Thе defendant was indicted, tried and convicted of the crime of illegal possession of narcotics and has appealed.
Defendant first assigns as error the denial of his motion for an acquittal made at the completion of the state’s case. The motion was based upon a claim that there was insufficient evidence that defendant had personal possession of narcotics found in the home of defendant and his wife when it was searched by police officers pursuant to a search warrant. The home contained one bedroom. A bag of marijuana and seven рackages of cigarette papers were found in it in a drеsser drawer. In the heating duct of the same room there were аlso found 11 bags and a brick of marijuana. After the receipt of the above evidence in the state’s case in chief and the denial of defendant’s motion, defendant testified that he had never sоld marijuana. On rebuttal an informer testified that on two *289 occasiоns not long prior to the search, he had purchased marijuana from defendant at defendant’s home.
If a defendant elects not to stand on a motion for a judgment of acquittal because of insufficient evidence which is made at the completion of the state’s case in chief, the court may consider the entire record in determining the sufficiency of the evidence.
State v. Gardner,
The remaining assignment of error is based upon thе contention that the information in the affidavit which was used to secure the search warrant was tainted by electronic eavesdropping in violation of the Fourth and Fifth Amendments to the Federal Constitution. The affidavit of the officer recited that a reliable infоrmer told him that he had twice recently made purchases of marijuana at defendant’s home; that immediately previous to the last reported purchase the officer had taken the informеr to defendant’s home and had searched him and found no marijuanа; that the officer thereafter had observed the informer go onto the porch of the home and had picked bim up near there a short time later and received from bim two marijuana cigаrettes. During the trial it was admitted by the police that at the time the informer made the second purchase they secreted a miсrophone and transmitter upon the informer’s person and listened to and recorded defendant’s conversation with the informer. Thе information secured via the recording and earphones was not disclosed in the affidavit upon which the magistrate issued the warrant. The application for the warrant was based upon the wоrd *290 of the informer and the informer’s possession of marijuana aftеr his last visit to defendant’s home as previously recited.
We do not have to decide whether defendant is correct in his contention that the police’s electronic' eavesdropping and recording of his conversation with the informer in his home was a violаtion of his Fourth Amendment right of privacy and his Fifth Amendment freedom from self-incrimination. Defendant’s position must fail because the information thus gained was not used to secure the magistrate’s authority to search.
The judgment of the trial court is affirmed.