Petition for Writ of Certiorari — Barnes v. North Carolina

IN THE

Supreme Court of the Hnited States

OCTOBER TERM, 1991

RONNIE DEAN BARNES,

Petitioner,

STATE OF NORTH CAROLINA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF NORTH CAROLINA

PETITION FOR A WRIT OF CERTIORARI

David F. Tamer

Attorney at Law

1336 Westgate Center Drive

Winston Salem, NC 27103

(919) 760-1273

Counsel for Petitioner

Brief Printing Specialist, 1001 E. Main Street, Suite 210

Richmond, Virginia 23219, (804) 644-0700

i

QUESTIONS PRESENTED

he Did the Superior Court err in

denying the Motion of Defendant Barnes to

Suppress certain evidence obtained from a 1987

Plymouth Horizon under authority of a search

warrant unsupported by probably cause?

as Did the Superior Court err in

denying the Motion of Defendant Barnes to

suppress evidence obtained from him pursuant

to a search warrant which was not supported by

probable cause?

il

PARTIES TO THE PROCEEDING

Ronnie Dean Barnes,

Petitioner,

State of North Carolina,

Respondent.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .....cccccccccccccccce i

PARTIES TO THE PROCEEDING .....cccccccccce ii

TABLE OF CONTENTS ...ccccccccscccccccssccee HE

TABLE OF AUTHORITIES ....ccccccccccccvcces iv

ASSIGNMENT OF ERROR AND JURISDICTION ..... 1

STATEMENT OF THE CASE ....-ccccccccccccceces 2

STATEMENT OF THE FACTS ...ccccccvcccccvcccs 5

ARGUMENT ..ccccccccccccccccccvescecscccccens SY

CONCLUSION ..cccccccccccccccsscccceccccces 24

CERTIFICATE- OF SERVICE ...-ccccccccccccccce 25

APPENDIX ..ccccccncscccccsecssccsesseseccons 26

iv

—

TABLE OF AUTHORITIES

CASES:

Franks vs. Delaware, 438 U.S. 154, S.ce.

, 57 L.E.2d 667 (1978) . 20, 24, 323, 26

Minnesota vs. Olsen, 495 U.S. :

S.Ce. , 109 L.Ed.2d 85 (1990) . 2 6 17

Pollard vs. State, 270 Ind. 599, 388 N.E.2d

496 (1979) : es 6 2 ee 6 oe Se ee Se ee 19

Rakas_ vs. Illinois, 439 U.S. 128, SCs,

, 58 L.Ed.2d 387 (1978) s « 17, 18, 35

ings vs. Kentucky, 448 U.S. 98, S.Ct.

» 6S be BG.2G 633 (1960) . ~- «© «© «© vw 17

Schmid vs. State, 336 N.W.2d 247 (Alaska

ee SS Oe oe es ee ee reas eae 23

State vs. Barfield, 298 N.C. 306, 259 S.E.2d

510 (1979), cert. denied, 448 U.S. 907

(1980) eee See mee ee ee ae ee ee ee ee ee ee

State vs. Booker, 306 N.C. 302, 293 S.E.2d 78

(1982) ee eee we 2 oe we eS ee SO eee

State vs. Csolak, 571 S.W.2d 118 (Mo.App.

1978) . . + . 7 . a o * * . 7 * * . 7. 19

vs. e, 336 N.W.2d 247 (Minn. 198323

Vs. S, 233 Neb. 882, 449 N.W.2d 1

(1989) hae Cer ele ie. 6S aL ee e e

State vs. Kramer, 45 N.C. App. 291, 262 S.E.2d

Vv

693, disc. rev. denied, 300 N.C. 200, 269

S.B.2G@ 627 (1980) . © «© «© ese es we @ © © @ @ 37

State vs. Lang, 309 N.C. 512, 308 S.E.2d 317

(1983) ee ee ae a ee ae ee ee ee ee ae ee ee 16

State vs. Lockett, 232 Kan. 317, 654 P.2d 433

(1982) oe ee ee ee ee ee ee ee ee ee ee ee ee ee ee

State vs. Martin, 315 N.C. 667, 340 S.E.2d 326

Peer e oe alg Gg Gs x eg 6 es ee

State vs. Phillips, 300 N.C. 678, 268 S.E.2d

452 (1980) Se er ee ee ee ee eee ee ee ee ee ee ee 16

United States vs. Burke, 506 F.2d 1165 (9th

St wee « « + ak et’ eh wee eee se

OTHER AUTHORITIES:

