{ "id": 8552944, "name": "STATE OF NORTH CAROLINA v. JOHN MICHAEL BUSH", "name_abbreviation": "State v. Bush", "decision_date": "1970-12-30", "docket_number": "No. 704SC620", "first_page": "247", "last_page": "252", "citations": [ { "type": "official", "cite": "10 N.C. App. 247" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "173 S.E. 2d 60", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "63" } ], "opinion_index": 0 }, { "cite": "7 N.C. App. 425", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550624 ], "pin_cites": [ { "page": "430" } ], "opinion_index": 0, "case_paths": [ "/nc-app/7/0425-01" ] }, { "cite": "174 S.E. 2d 613", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "8 N.C. App. 401", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552383 ], "opinion_index": 0, "case_paths": [ "/nc-app/8/0401-01" ] } ], "analysis": { "cardinality": 501, "char_count": 10366, "ocr_confidence": 0.504, "pagerank": { "raw": 3.0474500916848446e-07, "percentile": 0.8557099274899811 }, "sha256": "c721c581cb22372abccbc6bbf50d9179ba0c081a5e00093205312310e5b95bb9", "simhash": "1:242b14bc02c9f3d7", "word_count": 1769 }, "last_updated": "2023-07-14T19:51:53.441044+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Morris and Vaughn concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JOHN MICHAEL BUSH" ], "opinions": [ { "text": "BROCK, Judge.\nDefendant assigns as error that the trial judge, on voir dire, would not allow defendant to cross-examine State\u2019s witness concerning the \u201ccircumstances surrounding the testimony given to the magistrate by the affiant in obtaining a search warrant.\u201d The record on appeal does not disclose that any question asked the State\u2019s witness was not allowed to be answered. True, there was some discussion between defense counsel and the presiding judge concerning the nature of the cross-examination being conducted by defense counsel, and the presiding judge stated to defense counsel: \u201cMr. Godwin, let\u2019s stay within the bounds of reason and law.\u201d In response to this request Mr. Godwin answered: \u201cAll right, sir.\u201d But nowhere in the record on appeal is there any question propounded by defense counsel that was not answered. This assignment of error is overruled.\nDefendant next assigns as error that \u201cthe trial judge erred in failing to allow the attorney for defendant to cite and argue a United States District Court case.\u201d\nThe following colloquy between the trial judge and defense counsel in the absence of the jury appears in the record on appeal:\n\u201cMe. Paul : Your Honor, in light of your question that you directed to all the attorneys before we went into the question of the search warrant, the question about the word that the informant had been on the premises before and observed Michael Bush using narcotic drugs. I have here your Honor, a case written by Judge McMillan of the United States District Court . . .\n\u201cThe Couet: That would not be authoritative to this Court, that is an inferior Court and I do not wish to hear anything from that Court. I am sorry.\u201d\nWe perceive no error in the ruling. The record on appeal does not disclose what question of law defense counsel sought to argue; but, in any event it is the final ruling of the judge upon the question of law that should be the subject of exception by defendant, not what argument of counsel the judge allowed or did not allow. This assignment of error is overruled.\nDefendant assigns as error that \u201cthe trial court erred in making a ruling that the magistrate could not go beyond the sworn affidavit as a matter of law.\u201d The following appears in the record on appeal:\n\u201c (At this point Mr. Paul argued the question as applied to search and seizure.)\nThe Couet: All she had to do was look at the affidavit, there is no obligation on her to go beyond the sworn affidavit \u2014 \u201d\nThe foregoing was a continuation of argument of defense counsel, in the absence of the jury, upon defendant\u2019s motion to suppress the evidence obtained by search. Again we perceive no error in the trial judge making the statement to which defendant assigns error. Argument upon whether the judge\u2019s statement is a correct statement of the law is only an exercise in academics. The mental process by which a trial judge arrives at his ruling on a question of law is not the subject of exceptions and assignments of error. The basic question of law before Judge Copeland v/as a ruling upon defendant\u2019s motion to suppress the evidence; and it was his ruling upon this motion which should be the basis for defendant\u2019s exception and assignment of error. This assignment of error is overruled.\nDefendant next assigns as error that the trial judge denied his motion to suppress the evidence. When the motion was made the trial judge removed the jury from the courtroom and conducted an extensive voir dire. This was the proper procedure to follow. State v. Basden, 8 N.C. App. 401, 174 S.E. 2d 613.\nThe affidavit attached to the search warrant reads as follows:\n\u201cWade Anders, S.B.I. being duly sworn and examined under oath, says that he John Michael Bush, alias John B. Michael has in his possession and on his premises narcotic drugs, to wit: LSD, Hashish and Marijuana, in violation of the North Carolina law. These illegally possessed narcotic drugs are located on his premises, a mobile home, Lot X, Old Pine Trailer Park, Rt. 1, Jacksonville described as follows : a mobile home, color white and green located on Lot X, Old Pine Tr. Pk., Rt. 1, Jacksonville, N. C. The facts which establish reasonable grounds for issuance of a search warrant are as follows: This agent has received information from a confidential informant, who has in the past given information resulting in the arrest and conviction of Narcotic Cases. The informant advises that he has observed and used Narcotic Drugs at the home of John Michael Bush alias John B. Michael Lot X Old Pine Tr. Pk. Rt. 1, Jacksonville, N. C. The informant advises that a large quantity of Narcotic Drugs will be located at John Michael Bush alias John B. Michael Lot X Old Pine Tr. Pk. Rt. 1, Jacksonville, N. C. The subject John Michael Bush alias John B. Michael is a known Narcotic Dealer and user of Narcotic Drugs. The subject John Michael Bush alias John B. Michael has in the past been arrested and convicted of Narcotic Violations.