In this Dare County case, defendant appealed his convictions for statutory rape, statutory sex offense, indecent liberties, and kidnapping, arguing (1) plain error in denying his motion to suppress evidence, (2) ineffective assistance of counsel for failing to object to the introduction of that evidence, and (3) double jeopardy for entering judgment on first-degree kidnapping and the underlying sexual offense charges. The Court of Appeals found no merit in (1)-(2), but vacated and remanded for resentencing regarding (3). 

In July of 2020, a law enforcement officer obtained a search warrant for defendant’s address after a thirteen-year-old girl reported that defendant took her from her parents’ home and raped her. After searching defendant’s home and seizing several digital storage devices, the officer obtained a second warrant in August of 2020 to access the contents of the devices. When reviewing the contents of the devices, the officer found videos of defendant engaging in sexual acts with two other minor girls. Defendant was subsequently indicted for offenses involving all three minor girls. Before trial, defendant moved to suppress the digital evidence, arguing seizure of the digital devices under the July warrant was overbroad, and the contents reviewed under the August warrant were fruit of the poisonous tree and not related to the crime being investigated. When the matter came to trial, the trial court eventually denied the motion to suppress, and defendant was convicted of all eight counts against him. 

Regarding (1), defendant argued that the affidavits supporting the search warrants “failed to allege any nexus between the items sought and the crime being investigated.” Slip Op. at 10. The Court of Appeals explored the applicable precedent on conclusory affidavits, determining that “[d]espite its failure to establish an explicit connection between [the officer’s] training and experience and his belief in the existence of probable cause,” the July affidavit was not conclusory and permitted the magistrate to reasonably find probable cause for the search. Id. at 23. Moving to the August affidavit, the court reached the same conclusion, and noted that the August affidavit contained an additional attestation regarding the officer’s training and experience related to sex crimes. 

Dismissing (2), the court explained that it had already established the adequacy of the affidavits and probable cause supporting the search warrants, and “[h]ad Defendant’s trial counsel objected to the introduction of the challenged evidence, the result of the proceeding would have been the same.” Id. at 28.  

Arriving at (3), the court explained that “the trial court’s instructions here were such that Defendant could only have been convicted of first-degree kidnapping on the basis of one of the sexual offense charges for which he was also convicted and sentenced.” Id. at 31. Imposing sentences for the underlying sexual offense charges and the first-degree kidnapping charge represented double jeopardy, requiring remand to the trial court for resentencing to second-degree kidnapping or arresting judgment on the underlying sexual offense charges. 

In a drug trafficking case, a search warrant was supported by probable cause. The affiant was an officer with more than 22 years of experience and who had been involved in numerous drug investigations. The affidavit included background on the circumstances of the detective’s dealings with the defendant’s accomplice; detailed that the person who acquired the cocaine went to the house identified in the search warrant; stated that that the same person then delivered the cocaine to the detective; included the fact that a phone registered to the defendant repeatedly called the accomplice after the accomplice was arrested; and stated that the defendant resided at the house that was the subject of the search warrant.

An affidavit was sufficient to establish probable cause to believe that stolen items would be found in the defendant’s home, notwithstanding alleged omissions by the officer.

This Carteret County drug case involved a challenge to a search warrant for the defendant’s home. A detective observed what he believed to be a drug transaction occur in a parking lot between a Jeep and another car. He knew the occupants of the Jeep and their address. The detective also knew that they had previously been involved in illegal drug sales. Both cars were followed by police. The car was stopped for traffic violations, and the woman inside ultimately admitted to having purchased heroin in the parking lot from one of the people inside the Jeep. The Jeep was separately followed to the occupants’ residence. Officers obtained a warrant to search the house, and the defendant (who lived at the house, but was not one of the occupants of the Jeep) was charged with trafficking in cocaine. His motion to suppress was denied and he pled guilty, reserving his right to appeal the denial of the motion. A divided panel of the Court of Appeals affirmed (here) [Jeff Welty blogged about that decision, here]. Judge Zachary dissented and would have found that the warrant application failed to establish a nexus to the home, comparing the facts to those of State v. Campbell, 282 N.C .125 (1972) (conclusory allegations of drug dealing without underlying facts tying the home to criminal activity were insufficient to establish nexus to search residence). The Supreme Court unanimously affirmed.