28 U.S.C. 1257 a Tae oe ee ee ee ee a ee ee ee ee ee ee

Pourth Amendment ..:+++e+«e¢e«¢++s+ee« « 2g

G.3. iSA°2000 . «© © © © ws ww wo ww wm wove

W.C.G.8. FAw!27(a) « «= © © © © © ee ew 26

B.00.8. 10OTO. «6 « « 0k 3K eae

W. LaFave, Criminal __ Procedure,

(19 4 oP dt Tanna ae eee a eee

1

ASSIGNMENTS OF ERROR

i. The Superior Court erred in denying

the Motion of Defendant Barnes to suppress

certain evidence obtained from a 1987 Plymouth

Horizon under authority of a search warrant

unsupported by probable cause.

r The Superior Court erred in denying

the Motion of Defendant Barnes to suppress

evidence obtained from him pursuant to a

search warrant which was not supported by

probable cause.

JURISDICTION

The jurisdiction of this Court is invoked

pursuant to the provisions of 28 U.S.C. 1257.

S NT _O HE CAS

On August 7, 1989, the Forsyth County

Grand Jury returned indictments, proper in

form, which charged Defendant Ronnie Dean

Baxrnes with the crimes of First-Degree Murder,

First-Degree Burglary, and attempted First-

Degree Arson.

Trial began before the Honorable Julius

A. Rousseau, Jr., at the February 12, 1990

Criminal Session of Forsyth County Superior

Court.

On February 21, 1990, the jury impaneled

to try the case returned verdicts finding

Defendant Barnes guilty of First-Degree Murder

on a theory of premeditation and deliberation,

First-Degree Burglary, and attempted First-

Degree Arson. The Court thereupon proceeded

to conduct a sentencing hearing, with regard

to the conviction of first degree murder, as

Le

3

provided by G.S. 15A-2000. On February 26,

1990, the jury unanimously recommended that

the Defendant be sentenced to a term of life

imprisonment. The Court thereupon sentenced

the Defendant to a term of life imprisonment

upon his conviction of First-Degree Murder; 40

years of imprisonment upon his conviction of

First-Degree Burglary and 10 years

imprisonment upon his conviction of attempted

First-Degree Arson. All of the terms of

imprisonment were to be served consecutively.

The Defendant gave oral Notice of Appeal

to the Supreme Court of North Carolina on

March 2, 1990. On April 10, 1991, the

Defendant's Motion to Bypass the Court of

Appeals with regard to his convictions of

First-Degree Burglary and attempted First-

Degree Arson was granted.

On June 4, 1993, the Supreme Court of

North Carolina unanimously upheld the

4

Defendant's conviction.

5

STATEMENT OF THE FACTS

At trial, the State introduced evidence

tending to show that, on December 26, 1988,

the decedent, Bobby Douglas Winn, Jr., was

living with his father in Winston-Salem. The

decedent's father testified that he owned an

establishment known as Bobby Sue's Lounge and

that he operated a drywall installation

company out of an office located in his house.

According to Mr. Winn, there was a safe bolted

to the floor of his office.

The decedent's father stated that he left

home on the evening of December 26th and went

to the bar. While there, he saw his son

talking with Defendant Barnes. Although the

two had fought approximately a year earlier,

they seemed to be getting along that evening.

Defendant Lemons was also seen at the lounge.

The decedent left the bar at

6

approximately 8:30 p.m., and Defendants Barnes

and Lemons left a half-hour later.

At approximately 10:00 p.m., a woman

friend told Mr. Winn that his car had flat

tires. Rather than call his son for help, Mr.

Winn sent one of his employees, James Overby,

to his house to get an air compressor. Upon

arriving at the house, Overby tried to rouse

the decedent by knocking on the door. When he

did not get any response, Overby used his key

to go into the basement. According to

Overby's testimony, he did not notice anything

wrong at the Winn house while he was on the

premises. Overby returned to the lounge

approximately a half-hour later. As Mr. Winn

was working on his car, he saw the Defendants

return to the lounge in a black compact car.

