Smith's Criminal Case Compendium

Smith's Criminal Case Compendium

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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.

Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.

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E.g., 10/21/2021
E.g., 10/21/2021
Florida v. Harris, 568 U.S. 237 (Feb. 19, 2013)

Concluding that a dog sniff “was up to snuff,” the Court reversed the Florida Supreme Court and held that the dog sniff in this case provided probable cause to search a vehicle. The Court rejected the holding of the Florida Supreme Court which would have required the prosecution to present, in every case, an exhaustive set of records, including a log of the dog’s performance in the field, to establish the dog’s reliability. The Court found this “demand inconsistent with the ‘flexible, common-sense standard’ of probable cause. It instructed:

In short, a probable-cause hearing focusing on a dog’s alert should proceed much like any other. The court should allow the parties to make their best case, consistent with the usual rules of criminal procedure. And the court should then evaluate the proffered evidence to decide what all the circumstances demonstrate. If the State has produced proof from controlled settings that a dog performs reliably in detecting drugs, and the defendant has not contested that showing, then the court should find probable cause. If, in contrast, the defendant has challenged the State’s case (by disputing the reliability of the dog overall or of a particular alert), then the court should weigh the competing evidence. In all events, the court should not prescribe, as the Florida Supreme Court did, an inflexible set of evidentiary requirements. The question—similar to every inquiry into probable cause—is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime.  A sniff is up to snuff when it meets that test.

Applying that test to the drug dog’s sniff in the case at hand, the Court found it satisfied.

In a case involving unlawful access to computers and identity theft, a search warrant authorizing a search of the defendant and her home and vehicle was supported by probable cause. The court rejected the defendant’s argument that hearsay evidence was improperly considered in the probable cause determination. It went on to conclude that the warrant was supported by probable cause where the defendant’s home was connected to an IP address used to unlawfully access an email account of a NC A&T employee.

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.

The court held in this drug case, the search warrant was supported by probable cause. In his affidavit, the Investigator stated that he had received information within the past 30 days from confidential reliable informants (“CRIs”) that the defendant was selling narcotics from his residence; during June and July of 2008, the sheriff’s department had received information from anonymous callers and CRIs that drugs were being sold at the defendant’s residence; in July 2008, the Investigator met with a “concerned citizen” who stated that the defendant was supplying drugs to his sister who was addicted to “crack” cocaine; the defendant’s residence had been “synonymous with the constant sale and delivery of illegally controlled substances” as the defendant had been the subject of past charges and arrests for possession with intent to sell and deliver illegal controlled substances; and the defendant’s criminal background check revealed a “prior history” of possession of narcotics. Given the specific information from multiple sources that there was ongoing drug activity at the defendant’s residence combined with the defendant’s past criminal involvement with illegal drugs, sufficient probable cause was presented the affidavit. The court further concluded that the information from the informants properly was considered, noting that the CRIs had been “certified” because information provided by them had resulted in arrests and convictions in the past, they were familiar with the appearance, packaging, and effects of cocaine, they provided statements against penal interest, the Investigator had met personally with the concerned citizen, and the CRIs, callers, and the concerned citizen had all given consistent information that during the months of June and July 2008, illegal drugs were being sold at the defendant’s residence.

State v. Hinson, 203 N.C. App. 172 (Apr. 6, 2010) rev’d on other grounds, 364 N.C. 414 (Oct 8 2010)

An informant’s observations of methamphetamine production and materials at the location in question and an officer’s opinion that, based on his experience, an ongoing drug production operation was present supplied probable cause supporting issuance of the 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.

A positive alert for drugs by a specially trained drug dog provides probable cause to search the area or item where the dog alerts.

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.

