Appeal by defendant from judgment entered 16 January 2002 by
Judge Richard D. Boner in Lincoln County Superior Court. Heard in
the Court of Appeals 20 January 2003.
Attorney General Roy Cooper, by Assistant Attorney General
Tina A. Krasner, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Anne M. Gomez, for defendant-appellant.
TYSON, Judge.
Daniel Jeffrey Gillespie (“defendant”) was convicted of
assault with a deadly weapon with intent to kill inflicting serious
injury and was sentenced to a minimum term of 90 months and a
maximum term of 117 months. He was also convicted of attempted
robbery with a dangerous weapon and was sentenced to a minimum term
of 72 months and a maximum term of 96 months.
I. Background
The State presented evidence tending to show that at
approximately 2:48 a.m. on 10 April 2001, William Foster was
delivering produce to the Carolina Restaurant and Motel in
Lincolnton when a man, whom Foster identified as defendant,
approached him and asked him whether he had any money. Fosterresponded that he did. Defendant drew a nine-millimeter pistol.
Foster turned and ran. Defendant shot Foster in the back.
Foster described his assailant to Dean Abernathy, a Lieutenant
with the Lincolnton Police Department, as a tall black male having
a thin build and wearing a toboggan. Lt. Abernathy obtained a
warrant on 11 April 2001 to search defendant's residence at 209
Newbold Street. In executing the warrant, Lt. Abernathy and other
officers found a nine millimeter automatic weapon in a bedroom of
the residence. Ballistics testing disclosed that the pistol fired
the bullet which struck the victim. The officers also found a dark
blue toboggan cap.
Defendant's great aunt testified that defendant lived with her
at 209 Newbold Street, that defendant was in his room at the time
she went to bed at approximately 10:30 to 11:00 p.m. on 9 April
2001, and that she did not hear defendant leave the residence
during the night of 9 April 2001 or early morning of 10 April 2001.
She did not know how the gun came into her bedroom.
In the application for the warrant, Lt. Abernathy stated that
at approximately 10:00 p.m. on 10 April 2001 he received
information from a confidential and reliable informant that at
approximately 3:00 a.m. on 10 April 2001 the informant heard a
gunshot in the area of Newbold Street, which runs behind the
Carolina Restaurant. The informant also saw defendant run from the
direction of the Carolina Restaurant and enter his residence at 209
Newbold Street. In his motion to suppress, defendant contended
that the application did not supply sufficient and accurateinformation upon which a finding of probable cause could be made.
He also contended that the application did not contain underlying
facts and circumstances showing this particular informant was
credible and information received from this informant was reliable.
At the hearing on the motion to suppress, Lt. Abernathy
testified that at approximately 10:00 p.m. on 10 April 2001,
Officer DeVonda Friday of the Lincolnton Police Department reported
to him that a person who lived in the vicinity of the Carolina
Restaurant told her that he heard a gunshot while he was standing
in his yard at approximately 2:00 a.m. on the morning of 10 April
2001. This person also told her that he saw defendant, Doneal
Gillespie, run from the woods and into a side door of defendant's
residence. This person further stated that later in the day, he
observed defendant holding a gun and bragging about the “shooting.”
Officer Friday testified during the voir dire hearing that
Tony Friday, a relative by marriage, contacted her and told her he
heard a gunshot while he was standing in his yard on Newbold Street
and then he saw someone running through the woods. Tony Friday,
also referred to as “Thomas,” testified that he lived at 207
Newbold Street next door to defendant and that he was outside
watering flowers at or about the time of the shooting but that he
did not hear any gunshot or see defendant. He also denied making
statements to Officer Friday that he had heard a gunshot and seen
defendant run into his residence.
The court found as facts,
inter alia, that although some of
the allegations contained in the affidavit were contradicted byevidence presented at the voir dire hearing, there was no evidence
that Lt. Abernathy acted in bad faith in making the allegations.
The court also found that information purportedly obtained from the
informant was consistent with and corroborated by other evidence in
the following respects: (1) the victim told investigating officers
that he was shot at the Carolina Restaurant approximately 2:45 a.m.
on 10 April 2001 while the informant indicated that he heard a
gunshot in the vicinity of Newbold Street behind the Carolina
Restaurant at approximately 3:00 a.m. on that date; (2) the victim
told the officers that his assailant fled on foot while the
informant stated he saw defendant run from the direction of the
Carolina Restaurant and into his house; and (3) the victim told the
officers that he had been shot by a nine millimeter or .45 caliber
pistol while the informant stated he saw defendant brandishing a
nine millimeter pistol and heard him bragging about shooting a man
at the Carolina Restaurant. Based upon these findings, the court
concluded that the affidavit supported a finding of probable cause
for issuance of a search warrant. The court denied the motion to
suppress.