The court agreed that a search warrant for a residence must demonstrate some nexus between the suspected criminal activity and the home. “Such connection need not be direct, but cannot be merely conclusory.” Slip op. at 6. Comparing cases, the court determined that the affidavit here established a sufficient connection to the home. The detective observed a probable drug transaction and was familiar with the subjects in the Jeep, including their drug histories and address. Coupled with the close-in-time admission from the buyer that she purchased heroin from one of the men and the fact that another officer followed the Jeep from the site of the suspected buy to the residence, the search warrant affidavit supported an inference that drugs or evidence of drug dealing would be found in the home. In the court’s words:

It is true that [the detective’s] affidavit did not contain any evidence that drugs were actually being sold at the apartment. But our case law makes clear that such evidence was not necessary for probable cause to exist. Rather, the affiant was simply required to demonstrate some nexus between the apartment . . . and criminal activity. Id. at 10 (emphasis in original).

The warrant was therefore supported by probable cause and comported with the Fourth Amendment. Concluding, the court observed: “In so holding, we break no new legal ground, and instead apply well-established principles of law to the facts presented.” Id. at 11.

On appeal from a decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 791 S.E.2d 505 (2016), the court affirmed in a per curiam opinion. Over a dissent, the Court of Appeals had held that the search warrant was supported by sufficient probable cause. At issue was the reliability of information provided by a confidential informant. Applying the totality of the circumstances test, and although the informant did not have a “track record” of providing reliable information, the court found that the informant was sufficiently reliable. The court noted that the information provided by the informant was against her penal interest (she admitted purchasing and possessing marijuana); the informant had a face-to-face communication with the officer, during which he could assess her demeanor; the face-to-face conversation significantly increase the likelihood that the informant would be held accountable for a tip that later proved to be false; the informant had first-hand knowledge of the information she conveyed; the police independently corroborated certain information she provided; and the information was not stale (the informant reported information obtained two days prior).

Reversing the Court of Appeals, the court held that because the magistrate had a substantial basis to find that probable cause existed to issue the search warrant, the trial court erred by granting the defendant’s motion to suppress. The affidavit stated that an officer stopped a car driven by Jeremy Black. Black’s half-brother Sean Whitehead was a passenger. After K-9 alerted on the car, a search found 8.1 ounces of marijuana packaged in a Ziploc bag and $1600 in cash. The Ziploc bag containing marijuana was inside a vacuum sealed bag, which in turn was inside a manila envelope. Both individuals had previously been charged on several occasions with drug crimes. Whitehead maintained that the two lived at Twin Oaks Dr. The officer went to that address and found that although neither individual lived there, their mother did. The mother informed the officer that the men lived at 4844 Acres Drive and had not lived at Twin Oaks Drive for years. Another officer went to the Acres Drive premises and determined that its description matched that given by the mother and that a truck outside the house was registered to Black. The officer had experience with drug investigations and, based on his training and experience, knew that drug dealers typically keep evidence of drug dealing at their homes. Supported by the affidavit, the officer applied for and received a search warrant to search the Acres Drive home. Drugs and paraphernalia were found. Based on the quantity of marijuana and the amount of cash found in the car, the fact that the marijuana appeared to be packaged for sale, and Whitehead’s and Black’s criminal histories, it was reasonable for the magistrate to infer that the brothers were drug dealers. Based on the mother’s statement that the two lived at the Acres Drive premises, the fact that her description of that home matched its actual appearance, and that one of the trucks there was registered to Black, it was reasonable for the magistrate to infer that the two lived there. And based on the insight from the officer’s training and experience that evidence of drug dealing was likely to be found at their home and that Whitehead lied about where the two lived, it was reasonable for the magistrate to infer that there could be evidence of drug dealing at the Acres Drive premises. Although nothing in the affidavit directly connected the defendant’s home with evidence of drug dealing, federal circuit courts have held that a suspect drug dealer’s lie about his address in combination with other evidence of drug dealing can give rise to probable cause to search his home. Thus, under the totality of the circumstances there was probable cause to support search warrant.

