{ "id": 8548053, "name": "STATE OF NORTH CAROLINA v. WESLEY A. FOYE", "name_abbreviation": "State v. Foye", "decision_date": "1972-04-26", "docket_number": "No. 728SC318", "first_page": "200", "last_page": "206", "citations": [ { "type": "official", "cite": "14 N.C. App. 200" } ], "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": "276 A. 2d 243", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 8102127 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/a2d/276/0243-01" ] }, { "cite": "92 S.Ct. 74", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1971, "opinion_index": 0 }, { "cite": "30 L.Ed. 2d 59", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1971, "opinion_index": 0 }, { "cite": "404 U.S. 830", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6213377, 6215307, 6215053, 6212430, 6213774, 6212982, 6213142, 6213567, 6212701, 6214719 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/us/404/0830-05", "/us/404/0830-10", "/us/404/0830-09", "/us/404/0830-01", "/us/404/0830-07", "/us/404/0830-03", "/us/404/0830-04", "/us/404/0830-06", "/us/404/0830-02", "/us/404/0830-08" ] }, { "cite": "441 F. 2d 755", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 765114 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/f2d/441/0755-01" ] }, { "cite": "81 S.Ct. 59", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1960, "opinion_index": 0 }, { "cite": "5 L.Ed. 2d 52", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1960, "opinion_index": 0 }, { "cite": "364 U.S. 823", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6195808, 6196420, 6195531, 6196014, 6196208, 6195326 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/us/364/0823-03", "/us/364/0823-06", "/us/364/0823-02", "/us/364/0823-04", "/us/364/0823-05", "/us/364/0823-01" ] }, { "cite": "278 F. 2d 504", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2022571 ], "year": 1959, "opinion_index": 0, "case_paths": [ "/f2d/278/0504-01" ] }, { "cite": "174 F. Supp. 539", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 425938 ], "year": 1959, "opinion_index": 0, "case_paths": [ "/f-supp/174/0539-01" ] }, { "cite": "59 S.Ct. 89", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1938, "opinion_index": 0 }, { "cite": "83 L.Ed. 401", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1938, "opinion_index": 0 }, { "cite": "305 U.S. 626", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6158025, 6157940, 6157974, 6157911 ], "year": 1938, "opinion_index": 0, "case_paths": [ "/us/305/0626-04", "/us/305/0626-02", "/us/305/0626-03", "/us/305/0626-01" ] }, { "cite": "99 F. 2d 353", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 986577 ], "year": 1938, "pin_cites": [ { "page": "355" } ], "opinion_index": 0, "case_paths": [ "/f2d/99/0353-01" ] }, { "cite": "69 App. D.C. 120", "category": "reporters:state", "reporter": "App. D.C.", "year": 1938, "pin_cites": [ { "page": "122" } ], "opinion_index": 0 }, { "cite": "267 U.S. 498", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6143129 ], "weight": 3, "year": 1925, "opinion_index": 0, "case_paths": [ "/us/267/0498-01" ] }, { "cite": "85 S.Ct. 879", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1965, "opinion_index": 0 }, { "cite": "13 L.Ed. 2d 813", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1965, "opinion_index": 0 }, { "cite": "380 U.S. 926", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1525424, 1524866, 1525339, 1525234 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/us/380/0926-01", "/us/380/0926-02", "/us/380/0926-04", "/us/380/0926-03" ] }, { "cite": "379 U.S. 476", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11731294 ], "weight": 3, "year": 1965, "pin_cites": [ { "page": "485" } ], "opinion_index": 0, "case_paths": [ "/us/379/0476-01" ] }, { "cite": "275 U.S. 192", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6139499 ], "weight": 3, "year": 1927, "opinion_index": 0, "case_paths": [ "/us/275/0192-01" ] }, { "cite": "182 S.E. 2d 814", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "12 N.C. App. 178", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548486 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc-app/12/0178-01" ] }, { "cite": "279 N.C. 729", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572592, 8572612, 8572575 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0729-02", "/nc/279/0729-03", "/nc/279/0729-01" ] }, { "cite": "183 S.E. 2d 880", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "12 