{ "id": 8521020, "name": "STATE OF NORTH CAROLINA v. KEITH EUGENE COLLINS", "name_abbreviation": "State v. Collins", "decision_date": "1982-03-16", "docket_number": "No. 8121SC657", "first_page": "352", "last_page": "358", "citations": [ { "type": "official", "cite": "56 N.C. App. 352" } ], "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": "187 S.E. 2d 706", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "714" } ], "opinion_index": 0 }, { "cite": "281 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573594 ], "year": 1972, "pin_cites": [ { "page": "12" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0001-01" ] }, { "cite": "203 S.E. 2d 61", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "285 N.C. 87", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562193, 8562130, 8562162, 8562228, 8562108 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/285/0087-04", "/nc/285/0087-02", "/nc/285/0087-03", "/nc/285/0087-05", "/nc/285/0087-01" ] }, { "cite": "201 S.E. 2d 740", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "20 N.C. App. 409", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552932 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc-app/20/0409-01" ] }, { "cite": "296 N.W. 2d 388", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10682737 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nw2d/296/0388-01" ] }, { "cite": "241 S.E. 2d 83", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "35 N.C. App. 212", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548181 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/35/0212-01" ] }, { "cite": "246 S.E. 2d 34", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "37 N.C. App. 416", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553105 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/37/0416-01" ] }, { "cite": "258 S.E. 2d 415", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "43 N.C. App. 184", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550486 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/43/0184-01" ] }, { "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": "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": "248 S.E. 2d 733", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "295 N.C. 555", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565920, 8565957, 8565862, 8565833, 8565880 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0555-04", "/nc/295/0555-05", "/nc/295/0555-02", "/nc/295/0555-01", "/nc/295/0555-03" ] }, { "cite": "244 S.E. 2d 716", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1978, "pin_cites": [ { "page": "719" } ], "opinion_index": 0 }, { "cite": "36 N.C. App. 469", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554211 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/36/0469-01" ] }, { "cite": "180 S.E. 2d 755", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "765" } ], "opinion_index": 0 }, { "cite": "278 N.C. 561", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561152 ], "year": 1971, "pin_cites": [ { "page": "576" } ], "opinion_index": 0, "case_paths": [ "/nc/278/0561-01" ] }, { "cite": "230 S.E. 2d 146", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "149" } ], "opinion_index": 0 }, { "cite": "291 N.C. 293", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557944 ], "year": 1976, "pin_cites": [ { "page": "298" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0293-01" ] }, { "cite": "376 U.S. 528", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 379836 ], "opinion_index": 0, "case_paths": [ "/us/376/0528-01" ] }, { "cite": "362 U.S. 257", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6163485 ], "opinion_index": 0, "case_paths": [ "/us/362/0257-01" ] }, { "cite": "378 U.S. 108", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6165107 ], "weight": 6, "year": 1964, "pin_cites": [ { "page": "114-15" }, { "page": "729" }, { "page": "1514" } ], "opinion_index": 0, "case_paths": [ "/us/378/0108-01" ] } ], "analysis": { "cardinality": 734, "char_count": 14317, "ocr_confidence": 0.794, "pagerank": { "raw": 6.155461896083572e-08, "percentile": 0.38255550806243915 }, "sha256": "0eafe76a0e0e78910a698442373ec82dad80c838bef023039e62ff215cda917d", "simhash": "1:2b9b9a0b370e417a", "word_count": 2404 }, "last_updated": "2023-07-14T17:44:21.707745+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Hedrick and Martin (Robert M.) concur." ], "parties": [ "STATE OF NORTH CAROLINA v. KEITH EUGENE COLLINS" ], "opinions": [ { "text": "MORRIS, Chief Judge.