79 N.C. App. 666 | N.C. Ct. App. | 1986
Lead Opinion
Each of the defendants assigns error to the denial of his motions to suppress evidence seized pursuant to a search of the house. Each of the defendants made two motions to suppress. At a hearing on their first motions the court considered only the application for the search warrant in determining whether there was probable cause to issue the warrant. The appellants contend the affidavit of Mr. Call was not sufficient to support a finding of probable cause. The United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed. 2d 527 (1983) held that in issuing a search warrant:
The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying*672 hearsay information, there is a fair probability that contraband or evidence of crime will be found in a particular place. And the duty of the reviewing court is simply to ensure that the magistrate had a “substantial basis for . . . concluding]” that probable cause existed.
Id. at 238, 103 S.Ct. at 2332, 76 L.Ed. 2d at 548.
In this case the affidavit shows that the officer had been to an area of Wilkes County and observed a field of growing marijuana. He stated he had observed persons coming out of a house near the field. We believe that the magistrate had a substantial basis for concluding there was a fair probability that marijuana was in the house.
The appellants argue that the affidavit does not contain any information from which anyone could reasonably relate the dwelling to be searched to the field of marijuana. We believe that the magistrate could conclude there is a fair probability that a house near a marijuana field in rural Wilkes County is related to the field. We hold that the court did not err in finding the application was sufficient for the magistrate to find there was a fair probability that marijuana was in the house.
The appellants also contend in their first assignment of error that the court erred in not allowing their second motions to suppress. Evidence was received in the form of testimony from Mr. Call at the hearing on the defendants’ second motions to suppress. The court did not make findings of fact but denied each defendant’s motion. The defendants argue it was error for the court not to make findings of fact. Our Supreme Court has held it is not reversible error to fail to make findings of fact before admitting evidence after a hearing on a motion to suppress if there is not a material conflict in the evidence on voir dire. State v. Phillips, 300 N.C. 678, 268 S.E. 2d 452 (1980). The appellants argue that there was a conflict in the evidence in this case because Mr. Call’s testimony differed from the statements in his affidavit. For this reason they say it was error for the court not to find facts. We do not believe there was a conflict between the affidavit and Mr. Call’s testimony. Mr. Call supplied in more detail in his testimony the facts which he set forth in the affidavit. He testified that the marijuana was 1,410 feet from the house. We do not believe this is inconsistent with his characterization of the house
Each of the defendants contends that the statements made by them before they were warned of their rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966) should have been suppressed because they had not been warned of their rights and because they had been unlawfully arrested. An officer may briefly detain a person if he can point to specific and articulable facts which justify a conclusion that a crime has probably been committed. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 2d 889 (1968). He may then “ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions.” Berkemer v. McCarty, 468 U.S. —, —, 104 S.Ct. 3138, 3150, 82 L.Ed. 2d 317, 334 (1984). We believe that in this case the officers could point to specific and articulable facts which justified their belief that a crime had been committed. They had a map which showed a marijuana field close by and the map in all other respects was accurate. The house from which the officers had reason to believe the defendants had just left was as shown on the map. The officers had the right to detain the defendants while Mr. Call checked to see if the marijuana field was where the map indicated it would be and the officers could ask the questions which were asked. This assignment of error is overruled.
The defendants assign error to the admission of evidence that their fingerprints were found on objects in the house. They base this argument on the premise that the search of the house was illegal. We have held it was a proper search. This assignment of error is overruled.
The defendants next assign error to the failure of the court to give their requested jury instructions that as to each defendant his silence was not to be construed as evidence that his fingerprints could only have been impressed at the time the crime
The defendants next assign error to the admission of testimony by Mr. Call and by Nick Nixon, a deputy sheriff, regarding their opinions as to the weight of the marijuana. The defendants contend neither of the witnesses was qualified as an expert in “weight” and their testimony was hearsay because they gave the result of what was shown on a scale. We are bound by State v. Singleton, 33 N.C. App. 390, 235 S.E. 2d 77 (1977), to overrule this assignment of error.
The defendants next assign error to the court’s charge that if the jury found that either of the defendants was in close proximity to the marijuana that would be a circumstance together with other circumstances from which the jury could infer the defendants were aware of the presence of marijuana and had the power and intent to control its disposition or use. The defendants contend this was error because the jury was not told what other kinds of circumstances could be considered and that it allowed the jury to convict both defendants if they found one of them was in close proximity to the marijuana. There was no objection to this portion of the charge and it is not properly before us for review. North Carolina Rules of Appellate Procedure, Rule 10(b)(2). We do not believe it was error. We believe the other circumstances to be considered by the jury were amply stated in other parts of the charge. In the instructions on acting in concert we believe the court properly explained how the jury should consider evidence that one of the defendants was in proximity to the marijuana. This assignment of error is overruled.