Mr. Winn found that the spare tires which he

had were the wrong size. Instead of waking

his son, the father went to the house to get

4

some spare tires between 10:30 and 11:00 p.m.

He was accompanied by a friend, Edward Brewer.

Both defendants purportedly left the bar

shortly thereafter. When he arrived at his

home at approximately 11:00 p.m., Mr. Winn did

not notice anything out of the ordinary. When

Mr. Winn returned to the lounge at

approximately 11:30 p.m., the Defendants were

gone. Mr. Winn did not leave the bar until

shortly after midnight. Upon arriving home at

approximately 12:30 a.m., he saw that the safe

was in front of the house beside the street

and that one of the doors to the basement had

been broken open. A car in the carport had

been damaged. Upon entering the house, Mr.

Winn saw the lights on in his office.

Furthermore, he saw a gas can in the den, as

well as bullet holes in the walls. He found

his son's body on the stairs leading to the

second floor of the house. A subsequent

—————————

8

police investigation established that the

front door and back door had been damaged. In

addition, the office, as well as a bedroon,

had been ransacked. There was blood found on

the steps. In addition, a large yellow

plastic jug was found in the den, and there

was the smell of gasoline throughout the

house. One of the bullets fired into the wall

had been apparently fired from the stairs upon

which the decedent was found. No fingerprints

matching either of the defendants were found

in the dwelling. Kenneth Fuller, an employee

of Parkway Texaco Station, subsequently told a

detective with the Winston-Salem Police

Department that he had sold gasoline to

Defendant Barnes between 9:30 p.m. and 10:00

p.m. on December 26. The attendant initially

denied selling any gasoline to Defendant

Barnes. However, after being falsely told

that his fingerprints had been found on a can

a

9

found at the crime scene, he was able to

recall the transaction. Brenda K. "Peaches"

Baker saw a small black car in the vicinity of

Mr. Williams' house between 10:30 and 11:00

p.m. on December 26th. She recalled seeing a

confederate flag on the front of the vehicle.

According to Ms. Baker, she saw two white

males with a "white jug" in the car. One of

the men apparently told her that they were out

of gas. Ms. Baker saw the men walking toward

Mr. Winn's' house. At trial, Ms. Baker

identified the two defendants as the men she

had seen.

Ms. Kathy Long, Mr. Winn's next door

neighbor, testified that she heard three

"booms" or "bangs" between 11:15 p.m. and

11:30 p.m. on December 26th. Upon looking

from her window, she saw nothing unusual at

the Winn house.

According to the autopsy, the decedent

10

suffered gunshot and knife wounds. In the

opinion of the pathologist, the decedent was

shot first, and he was probably still alive

when he was stabbed. The cause of death was a

combination of the gunshot wound, and the loss

of blood from the knife wounds.

11

ke THE SUPERIOR COURT ERRED IN DENYING

THE MOTION OF DEFENDANT BARNES TO SUPPRESS

CERTAIN EVIDENCE OBTAINED FROM A 1987 PLYMOUTH

HORIZON UNDER AUTHORITY OF A SEARCH WARRANT

UNSUPPORTED BY PROBABLE CAUSE.

II. THE SUPERIOR COURT ERRED IN DENYING

THE MOTION OF DEFENDANT BARNES TO SUPPRESS

EVIDENCE OBTAINED FROM HIM PURSUANT TO A

SEARCH WARRANT WHICH WAS NOT SUPPORTED BY

PROBABLE CAUSE.

On January 5, 1989, Detective Kenneth

Bishop of the Winston-Salem Police Department

applied for a search warrant concerning a 1987

Plymouth Horizon registered to Pamela Renee

Alderson. Blood not inconsistent with that of

the decedent was found in the car.

When Detective Bishop applied for a

‘search warrant, he had in his possession, a

statement from Ms. Baker, taken by Detective

Riggs on December 27, 1989. Detective Bishop

modified that statement in several ways.