N.C. App. 440", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550300 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc-app/12/0440-01" ] }, { "cite": "183 S.E. 2d 820", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "12 N.C. App. 487", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550571 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc-app/12/0487-01" ] }, { "cite": "180 S.E. 2d 755", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "278 N.C. 561", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561152 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/278/0561-01" ] }, { "cite": "185 S.E. 2d 881", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 341", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571955 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0341-01" ] }, { "cite": "403 U.S. 573", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12027357 ], "weight": 3, "year": 1971, "opinion_index": 0, "case_paths": [ "/us/403/0573-01" ] }, { "cite": "378 U.S. 108", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6165107 ], "weight": 3, "year": 1964, "opinion_index": 0, "case_paths": [ "/us/378/0108-01" ] }, { "cite": "393 U.S. 410", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11317375 ], "weight": 3, "year": 1969, "opinion_index": 0, "case_paths": [ "/us/393/0410-01" ] }, { "cite": "380 U.S. 102", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1524630 ], "weight": 4, "year": 1965, "pin_cites": [ { "page": "108" } ], "opinion_index": 0, "case_paths": [ "/us/380/0102-01" ] } ], "analysis": { "cardinality": 804, "char_count": 15629, "ocr_confidence": 0.539, "pagerank": { "raw": 1.6821398767523665e-07, "percentile": 0.6977321843860395 }, "sha256": "076555e6f2353487f9ffe43b4cec8ba907bb2dcaed762b97e8e5e062f37c1076", "simhash": "1:b2cb366cf7f8929b", "word_count": 2594 }, "last_updated": "2023-07-14T22:58:48.650385+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge Mallard and Judge Parker concur." ], "parties": [ "STATE OF NORTH CAROLINA v. WESLEY A. FOYE" ], "opinions": [ { "text": "MORRIS, Judge.\nDefendant\u2019s principal assignment of error concerns the refusal of the trial court to suppress any evidence seized in the search of the premises located at 405 Holloway Drive on 7 January 1971. He contends that the affidavit of A.B.C. Officer Young, upon which the search warrant was issued, was insufficient to enable the magistrate to make an independent determination of probable cause; and that the affidavit was defective in that it lacks the particular description of the things to be seized resulting in the search warrant\u2019s becoming a general search warrant prohibited by the Fourth Amendment to the Constitution of the United States and by Article I, \u00a7 20, of the Constitution of North Carolina.\nIn evaluating the showing of probable cause necessary to support a search warrant, we are initially reminded of the often times quoted admonition of United States v. Ventresca, 380 U.S. 102, 13 L.Ed. 2d 684, 85 S.Ct. 741 (1965) :\n\u201c[T] he Fourth Amendment\u2019s commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court\u2019s cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a common-sense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.\u201d 380 U.S., at 108.\nThe affidavit as appearing in the record on appeal reads in part as follows:\n\u201cPaul W. Young, Lenoir County A.B.C. Officer, being duly sworn and examined under oath, says under oath that he has probable cause to believe that Wesley Foye has on his premises and on his person certain property, to wit: narcotic drugs, the possession of which is a crime, to wit: possession of narcotic drugs, 1-7-71, 405 Holloway Dr., Kin-ston, N. C.\nThe property described above is located on the premises and on the person described as follows:\nA one story house with brick front and shingles on side. The facts which establish probable cause for the issuance of a search warrant are as follows: Based on information furnished by a confidential informer who has worked on narcotic drugs for the City of Jacksonville, N. C., his information resulted in the arrest and seizure of narcotic drugs and convictions. This informer has personal knowledge that narcotic drugs are on the premises and on the person as described above on this date. As result of this informer\u2019s information in the year of 1970, to the Jacksonville, N. C. Police Dept, narcotic drugs were seized, arrest was made and conviction resulted.