\nDefendant contends that his motion to suppress should have been granted. He asserts that the trial court\u2019s denial of the motion deprived him of his Fourth and Fourteenth Amendment right to be free from unreasonable search and seizure. Specifically, defendant argues that the application for the search warrant did not satisfy the two-pronged test of Aguilar v. Texas, 378 U.S. 108, 12 L.Ed. 2d 723, 84 S.Ct. 1509 (1964), because the issuing official was riot sufficiently informed of the underlying circumstances from which the informant, Smith, concluded that there was contraband on the premises, and because there was no showing that Smith was a credible informer or his information reliable.\n\u201cAlthough an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, see Rugendorf v. United States, 376 U.S. 528, was \u2018credible\u2019 or his information \u2018reliable.\u2019 Otherwise, \u2018the inferences from the facts which lead to the complaint\u2019 will be drawn not \u2018by a neutral and detached magistrate,\u2019 as the Constitution requires, but instead by a police officer \u2018engaged in the often competitive enterprise of ferreting out crime,\u2019 Giordenello v. United States, supra, [357 U.S.] at 486; Johnson v. United States, supra, [333 U.S.] at 14, or, as in this case, by an unidentified informant.\u201d 378 U.S. at 114-15, 12 L.Ed. 2d at 729, 84 S.Ct. at 1514.\nQuoted in State v. Hayes, 291 N.C. 293, 298, 230 S.E. 2d 146, 149 (1976).\nIn the case sub judice, the issuing official had before him the affidavit of Detective Hutcherson, which we quote in part:\nThe applicant swears to the following facts to establish probable cause for the issuance of a search warrant: I am Detective V. J. Hutcherson of the Winston-Salem Police Dept. and as such, am empowered to search for and seize contraband as described in North Carolina General Statutes, Chapter #90. On Saturday, 10-18-80, at approximately 1630 hours, I was contacted by a white male known to me as \u201cMike\u201d. Mike stated that he could obtain some acid for me for $3.00 a hit. I advised Mike that I would like to purchase some acid. Mike got in my vehicle and directed me to 2722 Patria Street. I parked my vehicle at the intersection of Patria Street and Lemly Street. I gave Mike $20.00 and asked him to purchase me five hits. Mike left the vehicle and walked south to the above described location on Patria Street. I personally observed Mike enter the dwelling on Patria Street. In approximately four minutes, Mike exited from the same location and walked directly back to my vehicle. Mike handed over $2.00 change and (6) hits of star acid. Mike stated that the person who sold him the acid had some more if I wanted to buy some more. Mike was then transported to a location and released.\nAn affidavit is generally deemed sufficient \u201cif it supplies reasonable cause to believe that the proposed search for evidence of the commission of the designated criminal offense will reveal the presence upon the described premises of the objects sought and that they will aid in the apprehension or conviction of the offender.\u201d State v. Vestal, 278 N.C. 561, 576, 180 S.E. 2d 755, 765 (1971).\nWe hold that Detective Hutcherson\u2019s affidavit contains facts sufficient for the issuing official to determine that there were reasonable grounds to believe that illicit drugs were present in the house on Patria Street. The personal observation of the officers was enough to sustain the finding of probable cause necessary for the issuance of a warrant. Detective Hutcherson averred that he observed Smith go into the house with instructions to buy LSD, and come out three or four minutes later with several \u201chits\u201d of \u201cstar acid\u201d which he gave to Hutcherson. This Court, in State v. McLeod, 36 N.C. App. 469, 244 S.E. 2d 716, cert. denied, 295 N.C. 555, 248 S.E. 2d 733 (1978), found in reference to an officer\u2019s affidavit containing an observation nearly identical to the one made by Hutcherson, that \u201c[n]o more information was required in order to establish the probable cause necessary to support the search warrant issued. . . .\u201d Id. at 472, 244 S.E. 2d at 719. Therefore, with cognizance of the Aguilar test, \u201c[w]e find the personal observations of the police officer as set forth in the affidavit in the case sub judice [sufficient] to meet the first \u2018prong\u2019 of the test.\u201d Id.\nDefendant also asserts, however, that the second or \u201cveracity prong\u201d of the test was not satisfied in the case before us, because the affidavit contains no facts from which the issuing official could imply that the informant was credible or his information reliable. We disagree on two grounds. First, the affidavit does not rest on hearsay. \u201cEven though the affidavit contained some information which may have come from an . . . informant, . . . the credibility of the informant or the reliability of such information need only be shown when it is necessary that such hearsay be relied upon in finding the requisite probable cause.