An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA99-1618-2


Filed: 20 May 2003


v .                         Buncombe County
                                    Nos. 96-CRS-67276, -67278,

    Appeal by defendant from judgments entered 16 March 1999 by Judge James U. Downs in Buncombe County Superior Court. Heard in the Court of Appeals 8 January 2001, was remanded to the Superior Court of Buncombe County on 6 February 2001 for limited purposes, was considered by Judge Ron Payne of the Buncombe County Superior Court on 30 October 2002, and upon motion on 20 November 2002 was referred to a panel of this Court for additional consideration on 2 January 2003.

    Attorney General Roy Cooper, by Assistant Attorney General William B. Crumpler, for the State.

    Kyle W. King, for defendant-appellant.

    CALABRIA, Judge.

    This is the second appeal in this case by Jacques Jeudi (“defendant”). The complete facts of the case are set forth in this Court's first unpublished opinion, State v. Jeudi, No. 99- 1618, filed 6 February 2001.
    In the prior appeal, defendant asserted, inter alia, the trial court committed reversible error by denying defendant's motion to suppress evidence seized in the search of another's residence. This Court remanded the case to the trial court for entry of an order containing findings of fact and conclusions of law regarding defendant's standing to attack the legality of the search. On 30 October 2002, the trial court entered the order, and concluded as a matter of law that “[d]efendant had a reasonable expectation of privacy and that he did have the standing to contest the validity of the search executed on November 19, 1996.” In light of the uncontested determination that defendant possessed standing, defendant filed a motion with this Court for consideration of his assignment of error that the trial court erred in denying his motion to suppress. Defendant based his appeal on the assertion that the allegations in the affidavit were insufficient to establish probable cause.
    In testing the sufficiency of an affidavit, North Carolina applies the test formulated by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 238, 76 L. Ed. 2d 527, 548 (1983). State v. Hughes, 353 N.C. 200, 203, 539 S.E.2d 625, 628 (2000).
        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.

Gates, 462 U.S. at 238, 76 L. Ed. 2d at 548. However, whenever “the affidavit is based on hearsay information, then it must contain the circumstances underlying the informer's reliability and the basis for the informer's belief that a search will uncover theobjects sought by the police.” State v. Crawford, 104 N.C. App. 591, 596, 410 S.E.2d 499, 501 (1991).
    In Gates, the Supreme Court set forth, “the duty of the reviewing court is simply to ensure that the magistrate had a 'substantial basis for . . . conclud[ing]' that probable cause existed.” Gates, 462 U.S. at 238, 76 L. Ed. 2d at 548 (quoting Jones v. U.S., 362 U.S. 257, 271, 4 L. Ed. 2d 697, 708 (1960)). See also State v. Riggs, 328 N.C. 213, 400 S.E.2d 429 (1991); State v. Arrington, 311 N.C. 633, 319 S.E.2d 254 (1984). Therefore, the question for this Court is whether the issuing judge had a substantial basis for concluding that the affidavit contained sufficient information supporting the informant's reliability and his basis of knowledge and probable cause existed for the issuance of the warrant.
    Defendant asserts probable cause did not exist because the allegations in the affidavit are too vague and fail to demonstrate the “basis of knowledge” supporting the information. We disagree. The affidavit provided:
        For the previous year and a half, the Buncombe County Sheriff's Department, [and] the Metropolitan Enforcement Group (MEG), have been receiving intelligence that a[] black man using the alias of Jay has been selling and trafficking in cocaine in the Asheville, Buncombe area.

        The affiant has interviewed numerous reliable sources of information who advised that a black male known as Jay is distributing large amounts of cocaine in the Asheville/Buncombe area. The CSI's [Confidential Source of Information] advised that Jay was transporting Cocaine from Florida to Asheville.
        . . .        Within the past seventy-two hours, the affiant interviewed a confidential source of information (csi)[.] This CSI stated that during the past same seventy-two hours, the CSI has personal knowledge that an individual by the name of Jay is keeping cocaine in the residence located at 5 White Ave in Asheville N.C. 28803. The csi advised that the apartment is used by Jay as a place to store and distribute cocaine. The csi stated that Jay is distributing cocaine to numerous individuals in the Asheville area.

        The CSI mentioned in this Search Warrant application has provided accurate and reliable information in the past that has led to the arrest and conviction of subjects for controlled substance violations.

        While working as a member of the Metropolitan Enforcement Group the affiant with the assistance of additional agents identified the black male known as Jay to be Jeudi Jacques of Miami Florida.

It is plain from this affidavit that although the police had been aware of defendant's history trafficking cocaine, the basis for conducting a search at this time and place was the reliable informant's personal knowledge. The informant's reliability was supported in the affidavit by noting his record of providing accurate information leading to the arrest and conviction of others for controlled substance violations. Moreover, the informant's tip was clearly stated to be based on “personal knowledge.” The informant's information could be reasonably relied upon to support a finding of probable cause given his history of providing reliable tips and the department's accumulated information, which served to support and corroborate the informant's specific information. Considering this affidavit, we conclude there was a substantial basis for the issuing judge to conclude that both defendant and theevidence would be present at the premises, and the evidence sought would aid in his apprehension or conviction. Accordingly, we hold the affidavit supplied a substantial basis to issue the warrant and the trial court properly denied defendant's motion to suppress.
    Chief Judge EAGLES and Judge HUDSON concur.
    Report per Rule 30(e).

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