\u201d\nBased upon the information contained in this affidavit, the Clerk of Superior Court of Lenoir County found probable cause for a search and issued a warrant. The affidavit portion of the search warrant was on one side of the sheet of paper, and the warrant portion was on the reverse. The warrant portion ostensibly incorporated by reference the description of the items to be searched for and the place to be searched contained in the affidavit portion.\nWhen this issue was raised in the Superior Court, the jury was sent out, and a voir dire hearing was conducted. All parties would agree that the testimony during voir dire, taken in the light most favorable to the State, was certainly more persuasive than the affidavit. In fact the trial court, in its order denying defendant\u2019s motion to suppress, concluded \u201c1. That the Affidavit, while not prepared in the most desirable manner, does sufficiently indicate the basis for the finding of probable cause\u201d and \u201c5. That while the better practice will always be for the issuing official to set forth in the affidavit more detailed information comprising the grounds for issuing the Warrant, sufficient information was related under oath to the issuing official in this case before preparation of the Affidavit to [indicate] probable cause for the issuance of said Warrant.\u201d We are inclined to agree. G.S. 15-26 (b) relating to the contents of search warrants specifically requires:\n\u201c(b) An affidavit signed under oath or affirmation by the affiant or affiants and indicating the basis for the finding of probable cause must be a part of or attached to the warrant.\u201d (Emphasis supplied.)\nThe affidavit attached to the warrant sufficiently indicates the basis for the finding of probable cause under G.S. 15-26 (b). The information given to the affiant by an unidentified informer and recited in the affidavit, if true, is sufficient to establish probable cause. The Clerk of Superior Court was certainly entitled to rely upon the sworn statement of the affiant, an A.B.C. officer who appeared before him in person, in concluding that the affiant was correctly reciting what had been told him by his informer. Personal and recent observations by an unidentified informer of criminal activity show that the information was gained in a reliable manner and was more than a \u201cbald and unilluminating assertion of suspicion.\u201d Spinelli v. United States, 393 U.S. 410, 21 L.Ed. 2d 637, 89 S.Ct. 584 (1969). Finally, the affidavit stated that the informer had furnished information in the past which had resulted in the seizure of narcotic drugs and subsequent conviction, all of which tended to show that the informer was credible and his information reliable. We are of the opinion that the affidavit in the present case contained the material and essential facts necessary to support the finding of probable cause before this search warrant was issued. Aguilar v. Texas, 378 U.S. 108, 12 L.Ed. 2d 723, 84 S.Ct. 1509 (1964); Spinelli v. United States, supra; United States v. Harris, 403 U.S. 573, 29 L.Ed. 2d 723, 91 S.Ct. 2075 (1971); State v. Spillars, 280 N.C. 341, 185 S.E. 2d 881 (1972); State v. Vestal, 278 N.C. 561, 180 S.E. 2d 755 (1971) ; State v. Flowers, 12 N.C. App. 487, 183 S.E. 2d 820 (1971); State v. Shirley, 12 N.C. App. 440, 183 S.E. 2d 880 (1971), cert. den. 279 N.C. 729 (1971); State v. Moye, 12 N.C. App. 178, 182 S.E. 2d 814 (1971).\nDefendant contends that the search warrant was insufficient to justify seizure and introduction in evidence of heroin, since the affidavit upon which it was based referred only to \u201cnarcotic drugs, the possession of which is a crime\u201d and did not describe the things to be seized with more particularity. We find this contention to be without merit. The description in the search warrant was particular enough to prevent the warrant from being a general search warrant within the prohibition of the Fourth Amendment to the Constitution of the United States and of Article I, \u00a7 20, of the Constitution of North Carolina (State v. Shirley, supra), and was within the provision of G.S. 15-26(a) which requires that:\n\u201c(a) The search warrant must describe with reasonable certainty the person, premises, or other place to be searched and the contraband, instrumentality, or evidence for which the search is to be made.