First, while Ms. Baker told Detective Riggs

12

that the car she saw was a black Ford Mustang,

Detective Bishop alleged that she had seen a

"black 4-door subcompact car". While Ms.

Baker's description of the car to Detective

Riggs varied considerably from her in-court

testimony about the appearance of the two men

and from the description of other witnesses,

Detective Bishop alleged that her description

of the occupants was very favorable to the

Defendants. Although Ms. Baker told Detective

Riggs that the men she saw had a gas can,

Detective Bishop alleged that she had said

that the men were carrying "a _ plastic

container" like the one found at the scene.

Although Ms. Baker testified that she saw all

of this between 10:30 p.m. and 11:00 p.Mm.,

Detective Bishop alleged that she saw all of

this "shortly before midnight".

Defendants Barnes and Lemons’ moved,

pursuant to pertinent provisions of the State

———————

13

and Federal Constitutions, to suppress the

results of the search, as well as for a

hearing on the question of Detective Bishop's

search warrant application. In particular,

the Defendants alleged (1) that the affidavit

did not establish probable cause; (2) that

Detective Bishop acted in bad faith in making

application for the search warrant; (3) that

there was a break in the chain of custody

concerning the car; (4) that the State's tests

on the blood recovered from the vehicle had

consumed all of the blood leaving none for

defense examination; and, (5) that the

probative value of the evidence derived from

the blood tests was outweighed by its

prejudicial impact.

At trial, the State asserted the position

that Defendants had no standing to suppress

the evidence on the ground that the vehicle

was registered to Ms. Alderson. A hearing was

—————————

14

conducted on a narrow issue of standing, at

which Ms. Alderson and both defendants

testified. According to Ms. Alderson and

Defendant Lemons, the car was used primarily

by Defendant Lemons to store-his tools and to ~

provide transportation to and from work.

Although Defendant Barnes usually drove

Defendant Lemons' truck, he used the car on

occasion. In addition, while Defendant Barnes

testified that he did not have a key to the

vehicle, Defendant Lemons would leave a key in

it for him when he needed to use it. In fact,

according to the testimony of Defendant

Barnes, the keys were left in the car when he

needed to switch the car for the truck. When

the car was seized, his tools were in it.

Based upon the evidence heard at the

hearing, the Trial Court entered the following

order:

All right, I'm going to find with

respect to the possession of the

——w&} =

15

vehicle, that the vehicle that was

seized was bought in April of 1987

by . . . Pam Alderson and ner

boyfriend [Robert Wilkes]; that at

the time, the two of them were

living together; that they separated

sometime in July of 1988; that Mr.

Lemons then moved in with the young

lady; that his automobile was

registered in the name of Mrs. [sic]

Alderson and Mr. Wilkes.

That during the time that Mr. Lemons

lived with her, late fall of 1988,

she allowed Mr. Lemons to drive the

automobile; that he drove it to and

from work; that while at work he

allowed Mr. Barnes to drive the

vehicle; that the keys remained in

the vehicle at all times; that at

the time of the search, it was found

at Mrs.[sic] Alderson's residence in

her driveway.

The Court concludes that, even

though both defendants used the

vehicle from time to time, they had

no right to expect privacy;

therefore had no standing to protest

the search.

The Court further concludes that, if

they had standing to contest the

search, that the search warrant is

valid on its face; that there has

been no showing that any statement

in the search warrant was falsely

made by intentionally and knowingly

applying the facts that it was not

in disregard to the truth. And even

16

though there may be some

discrepancies in the search warrant,

considering the totality of the

circumstances, the Court finds that

the magistrate had probable cause to

issue {the} search warrant and that

the search is valid and any objects

seized as a result of the search

will be admissible in this trial.

It is respectfully contended by Defendant

Barnes that the Trial Court was in error.

If there is no material conflict in the

evidence, the Trial Court need not set out

findings of fact and conclusions of law at a

hearing held upon a motion to suppress. E.gq.

State vs. Phillips, 300 N.C. 678, 268 S.E.2d

452 (1980); insufficient findings where there

has been a material conflict in the evidence

amounts to prejudicial error. Vs. ng,

309 N.C. 512, 308 S.E.2da 317 (1983); e vs.

Booker, 306 N.C. 302, 293 S.E.2d 78 (1982).

