187 S.E.2d 706 (1972); State v. Vestal, supra; State v. Banks, 250 N.C. 728, 110 S.E.2d 322 (1959).

Testing the affidavit in the present case by these well established principles, and interpreting it in a "commonsense and realistic fashion" as we are enjoined to do in United States v. Ventresca, supra, we find it sets forth the following facts: Officers of the Havelock Police Department and of the Criminal Investigation Department of the Provost Marshall's Office of the United States Marine Corps at Cherry Point placed a residence at 44 Poplar Drive under surveillance. They also placed under surveillance a man named McCorn, who, at the time the affidavit was made, was under military charges for two separate offenses of selling controlled substances. On 7 February 1976, the same date the affidavit was sworn to and the warrant was issued, McCorn was seen to enter the residence at 44 Poplar Drive and leave with a large brown bag, which he delivered to defendant's apartment. McCorn then returned to 44 Poplar Drive and again left with a large suitcase. He was then stopped and arrested by the military officers on charges resulting from the previous sales of marijuana. Search by the military officers of McCorn's vehicle and of the residence at 44 Poplar Drive resulted in the finding of a large quantity of marijuana both in the vehicle and at the residence.

In our opinion reasonable men, knowing these facts, would find it highly probable that the large brown bag, which McCorn was seen to carry from 44 Poplar Drive into defendant's apartment, contained marijuana. These facts supplied reasonable cause to believe that a search of defendant's apartment, made on the same day the bag was delivered into it, would reveal the presence in the apartment of marijuana. Accordingly, we hold that the facts stated in the affidavit support the magistrate's finding of probable cause. See State v. Spencer, 281 N.C. 121, 187 S.E.2d 779 (1972); see also State v. Oldfield, 29 N.C. App. 131, 223 S.E.2d 573 (1976).

Defendant's motion to suppress the evidence was properly denied. The judgment appealed from is

Affirmed.

Judges BRITT and MARTIN concur.

STATE v. DAILEY