II. Issue
The question before us is whether the trial court committed
reversible error by denying defendant's motion to dismiss.
III. Affidavit
Defendant contends that the motion to suppress should have
been allowed because the affidavit in support of the application
contained false and misleading statements and omitted materialinformation. He argues the affidavit was false and misleading
because it gave the impression that the informant had given
reliable information to the officer in the past and had personally
given the present information to the officer when in fact the
informant had not given the officer any information at any time.
He argues the affidavit omitted material information by failing to
state that the informant had never previously given him any
information.
In reviewing the issuance of a search warrant, the court
determines “whether there is substantial evidence in the record
supporting the magistrate's decision to issue the warrant.”
Massachusetts v. Upton, 466 U.S. 727, 728, 80 L. Ed. 2d 721, 724
(1984). An application for a search warrant in this state must
contain a statement that there is probable cause to believe items
subject to seizure may be found on the premises to be searched and
allegations of fact supporting the statement. N.C. Gen. Stat. §
15A-244 (2001). The determination of whether there is probable
cause is “[a] nontechnical, common-sense judgment[] of laymen
applying a standard less demanding than those used in more formal
legal proceedings.”
Illinois v. Gates, 462 U.S. 213, 235-36, 76 L.
Ed. 2d 527, 546 (1983). Great deference is to be given the
magistrate's determination of probable cause.
State v. Greene, 324
N.C. 1, 9, 376 S.E.2d 430, 436 (1989),
vacated and remanded on
other grounds, 494 U.S. 1022, 108 L. Ed. 2d 603 (1990) (citations
omitted).
In
State v. Arrington, 311 N.C. 633, 319 S.E.2d 254 (1984),North Carolina adopted the “totality of the circumstances” standard
in determining the existence of probable cause when the application
for the search warrant contains information provided by an
informant.
The task of the issuing magistrate is simply
to make a practical, common sense decision
whether, given all the circumstances 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.
Id. at 638, 319 S.E.2d at 257-58. Accordingly, when the affidavit
is based on hearsay information, it must state the circumstances
supporting the informant's reliability and the basis for the
informant's belief that a search will find the items sought.
State
v. Crawford, 104 N.C. App. 591, 596, 410 S.E.2d 499, 501 (1991).
In accordance with the above principles, the United States
Supreme Court held in
Franks v. Delaware, 438 U.S. 154, 171-72, 57
L. Ed. 2d 667, 682 (1978) that a facially valid search warrant
could be challenged by a showing that the affidavit contains
intentionally or recklessly false statements and that the affidavit
is insufficient to support a finding of probable cause when purged
of the false statements. The affidavit may also be challenged if
it contains omissions that are designed to mislead or made in
reckless disregard of their tendency to mislead.
United States v.
Colkley, 899 F.2d 297, 301 (4
th Cir. 1990). Nonetheless, a
successful challenge “is not established merely by evidence that
contradicts assertions contained in the affidavit, or even that
shows the affidavit contains false statements. Rather, theevidence must establish facts from which the finder of fact might
conclude that the affiant alleged the facts in bad faith.”
State
v. Fernandez, 346 N.C. 1, 14, 484 S.E.2d 350, 358 (1997).
After reviewing the record, we are unable to find evidence to
support a conclusion that Lt. Abernathy stated false or misleading
facts in bad faith. Lt. Abernathy received the information from
another officer, who had received the information from a relative
by marriage. The applicant for a search warrant may rely upon
information provided to him by other police officers in the
performance of their duties.
State v. Horner, 310 N.C. 274, 280,
311 S.E.2d 281, 286 (1984) (citations omitted). The information
provided to Lt. Abernathy was consistent with the statement given
by the victim and other information that had been discovered during
the course of the investigation.
IV. Conclusion
We affirm the court's findings and its decision to deny the
motion to suppress. We find no error.
No error.
Judges TIMMONS-GOODSON and BRYANT concur.
Report per Rule 30(e).
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