State v. Steele, No. 7326SC128

No. 7326SC128 | N.C. Ct. App. | May 9, 1973

BROCK, Judge.

Defendant excepts to the trial court’s refusal to suppress the evidence obtained as a result of the search of the premises at 1216 Oaklawn Avenue. Defendant contends that the search warrant was invalid because it was' based on an affidavit by Officer Nesbitt which contained erroneous information, i.e., that defendant had previously been convicted of a narcotics violation.

When this issue was raised at trial a voir dire was conducted. The trial judge found as a fact that the information in Officer Nesbitt’s affidavit concerning defendant’s prior narcotics conviction was error because it was based on erroneous information, and that this error was not known to the officer. However, this error is immaterial because the trial court found that Officer Nesbitt’s affidavit was nevertheless sufficient on its face to support a finding of probable cause for the issuance of the search warrant. See State v. Moye, 12 N.C. App. 178" court="N.C. Ct. App." date_filed="1971-08-18" href="https://app.midpage.ai/document/state-v-moye-1329974?utm_source=webapp" opinion_id="1329974">12 N.C. App. 178, 182 S.E. 2d 814. The search warrant and affidavit are not a part of the record before us. We, therefore, accept the findings of the trial court with respect thereto. This assignment of error is overruled.

Defendant excepts to the trial court’s findings of fact and conclusion of law on voir dire that the police had entered the defendant’s apartment legally, and also to the trial court’s failure to suppress the evidence found as a result of the search following the entry. The court’s findings of fact are binding on this Court if supported by any competent evidence, even though there is evidence to the contrary. Cogdill v. Highway Comm. and Westfeldt v. Highway Comm., 279 N.C. 313, 182 S.E. 2d 373. The trial court conducted a voir dire on this issue and there was competent evidence to support its findings of fact and conclusion of law. Evidence obtained from the legal entry and search of the apartment was properly admissible at trial. This assignment of error is overruled.

Defendant excepts to the introduction into evidence of nine of the ten glassine bags found on defendant. A chemical analysis was made on only one of the glassine bags, and that bag was found to contain heroin. The chemist who conducted the test testified that he made a visual examination of the substance in each glassine bag, but made no chemical analysis of the contents of more than one of the bags. Nevertheless, the ten glassine bags were wrapped together when taken from defendant’s person. They were competent in evidence to show what the search produced and to corroborate the officer’s testimony. The evidence of the contents of the one tested glassine bag was sufficient for a conviction of possession of a quantity of narcotic drugs. This assignment of error is overruled.

No error.

Judges Hedrick and Vaughn concur.