{
  "id": 12167573,
  "name": "STATE OF NORTH CAROLINA v. CHARLES NEWCOMB",
  "name_abbreviation": "State v. Newcomb",
  "decision_date": "1987-01-20",
  "docket_number": "No. 8615SC262",
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  "last_updated": "2023-07-14T23:00:23.119892+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [
      "Judges JOHNSON and COZORT concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. CHARLES NEWCOMB"
    ],
    "opinions": [
      {
        "text": "BECTON, Judge.\nDefendant, Charles Newcomb, was indicted for maintaining a dwelling used for keeping and selling marijuana, manufacturing and possessing marijuana with intent to sell or deliver, and possessing drug paraphernalia with intent to use, in violation of N.C. Gen. Stat. Secs. 90108(a)(7), 90-108(a)(l), and 90-113.22 (1983) respectively. Defendant filed motions to suppress the evidence on both North Carolina statutory and State and Federal Constitutional grounds. The trial court found no substantial violation of North Carolina statutes. And although the trial court found that the search warrant was issued without probable cause, the trial court determined that the police officer who applied for and executed the warrant acted in good faith and refused to suppress the evidence. Defendant appeals. We reverse.\nI\nThe trial court made the following findings of fact. On 21 March 1985 Officer R. D. Cockman executed the affidavit for a search warrant. The affidavit contained the following sworn statement by Officer Cockman:\nThis applicant swears to the following facts to establish probable cause for the issuance of a search warrant: I, the undersigned applicant, have been a law enforcement officer for more than three years with the Alamance County Sheriffs Department. During this time I have received extensive training including Basic Law Enforcement Officer\u2019s Certification and Advanced Criminal Investigation courses presented through the North Carolina Justice Academy. During the last year I have been involved in several investigations concerning drug offenses in Alamance County. Within the past five days from March 21, 1985, the person who I will refer to as \u201cHe,\u201d regardless of the person\u2019s sex, contacted me. This person offered his assistance to the City-county vice unit in the investigation of drug sales in the Burlington-Alamance County area. This person told myself [sic] that he had been inside the residence described herein being Rt. 8, Box 122, Lot #82 County Club Mobile Home Park, Burlington, where he observed a room filled with marijuana plants. He stated that the suspect Charles Wayne Newcomb was maintaining the plants. This applicant confirmed the identity of the suspect to be Charles Wayne Newcomb. This information obtained [sic] through D.M.V. records through vehicle registration. This applicant further checked with Duke Power Company and found this residence to have Charles Wayne Newcomb listed as the current occupant. Based on these facts and this information, this applicant requests that this search warrant be issued for the search of the premises described.\nMagistrate Sandra Herring found probable cause based on the foregoing affidavit and issued a search warrant on 21 March 1985. The magistrate had been trained regarding the requirements for a probable cause determination. Defendant\u2019s residence was searched on 23 March 1985. Evidence was seized as a result.\nOfficer Cockman \u201cunintentionally and inadvertently\u201d failed to state the reason the informant was reliable and the time the informant\u2019s observations were made. He had previously been trained in the preparation of affidavits and had prepared four or five in obtaining search warrants. He spent three hours preparing the affidavit. No one else reviewed the affidavit. Officer Cockman stated that he thought the affidavit was \u201ctrue and valid.\u201d He made no prior investigation of defendant or his residence.\nII\nDefendant assigns as error the trial court\u2019s: (1) admission of Officer Cockman\u2019s testimony regarding matters supporting probable cause that were not contained in his affidavit; (2) exclusion of testimony from Magistrate Herring regarding similar search warrant cases; (3) denial of defendant\u2019s various motions to suppress the evidence; and (4) denial of defendant\u2019s motion to identify the confidential informant.\nDefendant failed to argue his first two assignments of error in his brief. They are therefore deemed abandoned in accordance with Rule 28(b)(5) of the North Carolina Rules of Appellate Procedure. We turn now to defendant\u2019s remaining assignments of error.\nIll\nDefendant contends that the evidence was seized in violation of his right, under the Fourth Amendment to the United States Constitution and Article I, Section 20 of the North Carolina Constitution, to be free from unreasonable searches and seizures, because Officer Cockman entered his home without a valid warrant. He maintains that the trial court correctly found the warrant invalid under the Gates \u201ctotality of the circumstances\u201d test. Illinois v. Gates, 462 U.S. 213, 76 L.Ed. 2d 527 (1983). He argues, however, that the trial court erred in forgiving the invalidity of the warrant under the \u201cgood-faith exception\u201d to the exclusionary rule. United States v. Leon, 468 U.S. 897, 82 L.Ed. 2d 677 (1984). We agree with defendant.\nUnder Gates, the totality-of-the-circumstances test includes a consideration of the contents of the informant\u2019s statement as well as independent investigations or corroboration of details. The test is no longer limited to mere consideration of reliability, veracity, and credibility as was formerly the case. Later, in Massachusetts v. Upton, 466 U.S. 727, 80 L.Ed. 2d 721 (1984) the Court indicated that the totality-of-the-circumstances approach in Gates was a completely new, less technical model for determining probable cause.