27 N.C. App. 459 | N.C. Ct. App. | 1975
Defendant first attacks various aspects of the search warrant and the subsequent search and seizure. Specifically, defendant contends that (1) the warrant, obtained on the basis of evidence presented in an affidavit, was issued without prob
There is little doubt that the arresting officer’s affidavit to obtain a search warrant sufficiently detailed circumstances which' would enable the magistrate to find probable cause. With considerable particularity and detail, the affidavit described the suitcases in which marijuana was allegedly being transported and indicated that the cases purportedly held in excess of 20 pounds of contraband drugs. The affiant further explained that the subject known as “Tom Williamson” had journeyed to California to make the pickup and was scheduled to return to Fay-etteville on a specific date and at a specific time with the drugs in hánd. Finally, Agent Beard pointed out that the informant had an accurate track record in this area and was considered reliable. In a similar case, North Carolina narcotics officers learned' through a California police officer’s phone call that thé defendants were to fly into Greensboro with a considerable cache of drugs. The California phone caller described the'sus-pécts and their luggage and North Carolina officers reduced this information to writing in their affidavit to obtain a search warrant'. State v. Ellington, 284 N.C. 198, 200 S.E. 2d 177 (1973) . Justice Higgins, speaking for the Court in Ellington, reviewed carefully and critically the information outlined in the affidavit and declared that it furnished “. . . ample information upon which to find that probable cause existed for the search' which the officers made.” Id. at 203. In Ellington, the North Carolina authorities learned of the drug traffic through a California officer’s account, essentially pieced together from West Coast sources and this “third-hand” account formed the basis of the lawful North Carolina search warrant. Here, the North .Carolina officer, swearing out the affidavit against defendant Hansen, learned of the offense directly from his North Cárolina informant. Arguably, this makes the facts in this caee more compelling than the facts in Ellington. Defendant’s con
Defendant also maintains that the arresting officer should have obtained the search warrant prior to defendant’s arrival at the airport in Fayetteville. We again find this contention lacking in merit. Beard testified that he actually did not know of defendant’s impending arrival that evening until he actually walked into the airport terminal to pick up a friend who was visiting Fayetteville. At that point, Beard was simply a citizen waiting for a friend’s arrival. However, upon Beard’s arrival at the terminal, the airline desk personnel advised him that the suspect was in-bound on the same Atlanta flight which carried his friend. Beard recalled during a voir dire that “I thought to myself that if I hadn’t been there picking that person up, and I had been involved with something else on the other side of town, I probably would have missed him [i.e. the defendant]. ... I had expected Williamson on Friday night ever since Wednesday. I had reason to believe ever since Wednesday that he would be carrying two substantial size brown suitcases of contraband. The particular reason why the search warrant was not obtained on the basis of the information available in the Sheriff’s Department was a couple of things; first of all, once you draw one at certain times, you know; they have to be nailed down pretty much. I think the time limit is twenty-four hours. So I would have to have drawn the search warrant sometime Thursday afternoon or sometime Friday morning. My information was that . . . Hansen was supposed to come back Friday night, and to the best of my people’s knowledge, he was supposed to come back Friday night. He never booked a return flight. This was some more information I had. There is no way I could tell, and I just didn’t want to go draw a search warrant and then maybe have the man come in on Saturday morning or Saturday afternoon or whatever.” We believe Beard’s -reaction to the particular events and circumstances then confronting him was reasonable and prudent.
Defendant, moreover, argues that the warrant should have specifically named him as purportedly required by G.S. 15-26. Here the officer primarily was seeking to examine two suitcases and the warrant sufficiently described the luggage pursuant to all statutory requirements. The warrant also entitled the officer to search the “subject unknown to affiant for the property in question.” This description of the defendant is reasonable under
Defendant also avers that the arresting officer failed to deliver a copy of the warrant to defendant as required by G.S. 15-21 and 15-25 (d). Beard testified that he read the warrant to defendant, and we can find no error in such a procedure. State v. McDougald, 18 N.C. App. 407, 408, 197 S.E. 2d 11 (1973); cert. denied 283 N.C. 756, 198 S.E. 2d 726 (1973). Moreover, G.S. 15-21, applicable to the instant case, though repealed effective 1 July 1975, provides that failure to comply with the technical provisions of the statute does not “. . . invalidate the arrest.”
Defendant further insists that his right to notice and due process was violated because the warrant was never filed with the Clerk of Superior Court pursuant to G.S. 15-25 (d). Defendant cites no authority for this contention, and the State candidly admits that it too has failed to find any authority on the subject. However, the State notes correctly, and we so hold, that under G.S. 15-27 (b) “no search may be regarded as illegal solely because of technical deviations in a search warrant from requirements not constitutionally required.” Here the error, if any, was simply technical and does no harm to defendant’s constitutional rights to due process and notice. He simply cannot argue realistically that he did not know of the warrant.
Defendant also argues that the affidavit and warrant were separated from each other in violation of G.S. 15-26 (b).
Defendant’s other major contention is that the trial court, while instructing the jury, erred by bringing to the jury’s attention facts which had not been brought forth during the trial but only were expressed during a voir dire examination of Beard. Specifically, the judge stated to the jury that .Beard had testified:
“[T]hat he had received information at an earlier time that a person known to the informant as Thomas (John) Charles Williamson had been making trips from Fayette-ville to the west coast and back; that Williamson when he went customarily went on Wednesdays, carrying two large brown suitcases which he carried away substantially empty; that he usually returned on Fridays with a substantial quantity of marihuana in the suitcases; that he traveled by air. The informant stated that the man known to him as Thomas (John) Charles Williamson customarily wore his hair to about the height to his shoulders; that he usually dressed in blue jeans with a V-sweater, was moderate to somewhat larger than moderate in size; that he usually wore a turquoise necklace and a turquoise bracelet. Based on this information, Mr. Beard made inquires of Piedmont Airlines as to whether or not a person by the name of Thomas Charles Williamson had a reservation into Fayetteville. He was informed that there was no such reservation at that time, and he asked the Piedmont agent to notify him if he learned of such a reservation.”
The State does not challenge this contention but argues that its impact was harmless. We concur with the State’s position and find no prejudice to the defendant by the trial court’s error. Moreover, defendant has waived the right to contest this error. “ ‘The general rule in this State is that objections to the charge in reviewing the evidence and stating the contentions of the parties must be made before the jury retires to afford the trial judge an opportunity for correction; otherwise they are deemed to have been waived and will hot be considered on appeal.’ ” State v. West, 21 N.C. App. 58, 60, 203 S.E. 2d 86 (1974) ;
Defendant next contends that he was not properly advised of his Miranda and Escobedo rights. The record clearly indicates that defendant was fully advised of his constitutional rights by Beard.
We have considered defendant’s other contentions and find them also to be without merit.
No error.