\u201d Id.; see Spinelli v. United States, 393 U.S. 410, 21 L.Ed. 2d 637, 89 S.Ct. 584 (1969). As indicated above, the facts here, as in McLeod, do not set forth circumstances requiring such reliance, and the second prong of Aguilar does not come into play.\nEven were the second prong of the Aguilar test applicable here, Smith\u2019s statement that he could procure LSD for the officers and his acquisition of the drug amounted to an admission against penal interest, United States v. Harris, 403 U.S. 573, 29 L.Ed. 2d 723, 91 S.Ct. 2075 (1971); State v. Harris, 43 N.C. App. 184, 258 S.E. 2d 415 (1979); State v. Tickle, 37 N.C. App. 416, 246 S.E. 2d 34 (1978); State v. Beddard, 35 N.C. App. 212, 241 S.E. 2d 83 (1978), showing his information to be reliable. Defendant maintains that Smith\u2019s actions in obtaining the LSD did not serve as a declaration against penal interest because he did not know that Hutcherson and Pittman were police officers. Yet \u201c[i]t should not be assumed . . . that an admission against penal interest can be used to establish reliability only when that admission is made directly to a law enforcement officer, for that is not the case.\u201d W. LaFave, 1 Search and Seizure \u00a7 3.3 at 530 (1978). We conclude that there is as much or more reason to rely on Smith\u2019s unmindful admission than on a statement made knowingly to police. The Supreme Court of Minnesota, citing LaFave, held, in a case similar on its facts, that an informant who offered to sell stolen property to a police officer, whom the informant did not know was a law enforcement official, had committed a crime; and, therefore, the informant\u2019s statements were against his penal interest. State v. Wiberg, \u2014 Minn. \u2014, 296 N.W. 2d 388 (1980). Smith was not a paid police informer, nor was he promised any sort of inducement to speak. He had no motive to lie and his words were spoken in circumstances consistent with their reliability. It does not matter that the informer spoke directly to undercover police officers whose real identities were unknown to him.\nDefendant argues that the informer\u2019s reliability was compromised by the failure of the police to search him before he entered the house on Patria Street, as he may have had the LSD on his person prior to entering the house rather than having bought it there. The argument is unconvincing, however. The investigation of the case was conducted surreptitiously. Smith\u2019s lack of knowledge as to the officers\u2019 identity, which enhanced his credibility, obviously rendered it impossible for Hutcherson or Pittman to search him before he entered the house to make the drug purchase without revealing themselves as officers. We held in State v. McLeod, supra, that even in situations in which officers conduct \u201ccontrolled buys\u201d of narcotics, failure to search the individual making the purchase prior to its actually being made and specifically setting forth the fact in the affidavit by which a search warrant is sought is not fatal.\nDefendant contends that the evidence presented at trial was not sufficient to sustain his conviction in that it did not establish actual or constructive possession of the marijuana. On the contrary, we find plenary evidence of possession.\nAccording to a next door neighbor, defendant was a renter whom she saw every day. There was evidence that defendant had paid rent, and he was seen moving furniture out of the house subsequent to the 18 October search. Further, evidence tending to show constructive possession of marijuana included a document showing defendant\u2019s assumption of liability for water service for the house with the billing and service address being 2722 Patria Street, a request dated 4 November to discontinue water service indicating that defendant would no longer be liable, a water bill for the period 19 August to 4 November 1980 indicating defendant was the party billed, and an envelope from a law firm addressed to defendant at 2722 Patria Street. We think this evidence sufficient to show defendant had the power and intent to control the disposition or use of the confiscated marijuana so as to have it in his constructive possession. See State v. Cockman and Lucas, 20 N.C. App. 409, 201 S.E. 2d 740, cert. denied 285 N.C. 87, 203 S.E. 2d 61 (1974). The fact that the marijuana was found on premises under the control of defendant, \u201cin and of itself, gives rise to an inference of knowledge and possession which may be sufficient to carry the case to the jury on a charge of unlawful possession.\u201d State v. Harvey, 281 N.C. 1, 12, 187 S.E. 2d 706, 714 (1972).\nIn defendant\u2019s trial and the judgment of the court, we find\nNo error.