In this Johnson County Case, defendant appealed the denial of his motion to suppress evidence obtained from his cellphone. The Court of Appeals affirmed the trial court’s denial of defendant’s motion.

Defendant was convicted of burglary, robbery, kidnapping, conspiracy, and habitual felony status for a home invasion in September of 2018. The evidence supporting defendant’s conviction came from a search of his cellphone found in a vehicle tied to the home invasion. Defendant argued at trial that the search warrant for his cellphone was not supported by probable cause, but the trial court denied defendant’s motion to suppress.

The Court of Appeals explained that probable cause to support the warrant came from the totality of the circumstances around the cellphone. Here, the cellphone was found in a car identified by an eyewitness as leaving the scene; the car was owned by defendant’s cousin. This same cousin told law enforcement that defendant’s was the owner of a white LG cellphone, matching the phone found in the car after a search. The car also contained a distinctive Tourister case stolen from the home in question. The court found that “[u]nder the totality of the circumstances, these facts show a nexus between [d]efendant’s white LG cellphone and the home invasion.” Slip Op. at 8.

In this drug trafficking case, a warrant to search the defendant’s person and vehicle was supported by probable cause. After a three-month investigation prompted by a confidential informant’s tip that the defendant was dealing heroin, Detective Cole obtained a warrant to search the defendant’s residence for evidence of drug dealing. The warrant also authorized the search of a specified Range Rover and of the defendant. On appeal the defendant argued that the searches of his person and vehicle were not supported by probable cause. He conceded that there was probable cause to search the house. The court rejected the defendant’s argument noting that a confidential informant known to law enforcement stated that the defendant was using the Range Rover to transport heroin and other drugs to and from the residence and was selling drugs from the vehicle. The ensuing investigation included authorized GPS tracking of the Range Rover and visual surveillance of the defendant and the vehicle. It revealed that the defendant appeared to reside at the residence and that he frequented locations known for drug sales. Additionally at one point the defendant was stopped in the vehicle which displayed a fictitious or altered tag and when the defendant’s driving privileges had been suspended or revoked. Officers performed “trash pulls” at the residence which found paraphernalia that tested positive for heroin and cocaine, as well as bills and other papers indicating that the defendant lived there. The most recent trash pull occurred within one week of the search. These facts support the trial court’s conclusion that there was probable cause to issue the warrant to search the defendant and the Range Rover. The confidential informant’s statements were corroborated by a month’s-long investigation, the drug evidence recovered from the multiple trash pulls was not stale, and the allegations sufficiently linked the defendant and the Range Rover to the residence and the known drug evidence.