In any event, when the evidence is conflicting

and it is necessary to make specific findings

in order to resolve such conflicts, the

17

findings of fact must be sufficient to provide

a basis for the Court's ruling. E.g. State

vs. Barfield, 298 N.C. 306, 259 S.E.2d 510

(1979), cert. denied, 448 U.S. 907 (1980). If

the findings of fact made by the Trial Court

are supported by competent evidence in the

record, they are conclusive.

It is clear, from the findings of fact

and conclusion of law made by the Trial Court

that the crux of the Court's ruling was the

perceived lack of standing on the part of

Defendant Barnes. In order to have standing

to object to a search, a defendant must have a

legitimate expectation of privacy in the place

to be searched. E.g. Minnesota vs. Olsen, 495

w.8: : Sct... ..., 160 &. 28.08

85 (1990); Rawlings vs. Kentucky, 448 U.S. 98,

«S.Ct. __, 65 L.Ed.2d 633 (1980); Rakas

we. Zilingia., 439 U.S. 130, 8. CB. ss

58 L.Ed.2d 387 (1978). In making the

18

determination whether a defendant has a

legitimate expectation of privacy, it is

improper for the Court to treat any single

factor as being determinative. Rakas_ vs.

Illinois, supra at 407, co. :

58 L.Ed.2d at 153 (Powell, J., concurring).

The courts have recognized that relevant

factors on the issue of standing include

common law property interest, possessory

rights, legitimate use of the premises by the

Defendant, the exclusiveness of the

defendant's use of the premises, the right of

a defendant to exclude other from the

premises, and efforts on the part of a

defendant to exclude others. See generally W.

i.

It was the position of the State that

LaFave, Crimina oce “ (19

Defendant Barnes did not having standing to

challenge the search because he had no legal

title to the car. It would be a mistake to

———————

19

hold that the absence of legal title is

determinative of the question of standing.

There are numerous instances in which a

defendant, who did not have legal title to a

vehicle, was found to have legal standing to

challenge the search of the car. E.g. Pollard

vs. State, 270 Ind. 599, 388 N.E.2d 496

(1979); United States vs. Burke, 506 F.2d 1165

(9th Cir. 1974). For example, defendants have

been found to have standing to challenge

searches performed in connection with vehicles

and primacies where they had keys. State vs.

Csolak, 571 S.W.2d 118 (Mo.App. 1978); State

vs. eine, 232 Neb. 882, 449 N.W.2d 1 (1989).

The defendant's reasonable expectation of

privacy is derived from his customary use of

the car, with the knowledge and consent of its

owner. Defendant Barnes drove it on a regular

basis, it is the contention of Defendant

Barnes that the Trial Court's findings of fact

20

were not supported by the evidence.

Furthermore, there is a serious question

in this case concerning the truthfulness of

statements made by Detective Bishop in

connection with this application for a

warrant. It is the position of Defendant

Barnes that material misstatements by the

officer render any subsequent search invalid.

When a defendant makes a substantial

preliminary showing that a false statement

knowingly and intentionally, or with reckless

disregard for the truth, was included in an

affidavit supporting an application for a

search warrant, the Fourth Amendment requires

that a hearing be held to determine the

validity of the warrant which was subsequently

issued. a vs Ww , 438 U.S. 154,

__.., S-Ct. _ __s_, - SP & B38 647 (12078). Te is

the rule that in order for Franks to apply, a

defendant must establish that the omitted or

i eceleeaelialimnnlanainalianallal

21

false information be material to a

determination of probable cause, ta vs.

Martin, 315 N.C. 667, 340 S.E.2d 326 (1986).

It is clear from the Franks decision that a

defendant, challenging such an affidavit, must

establish that, absent the false information,

probable cause would not exist.