State v. Frederick, 371 N.C. 547 (Oct. 26, 2018)

On appeal from a decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 814 S.E.2d 855 (2018), the court per curiam affirmed. The Court of Appeals had held, over a dissent, that the search warrant of the defendant’s residence was supported by probable cause. The warrant was supported by the following information: A detective received information from a reliable confidential source regarding a mid-level drug dealer who sold MDMA, heroin, and crystal methamphetamine. The source had previously provided truthful information that the detective could corroborate, and the source was familiar with the packaging and sale of the drugs in question. The source had assisted the detective with the purchase of MDMA one week prior to the issuance of the search warrant. For that purchase, the detective gave the source money to purchase the drugs. The source met a middleman with whom he then traveled to the defendant’s residence. The detective saw the middleman enter the residence and return to the source after approximately two minutes. The detective found this conduct indicative of drug trafficking activity based on his training and experience. The source then met with the detective, and provided him with MDMA. A subsequent purchase of drugs occurred 72 hours prior to the issuance of the search warrant. The details of that transaction were very similar, except that the officer also saw two males enter the residence and exit approximately two minutes later, conduct he believed to be indicative of drug trafficking activity. The Court of Appeals held that this was sufficient to establish probable cause.

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).

State v. Allman, 369 N.C. 292 (Dec. 21, 2016)

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.

State v. Lowe, 369 N.C. 360 (Dec. 21, 2016)

Affirming the Court of Appeals, the court held that a search warrant authorizing a search of the premises where the defendant was arrested was supported by probable cause. The affidavit stated that officers received an anonymous tip that Michael Turner was selling, using and storing narcotics at his house; that Turner had a history of drug related arrests; and that a detective discovered marijuana residue in the trash from Turner’s residence, along with correspondence addressed to Turner. Under the totality of the circumstances there was probable cause to search the home for controlled substances.

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.

In this felony counterfeit trademark goods case, the court held that a search warrant was supported by probable cause. A Special Agent obtained a search warrant to search the residence and vehicles at 13606 Coram Place in Charlotte, North Carolina. The affidavit indicated that the Agent had 26 years of law enforcement experience and investigated thousands of counterfeit merchandise cases. It stated that in May 2013 a County police officer informed the Agent that the defendant was found in possession of possible counterfeit items and was charged with violating the peddlers license ordinance. The items seized were later confirmed to be counterfeit. In October 2013, as part of a compliance check/counterfeit merchandise interdiction operation at a shipping hub in Charlotte, the Agent intercepted two packages from a known counterfeit merchandise distributor in China, addressed to the defendant at the residence in question. The boxes contained counterfeit items. The Agent attempted a controlled delivery of the packages at the residence but no one was home. Two other packages previously delivered by the shipper were on the porch. The Agent contacted the defendant, who agreed to meet with him and agreed to bring the two packages. The defendant consented to a search of the packages and they were found to contain counterfeit merchandise. The defendant said that she did not realize the merchandise was counterfeit and voluntarily surrendered all of the merchandise. She was issued a warning. In November 2013, while the Agent was working as part of a compliance check at a football game, the defendant was found selling counterfeit items. The defendant was charged with felony criminal use of counterfeit trademark and pled guilty to the lesser misdemeanor charge. During another compliance check outside of the Charlotte Convention Center in May 2015 the Agent found a booth with a large display of counterfeit items. The booth was unmanned but business cards listed the owner as “Tammy.” The Agent verified that the address listed in the search warrant was the premises of the defendant, Tammy Renee Howard. During a search of the premises pursuant to the warrant at issue hundreds of counterfeit items with an approximate retail value of $2 million were seized. The defendant was indicted and unsuccessfully moved to suppress the evidence seized pursuant to the search. The defendant was convicted and appealed. On appeal the defendant asserted that the affidavit failed to contain sufficient evidence to support a reasonable belief that evidence of counterfeit items would be found at the premises. The affidavit included evidence of counterfeit merchandise being delivered to the premises, evidence that the defendant continued to conduct her illegal business after warnings and arrests, and evidence that the officer confirmed that the defendant resided at the premises. The defendant also argued that the evidence in the affidavit was stale, noting that the only evidence linking the premises with criminal activity allegedly took place in October 2013, some 20 months prior to the issuance of the warrant. However the evidence showed that the defendant was conducting a business involving counterfeit goods over a number of years at numerous locations and involving the need to acquire counterfeit merchandise from China. The court however found that a remand was required because the trial court failed to provide any rationale during its ruling from the bench to explain or support the denial of the motion. It thus remanded for the trial court to make appropriate conclusions of law to substantiate its ruling.

