# Petition for Writ of Certiorari — Barnes v. North Carolina

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1993
- **Citation:** 510 U.S. 946

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_0757%3A1. Public record. Not legal advice.