State v. Milloway

WELLS, Judge. Defendant assigns error to the trial court’s denial of his motion to suppress, arguing first that the search warrant application lacked any indicia of probable cause. In evaluating this contention we quote the standard adopted by our Supreme Court in State v. Arrington, 311 N.C. 633, 319 S.E. 2d 254 (1984): The task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for . . . concluding] ” that probable cause existed. Id. (quoting Illinois v. Gates, 462 U.S. 213 (1983)). The search warrant application completed by Detective Gibson stated, in part, the following: [582] [O]n 4 May 1988, James Leon Kieth II [sic], Scott Christopher Renner, and John Wesley Stawicki were charged . . . with the possession of. . . marijuana. These subjects gave statements stating that they were hired by Richard Bennett Milloway to break into Unit #43 of Morningstar Mini Storage and steal the marijuana for which they were to receive $1000.00 when they carried the marijuana to Milloway’s apartment at #115 Lion’s Gate. These subjects further stated that they have purchased marijuana from Richard Bennett Milloway at 115 Lion’s Gate and that Milloway owns a M-14 rifle. Defendant’s criticism of the application centers on its reliance upon statements made by the three people arrested at the storage business; he argues that it did not establish the informants’ reliability. This argument fails to recognize the degree of flexibility inherent in the totality of the circumstances standard for determining probable cause. See State v. Barnhardt, 92 N.C. App. 94, 373 S.E. 2d 461, disc. rev. denied, 323 N.C. 626, 374 S.E. 2d 593 (1988). Although the affidavit did not state that the informants had been reliable in the past, its recitation of their self-incriminating remarks provided an alternative ground upon which to find their statements to be reliable. Common sense in the important daily affairs of life would induce a prudent and disinterested observer to credit these statements. People do not lightly admit a crime and place critical evidence in the hands of the police in the form of their own admissions. Admissions of crime, like admissions against proprietary interests carry their own indicia of credibility — sufficient at least to support a finding of probable cause to search. Arrington, supra (quoting United States v. Harris, 403 U.S. 573 (1971)). Defendant also criticizes the application because he contends that it did not set out any basis of knowledge from which to believe that evidence would be found in his apartment. We disagree and note that the affidavit stated that defendant had sold marijuana out of his residence, and that defendant had hired three people to steal additional marijuana and deliver it to his residence. These statements support the finding that a fair probability existed that evidence of a crime involving possession of a controlled substance would be found at his residence. [583] We hold that there was a substantial basis for the trial court’s finding that probable cause existed. We overrule this assignment of error. Defendant next contends that the trial court erred in denying his motion to suppress because the affidavit “recklessly misrepresented and misstated facts.” He asserts that although the affidavit purported to rely on statements made by each of the three individuals arrested at the storage business, testimony at the suppression hearing revealed that in fact only one of the three gave a complete statement. We note that the officers’ testimony at the suppression hearing did not present the statements made by Keith or Stawicki in as great a detail as those of Renner, but all of the testimony regarding these statements was entirely consistent with that supplied in the affidavit. Defendant did not, furthermore, attempt to elicit any clarifying testimony during cross-examination from the officers regarding the statements made by Keith or Stawicki. Defendant also points to the portion of the affidavit that stated his full name. The three individuals identified the person who hired them only as Richard; the full name, Richard Bennett Milloway, was found during subsequent research based upon the address they supplied. Although the affidavit did not clearly state the source of the information regarding the suspect’s full name, this does not render the affidavit invalid. The magistrate’s inquiry in a probable cause determination focuses on the circumstances set forth in the affidavit; the inquiry does not extend to investigating the correctness of those circumstances. State v. Kramer, 45 N.C. App. 291, 262 S.E. 2d 693, disc. rev. denied, 300 N.C. 200, 269 S.E. 2d 627 (1980). Because we hold that the trial court correctly determined that the search warrant was supported by probable cause we do not address defendant’s remaining assignment of error. No error. Chief Judge HEDRICK and Judge ARNOLD concur.