In this attempted murder and robbery case, a search warrant was supported by probable cause. On appeal, the defendant argued that the warrant lacked probable cause because a statement by a confidential informant provided the only basis to believe the evidence might be found at the premises in question and the supporting affidavit failed to establish the informant’s reliability. The court disagreed. The detective’s affidavit detailed a meeting between an officer and the confidential informant in which the informant stated that he witnessed described individuals running from the crime scene and said that one of them entered the premises in question. The informant’s statement corroborated significant matters previously known to the police department, including the general time and location of the offenses, the victim’s physical description of his assailants, and the suspect’s possession of items similar in appearance to those stolen from the victim. The affidavit therefore demonstrated the informant’s reliability.

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.

In this sexual exploitation of a minor case, the information contained in an officer’s affidavit was sufficient to provide probable cause for issuance of a search warrant for child pornography. In this case, an officer and certified computer forensic examiner identified child pornography through the use of a SHA1 algorithm; the officer downloaded and reviewed some of the images and compared SHA1 values to confirm that the files were child pornography. Although less detailed than the officer’s testimony at the hearing, the affidavit went into technical detail regarding law enforcement methods and software used to identify and track transmissions of child pornography over the Internet. The court rejected the defendant’s argument that the affidavit’s identification of alleged pornographic images as known child pornography based upon computer information was insufficient and that the pictures themselves must be provided with the affidavit. 

On discretionary review of a consolidated appeal from two decisions of the Court of Appeals, ___ N.C. App. ___, 816 S.E.2d 212 (2018), and ___ N.C. App. ___, 812 S.E.2d 730 (2018) (unpublished), the Supreme Court affirmed in part and reversed in part the decisions of the Court of Appeals. A sheriff’s deputy arrested Robert Lewis, who had been recognized as the possible perpetrator of a string of bank robberies committed over two months. After arresting the defendant, an officer observed in plain sight a BB&T money bag on the floor of a Kia Optima that matched the description of a vehicle reportedly used to flee the scene of one of the robberies.  The officer also spoke with the defendant’s stepfather, who confirmed that the defendant lived at the residence. A detective prepared a search warrant application seeking permission to search the residence where the defendant was arrested, the Kia, and another vehicle reportedly used to flee a different robbery. The affidavit accompanying the search warrant application failed to disclose several pieces of information, including that the defendant lived at the residence to be searched, that the first detective had seen the Kia parked in front of the residence, and that the Kia contained the incriminating money bag. A magistrate nonetheless issued the warrant, which led to the seizure of more evidence linking the defendant to the robberies. After the defendant was indicted on multiple counts of armed robbery, kidnapping, and common law robbery, he filed motions to suppress, arguing that there was an insufficient connection between the items sought and the property to be searched, and that the search of the Kia was not permissible under the plain view doctrine. The trial court denied the motion. The defendant pled guilty, preserving his right to appeal the denial of his motion to suppress, which he did. The Court of Appeals deemed the detective’s warrant application sufficient to establish probable cause to search the cars but insufficient to establish probable cause to search the dwelling because the supporting affidavit failed to state that the defendant resided there.

The Supreme Court granted the parties’ petitions for discretionary review. As for the warrant to search the residence, though much of the information in the affidavit linked the defendant to the robberies, it failed to set forth the circumstances of the defendant’s arrest at this particular address, including how the detective initially obtained the address from officers in Johnston County, and how the defendant’s stepfather had confirmed where the defendant resided. Absent information linking the defendant to the residence, the magistrate lacked probable cause to issue a warrant to search it, and so the court affirmed the Court of Appeals’ ruling that the defendant’s motion to suppress should have been allowed. Regarding the search of the Kia, the court concluded that the limited information actually set out in the affidavit failed to establish probable cause for the search. As a result, the court reversed the portion of the Court of Appeals’ decision concluding that there was probable cause and remanded the case for consideration of the trial judge’s alternative finding that the vehicle search was valid under the plain view doctrine.

Justice Morgan, joined by Justice Newby, dissented in part, writing that he would have found probable cause for the search of the car based on the totality of the information contained in the search warrant application.

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.