\nNorth Carolina expressly adopted the reasoning of the U.S. Supreme Court in Gates and Upton to questions arising under Article I, Section 20 of the Constitution of North Carolina in State v. Arrington, 311 N.C. 633, 319 S.E. 2d 254 (1984). Consequently we need not engage in a dual analysis of North Carolina and United States Constitutional search and seizure law. The precedent we look to applies equally to both issues.\nIn Arrington the North Carolina Supreme Court examined the validity of a search warrant in which the affiant failed to state that the information therein came from personal knowledge of a reliable source. In upholding the warrant, the Court heeded closely the admonitions of the Upton Court which cautioned against a de novo scrutiny of the basis for a search warrant and urged deference to the magistrate\u2019s determination. The Arrington Court considered as significant other circumstances such as the corroboration of the informant\u2019s story by a second informer and the fact that the informer admitted, against his penal interest, to having purchased a controlled substance from the defendant.\nIn the case before us, the record is devoid of any circumstances that tend to make the informant\u2019s statement credible. The information he supplied is sparse. His statement gives no details from which one could conclude that he had current knowledge of details or that he had even been inside the defendant\u2019s premises recently. The affidavit contains a mere naked assertion that the informant at some time saw a \u201croom full of marijuana\u201d growing in defendant\u2019s house. The informant was not acting against his penal interest. Neither is there any indication that he had supplied previous information that proved helpful to the police. Officer Cockman made no attempt to corroborate the informant\u2019s story. He did nothing more than verify that defendant lived in the house. We hold that there was not sufficient information on which to find probable cause. The usual deference we give to a magistrate\u2019s decision is undeserved in this case.\nWe turn now to the question whether the State is entitled to have the evidence admitted under the \u201cgood faith exception\u201d to the exclusionary rule. In State v. Welch, 316 N.C. 578, 342 S.E. 2d 789 (1986), the North Carolina Supreme Court adopted the Leon \u201cgood faith exception\u201d to the exclusionary rule. The Leon exception permits the admission of otherwise excludable evidence when the \u201cofficer [takes] every reasonable step to comply with the fourth amendment.\u201d In Welch the officer took a blood sample from the defendant without securing a search warrant. In lieu of a search warrant the officer obtained a nontestimonial identification order by a superior court judge. The North Carolina Supreme Court refused to apply the exclusionary rule stating \u201cto apply the rule [in that case] would not serve to discourage police misconduct and would only defeat justice for no good reason.\u201d\nUnlike Welch and Leon, in the case at bar, the officer took no reasonable steps to comply with the fourth amendment. We cannot condone or excuse his negligence. When the officer fails to provide the magistrate with sufficient information from which to find probable cause, fails to conduct any independent investigation, provides a bare-bones affidavit, and a warrant is issued by a magistrate who, according to the record, asserts that her job is \u201cto find probable cause,\u201d and has found probable cause in each of the approximately 300 warrant applications, we find the good faith exception particularly inappropriate.\nIV\nDefendant next contends that the evidence was obtained as a result of a substantial violation of the provisions of Chapter 15A of the North Carolina General Statutes by the magistrate. Because of our disposition that the seizure violated the Fourth Amendment to the United States Constitution and Article I, Section 20 of the North Carolina Constitution, we need not and do not reach this issue. In any event the trial court failed to make findings of fact to support its conclusion that there was not a substantial violation of Chapter 15A as required by N.C. Gen. Stat. Sec. 15A-977(d) (1983).\nIn view of the foregoing analysis it is not necessary to address defendant\u2019s remaining assignment of error regarding the identity of the confidential informant.\nReversed.\nJudges JOHNSON and COZORT concur.",
        "type": "majority",
        "author": "BECTON, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Lacy H. Thornburg, by Assistant Attorney General John H. Watters, for the State.",
      "Hemric, Hemric & Hemric, P.A., by H. Clay Hemric, Jr., for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. CHARLES NEWCOMB\nNo. 8615SC262\n(Filed 20 January 1987)\nSearches and Seizures \u00a726\u2014 search warrant \u2014 confidential informant \u2014no showing of credibility \u2014affidavit insufficient to show probable cause\nA warrant to search defendant's premises was invalid where the affidavit offered in support thereof gave no information which would tend to show that the confidential informant\u2019s statement upon which it was based was credible; furthermore, the State was not entitled to have the evidence admitted under the \u201cgood faith exception\u201d to the exclusionary rule where the officer affiant took no reasonable steps to comply with the Fourth Amendment of the U. S. Constitution in that he failed to provide the magistrate with sufficient information from which to find probable cause, failed to conduct any independent investigation, and provided a bare bones affidavit, and the warrant was issued by a magistrate who asserted that her job was to find probable cause and she had done so in each of the approximately 300 warrant applications made to her.\nAppeal by defendant from Farmer, Judge. Judgment entered 25 September 1985 in Superior Court, ALAMANCE County. Heard in the Court of Appeals 27 August 1986.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General John H. Watters, for the State.\nHemric, Hemric & Hemric, P.A., by H. Clay Hemric, Jr., for defendant appellant."
  },
  "file_name": "0092-01",
  "first_page_order": 120,
  "last_page_order": 124
}