In this drug case, the court held that the affidavit provided sufficient probable cause for a search of the residence in question. The affidavit indicated that after the officer received an anonymous tip that drugs were being sold at the residence, he conducted a “refuse investigation” at the premises. The defendant asserted that this information was stale and could not properly support issuance of the warrant. The court noted that although the affidavit does not state when or over what period of time the tipster observed criminal activity at the residence, when the tipster relayed the information to the police or the exact date when the officer conducted the refuse search, the affidavit was based on more than just this information. Specifically, it included details regarding database searches indicating that the defendant had a waste and water utility account at the residence, that the defendant lived at the residence, that the officer was familiar with the residence and the defendant from his previous assignment as a patrol officer, and recounted the defendant’s prior drug charges. To the extent the information in the anonymous tip was stale, it was later corroborated by the refuse search in which the officer found a cup containing marijuana residue, plastic bags containing marijuana residue and a butane gas container that the officer said is consistent with potential manufacturing of butane hash oil. Also the affidavit stated that the officer conducted the refuse investigation on Thursday, “regular refuse day.” A common sense reading of the affidavit would indicate that this referred to the most recent Thursday, the date the affidavit was completed. The court continued noting that even if the anonymous tip was so stale as to be unreliable, the marijuana-related items obtained from the refuse search, the defendant’s criminal history, and the database searches linking the defendant to the residence provided a substantial basis upon which the magistrate could determine that probable cause existed.

The trial court properly denied the defendant’s motion to suppress evidence seized during the executions of warrants to search his rental cabin and truck for stolen goods connected to a breaking and entering of a horse trailer. The defendant argued that the search warrant affidavit establish no nexus between the cabin and the criminal activity. The court found however “that under the totality of the circumstances, the accumulation of reasonable inferences drawn from information contained within the affidavit sufficiently linked the criminal activity to defendant’s cabin.” Among other things, the affidavit established that when one of the property owners hired the defendant to work at their farm, several tools and pieces of equipment went missing and were never recovered; immediately before the defendant moved out of state, someone broke into their daughter’s car and stole property; the defendant rented a cabin close to their property around the same time as the reported breaking and entering and larceny; and the defendant had prior convictions for first-degree burglary and felony larceny. Based on this and other evidence discussed in detail in the court’s opinion, the affidavit established a sufficient nexus between the criminal activity and the defendant’s cabin.

Charlotte-Mecklenburg police received a report of a stolen car and information about its possible location. Officers went to the location, which was part residence and part commercial establishment. A car matching the description of the stolen vehicle was in the back parking lot. As police watched, a man came out of the building and approached the car as if to enter it. He noticed the unmarked police car and immediately returned to the building, alerting the occupants to the presence of police. Police pulled into the driveway intending to detain the man. The defendant opened the door of the building from inside and the man who had approached the stolen car went inside, although the door was left open. An officer approached and asked the man to come out and speak with police before immediately stepping into the building through the open door. That officer noticed a safe next to the defendant and saw the defendant close the safe, lock it, and place the key in his pocket. More officers arrived on scene and noticed drug paraphernalia in plain view. Officers swept the house and discovered a gun in a bedroom. At this point, officers established that a man inside either owned or leased the building and requested his consent to search. The man initially refused but assented when officers threatened to place everyone in handcuffs and to obtain a search warrant. The defendant informed officers that anything they found in the home was not his and that he did not live there. He denied owning the safe, but a woman who was present at the time later informed officers that the safe belonged to the defendant. Officers obtained a search warrant for the safe and discovered money, drugs, paraphernalia, and a gun inside. The defendant was subsequently charged with trafficking, firearm by felon, habitual felon, and other offenses. He moved to suppress. The trial court denied the motion, apparently on the basis that the defendant lacked standing (although because no written order was entered, the findings and conclusions of the trial court were not easily determined). The defendant was convicted at trial of the underlying offenses and pled guilty to having obtained habitual felon status. The trial court imposed a minimum term of 225 months in consecutive judgments. On appeal, a unanimous panel of the Court of Appeals reversed.

(1) The defendant had a reasonable expectation of privacy in the building. He opened the door when it was knocked and was one of only four people inside the home at a late hour. The defendant further had apparent permission to keep the safe inside and clearly had an interest in it as the person with its key and the ability to exclude others. While the defendant did not own or lease the property, this was not enough to defeat his expectation of privacy. The defendant also disclaimed ownership of the safe to police, and the State argued that this amounted to abandonment, defeating any privacy interest in the safe. The court disagreed, noting that the defendant only made that remark after the police illegally entered the home and that abandonment does not apply in such a situation. In its words: “[W]hen an individual ‘discards property as the product of some illegal police activity, he will not be held to have voluntarily abandoned the property or to have necessarily lost his reasonable expectation of
privacy with respect to it[.]’” Jordan Slip op. at 14 (citation omitted). Thus, the defendant had standing to challenge the police entry and search.