Officers obtained a search warrant to search the defendant’s house. They executed the warrant, found drugs, and charged the defendant with drug offenses. The defendant moved to suppress, arguing that the warrant contained material misrepresentations and did not provide probable cause to support the issuance of the warrant. A superior court judge denied the motion, and the defendant was convicted and appealed. The court of appeals reversed. (1) The trial judge did not set forth adequate conclusions of law. Although formal findings of fact are not required when the evidence regarding a motion to suppress is not in conflict, a judge must still provide conclusions of law, i.e., must explain the reason for the judge’s ruling. In this case, the defendant made multiple challenges to the warrant and the trial judge merely denied the motion without further explanation. (2) The warrant was not supported by probable cause. The application was based on information from a confidential and reliable informant. The informant claimed to have purchased drugs from the defendant in the past, but reported that the defendant had become more cautious recently and now would sell drugs only through a specific middleman. The informant reported that she had recently picked up the middleman, dropped the middleman off in “the general area of defendant’s home” and picked him up shortly thereafter in possession of drugs. The court of appeals concluded that this did not provide probable cause as the middleman was of unknown reliability and no one had observed him entering the defendant’s home. A dissenting judge would have found that the informant’s history of purchasing drugs from the defendant, plus what amounted to an imperfectly controlled purchase by the middleman, provided probable cause.

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.

(1) In this methamphetamine trafficking case, the trial court erred by denying the defendant’s motion to suppress evidence seized during execution of a search warrant. Noting that a factual showing sufficient to support probable cause “requires a truthful showing of facts,” the court rejected the defendant’s argument that a statement in the affidavit supporting the search warrant was made in reckless disregard for the truth. However, the court went on to find that the application for the search warrant and attached affidavit insufficiently connected the address in question to the objects sought. It noted that none of the allegations in the affidavit specifically refer to the address in question and none establish the required nexus between the objects sought (evidence of a methamphetamine lab) and the place to be searched. The court noted that the defendant’s refusal of an officer’s request to search the property cannot establish probable cause to search. (2) Although federal law recognizes a good-faith exception to the exclusionary rule where evidence is suppressed pursuant to the federal Constitution, no good faith exception exists for violations of the North Carolina Constitution.

A Jones County deputy applied for a search warrant of defendant’s residence. In his affidavit in support, the deputy represented that he had observed drug transactions at the defendant’s residence. In fact, all the drug transactions had taken place away from the defendant’s home. The defendant was charged with marijuana offenses following execution of the search warrant and moved to suppress. He alleged the warrant lacked probable cause and sought a Franks hearing to establish false and misleading statements in the affidavit. The trial court first held a hearing on probable cause and determined it existed based on the allegations in the affidavit that a drug transaction had been observed on the defendant’s property. It then turned to the Franks issue and granted the defendant a hearing on the matter. The deputy-affiant testified that none of the buys occurred on the defendant’s property and that he was aware of this at the time he wrote the affidavit. The trial court denied the Franks motion as well, finding that the deputy’s statements were not false or misleading. The defendant pled guilty and appealed.

Where the defendant shows by a preponderance of evidence that false or misleading statements were intentionally made, or that such statements were made in reckless disregard of the truth, those portions of the affidavit must be excised from the affidavit. The affidavit will then be examined to determine whether the remaining portions establish probable cause. Franks v. Delaware, 438 U.S. 154 (1978). Here, the trial court’s findings at the Franks hearing were not supported by the evidence. In its initial ruling on the probable cause issue, “the trial court itself was misled by the statements in the affidavit.” Moore Slip op. at 16. In the words of the court:

Contrary to the trial court’s conclusion, [the officer’s] statements in his affidavit indicating that the alleged controlled drug buys and meetings between ‘Matt’ and the informant took place at 133 Harriet Ln. were false and his material omissions regarding the actual locations of the drug buys and meetings were misleading. Id. at 17.

Striking the false statements from the affidavit, the remainder of the allegations were insufficient to establish a nexus to the defendant’s residence supporting a finding of probable cause. They failed to establish that drugs were sold on or from the defendant’s residence and failed to allege any basis to believe the informant was reliable, among other deficiencies. The trial court’s order denying the motion to suppress was therefore reversed, the defendant’s plea vacated, and the matter remanded for further proceedings.