In his motion to suppress, Defendant

Barnes alleged that the inaccuracies in

Detective Bishop's anplication were calculated

to point directly to the automobile which he

believed to be involved in the crime. By

modifying the information which he provided,

the Detective sought to insure that the

magistrate would conclude that the particular

‘car would probably have been involved in the

episode. For example, although Ms. Baker told

Detective Riggs that she saw a For Mustang on

the night in question, Detective Bishop

alleged in his application that she _ had

22

identified -the car as being a “black

subcompact". Detective Bishop further alleged

that in his application that the woman gave

him a description that was "very favorable" to

the defendants. In fact, the description

given to the detective was not at all similar

to the defendants in that it described two

clean shaven white men, neither of whom

resembled the bearded defendants.

The face of the search warrant

application, itself, when combined with the

allegations and the affidavits accompanied the

motion to suppress, established that Detective

Bishop made false representations in the

application and that he knew them to be false.

Nevertheless, the trial court summarily ruled

that the discrepancies between the application

and the information known to the detective

were immaterial.

The test of whether an omission or

23

modification in the facts on an application

for a search warrant is material or whether,

absent the omission or modification, probable

cause still would have been found. E.g. State

vs. Lockett, 232 Kan. 317, 654 P.2d 433

(1982); State vs. Doyle, 336 N.W.2d 247 (Minn.

1983); compare Schmid vs. State, 336 N.W.2d

247 (Alaska 1980). Clearly, these

discrepancies were material. If Detective

Bishop had accurately reflected the statement

of Ms. Baker, that she had seen two clean

shaven white men getting out of a Ford Mustang

carrying a gas an, the magistrate, considering

the application for a search warrant would not

have issued a warrant for a Plymouth occupied

by two bearded men on the evening of December

26.

24

CONCLUSION

Based upon the foregoing discussion, it

is respectfully contended by the Petitioner

that this Court issue its Writ of Certiorari

to the Supreme Court of North Carolina for the

purpose of allowing review of this cause.

This the 2N® day of September, 1993.

David F. Tamer

Counsel for Petitioner

1336 Westgate Center Drive

Winston-Salem, NC 27103

(919) 760-1273

25

CERTIFICATE OF SERVICE

The undersigned hereby certifies that he

is an attorney at law licensed to practice in

the State of North Carolina, is an attorney

for the Petitioner and is a person of such age

and discretion as to be competent to serve

process.

That on the 2N'>_ day of September,

1993, he served a copy of the foregoing Writ

of Certiorari by placing said copy in a first

class post-paid envelope addressed as stated

below, which is the last known address.

ADDRESSEE(S):

Solicitor General of the U.S.

One First Street NE

Washington, D.C. 20543

Mr. G. Patrick Murphy

Assistant Attorney General

NC Department of Justice

Post Office Box 629

Raleigh, NC 27602-0629

Chida) € 2( bo.

David F. Tamer ;

Counsel for Petitioner

26

APPENDIX

IN THE SUPREME COURT OF NORTH CAROLINA

STATE OF NORTH CAROLINA )

. :

)

RONNIE DEAN BARNES ) NO. 540A90-Forsyth

. }

)

CHARLES LEE LEMONS )

Appeal as of right pursuant to N.C.G.S.

7A-27(a) from judgments imposing sentences of

life imprisonment entered by Rousseau, J., at

the 26 February 1990 Criminal Session of

Superior Court, Forsyth County, upon jury

verdicts of guilty of first degree murder.

The defendants' motions to bypass the Court of

Appeals as to additional judgments’ were

allowed 10 April 1991. Heard in the Supreme

Court 9 December 1991.

The two defendants were tried for their

lives for first degree murder. They were also

tried for first degree burglary and attempted

—_—

27

first degree arson.

The evidence in the light most favorable

to the State showed that on 26 December 1988,

Bobby Douglas Winn, Jr. was living with his

father in Winston-Salem. The elder Winn owned

and operated Bobby Sue's Lounge, and he was at

the lounge at approximately 6:30 p.m. on that

date. He saw his son and the defendant Barnes

at the lounge. The younger Winn left the

lounge between 8:30 and 9:00 p.m. to go to his

father's home to go to bed. Approximately

thirty minutes later the two defendants left

the lounge together.

At approximately 10:00 p.m., Mr. Winn

discovered two tires on his truck had been

punctured. He sent James Overby to the Winn

residence to get an air compressor to inflate

the tires. When Mr. Overby arrived at the

Winn residence, he saw the truck of the

younger Winn parked in the driveway. He

a

28

knocked on the door but received no answer.

