Opinion
No. 8727SC543
Filed 5 April 1988
1. Criminal Law 84 — invalid warrant — admission of seized evidence — good faith exception to exclusionary rule Although an affidavit submitted to obtain a search warrant did not contain sufficient information to establish probable cause for issuance of the warrant, the trial court properly denied defendant's motion to suppress evidence seized in a search under the warrant because of the good faith exception to the exclusionary rule.
2. Searches and Seizures 39 — warrant for residence — search of garage Even though a garage was a separate building and a place of business, the garage could be searched as part of defendant's residence.
3. Searches and Seizures 39 — execution of warrant — delay of inventory A delay of three and one-half days between execution of a warrant and return of the inventory of the items seized was not unreasonable or prejudicial. N.C.G.S. 15A-257.
4. Searches and Seizures 29 — search warrant — showing time of issuance Omission of the time of issuance of a search warrant above the signature of the magistrate was not prejudicial where the time of issuance was noted elsewhere on the face of the warrant. N.C.G.S. 15A-241(1).
5. Criminal Law 90.1 — State's impeachment of own witness — prior inconsistent statement The trial court did not err in permitting the State to use a prior inconsistent statement to impeach its own witness where there was no showing that the prior statement was used under the guise of impeachment for the primary purpose of placing before the jury substantive evidence which was not otherwise admissible. N.C.G.S. 8C-1, Rule 607.
6. Narcotics 4 — trafficking in cocaine — sufficient evidence The evidence was sufficient to support defendant's conviction of trafficking in cocaine by selling more than 28 grams thereof. N.C.G.S. 90-95(h)(3).
APPEAL by defendant from Ferrell, Judge. Judgments entered 27 February 1987 in Superior Court, GASTON County. Heard in the Court of Appeals 7 December 1987.
Attorney General Lacy H. Thornburg, by Assistant Attorney General G. Patrick Murphy, for the State.
Gray and Hodnett, P.A., by James C. Gray, for defendant, appellant.
Judge BECTON dissenting.
This is a criminal action wherein defendant was charged in proper bills of indictment with trafficking in cocaine under G.S. 90-95(h)(3) and with possession of drug paraphernalia under G.S. 90-113.22.
The State's evidence tends to show the following: Detective William Durst of the Gaston County Police Department set up a meeting to buy cocaine from Gene Orendorff. At the meeting Durst purchased cocaine using cash. The serial numbers of the cash had previously been recorded by making photocopies of the bills.
Orendorff and another man, Jeff Manning, were to later deliver the cocaine. They were observed driving to a trailer park where they picked up a third man, Kenny Wood. Later, Detective Durst met with the three men to receive the cocaine. The men were then arrested. Both Orendorff and Wood made statements to the police. Wood told police that defendant had sold the cocaine to him and that he had given defendant the money earlier received from Durst.
Upon a search of defendant's residence, police found a set of triple-beam scales, a notebook, a 12-gauge shotgun, rolling papers, marijuana and cocaine cutting agents. Also found were bills with serial numbers matching those photocopied earlier by Detective Durst.
Before defendant's trial began, he moved to suppress the evidence. The motion was denied. The jury returned two verdicts of guilty and from sentences of 10 years for trafficking of cocaine and 12 months for possession of drug paraphernalia, defendant appealed.
Defendant's first contention is that the trial court committed reversible error in denying his motion to suppress evidence seized by police. Defendant argues the search warrant was not issued with probable cause as required under the "totality of the circumstances" test of Illinois v. Gates, 462 U.S. 321, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). He bases this on his contention that the affidavit submitted to secure the search warrant does not have sufficient information to establish probable cause. The State all but concedes the affidavit is insufficient, but argues the court did not err in denying the motion to suppress due to the "good faith exception" to the exclusionary rule.
The "good faith exception" is enunciated and elaborated on in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1982). Our State recognized this "good faith exception" in State v. Welch, 316 N.C. 578, 342 S.E.2d 789 (1986). We hold the trial court did not err in denying defendant's motion to suppress the evidence because of the good faith exception.
Defendant further contends "the officers did not have a right to search [defendant's] garage, a licensed business in a premises separate from the residence home of the Defendant." Even though the garage was a separate building and a place of business, it could be searched as part of defendant's residence. State v. Trapper, 48 N.C. App. 481, 269 S.E.2d 680 (1980).
Defendant next argues a delay of three and one-half days between execution and return of the inventory of items seized was an undue delay in violation of G.S. 15A-257. The statute does not state a particular time for return of the inventory, and we hold that in this case the delay was not undue or unreasonable, and we can conceive of no prejudice.
Under G.S. 15A-242, defendant argues that several items were improperly seized. The statute allows for seizure of contraband or evidence of an offense. Pursuant to a lawful search warrant, officers have a right to seize any articles thought to be connected to the drug business of defendant. All items in this case were properly seized.
Defendant also argues the search warrant fails to meet the requirements of G.S. 15A-246(1) in that the time of issuance is not found above the signature of the magistrate. Such an omission could be significant, but in this case there is no prejudice since the time of issuance was noted elsewhere on the face of the warrant.
Defendant next argues the trial court erred by allowing impeachment of Wood, the State's witness. Wood was asked about his prior inconsistent statement to Detective Durst. Following Wood's denial of the statement, Durst testified as to what Wood told him. Defendant asserts that although G.S. 8C-1, Rule 607 allows the State to impeach its own witnesses by use of a prior inconsistent statement, the State "may not use such a statement under the guise of impeachment for the primary purpose of placing before the jury substantive evidence which is not otherwise admissible." United States v. Miller, 664 F.2d 94, 97 (1981).
In this case, two witnesses had already testified as to Wood's involvement. Wood's actions were important to the State's case, and his testimony was needed. There is no showing that the prior inconsistent statement was used for any purpose other than impeachment. The State acted in good faith, and there was no error in allowing impeachment.
Finally, defendant argues the trial court erred in its motions to dismiss, to set aside the verdicts and for a new trial. In ruling on a motion to dismiss, the trial court must determine "whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense." State v. Lowery, 309 N.C. 763, 766, 309 S.E.2d 232, 235-36 (1983). If there is substantial evidence of these determinations, denial of the motion is proper. Id.
In considering whether this evidence is sufficient, the evidence is considered in the light most favorable to the State. State v. Lowery, 309 N.C. 763, 309 S.E.2d 232 (1983).
For a defendant to be convicted of trafficking in cocaine, he must be someone "who sells, manufactures, delivers, transports, or possesses 28 grams or more of coca leaves or any salts, compound, derivative or preparation thereof. . . ." G.S. 90-95(h)(3). In this case, the jury found defendant guilty of selling more than 28 grams of cocaine. There is ample evidence that defendant sold more than 28 grams of cocaine. For this reason, the motion to dismiss was properly denied.
Likewise, we find the motions to set aside the verdicts and for a new trial were properly denied since there was sufficient evidence for the verdicts. These arguments have no merit.
We hold defendant had a fair trial, free from prejudicial error.
No error.
Judge GREENE concurs.
Judge BECTON dissents.