68 N.C. App. 671 | N.C. Ct. App. | 1984
The defendant’s first assignment of error is to the admission into evidence of the two shotguns found in the search of the premises at 320 Price Street. Assuming the defendant had standing to challenge the legality of the search, we hold this assignment of error is without merit. In Illinois v. Gates, — U.S. —, ---, 103 S.Ct. 2317, 2332, 76 L.Ed. 2d 527, 548, reh’g denied, --- U.S. ---, 104 S.Ct. 33, 77 L.Ed. 2d 1453 (1983), the United States Supreme Court formulated a new test to judge the proper issuance of a search warrant. The Court said:
“The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circum*674 stances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for . . . concludpng]’ that probable cause existed. (Citations omitted.)”
Whether we apply this test or the two-pronged test of Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed. 2d 637 (1969), we cannot hold the magistrate was in error in issuing the search warrant. The affidavit of Detective Stone stated he had received information from an informant who had previously given him information leading to five or more convictions. This established the reliability of the informant. He stated the informant told him he had heard the defendant and another person discussing the robbery and had seen at 320 Price Street the weapons used in the robbery. We believe the magistrate could conclude from this that there was probable cause that the defendant and his companion had told the informant about the robbery and showed him the guns used in it. We believe it establishes the fact that the informant spoke with personal knowledge. This satisfies the second prong of Spinelli. We also believe the magistrate could rely on the veracity and basis of knowledge of the informant to reach a common sense conclusion that there was a fair probability that the shotguns were evidence of a crime and they were located at 320 Price Street. We believe we must hold that the magistrate had a substantial basis for concluding that probable cause existed.
In his second assignment of error, the defendant argues his confession should have been excluded. He says this is so because (1) he made the confession while he was under illegal arrest and (2) the confession was involuntary. As to his claim that he was under illegal arrest, he contends the officers had no right to arrest him without an arrest warrant. G.S. 15A-401(b)(2)(a) provides:
Offense Out of Presence of Officer. — An officer may arrest without a warrant any person who the officer has probable cause to believe:
a. Has committed a felony ....
When the officers went to 320 Price Street, they knew that an informant had told one of them that he had heard defendant discuss
The defendant argues the confession was involuntary because he is a black man who was arrested by four white police officers, handcuffed and taken to police headquarters where he was alone in the interrogation room with Detective Klomparens when he was interrogated. The officers testified that no threats were made to the defendant and that he signed a written waiver of his rights before confessing. The defendant testified that he was threatened before he confessed. The court found facts based on the officers’ testimony and we are bound by these findings of fact. The fact that the officers are white and the defendant is black and the fact that only one officer may have been in the interrogation room with the defendant does not make the confession involuntary. The defendant’s second assignment of error is overruled.
The defendant argues under his third assignment of error that his motion to dismiss at the close of the evidence and his motion for appropriate relief should have been allowed. This argument is based on the premise that the confession was erroneously admitted and that it was error to admit the shotguns into evidence. This assignment of error is overruled.
The defendant’s last assignment of error is to the sentence imposed. He argues that his codefendant Ricky Goldston who was tried two months previously was more culpable in committing the robbery than was the defendant, that the court found the same aggravating factor as to each defendant, and found a mitigating factor for the defendánt which it did not find for Ricky Goldston. The defendant received a sentence of 25 years and Ricky Goldston received a sentence of 17 years. The defendant argues that this disparity in sentencing amounts to an abuse of discretion by the court. The defendant’s sentence was within the statutory maximum. We do not believe the factors cited by the defendant show an abuse of discretion by the court. See State v. Harris, 27 N.C. App. 385, 219 S.E. 2d 306 (1975).
No error.