He then went to Mr. Winn's workshop, which was

located on the premises, and retrieved the air

compressor. Mr. Overby testified he did not

notice anything wrong when he was at the Winn

home.

As Mr. Winn and Mr. Overby were working

on the car, they observed the two defendants

in a black four door Plymouth Horizon with a

confederate flag on the front. Lemons was

driving. Mr. Winn then returned with Eddie

Brewer to the Winn residence sometime between

10:30 and 11:00 p.m. to get two spare tires.

Mr. Overby noticed the two defendants

following Mr. Winn and Mr. Brewer in the

Plymouth Horizon. Mr. Winn and Mr. Brewer saw

nothing awry at the Winn residence at this

time. Mr. Winn and Mr. Brewer returned to the

lounge approximately thirty minutes after they

had left it.

29

Kenneth Lee Willard testified he was

working at the Parkway Texaco Station on 26

December 1988, and he sold gasoline to the

defendant Barnes between 9:30 p.m. and 10:00

p.m. on that date. He lent the defendant

Barnes a container for the gasoline and

required him to make a deposit for the

container. Barnes did not’ return’ the

container to Mr. Willard for the refund of the

deposit. Mr. Willard testified that the

container was similar to State's exhibit #5.

Brenda Kay Baker testified that at

approximately 11:00 p.m. on 26 December 1988,

she was walking on Bryant Street close to the

Winn residence when she saw a small black

‘automobile with a confederate flag on the

front. she saw the two defendants leave the

vehicle and walk toward the Winn residence.

One of them was carrying a container which was

Similar to State's exhibit # 5.

SS ee

30

At approximately 12:15 a.m. on 27

December 1988, the elder Winn and his wife

left Bobby Sue's Lounge and went to their

home, arriving at approximately 12:30 a.m.

Mr. Winn noticed that the door to his workshop

waS open. He started to close it and

discovered the lock and the door were damaged

He then discovered that his wife's automobile

had been damaged. When he entered the house,

the odor of gasoline "about knocked him down".

He found the body of his son lying face down.

He had been shot once and had been stabbed

twenty-three times.

Mr. Winn found a gasoline container in

his den which was introduced into evidence as

‘State's exhibit #5. the door to Mr. Winn's

office and the front door had been badly

damaged. His safe was found in the front

yard. Seventeen guns had been taken from the

house.

31

Each defendant was found guilty of the

three crimes for which he was tried. The jury

recommended that each defendant be sentenced

to life in prison for the first degree murder

convictions, which was done. Each defendant

was sentenced to forty years in prison for

first degree burglary and ten years’ for

attempted first degree arson. All sentences

are to be served consecutively.

Lacy H. Thornburg, Attorney General, by

G. Patrick Murphy, Assistant Attorney

General, for the State.

David F. Tamer for defendant-appellant

Ronnie Dean Barnes; Malcolm Ray Hunter,

Jr., Appellate Defender, by Mark OD.

Montgomery, Assistant Appellate Defender,

for defendant-appellant Charles Lee

Lemons.

WEBB, Justice.

Both defendants assign error to the

admission into evidence of the results of a

test conducted on blood samples taken from the

automobile which was occupied by the

defendants on the night of the murder. The

32

officers searched the vehicle pursuant to a

search warrant. Each of the defendants made

motions to suppress the evidence 4ithered as a

result of the search and a hear’ = «Ss held on

these motions prior to trial.

The evidence at the hearing on the

motions to suppress showed that the 1987

Plymouth Horizon was purchased in April 1987.

The title certificate showed Pamela Rene

Alderson and Robert Moyer Wilkes were the

owners. These two persons were living

together at the time. In July 1988, Ms.

Alderson and Mr. Wilkes stopped living

together and Ms. Alderson kept the automobile,

but Mr. Wilkes refused to endorse the title to

her. Ms. Alderson and the defendant Lemons

commenced living together. Ms. Alderson

allowed Lemons to drive the automobile to his

workplace and Mr. Lemons left the key in the

vehicle in order for the defendant Barnes to

a2

drive it when needed. The defendant Lemons

kept tools in the backseat of the car.