The defendants next assign error to the court’s overruling their motions to quash the bills of indictment. They argue that State v. Sanderson, 60 N.C. App. 604, 300 S.E. 2d 9, disc. rev.
The defendants next assign error to the court’s overruling their motions to dismiss. The case was tried on the theory that the defendants had constructive possession of the marijuana. If a person has the intent and capability to maintain control and dominion over personal property he has constructive possession of it. State v. Spencer, 281 N.C. 121, 187 S.E. 2d 779 (1972). The evidence shows in this case that both defendants were found at the house and their fingerprints were found on items within the house. Moore had in his possession a key that fit the gate and the door to the house. Moore’s truck was present on the premises and the truck contained twine identical to the twine used to tie the marijuana plants to the stakes and to twine found within the house. Transeau admitted he looked after the place. We hold that from this evidence the jury could find each of the defendants had constructive possession of the marijuana. We do not believe State v. Minor, 290 N.C. 68, 224 S.E. 2d 180 (1976), relied on by the defendants, is applicable. In that case there was no evidence linking the defendant to the marijuana other than the fact that he had been a visitor to an abandoned house located 100 feet from a marijuana field.
Both defendants assign error to the court’s overruling their motions to dismiss on the ground that G.S. 90-95(h) is unconstitutional. Both of them concede that this Court in State v. Willis, 61 N.C. App. 23, 300 S.E. 2d 420, modified and affirmed, 309 N.C. 451, 306 S.E. 2d 779 (1983) and State v. Porter, 65 N.C. App. 13, 308 S.E. 2d 767 (1983), cert. den., 310 N.C. 155, 311 S.E. 2d 195 (1984) has upheld the constitutionality of this statute. They ask us to reconsider this question. This we decline to do.
The defendant Transeau assigns error to the court’s charging on acting in concert. He argues that at most the evidence shows that he was present at the house but that there was no evidence that he was present when Moore did some act which constituted the crime. There was evidence that both defendants were in the house in which there was a large quantity of marijuana. We believe the jury could conclude from this that the two defendants acted together to possess the marijuana. This supports a charge on acting in concert. See State v. Joyner, 297 N.C. 349, 255 S.E. 2d 390 (1979). This assignment of error is overruled.
The defendant Transeau also assigns error to the admission of evidence as to the marijuana growing in the field. We hold that when the State offered evidence that there was a large quantity of marijuana in the house and there was a field of marijuana 1,400 feet down a path from the house the jury could conclude that the defendants controlled the field and were bringing marijuana from the field to the house. State v. Wiggins, 33 N.C. App. 291, 235 S.E. 2d 265, cert. denied, 293 N.C. 592, 241 S.E. 2d 513 (1977), is not applicable. In that case no marijuana was found in the house. This assignment of error is overruled.
The defendant Moore assigns error to the denial of his motion to suppress evidence as to the keys seized from his person and the twine taken from the truck. He bases his argument under this assignment of error on the premise that his arrest was unlawful and he was not properly advised pursuant to Miranda. We have held that his arrest was lawful and his Miranda rights were not violated. This assignment of error is overruled.
Concurrence Opinion
concurring in the result.
Before a magistrate may issue a valid warrant to search a particular residence, there must be “probable cause” to believe that evidence of a crime will be discovered in that particular dwelling. Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed. 2d 930 (1967). In my opinion, the deputy sheriffs affidavit supporting his application for the warrant was insufficient to show probable cause to believe marijuana was in the house; therefore, I do not agree with the majority’s analysis of the validity of the search.
In his affidavit, Deputy Call described the information he had received from his confidential source and stated that he had seen the marijuana field. However, the only statement concerning the house was that Deputy Call had “observed subjects in the and coming out of the . . . residence near the marijuana field.” He did not identify the “subjects” or in any way connect them with the marijuana field. The affidavit is void of any information about marijuana in the house. The officers saw no marijuana or drug paraphernalia in the house and the suspects had no traces of marijuana on them. The mere fact that the house is “near” the field does not sufficiently connect the house to the field to establish probable cause to believe that there will be marijuana in the house. See Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed. 2d 1503 (1958).
However, in light of the recent decision in United States v. Leon, — U.S. ---, 104 S.Ct. 3405, 82 L.Ed. 2d 677 (1984), the marijuana found in the house was still admissible even though the search warrant was invalid. In Leon, the Supreme Court held that
. . . the Fourth Amendment exclusionary rule should be modified so as not to bar the use in the prosecution’s case-in-chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neu*678 tral magistrate but ultimately found to be unsupported by probable cause.
Id. at —, 104 S.Ct. at 3407, 82 L.Ed. 2d at 684.
For the foregoing reasons, I concur in the result.