\nJudges Hedrick and Martin (Robert M.) concur.", "type": "majority", "author": "MORRIS, Chief Judge." } ], "attorneys": [ "Attorney General Edmisten, by Associate Attorney Reginald L. Watkins, for the state.", "Badgett, Calaway, Phillips, Davis, Stephens, Peed and Brown, by B. Ervin Brown, II, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. KEITH EUGENE COLLINS\nNo. 8121SC657\n(Filed 16 March 1982)\n1. Searches and Seizures \u00a7 23\u2014 search warrant \u2014 sufficiency of officer\u2019s affidavit\nAn officer\u2019s affidavit to obtain a search warrant contained sufficient information for the issuing official to determine that there were reasonable grounds to believe that illegal drugs were present in the house to be searched where the officer alleged that he observed another person go into the house with instructions to buy LSD and come out three or four minutes later with several \u201chits\u201d of \u201cstar acid\u201d which he gave to the officer.\n2. Searches and Seizures \u00a7 24\u2014 observation of informant\u2019s acts \u2014showing of reliability unnecessary \u2014 admission against penal interest\nWhere undercover officers observed an informant go to defendant\u2019s house with instructions to purchase LSD and come out three or four minutes later with LSD which he gave to the officers, one officer\u2019s affidavit to obtain a warrant to search defendant\u2019s house was not based on hearsay, and it was not necessary for the affidavit to set forth facts showing the credibility of the informant or the reliability of the information, notwithstanding the officers failed to search the informant before he entered defendant\u2019s house. Furthermore, the informant\u2019s statement to the officers that he could procure LSD for them' and his acquisition of LSD amounted to an admission against penal interest which showed that his information was reliable even though the informant did not know that the officers were policemen at the time he obtained the LSD.\n3. Narcotics \u00a7 4.3\u2014 constructive possession of marijuana \u2014 sufficiency of evidence\nThe State\u2019s evidence was sufficient for the jury to find that marijuana was found in a house under the control of defendant and that he thus had constructive possession of the marijuana where it tended to show that defendant rented the house; defendant was seen at the house every day; defendant was seen moving furniture out of the house subsequent to a search which discovered marijuana; defendant was responsible for the cost of water service to the house; and defendant received mail addressed to him at the house.\nAPPEAL by defendant from Seay, Judge. Judgment entered 6 March 1981 in Superior Court, FORSYTH County. Heard in the Court of Appeals 7 December 1981.\nDefendant was arrested on 18 October 1980 in Winston-Salem pursuant to a search of the house he rented. The search was conducted upon the issuance of a warrant, and property was seized by the officers. Defendant was charged with felonious possession of marijuana and possession of a hypodermic needle and syringe. He moved to suppress the evidence on the grounds that the facts set forth in the application for the warrant failed to establish probable cause for the search.\nEvidence adduced at the hearing on the motion to suppress tended to show that on 18 October Detectives J. D. Pittman and V. J. Hutcherson of the Winston-Salem Police Department met a person known to them as Mike Smith. Smith said he could get them some LSD for $3 a \u201chit.\u201d Smith, unaware that the men were police officers, accompanied them in their car to the intersection of Patria and Limina Streets, where he was given money and told to purchase some LSD. The officers, parked approximately 75 feet away, watched Smith walk into a house at 2722 Patria Street and close the door. He emerged from the house in approximately three or four minutes, returned to the officer\u2019s vehicle and gave Officer Pittman six \u201chits\u201d of \u201cstar acid\u201d and some change. He told Officer Pittman that he had made the purchase from someone known as \u201cK.C.\u201d and indicated that the person who sold the LSD had some more. A warrant was issued to search the house on Patria Street for LSD. No LSD was found in the house, but bags of marijuana and a needle and syringe were discovered.\nThe motion to suppress was denied. Defendant was found not guilty of possession of a hypodermic needle and syringe, but he was convicted of felonious possession of marijuana in violation of G.S. 90-95(a)(3). He appeals from a judgment of imprisonment.\nAttorney General Edmisten, by Associate Attorney Reginald L. Watkins, for the state.\nBadgett, Calaway, Phillips, Davis, Stephens, Peed and Brown, by B. Ervin Brown, II, for defendant appellant." }, "file_name": "0352-01", "first_page_order": 384, "last_page_order": 390 }