Judge Tyson dissented and would have affirmed the trial court.

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.

(1) In this methamphetamine trafficking case, the trial court erred by denying the defendant’s motion to suppress evidence seized during execution of a search warrant. Noting that a factual showing sufficient to support probable cause “requires a truthful showing of facts,” the court rejected the defendant’s argument that a statement in the affidavit supporting the search warrant was made in reckless disregard for the truth. However, the court went on to find that the application for the search warrant and attached affidavit insufficiently connected the address in question to the objects sought. It noted that none of the allegations in the affidavit specifically refer to the address in question and none establish the required nexus between the objects sought (evidence of a methamphetamine lab) and the place to be searched. The court noted that the defendant’s refusal of an officer’s request to search the property cannot establish probable cause to search. (2) Although federal law recognizes a good-faith exception to the exclusionary rule where evidence is suppressed pursuant to the federal Constitution, no good faith exception exists for violations of the North Carolina Constitution.

In this child sex case, the court rejected the defendant’s argument that the affidavit was based on false and misleading information, concluding that to the extent the officer-affiant made mistakes in the affidavit, they did not result from false and misleading information and that the affidavit’s remaining content was sufficient to establish probable cause. 

State v. Lowe, 369 N.C. 360 (Dec. 21, 2016)

Affirming the Court of Appeals, the court held that a search warrant authorizing a search of the premises where the defendant was arrested was supported by probable cause. The affidavit stated that officers received an anonymous tip that Michael Turner was selling, using and storing narcotics at his house; that Turner had a history of drug related arrests; and that a detective discovered marijuana residue in the trash from Turner’s residence, along with correspondence addressed to Turner. Under the totality of the circumstances there was probable cause to search the home for controlled substances.

State v. Allman, 369 N.C. 292 (Dec. 21, 2016)

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.

State v. McKinney, 368 N.C. 161 (Aug. 21, 2015)

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.”

State v. Elder, 368 N.C. 70 (June 11, 2015)

Modifying and affirming the decision below, State v. Elder, 232 N.C. App. 80 (2014), the supreme court held that the district court exceeded its statutory authority under G.S. 50B-3 by ordering a search of defendant’s person, vehicle, and residence pursuant to an ex parte civil Domestic Violence Order of Protection (“DVPO”) and that the ensuing search violated the defendant’s constitutional rights. Relying on G.S. 50B-3(a)(13) (authorizing the court to order “any additional prohibitions or requirements the court deems necessary to protect any party or any minor child”) the district court included in the DVPO a provision stating: “[a]ny Law Enforcement officer serving this Order shall search the Defendant’s person, vehicle and residence and seize any and all weapons found.” The district court made no findings or conclusions that probable cause existed to search the defendant’s property or that the defendant even owned or possessed a weapon. Following this mandate, the officer who served the order conducted a search as instructed. As a result of evidence found, the defendant was charged with drug crimes. The defendant unsuccessfully moved to suppress, was convicted and appealed. The supreme court concluded that the catch all provision in G.S. 50B-3 “does not authorize the court to order law enforcement, which is not a party to the civil DVPO, to proactively search defendant’s person, vehicle, or residence.” The court further concluded “by requiring officers to conduct a search of defendant’s home under sole authority of a civil DVPO without a warrant or probable cause, the district court’s order violated defendant’s constitutional rights” under the Fourth Amendment. 

A search of the defendant’s recording studio was proper. After the officers developed probable cause to search the recording studio but the defendant declined to give consent to search, the officers “froze” the scene and properly obtained a search warrant to search the studio.

State v. Jackson, 370 N.C. 337 (Dec. 8, 2017)

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).

State v. McKinney, 368 N.C. 161 (Aug. 21, 2015)

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.”

