Opinion
No. COA02-1018
Filed 18 February 2003 This case not for publication.
Appeal by defendant from judgment entered 16 January 2002 by Judge Richard D. Boner in Lincoln County Superior Court. Heard in the Court of Appeals 20 January 2003.
Attorney General Roy Cooper, by Assistant Attorney General Tina A. Krasner, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Anne M. Gomez, for defendant-appellant.
Lincoln County No. 01 CRS 1913.
Daniel Jeffrey Gillespie ("defendant") was convicted of assault with a deadly weapon with intent to kill inflicting serious injury and was sentenced to a minimum term of 90 months and a maximum term of 117 months. He was also convicted of attempted robbery with a dangerous weapon and was sentenced to a minimum term of 72 months and a maximum term of 96 months.
I. Background
The State presented evidence tending to show that at approximately 2:48 a.m. on 10 April 2001, William Foster was delivering produce to the Carolina Restaurant and Motel in Lincolnton when a man, whom Foster identified as defendant, approached him and asked him whether he had any money. Foster responded that he did. Defendant drew a nine-millimeter pistol. Foster turned and ran. Defendant shot Foster in the back.
Foster described his assailant to Dean Abernathy, a Lieutenant with the Lincolnton Police Department, as a tall black male having a thin build and wearing a toboggan. Lt. Abernathy obtained a warrant on 11 April 2001 to search defendant's residence at 209 Newbold Street. In executing the warrant, Lt. Abernathy and other officers found a nine millimeter automatic weapon in a bedroom of the residence. Ballistics testing disclosed that the pistol fired the bullet which struck the victim. The officers also found a dark blue toboggan cap.
Defendant's great aunt testified that defendant lived with her at 209 Newbold Street, that defendant was in his room at the time she went to bed at approximately 10:30 to 11:00 p.m. on 9 April 2001, and that she did not hear defendant leave the residence during the night of 9 April 2001 or early morning of 10 April 2001. She did not know how the gun came into her bedroom.
In the application for the warrant, Lt. Abernathy stated that at approximately 10:00 p.m. on 10 April 2001 he received information from a confidential and reliable informant that at approximately 3:00 a.m. on 10 April 2001 the informant heard a gunshot in the area of Newbold Street, which runs behind the Carolina Restaurant. The informant also saw defendant run from the direction of the Carolina Restaurant and enter his residence at 209 Newbold Street. In his motion to suppress, defendant contended that the application did not supply sufficient and accurate information upon which a finding of probable cause could be made. He also contended that the application did not contain underlying facts and circumstances showing this particular informant was credible and information received from this informant was reliable.
At the hearing on the motion to suppress, Lt. Abernathy testified that at approximately 10:00 p.m. on 10 April 2001, Officer DeVonda Friday of the Lincolnton Police Department reported to him that a person who lived in the vicinity of the Carolina Restaurant told her that he heard a gunshot while he was standing in his yard at approximately 2:00 a.m. on the morning of 10 April 2001. This person also told her that he saw defendant, Doneal Gillespie, run from the woods and into a side door of defendant's residence. This person further stated that later in the day, he observed defendant holding a gun and bragging about the "shooting."
Officer Friday testified during the voir dire hearing that Tony Friday, a relative by marriage, contacted her and told her he heard a gunshot while he was standing in his yard on Newbold Street and then he saw someone running through the woods. Tony Friday, also referred to as "Thomas," testified that he lived at 207 Newbold Street next door to defendant and that he was outside watering flowers at or about the time of the shooting but that he did not hear any gunshot or see defendant. He also denied making statements to Officer Friday that he had heard a gunshot and seen defendant run into his residence.
The court found as facts, inter alia, that although some of the allegations contained in the affidavit were contradicted by evidence presented at the voir dire hearing, there was no evidence that Lt. Abernathy acted in bad faith in making the allegations. The court also found that information purportedly obtained from the informant was consistent with and corroborated by other evidence in the following respects: (1) the victim told investigating officers that he was shot at the Carolina Restaurant approximately 2:45 a.m. on 10 April 2001 while the informant indicated that he heard a gunshot in the vicinity of Newbold Street behind the Carolina Restaurant at approximately 3:00 a.m. on that date; (2) the victim told the officers that his assailant fled on foot while the informant stated he saw defendant run from the direction of the Carolina Restaurant and into his house; and (3) the victim told the officers that he had been shot by a nine millimeter or .45 caliber pistol while the informant stated he saw defendant brandishing a nine millimeter pistol and heard him bragging about shooting a man at the Carolina Restaurant. Based upon these findings, the court concluded that the affidavit supported a finding of probable cause for issuance of a search warrant. The court denied the motion to suppress.