\u201d\nThe requirement that warrants shall particularly describe the things to be seized is to prevent the seizure of one thing under a warrant describing another and to leave nothing to the discretion of the officer executing the warrant in determining what is to be taken. Marron v. United States, 275 U.S. 192, 72 L.Ed. 231, 48 S.Ct. 74 (1927). In Stanford v. Texas, 379 U.S. 476, 485, 13 L.Ed. 2d 431, 85 S.Ct. 506 (1965), reh. den. 380 U.S. 926, 13 L.Ed. 2d 813, 85 S.Ct. 879 (1965), involving a seizure of some 2000 pieces of literature relating to Communist Party operations, the United States Supreme Court held that the particularity requirement \u201cis to be accorded the most scrupulous exactitude when the \u2018things\u2019 are books, and the basis for the seizure is the ideas which they contain.\u201d But when first amendment rights are not involved, the specificity requirement is more flexible. The Court in Stanford refused to decide that the description \u201ccases of whiskey\u201d was too generalized or whether the description of the things to be seized would not have been particular enough to pass constitutional muster had the things been weapons or narcotics. Id. at 486; see Steele v. United States, 267 U.S. 498, 69 L.Ed. 757, 45 S.Ct. 414 (1925). \u201cIn the search of a gambling establishment the same descriptive particularity is not necessary as in the case of stolen goods.\u201d Nuckols v. United States, 69 App. D.C. 120, 122, 99 F. 2d 353, 355 (1938), cert. den. in Floratos v. United States, 305 U.S. 626, 83 L.Ed. 401, 59 S.Ct. 89 (1938); United States v. Joseph, 174 F. Supp. 539 (D.C.E.D.Pa. 1959), aff\u2019d 278 F. 2d 504 (3d Cir. 1959), cert. den. 364 U.S. 823, 5 L.Ed. 2d 52, 81 S.Ct. 59 (1960). Just as a warrant limited to the seizure of items directly related to a booking operation is not the kind of general search prohibited by the Fourth Amendment, we are of the opinion that a warrant empowering officers to seize a limited class of things, i.e., unlawfully possessed narcotic drugs, is not prohibited. See United States v. Fuller, 441 F. 2d 755 (4th Cir. 1971), cert. den. 404 U.S. 830, 30 L.Ed. 2d 59, 92 S.Ct. 74 (1971). See also United States v. Ketterman, D.C. App., 276 A. 2d 243 (1971), wherein a search warrant describing \u201c.38 caliber special pistol and narcotics\u201d was held to be sufficiently particular.\nUnder the circumstances of this case, the description of the search warrant with the attached affidavit is sufficiently particular, especially in light of the fact that the types and classifications of narcotic drugs seem to increase numerically almost daily and most of them cannot be definitely identified except by experts through chemical analysis. Heroin was clearly within the generic classification of \u201cnarcotic drugs\u201d as defined by the Narcotic Drug Act, Article 5 in \u00a7 90-87 (9) and (11) of the General Statutes (now replaced by the Controlled Substances Act \u00a7 90-86 to 90-113.8, effective 1 January 1972). The marihuana seized, though it was never introduced into evidence, was also a \u201cnarcotic drug.\u201d G.S. 90-87 (1) and (9). The search warrant and attached affidavit in this case are in substantial compliance with statutory and constitutional requirements.\nDefendant also assigns as error the failure of the court to allow his motion as of nonsuit made at the close of the State\u2019s evidence and again at the close of all the evidence. We hold that there was ample evidence to require submission of the case to the jury.'\nNo error.\nChief Judge Mallard and Judge Parker concur.", "type": "majority", "author": "MORRIS, Judge." } ], "attorneys": [ "Attorney General Morgan, by Assistant Attorney General Eatman, for the State.", "Everette L. Wooten, Jr., for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. WESLEY A. FOYE\nNo. 728SC318\n(Filed 26 April 1972)\n1. Searches and Seizures \u00a7 3\u2014 affidavit for search warrant \u2014 confidential informant\nAffidavit of an A.B.C. officer that he had been supplied information by a confidential informant that defendant has narcotic drugs on his person and on described premises, that the informant has personal knowledge that narcotic drugs are on defendant\u2019s person and premises, and that the informant has previously supplied information resulting in the seizure of narcotic drugs and in conviction, held sufficient to enable the magistrate to make an independent determination that probable cause existed for the issuance of a warrant to search defendant\u2019s premises for narcotics. G.S. 15-26(b).