(2) The trial court determined that officers had reasonable suspicion to speak with the man who was seen approaching the stolen car. However, this did not justify warrantless entry into the home. The State argued that the entry was supported by exigent circumstances, in that the keys to the stolen car and the drug paraphernalia seen inside the building could have been easily destroyed. However, there was no evidence that the first officer who approached the home saw any drug paraphernalia at the time and the officer therefore could not have had a legitimate concern about its destruction. There was likewise no explanation from the State regarding the need for immediate warrantless entry to preserve the car keys evidence. Because officers had already seen the man approach the car with the keys and because possession of a stolen car may be established by constructive possession, there was no immediate need to obtain the car keys. Further, there was no immediate risk of destruction of evidence where the occupants of the home left the door open, and an officer entered the home within “moments” of arrival. Exigent circumstances therefore did not support the warrantless entry.

(3) The State also argued that the person with a property interest in the building gave valid consent, and that this consent removed any taint of the initial illegal entry. Illegally obtained evidence may be admissible where the link between the illegal police activity and the discovery of evidence is sufficiently attenuated. Brown v. Illinois, 422 U.S. 590, 603-04 (1975). Here, the taint of the illegal entry had not dissipated. Officers obtained consent soon after entering the home, no intervening circumstances arose between the entry and the obtaining of consent, and officers purposefully and flagrantly entered the building without a warrant or probable cause. Any consent was therefore tainted by the initial police illegality and could not justify the search.

(4) Although police did ultimately obtain a search warrant for the safe, the information contained in the search warrant application was based on information obtained by police after they were inside the building. There was no evidence that officers saw any drugs prior to entry, so any evidence obtained as a result was the fruit of the poisonous tree. Without the drugs evidence, the stolen car in the parking lot, the man walking up to the stolen car, and his abrupt return from the car to the building did not supply probable cause to search the building or safe. According to the court:

Because the affidavit supporting the issuance of the search warrant, stripped of the facts obtained by the officers’ unlawful entry into the residence, does not give rise to probable cause to search the residence for the evidence of drugs and drug paraphernalia described in the warrant, ‘the warrant and the search conducted under it were illegal and the evidence obtained from them was fruit of the poisonous tree.’ Id. at 24.

The denial of the motion to suppress was therefore reversed and the case was remanded for any further proceedings.

In this Cleveland County case, police were dispatched to a commercial business around 3 a.m. in response to a noise complaint. Upon arrival, they noticed a strong odor of burning marijuana and loud noises from a party within the building. The property owner-defendant approached police on scene and refused to consent to a search of the property. Officers applied for a search warrant. The defendant was ultimately charged with possession of firearm by felon based on the discovery of firearms inside, along with having obtained the status of habitual felon. He moved to suppress all evidence derived from the search, arguing that the warrant did not establish probable cause, was based on stale information, and was overbroad. Following the denial of his motion, the defendant was convicted of both offenses at trial. The Court of Appeals unanimously reversed.

The affidavit in support of the warrant alleged an investigation at the location and the odor of marijuana but failed to recount any specific time or date of the officer’s observation. This was fatal to a finding of probable cause. In the words of the court:

[W]e agree with Defendant that the affidavit in support of the search warrant application did not provide sufficient facts from which the magistrate could conclude there was probable cause because it did not specify when the purported events occurred nor did it indicate sufficient facts from which the magistrate could reasonably infer the timing of such events . . . Logan Slip op. at 12.