State v. Benters, 367 N.C. 660 (Dec. 19, 2014)

The court held that an affidavit supporting a search warrant failed to provide a substantial basis for the magistrate to conclude that probable cause existed. In the affidavit, the affiant officer stated that another officer conveyed to him a tip from a confidential informant that the suspect was growing marijuana at a specified premises. The affiant then recounted certain corroboration done by officers. The court first held that the tipster would be treated as anonymous, not one who is confidential and reliable. It explained: “It is clear from the affidavit that the information provided does not contain a statement against the source’s penal interest. Nor does the affidavit indicate that the source previously provided reliable information so as to have an established ‘track record.’ Thus, the source cannot be treated as a confidential and reliable informant on these two bases.” The court rejected the State’s argument that because an officer met “face-to-face” with the source, the source should be considered more reliable, reasoning: “affidavit does not suggest [the affiant] was acquainted with or knew anything about [the] source or could rely on anything other than [the other officer’s] statement that the source was confidential and reliable.” Treating the source as an anonymous tipster, the court found that the tip was supported by insufficient corroboration. The State argued that the following corroboration supported the tip: the affiant’s knowledge of the defendant and his property resulting “from a criminal case involving a stolen flatbed trailer”; subpoenaed utility records indicating that the defendant was the current subscriber and the kilowatt usage hours are indicative of a marijuana grow operation; and officers’ observations of items at the premises indicative of an indoor marijuana growing operation, including potting soil, starting fertilizer, seed starting trays, plastic cups, metal storage racks, and portable pump type sprayers. Considering the novel issue of utility records offered in support of probable cause, the court noted that “[t]he weight given to power records increases when meaningful comparisons are made between a suspect’s current electricity consumption and prior consumption, or between a suspect’s consumption and that of nearby, similar properties.” It continued: “By contrast, little to no value should be accorded to wholly conclusory, non-comparative allegations regarding energy usage records.” Here, the affidavit summarily concluded that kilowatt usage was indicative of a marijuana grow operation and “the absence of any comparative analysis severely limits the potentially significant value of defendant’s utility records.” Thus, the court concluded: “these unsupported allegations do little to establish probable cause independently or by corroborating the anonymous tip.” The court was similarly unimpressed by the officers’ observation of plant growing items, noting:

The affidavit does not state whether or when the gardening supplies were, or appeared to have been, used, or whether the supplies appeared to be new, or old and in disrepair. Thus, amid a field of speculative possibilities, the affidavit impermissibly requires the magistrate to make what otherwise might be reasonable inferences based on conclusory allegations rather than sufficient underlying circumstances. This we cannot abide.

As to the affidavit’s extensive recounting of the officers’ experience, the court held:

We are not convinced that these officers’ training and experience are sufficient to balance the quantitative and qualitative deficit left by an anonymous tip amounting to little more than a rumor, limited corroboration of facts, non-comparative utility records, observations of innocuous gardening supplies, and a compilation of conclusory allegations.

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 attempted murder and robbery case, a search warrant was supported by probable cause. On appeal, the defendant argued that the warrant lacked probable cause because a statement by a confidential informant provided the only basis to believe the evidence might be found at the premises in question and the supporting affidavit failed to establish the informant’s reliability. The court disagreed. The detective’s affidavit detailed a meeting between an officer and the confidential informant in which the informant stated that he witnessed described individuals running from the crime scene and said that one of them entered the premises in question. The informant’s statement corroborated significant matters previously known to the police department, including the general time and location of the offenses, the victim’s physical description of his assailants, and the suspect’s possession of items similar in appearance to those stolen from the victim. The affidavit therefore demonstrated the informant’s reliability.

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.

In this drug case, a search warrant was properly supported by probable cause. At issue was whether a confidential informant was sufficiently reliable to support a finding of probable cause. The affidavit noted that the confidential informant was familiar with the appearance of illegal narcotics and that all previous information the informant provided had proven to be truthful and accurate. This information was sufficient to establish the confidential informant’s reliability.

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.

The fact that an officer who received the tip at issue had been receiving accurate information from the informant for nearly thirteen years sufficiently established the informant’s reliability. The affidavit sufficiently described the source of the informant’s information as a waitress who had been involved with the defendant. The reliability of the information was further established by an officer’s independent investigation.