\n2. Searches and Seizures \u00a7 3\u2014 search warrant \u2014 description of contraband \u2014 \u201cnarcotic drugs\u201d\nWarrant authorizing a search for \u201cnarcotic drugs, the possession of which is a crime\u201d described the contraband with sufficient particularity to prevent the warrant from being a general search warrant within the prohibition of the Fourth Amendment to the U. S. Constitution and Article I, \u00a7 20 of the N. C. Constitution.\n3. Narcotics \u00a7 4\u2014 possession of heroin \u2014 sufficiency of evidence\nThe State\u2019s evidence was sufficient to be submitted to the jury in a prosecution for unlawful possession of heroin where it tended to show that a matchbox found on defendant\u2019s person contained heroin, and that a search of defendant\u2019s premises revealed 54 packages containing heroin, syringes and needles, a paper bag containing several bloody balls of cotton, and an address book containing packages of heroin.\nOn certiorari, upon application of defendant, to review judgment of Cohoon, Judge, 22 March 1971 Session of Superior Court held in Lenoir County.\nThe defendant was charged in a bill of indictment, proper in form, with unlawful possession of a narcotic drug, to wit: heroin. The defendant, through his court-appointed counsel, tendered a plea of not guilty. The evidence for the State tended to show that on 7 January 1971, Lenoir County A.B.C. Officer Paul W. Young, acting pursuant to information received from a confidential informant, obtained a warrant at 3:00 p.m. for the search of defendant\u2019s house on 405 Holloway Drive in Kin-ston, North Carolina. Armed with this search warrant and accompanied by officers from the Lenoir County Sheriff\u2019s office and the Kinston Police Department, Officer Young immediately proceeded to the premises at 405 Holloway Drive where he executed the search warrant at about 3:20 p.m. A search of defendant\u2019s person and premises was conducted after the search warrant had been read to him, and he had been advised of his constitutional rights. A search of defendant\u2019s person produced a matchbox in which five small pink capsules containing a white powder was found. A search of the premises revealed 54 packages of white powder, syringes and needles, a brown paper bag containing several bloody balls of cotton and kleenex, and an address book which contained packages of white powder. Expert testimony tended to show that the white powdery substances contained various percentages of heroin. State\u2019s exhibit No. 7 was an envelope containing marihuana and a book of cigarette papers, but it was not introduced into evidence.\nThe defendant testified that he was a student at Fayette-ville State University at the time of his arrest but was visiting at his home in Kinston; that he and the co-defendant Thompson were in his bedroom when one Holloway came in and began to roll a marihuana cigarette; that defendant would not allow Holloway to smoke it in the house so he left; that Holloway returned about 30 minutes later and wanted to use defendant\u2019s phone; that Holloway laid his address book on the night stand in the bedroom and defendant had never seen that address book before Holloway took it out; that Holloway lit a cigarette in the house but \u201cI didn\u2019t notice him putting the matches that he had on the night table but evidently he did because I didn\u2019t know anything about the matchbox containing five packages of whatever it was\u201d; that he picked up the matchbox along with his cigarettes off the night table when he left the room to make the telephone call; and that \u201cI do not know how the various materials that were found in my bedroom got there.\u201d The defendant also introduced the evidence of the co-defendant Thompson which tended to corroborate his testimony.\nFrom a verdict of guilty and judgment of imprisonment for five years entered thereon, the defendant appealed to the Court of Appeals. Due to the inability of defendant\u2019s counsel to obtain a trial transcript within the time allowed to perfect his appeal, a petition for writ of certiorari was allowed on 14 January 1972.\nAttorney General Morgan, by Assistant Attorney General Eatman, for the State.\nEverette L. Wooten, Jr., for defendant appellant." }, "file_name": "0200-01", "first_page_order": 226, "last_page_order": 232 }