The trial court erred in considering information (the timing of the officer’s observations) not found within the four corners of the warrant. The denial of the motion to suppress was therefore reversed, the convictions vacated, and the matter remanded for a new trial. Because the court determined that the warrant application failed to establish probable cause, it did not consider the defendant’s other arguments regarding the validity of the warrant. Judge Gore and Judge Dillon concurred.

In this possession of a firearm by a felon case, the court held that the affidavit contained insufficient details to support issuance of the search warrant. When officers went to the defendant’s home to conduct a knock and talk, the defendant’s brother answered the door and invited them in. An officer asked if anyone else was present and the brother said he was alone. The brother however gave consent for an officer to check a back bedroom. In the bedroom the officer saw a woman lying on a bed and a “glass smoke pipe” on a dresser. The officer applied for and was issued a search warrant for the residence. A search of the home revealed a shotgun in the bedroom. After the defendant admitted that he owned the gun, he was charged with possession of a firearm by a felon. The defendant unsuccessfully moved to suppress evidence from the search. The defendant was convicted and appealed. Applying the plain error standard, the court began by addressing whether the trial court did in fact err by denying the motion to suppress. Here, the affidavit stated that the officer saw a “smoke pipe used for methamphetamine” in the bedroom. It did not mention the officer’s training and experience, nor did the officer offer information explaining the basis for his belief that the pipe was being used to smoke methamphetamine as opposed to tobacco. The affidavit did not explain how the officer was qualified to distinguish between a pipe used for lawful versus unlawful purposes. And it did not purport to describe in any detail the appearance of the pipe or contain any indication as to whether it appeared to have been recently used. It further lacked any indication that information had been received connecting the defendant or his home to drugs. The court stated: “a pipe—standing alone--is neither contraband nor evidence of a crime.” Because the affidavit was insufficient to establish probable cause for issuance of the warrant, the trial court erred in denying the defendant’s motion to suppress. The court went on to find that this error constituted plain error.

The trial court did not err by denying the defendant’s motion to suppress which asserted that the search warrant in question was issued based on an affidavit containing false and misleading information. The court concluded that although not all of the statements in the affidavit are “entirely accurate,” the evidence supports some version of the challenged statements and the defendant has not met his burden to establish by a preponderance that the affiant made the statements in reckless disregard to the truth or in bad faith. Thus, the trial court did not err in denying the defendant’s motion to suppress.

Reversing the Court of Appeals, the court held that because the magistrate had a substantial basis to find that probable cause existed to issue the search warrant, the trial court erred by granting the defendant’s motion to suppress. The affidavit stated that an officer stopped a car driven by Jeremy Black. Black’s half-brother Sean Whitehead was a passenger. After K-9 alerted on the car, a search found 8.1 ounces of marijuana packaged in a Ziploc bag and $1600 in cash. The Ziploc bag containing marijuana was inside a vacuum sealed bag, which in turn was inside a manila envelope. Both individuals had previously been charged on several occasions with drug crimes. Whitehead maintained that the two lived at Twin Oaks Dr. The officer went to that address and found that although neither individual lived there, their mother did. The mother informed the officer that the men lived at 4844 Acres Drive and had not lived at Twin Oaks Drive for years. Another officer went to the Acres Drive premises and determined that its description matched that given by the mother and that a truck outside the house was registered to Black. The officer had experience with drug investigations and, based on his training and experience, knew that drug dealers typically keep evidence of drug dealing at their homes. Supported by the affidavit, the officer applied for and received a search warrant to search the Acres Drive home. Drugs and paraphernalia were found. Based on the quantity of marijuana and the amount of cash found in the car, the fact that the marijuana appeared to be packaged for sale, and Whitehead’s and Black’s criminal histories, it was reasonable for the magistrate to infer that the brothers were drug dealers. Based on the mother’s statement that the two lived at the Acres Drive premises, the fact that her description of that home matched its actual appearance, and that one of the trucks there was registered to Black, it was reasonable for the magistrate to infer that the two lived there. And based on the insight from the officer’s training and experience that evidence of drug dealing was likely to be found at their home and that Whitehead lied about where the two lived, it was reasonable for the magistrate to infer that there could be evidence of drug dealing at the Acres Drive premises. Although nothing in the affidavit directly connected the defendant’s home with evidence of drug dealing, federal circuit courts have held that a suspect drug dealer’s lie about his address in combination with other evidence of drug dealing can give rise to probable cause to search his home. Thus, under the totality of the circumstances there was probable cause to support search warrant.