\u201d\nThe affidavit and search warrant are dated 4 February 1970, therefore G.S. 15-26 is applicable. See concurring opinion by Graham, J., in State v. Milton, 7 N.C. App. 425, at 430, 173 S.E. 2d 60, at 63. We hold that the foregoing affidavit sufficiently indicates the basis for a finding of probable cause and supports the finding of probable cause made by the magistrate.\nIn this case the search warrant describes with reasonable certainty the premises to be searched and the contraband for which the search is to be made. G.S. 15-26(a). The affidavit attached to the warrant indicates the basis for a finding of probable cause. G.S. 15-26 (b). The warrant is signed by a magistrate and bears the date and hour of its issuance. G.S. 15-26 (c). Therefore the affidavit and warrant meet the statutory requirements. In our opinion they also satisfy the requirements of the Fourth Amendment to the Constitution of the United States, cf. State v. Milton, supra. This assignment of error is overruled.\nDefendant further assigns as error two portions of the judge\u2019s charge to the jury; each relates to the judge\u2019s explanation of constructive possession and control. When the charge is read in context, as it must be, we hold that it fairly and accurately presents the case to the jury. These assignments of error are overruled.\nNo error.\nJudges Morris and Vaughn concur.", "type": "majority", "author": "BROCK, Judge." } ], "attorneys": [ "Attorney General Morgan, by Assistant Attorney General Wood for the State.", "Jerry Paul for the defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JOHN MICHAEL BUSH\nNo. 704SC620\n(Filed 30 December 1970)\n1. Criminal Law \u00a7 162\u2014 assignment of error to exclusion of evidence on voir dire\nThere was no evidence to support defendant\u2019s assignment of error that the trial judge on voir dire would not allow defendant to cross-examine the State\u2019s witness concerning the circumstances surrounding the testimony given to the magistrate by the affiant in obtaining a search warrant, and the assignment of error is overruled.\n2. Criminal Law \u00a7 102\u2014 argument of U. S. district court case\nTrial court\u2019s refusal to allow defense counsel to cite and argue a U. S. District Court case was not error.\n3. Criminal Law \u00a7 165\u2014 argument of counsel \u2014 exception to ruling of trial court\nIt is the final ruling of the judge upon the question of law that should be the subject of exception by defendant, not what argument of counsel the judge allowed or did not allow.\n4. Criminal Law \u00a7 161\u2014 exception and assignment of error in general \u2014 judge\u2019s process in arriving at a decision\nThe mental process by which a trial judge arrives at his ruling on a question of law is not the subject of exceptions and assignments of error.\n5. Criminal Law \u00a7 84\u2014 motion to suppress evidence \u2014 voir dire procedure\nOn motion to suppress the evidence, the trial judge is required to remove the jury from the courtroom and conduct a voir dire.\n6. Searches and Seizures \u00a7 3\u2014 issuance of search warrant \u2014 finding of probable cause \u2014 narcotics violation\nAn affidavit by an S.B.I. agent that the defendant has possession of LSD and other narcotic drugs on his premises, and that the agent has received this information from a confidential informant who has previously given information leading to the arrest and conviction of narcotic violators, held sufficient to support a finding of probable cause.\n7. Searches and Seizures \u00a7 3\u2014 search warrant \u2014 applicability of G.S. 15-26\nG.S. 15-26 is applicable to an affidavit and search warrant dated 4 February 1970.\n8. Searches and Seizures \u00a7 3\u2014 search warrant and affidavit \u2014 statutory and constitutional requisites\nA search warrant and affidavit met the requirements of G.S. 15-26, as well as the requirements of the Fourth Amendment to the U. S. Constitution, where (1) the warrant described with reasonable certainty the premises to be searched and the contraband for which the search was to be made, (2) the affidavit indicated the basis for a finding of probable cause, and (3) the warrant was signed by the magistrate and bore the date and hour of its issuance.\nAppeal by defendant from Copeland, Judge of the Superior Court, 18 May 1970 Session, Onslow Superior Court.\nDefendant was charged in a bill of indictment with the felony of possession of a quantity of narcotic drugs, namely, lysergic acid diethylamide, commonly known as LSD.\nThe State\u2019s evidence tended to show the following: City police, sheriff\u2019s deputies, and SBI agents, went to defendant\u2019s mobile home to search for narcotic drugs under authority of a search warrant. One of the officers knocked upon the door and immediately there was movement inside the trailer, feet moving up and down the hall. Someone inside called out several times that they would be there in just a minute. A whiff of smoke came out the chimney; it had a \u201creal rank odor.\u201d The door to the mobile home was opened some two or three minutes after the officers first knocked, and when they gained admission the stove was open and the flames were leaping out of it; there was a great deal of smoke and bad odor in the home. A \u201creal rank, real sweet\u201d odor was coming from the stove. The officers found two plastic bags containing 115 orange tablets which contained LSD. They also found in the kitchen cabinet two boxes of empty gelatin capsules, a small funnel, and a paper bag containing over six hundred dollars.\nDefendant offered no evidence.\nFrom a verdict of guilty and judgment of imprisonment entered thereon, defendant appealed.\nAttorney General Morgan, by Assistant Attorney General Wood for the State.\nJerry Paul for the defendant." }, "file_name": "0247-01", "first_page_order": 271, "last_page_order": 276 }