II. Issue
The question before us is whether the trial court committed reversible error by denying defendant's motion to dismiss.
III. Affidavit
Defendant contends that the motion to suppress should have been allowed because the affidavit in support of the application contained false and misleading statements and omitted material information. He argues the affidavit was false and misleading because it gave the impression that the informant had given reliable information to the officer in the past and had personally given the present information to the officer when in fact the informant had not given the officer any information at any time. He argues the affidavit omitted material information by failing to state that the informant had never previously given him any information.
In reviewing the issuance of a search warrant, the court determines "whether there is substantial evidence in the record supporting the magistrate's decision to issue the warrant." Massachusetts v. Upton, 466 U.S. 727, 728, 80 L.Ed.2d 721, 724 (1984). An application for a search warrant in this state must contain a statement that there is probable cause to believe items subject to seizure may be found on the premises to be searched and allegations of fact supporting the statement. N.C. Gen. Stat. § 15A-244 (2001). The determination of whether there is probable cause is "[a] nontechnical, common-sense judgment of laymen applying a standard less demanding than those used in more formal legal proceedings." Illinois v. Gates, 462 U.S. 213, 235-36, 76 L.Ed.2d 527, 546 (1983). Great deference is to be given the magistrate's determination of probable cause. State v. Greene, 324 N.C. 1, 9, 376 S.E.2d 430, 436 (1989), vacated and remanded on other grounds, 494 U.S. 1022, 108 L.Ed.2d 603 (1990) (citations omitted).
In State v. Arrington, 311 N.C. 633, 319 S.E.2d 254 (1984), North Carolina adopted the "totality of the circumstances" standard in determining the existence of probable cause when the application for the search warrant contains information provided by an informant.
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 a crime will be found in a particular place.
Id. at 638, 319 S.E.2d at 257-58. Accordingly, when the affidavit is based on hearsay information, it must state the circumstances supporting the informant's reliability and the basis for the informant's belief that a search will find the items sought. State v. Crawford, 104 N.C. App. 591, 596, 410 S.E.2d 499, 501 (1991).
In accordance with the above principles, the United States Supreme Court held in Franks v. Delaware, 438 U.S. 154, 171-72, 57 L.Ed.2d 667, 682 (1978) that a facially valid search warrant could be challenged by a showing that the affidavit contains intentionally or recklessly false statements and that the affidavit is insufficient to support a finding of probable cause when purged of the false statements. The affidavit may also be challenged if it contains omissions that are designed to mislead or made in reckless disregard of their tendency to mislead. United States v. Colkley, 899 F.2d 297, 301 (4th Cir. 1990). Nonetheless, a successful challenge "is not established merely by evidence that contradicts assertions contained in the affidavit, or even that shows the affidavit contains false statements. Rather, the evidence must establish facts from which the finder of fact might conclude that the affiant alleged the facts in bad faith." State v. Fernandez, 346 N.C. 1, 14, 484 S.E.2d 350, 358 (1997).
After reviewing the record, we are unable to find evidence to support a conclusion that Lt. Abernathy stated false or misleading facts in bad faith. Lt. Abernathy received the information from another officer, who had received the information from a relative by marriage. The applicant for a search warrant may rely upon information provided to him by other police officers in the performance of their duties. State v. Horner, 310 N.C. 274, 280, 311 S.E.2d 281, 286 (1984) (citations omitted). The information provided to Lt. Abernathy was consistent with the statement given by the victim and other information that had been discovered during the course of the investigation.
IV. Conclusion
We affirm the court's findings and its decision to deny the motion to suppress. We find no error.
No error.
Judges TIMMONS-GOODSON and BRYANT concur.
Report per Rule 30(e).