State v. Smith, 124 NC App 565 (95-1003) 12/03/1996 Link to original WordPerfect file

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19H

State v. Smith

No. COA95-1003

(Filed 3 December 1996)

1.    Searches and Seizures §§ 118, 85 (NCI4th)-- anticipatory search warrants -- requirements

    The trial court erred in a prosecution for conspiracy to traffic in cocaine and trafficking in cocaine by denying defendant's motion to suppress evidence obtained through an anticipatory search warrant. Although anticipatory warrants are constitutionally permissible under both the North Carolina and federal constitutions, this warrant is defective under the North Carolina Constitution because the ultimate locus of the contraband could have been anywhere; there were no conditions governing execution of the warrant, so that the investigators rather than the issuing judge totally controlled the events giving rise to probable cause; the warrant was overly broad in that it did not ensure that the cocaine was on a sure course to the enumerated premises; and the warrant draws no nexus between the criminal activity, the circumstances of the intended seizure, and the premises. Anticipatory warrants must set out on their face explicit, clear, and narrowly drawn triggering events which must occur before execution may take place; those triggering events must be ascertainable and preordained (meaning that the property is on a sure and irreversible course to its destination); and no search may occur unless and until the property does in fact arrive at that destination. N.C. Const. art. I, § 20.

     Am Jur 2d, Searches and Seizures § 119.

2.    Searches and Seizures § 1 (NCI4th)-- invalid warrant -- North Carolina Constitution -- no good faith exception

    Under North Carolina's Constitution, no good faith exception exists which might "save" the fruits of a search made pursuant to an invalidated warrant. Even if this case were decided on federal Fourth Amendment grounds, the good faith exception would not apply; where, as here, the State knew the plot, carefully developing the controlled drug delivery from start to finish, there is no excuse for not making the full script of events fully known to the magistrate through the affidavits presented to justify the warrant.

     Am Jur 2d, Searches and Seizures § 3.

     State constitutional requirements as to exclusion of evidence unlawfully seized--post-Leon cases. 19 ALR5th 470.

3.    Searches and Seizures § 28 (NCI4th)-- controlled drug sale - - no exigent circumstances

    No exigent circumstances were argued, nor should have been, in a prosecution for conspiracy and trafficking in cocaine, given that investigators exercised near absolute control over the contraband, conducted extensive human and electronic surveillance over the transaction, and received constant reports from an informant.

     Am Jur 2d, Searches and Seizures § 76.

NO. COA95-1003

NORTH CAROLINA COURT OF APPEALS

Filed: 3 December 1996

STATE OF NORTH CAROLINA

v.

BOBBY LEE SMITH

         Appeal by defendant from orders entered 27 January 1994 and 14 April 1994 by Judge Robert L. Farmer in Wake County Superior Court, and judgments entered 30 September 1994 by Judge Donald W. Stephens in Wake County Superior Court. Heard in the Court of Appeals 14 May 1996.

    Attorney General Michael F. Easley, by Special Deputy Attorney     General John H. Watters, for the State.