Reversing the court of appeals in this drug case, the court held that the trial court properly denied the defendant’s motion to suppress, finding that probable cause existed to justify issuance of a search warrant authorizing a search of defendant’s apartment. The application was based on the following evidence: an anonymous citizen reported observing suspected drug-related activity at and around the apartment; the officer then saw an individual named Foushee come to the apartment and leave after six minutes; Foushee was searched and, after he was found with marijuana and a large amount of cash, arrested; and a search of Fouchee’s phone revealed text messages between Foushee and an individual named Chad proposing a drug transaction. The court rejected the defendant’s argument that the citizen’s complaint was unreliable because it gave no indication when the citizen observed the events, that the complaint was only a “naked assertion” that the observed activities were narcotics related, and that the State failed to establish a nexus between Foushee’s vehicle and defendant’s apartment, finding none of these arguments persuasive, individually or collectively. The court held that “under the totality of circumstances, all the evidence described in the affidavit both established a substantial nexus between the marijuana remnants recovered from Foushee’s vehicle and defendant’s residence, and also was sufficient to support the magistrate’s finding of probable cause to search defendant’s apartment.”

A confidential informant who had provided reliable information in the past told officers that the defendant was selling drugs from his home. The officers had the informant conduct a controlled buy, then obtained a search warrant for the residence. They executed the warrant, found drugs, and charged the defendant with drug trafficking and other offenses. The defendant moved to suppress, a judge denied the motion, and the defendant entered an Alford plea and appealed. On appeal, he argued that the search warrant should have been analyzed under the anonymous tip standard and was not supported by probable cause. The court of appeals ruled that the anonymous tip standard did not apply as the lead officer “met with [the informant] both before and after the controlled purchase and had worked with [the informant] previously.” Furthermore, the controlled buy corroborated the informant’s claims, so the warrant was supported by probable cause.

In this drug case, a search warrant application relying principally upon information obtained from a confidential informant was sufficient to support a magistrate’s finding of probable cause and a subsequent search of the defendant’s home. The court rejected the defendant’s argument that the affidavit failed to show that the confidential informant was reliable and that drugs were likely to be found in the home. The affidavit stated that investigators had known the confidential informant for two weeks, that the informant had previously provided them with information regarding other people involved in drug trafficking and that the detective considered the informant to be reliable. The confidential informant had demonstrated to the detective that he was familiar with drug pricing and how controlled substances are packaged and sold for distribution. Moreover, the informant had previously arranged, negotiated and purchased cocaine from the defendant under the detective’s direct supervision. Additionally, the confidential informant told the detective that he had visited the defendant’s home approximately 30 times, including within 48 hours before the affidavit was prepared, and saw the defendant possessing and selling cocaine each time. The court noted: “The fact that the affidavit did not describe the precise outcomes of the previous tips from the [informant] did not preclude a determination that the [informant] was reliable.” It added: “although a general averment that an informant is ‘reliable’ -- taken alone -- might raise questions as to the basis for such an assertion,” the fact that the detective also specifically stated that investigators had received information from the informant in the past “allows for a reasonable inference that such information demonstrated the [confidential informant’s] reliability.” Moreover, the detective had further opportunity to gauge his reliability when the informant arranged, negotiated and purchased cocaine from the defendant under the detective’s supervision.

