The defendant was convicted by a jury of rape, burglary and armed robbery. He was sentenced by the Superior Court of Chatham County to life in prison for the rape and to concurrent terms of twenty years each for the burglary and the armed robbery.
While the victim’s father and mother were in Hawaii, the victim had a girlfriend spend the night with her. Upon retiring on the evening of June 23,1975, the victim locked not only the house but also the bedroom door. Early on
The defendant took money from the victim, made her undress and tied her hands to the bed. He then went in search of more money. While he was gone, the victim freed one hand and was able to unload the gun (which had been left on the bed) and kick the bullets under the bed. Upon his return, the defendant raped the victim. She noted an area of acne or rash on his neck. Taking the keys to the victim’s car, the defendant left.
When the police arrived they found pry marks on a window, a bedroom door with its latch broken, and four .32 caliber bullets. The victim described her assailant and stated that he was wearing a short sleeve blue shirt and dark pants.
A cashier at a nearby convenience store identified the defendant as the man with acne under his chin who entered his store about 2 a.m. on June 24 wearing a light blue shirt and dark pants. At a lineup on June 24, the victim identified the defendant as her assailant.
1. The defendant contends that a search warrant was issued without probable cause and that a box of .32 caliber bullets andTtems of clothing obtained as a consequence should have been suppressed by the trial judge. On the day of the crimes an affidavit of a police officer was submitted to the magistrate with the request for a search warrant. The affidavit gave ample facts to show probable cause that the crimes had occurred and that the items (a .32 pistol and prying tool) were instruments of the crimes. In addition the affidavit stated that at 2:15 a.m., a time shortly after the completion of the crimes, the defendant was in the vicinity of a home where the crimes occurred. The affidavit also stated that two witnesses, one of whom is the defendant’s brother-in-law, reported being called by defendant, that the two picked up the defendant at a convenience store in the vicinity of the home shortly after 2:15 a.m., and that the defendant had then admitted that he was in some trouble. The record reveals that the issuing magistrate also was informed that the defendant had been arrested and that the victim
The affidavit stated that it is "presumed” that the pistol is in the suspect’s possession at his house or in his car parked at his house. Defendant does not argue that there was not a sufficient showing that an offense had been committed or that the items sought were connected with it. Defendant does argue that there was not any showing that the pistol would be found at his house. He points out that the officer who made the affidavit to obtain the warrant was unable to aver that the defendant ever returned to his house after the crimes were committed. He urges that the Fourth Amendment requires that the affidavit state facts which lead to the belief that the property sought to be obtained from the search is on the premises to be searched.
Basic to the reasonableness of a search under the Fourth Amendment is the finding of probable cause. There is some authority that the probable cause finding must be based on more than the conclusion that a crime was committed and that the items sought are connected with the crime. Authorities indicate that the magistrate must also have a sufficient reason to believe that the items will be found in the place to be searched. United States v. Old Dominion Warehouse, Inc., 10 F2d 736, 738 (2d Cir. 1926); People v. Wright,
Under certain circumstances it is reasonable for a police officer to infer that items will be found in a specific place. In United States v. Old Dominion Warehouse, Inc., supra, at 738, a search warrant for illegal whiskey was challenged because it did not show that the barrels had been left at the warehouse. The affiant stated that he saw a truck loaded with 10 or 12 barrels drive into the warehouse. Judge Learned Hand stated that the officer’s inference that the barrels were left at the warehouse was reasonable. "A warehouse is for the storage of goods, and men ordinarily bring things there to leave them. It is perhaps possible that the truck went there to add to its load; but we may take notice that a dozen barrels is in
There is a considerable difference between a suspicion or belief that narcotics are located a certain place (Aguilar v. Texas,
In the case before us the magistrate was informed that the defendant was seen in the vicinity of the victim’s home at 2:15 in the morning, that the victim had identified the defendant in a lineup, that a pistol and a prying tool were used in connection with the crimes and that the defendant’s home was within the city. From these facts it was reasonable to infer or "presume” that the defendant at that time of morning would go to his home taking the pistol and prying tool with him and that he would then leave the items there.
We hold that the search warrant at issue this case was not made defective by the officer’s candor in stating that it was "presumed” that the pistol was at the defendant’s house or a car parked there. There was probable cause for issuance of the warrant and the trial court did not err in overruling the motion to suppress the evidence.
2. The defendant alleges error in the denial by the trial court of his motion for a directed verdict as to the burglary because of a purported failure by the state to prove ownership of the premises and to prove an unauthorized entry. "Ownership,” as that term is used in property law, is not an essential ingredient to proving that the premises entered were "the dwelling house of another” within the meaning of our burglary law, Code Ann. § 26-1601.
Trice v. State,
Here the testimony was that the residence was rightfully occupied by the victim on the night of the crimes as her dwelling place,
see Ashton v. State,
Defendant contends that the evidence did not show that the burglary was of the "dwelling of R.L.M.” as charged in the indictment, and that failure to prove this allegation by certified deeds is a fatal variance. Without intimating that the fatal variance contention has validity
(see Dobbs v. State,
The owner, R.L.M., did not testify. The defendant contends that the state failed to prove that the dwelling was entered "without authority” of the owner. The state proved that the dwelling was entered without authority of the victim, the lawful occupant. This was sufficient to allow the case to go to the jury for decision, where the defendant did not offer to show that entry was made with the authority of the owner. Hall v. State, supra.
3. Defendant contends the trial court erred in allowing expert testimony of test results concerning four vaginal swabs. Defendant alleges that the prosecution did not establish to a reasonable certainty that no substitution or altering of the swabs occurred. There was
Judgment affirmed.