{
  "id": 8358702,
  "name": "STATE OF NORTH CAROLINA v. MARK TIMOTHY ROARK",
  "name_abbreviation": "State v. Roark",
  "decision_date": "1986-11-25",
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  "casebody": {
    "judges": [
      "Judges Eagles and Parker concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. MARK TIMOTHY ROARK"
    ],
    "opinions": [
      {
        "text": "WEBB, Judge.\nThe defendant assigns error to the admission of the evidence seized as a result of the searches pursuant to the two warrants. We believe this assignment of error has merit.\nPrior to Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed. 2d 527, reh\u2019g denied, 463 U.S. 1237, 104 S.Ct. 33, 77 L.Ed. 2d 1453 (1983) the evidence would clearly have to be excluded. The affidavits in support of the search warrants are inadequate under Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed. 2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.ED. 2d 637 (1969). There is nothing in the affidavit which shows the information given by the informant is reliable. Gates relaxed the two-pronged test that grew from Aguilar and Spinelli, i.e., that the affidavit must show both the basis of the informant\u2019s knowledge and that he is reliable. It adopted a \u201ctotality of circumstances\u201d test, i.e., \u201cwhether, given all the circumstances set forth in the affidavit before him, including the \u2018veracity\u2019 and \u2018basis of knowledge\u2019 of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.\u201d 462 U.S. at 238, 103 S.Ct. at 2332, 76 L.Ed. 2d at 548. The Supreme Court made it clear that what it called a \u201cbare bones\u201d affidavit, one which says only that the affiant has received reliable information from a credible person and does believe, is not sufficient for a magistrate to find probable cause for a search.\nOur Supreme Court adopted the totality of circumstances test in State v. Arrington, 311 N.C. 633, 319 S.E. 2d 254 (1984). In this case we believe that we are bound by the cases cited above from the United States Supreme Court and the Supreme Court of North Carolina to hold that it was error for the magistrate to issue search warrants based on affidavits which only said a \u201creliable and confidential informant personally contacted the applicant with the information\u201d that stolen property was on the premises of defendant.\nIn United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed. 2d 677, reh. denied, 468 U.S. 1250, 105 S.Ct. 52, 82 L.Ed. 2d 942 (1984), the United States Supreme Court held that not all evidence obtained by the use of an invalid search warrant should be excluded from evidence. It held that when an officer reasonably relies on a search warrant issued by a detached and neutral magistrate, evidence seized during the search is admissible although the warrant is later determined to be invalid. The Supreme Court said that one instance in which the exception does not apply is when the warrant is based on an affidavit \u201cso lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.\u201d Id. at 923, 104 S.Ct. at 3421-3422, 82 L.Ed. 2d at 699, quoting Brown v. Illinois, 422 U.S. at 610-611, 95 S.Ct. 2254, 45 L.Ed. 2d 416. We believe a reading of the United States Supreme Court cases shows that they consider a \u201cbare bones\u201d allegation such as we have in this case to be so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. For that reason this case would not be an exception to the exclusionary rule. It was error to admit the evidence seized in the searches.\nWe do not discuss the defendant\u2019s other assignment of error because the question it poses may not arise at a new trial.\nNew trial.\nJudges Eagles and Parker concur.",
        "type": "majority",
        "author": "WEBB, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Lacy H. Thornburg, by Associate Attorney General Mabel Y. Bullock, for the State.",
      "Appellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Leland Q. Towns, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. MARK TIMOTHY ROARK\nNo. 8625SC584\n(Filed 25 November 1986)\n1. Searches and Seizures \u00a7 26\u2014 search warrant \u2014 bare bones affidavit \u2014 evidence not admissible\nEvidence seized under a search warrant issued pursuant to a \u201cbare bones\u201d affidavit which said only that a reliable and confidential informant personally contacted the applicant with the information was not admissible.\n2. Searches and Seizures 8 19\u2014 invalid warrant \u2014 bare bones affidavit \u2014 no good faith exception\nEvidence seized pursuant to a search warrant based on a \u201cbare bones\u201d affidavit was not admissible under an exception to the exclusionary rule for search warrants issued by a detached and neutral magistrate.\nAppeal by defendant from Lewis (John B., Jr.), Judge. Judgment entered 22 January 1986 in Superior Court, CALDWELL County. Heard in the Court of Appeals 18 November 1986.\nThe defendant was tried for breaking or entering, felonious larceny and possession of stolen property. The defendant made a motion that certain evidence seized during searches of his premises be suppressed. The evidence at the voir dire hearing showed that on 31 January 1985 an officer made an application for a search warrant to a magistrate in Caldwell County. The affidavit in support of the application for the search warrant said:\nThat sometime between January, [sic] 25th 1985, and January, [sic] 31, 1985 the Caldwell Christian [Sjchool in Hudson was broken into and 2 microscopes (one wolf Bran [sic] and one-ideal Bran [sic] taken.[)] That sometime prior to this application a reliable and confidential informant personally contacted the applicant with the information that the stolen microscopes are in the above described residence of Mark [T]imothy Roark.\nThe magistrate issued a search warrant based on this affidavit. A search of the defendant\u2019s residence was made and the officers found one Ideal microscope. On 4 February the officer applied for a second search warrant for the defendant\u2019s premises. On the affidavit he used identical language as in the first search warrant except he said there were two basic dissecting kits on the defendant\u2019s premises. The defendant\u2019s premises were searched a second time and five dissecting kits were found which were identified as having been stolen from the Caldwell Christian School. The court made findings of fact based on this evidence and held that the search warrants were properly issued. The evidence found as a result of the two searches was admitted.\nThe defendant was convicted and appealed from the imposition of a prison sentence.\nAttorney General Lacy H. Thornburg, by Associate Attorney General Mabel Y. Bullock, for the State.\nAppellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Leland Q. Towns, for defendant appellant."
  },
  "file_name": "0425-01",
  "first_page_order": 453,
  "last_page_order": 455
}