Reversing the trial court, the court held that probable cause supported issuance of a search warrant to search the defendant’s residence. Although the affidavit was based on anonymous callers, law enforcement corroborated specific information provided by a caller so that the tip had a sufficient indicia of reliability. Additionally, the affidavit provided a sufficient nexus between the items sought and the residence to be searched. Finally, the court held that the information was not stale.

Because an affidavit failed to specify when an informant witnessed the defendant’s allegedly criminal activities, there was insufficient evidence establishing probable cause to support issuance of the search warrant. In the affidavit, the officer stated that he received a counterfeit $100 bill from an informant who claimed it had been obtained from the defendant’s home. At the suppression hearing, the officer testified that what he meant to state in the affidavit was that the informant had obtained the bill within the last 48 hours. It was error for the trial court to consider this additional testimony from the officer that was outside of the facts recited in the affidavit. Considering the content of the affidavit, the court held that without any indication of when the informant received the bill, the affidavit failed on grounds of staleness.

Reversing the trial court, the court held that probable cause supported issuance of a search warrant to search the defendant’s residence. Although the affidavit was based an anonymous caller, law enforcement corroborated specific information provided by the caller so that the tip had a sufficient indicia of reliability. Additionally, the affidavit provided a sufficient nexus between the items sought and the residence to be searched. Finally, the court held that the information was not stale.

In this Craven County case, the Supreme Court reversed and remanded a Court of Appeals majority opinion overturning the denial of defendant’s motion to suppress and vacating defendant’s convictions. The Supreme Court determined that defendant was lawfully detained and searched during the execution of a search warrant even though he was not located on the premises identified by the warrant.

Defendant was the subject of a narcotics investigation and sold heroin to a confidential informant during a controlled buy arranged by the Craven County Sheriff’s Office. Officers obtained a search warrant for the premises used by the defendant during the controlled buy of narcotics, but not for a search of defendant’s person. When executing the search warrant, an officer observed defendant at a neighboring property owned by defendant’s grandfather. The officer detained the defendant, saw what appeared to be a baggie visible in the pocket of defendant’s pants, and patted down the defendant, ultimately finding a baggie containing narcotics. Defendant moved to suppress the evidence obtained through that search.

The Supreme Court found that all findings of fact challenged by defendant were supported by competent evidence in the record. The Court then examined whether the search of defendant and warrantless seizure of the narcotics were lawful. Based upon State v. Wilson, 371 N.C. 920 (2018), the Court held that a search warrant carries with it the authority for law enforcement to detain occupants on or in the vicinity of the premises being searched, and defendant was just 60 yards from the premises and close enough to pose a safety threat. The frisk of defendant was justified by the risk that he would be carrying a firearm, given the connection between guns and drug activity. After determining the law enforcement officer had authority to detain and frisk defendant, the Court held that the “plain view” and “plain feel” doctrines supported the warrantless seizure of the baggie found in defendant’s pocket, which was later determined to be a heroin/fentanyl mixture. This analysis determined that the search of defendant was constitutional and the seizure of the baggie of narcotics was permitted, supporting the trial court’s denial of the motion to suppress.

Justice Barringer concurred in part and concurred in the result, but felt that the reasonable suspicion standard under Terry v. Ohio, 392 U.S. 1 (1968), would have supported the search and seizure, not necessitating the full analysis the majority utilized.

Justice Earls, joined by Justices Hudson and Morgan, dissented and took issue with the majority’s characterization of defendant as an “occupant” while not located on the premises, ultimately disagreeing with the majority’s interpretation of the Wilson analysis as well as the concurrence’s Terry justification.

The court rejected the defendant’s argument that the right to have a witness present for blood alcohol testing performed under G.S. 20-16.2 applies to blood draws taken pursuant to a search warrant. The court also rejected the defendant’s argument that failure to allow a witness to be present for the blood draw violated his constitutional rights, holding that the defendant had no constitutional right to have a witness present for the execution of the search warrant.