In the application for the search

warrant, a detective filed an affidavit in

which, among other things, he said an

informant had told another detective that she

had seen a black four door subcompact vehicle

parked approximately one block from the Winn

residence. The detective also said in the

affidavit that the informant had told the

other detective she saw two men with a plastic

container leave the vehicle. The detective

said the description of the two men given him

by the informant was "very favorable" to the

defendants. The evidence at the hearing

showed that the informant told the detective

that she had seen a black Mustang. She also

told him that two clean shaven white men left

the car carrying a gas can. The defendants

argue that this evidence showed that the

34

detective changed the evidence in making the

affidavit and if he had not done so, a search

warrant would not have been issued.

At the end of the hearing, the court

found facts consistent with the evidence as to

the ownership and possession of the

automobile. The court held that neither of

the defendant had an expectation of privacy in

the automobile and that they had no standing

to contest the search.

The court found that if the defendants

had standing to contest the search there was

not a showing that the search warrant was

falsely made by intentionally and knowingly

misapplying the facts. The court overruled

the defendants' motion to suppress’ the

evidence.

The first question raised by this

assignment ot error is whether the defendants

have standing to contest the search of the

a2

vehicle. In order to have standing to contest

a search, a defendant must have a legitimate

expectation of privacy in the thing to be

searched. Rakas vs. Illinois, 439 U.S. 128,

58 L.Ed.2d 387 (1978). It is hard to say the

defendants had an expectation of privacy in

the 1987 Plymouth Horizon. It was owned by

defendant Lemons' girlfriend and another man.

Lemons' girlfriend allowed him to drive the

automobile to work but the title was never in

his name. The defendant Barnes had even less

interest in the vehicle. He was allowed to

drive it at times by Lemons. Nevertheless, we

do not decide this question on expectation of

privacy in the automobile, we find no error in

the issuance of the search warrant.

The defendants, relying on Franks vs.

Delaware, 438 U.S. 154, 57 L.E.2d 667 (1978),

contend that it was error not to grant them a

hearing on the validity of the search warrant

MB ON OA Sy

36

after they had shown three different instances

in which the officer who applied for the

search warrant had falsified the affidavit.

They say he said (1) the informant told

another officer she had seen a black four door

subcompact when she told him she had seen a

black Mustang, (2) the informant gave the

officer a description of the two men which was

"very favorable" to the defendants when she

actually told him the two men were clean

shaven and the defendants had facial hair, and

(3) the informant told him the two men had in

their possession a plastic container when she

had actually said they were carrying a gas

can.

Franks holds that when a defendant makes

allegations that an affidavit to support the

issuance of a search warrant’ contains

deliberate falsehood or reckless disregard for

the truth and the affidavit would not be

37

sufficient to support the issuance of a search

warrant without the false oor _ reckless

statements, the defendant is entitled to a

hearing on his’7 allegations. If he is

successful in proving the’ charges, the

evidence seized pursuant to the search warrant

must be suppressed. N.C.G.S. Section 15A-

978(a) provides for a hearing to test the good

faith of an affiant in furnishing testimony

for the issuance of a search warrant. State

vs. Kramer, 45 N.C. App. 291, 262 S.E.2d 693,

disc. rev. denied, 300 N.C. 200, 269 S.E.2d

627 (1980).

We hold that the evidence at the hearing

did not show that the allegations in the

affidavit rose to the level of a deliberate

falsehood or reckless disregard of the truth.

It also does not show the detective was not

acting in good faith as defined in N.C.G.S.

Section 15A-978(a). A "small, black four-door

38

subcompact vehicle" as described in the

affidavit could be a description of a "black

Ford Mustang" as described by the informant.

A "plastic container" could be a description

of a “white gas can". The detective could

conclude that the description given by the

informant of the men driving the vehicle was

"very favorable" to the defendants although

she said they were clean shaven when they had

facial hair. We hold that the defendants have

not shown that the affidavit filed to support

the issuance of a search warrant contains

deliberate falsehoods or shows a reckless

disregard for the truth. This assignment of

error. is overruled.

For the reasons stated in this opinion,

we find no error in either phase of the trial.

NO ERROR.