In this child sex case, the court held that although the magistrate violated G.S. 15A-245 by considering the officer’s sworn testimony when determining whether probable cause supported the warrant but failing to record that testimony as required by the statute, this was not a basis for granting the suppression motion. Significantly, the trial court based its ruling solely on the filed affidavit, not the sworn testimony and the affidavit was sufficient to establish probable cause.

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.

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.

In this child sex case, the trial court did not err by denying the defendant’s motion to suppress evidence obtained pursuant to a search warrant authorizing a search of his house. The victim told the police about various incidents occurring in several locations (the defendant’s home, a motel, etc.) from the time that she was eight years old until she was eleven. The affidavit alleged that the defendant had shown the victim pornographic videos and images in his home. The affidavit noted that the defendant is a registered sex offender and requested a search warrant to search his home for magazines, videos, computers, cell phones, and thumb drives. The court first rejected the defendant’s argument that the victim’s information to the officers was stale, given the lengthy gap of time between when the defendant allegedly showed the victim the images and the actual search. It concluded: “Although [the victim] was generally unable to provide dates to the attesting officers . . . her allegations of inappropriate sexual touching by Defendant over a sustained period of time allowed the magistrate to reasonably conclude that probable cause was present to justify the search of Defendant’s residence.” It went on to note that “when items to be searched are not inherently incriminating [as here] and have enduring utility for the person to be searched, a reasonably prudent magistrate could conclude that the items can be found in the area to be searched.” It concluded:

There was no reason for the magistrate in this case to conclude that Defendant would have felt the need to dispose of the evidence sought even though acts associated with that evidence were committed years earlier. Indeed, a practical assessment of the information contained in the warrant would lead a reasonably prudent magistrate to conclude that the computers, cameras, accessories, and photographs were likely located in Defendant’s home even though certain allegations made in the affidavit referred to acts committed years before.

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.

State v. Hinson, 203 N.C. App. 172 (Apr. 6, 2010) rev’d on other grounds, 364 N.C. 414 (Oct 8 2010)

Rejecting the defendant’s argument that information relied upon by officers to establish probable cause was stale. Although certain information provided by an informant was three weeks old, other information pertained to the informant’s observations made only one day before the application for the warrant was submitted. Also an officer opined, based on his experience, that an ongoing drug production operation was present at the location.

The court rejected the defendant’s argument that a search warrant executed at a residence was invalid because the application and warrant referenced an incorrect street address. Although the numerical portion of the street address was incorrect, the warrant was sufficient because it contained a correct description of the residence.

State v. Lowe, 369 N.C. 360 (Dec. 21, 2016)

Reversing the Court of Appeals, the court held that a search of a vehicle located on the premises was within the scope of the warrant. The vehicle in question was parked in the curtilage of the residence and was a rental car of the defendant, an overnight guest at the house. If a search warrant validly describes the premises to be searched, a car on the premises may be searched even though the warrant contains no description of the car. In departing from this general rule, the Court of Appeals held that the search of the car was invalid because the officers knew that the vehicle in question did not belong to the suspect in the drug investigation. Noting that the record was unclear as to what the officers knew about ownership and control of the vehicle, the court concluded; “Nonetheless, regardless of whether the officers knew the car was a rental, we hold that the search was within the scope of the warrant.”

In this case in which the defendant was convicted of drug trafficking and related charges, the court held that although the trial court erred by finding that a vehicle was within the curtilage of the defendant’s residence, it properly found that officers had probable cause to search the vehicle. Officers conducted a drug investigation of the defendant, including surveillance of his residence. During the investigation, a confidential police informant arranged and engaged in a controlled purchase of heroin from the defendant’s residence. A couple of months later the same confidential informant conducted another controlled purchase of heroin at the defendant’s residence. Officers saw the confidential informant purchase the drugs from the defendant at the trunk of a black 1985 Mercury Grand Marquis parked on the other side of the road from the defendant’s residence. Officers saw the vehicle regularly parked in this location during their investigation. As a result of the investigation, Officer Kimel got a search warrant for the defendant’s residence; the warrant did not mention the Grand Marquis. When the officers arrived to execute the search warrant, Kimel saw the vehicle parked across the street. The back and sides of the residence were surrounded by a 7- or 8-foot-high chain link fence; a short wooden fence was in the front of the residence. Kimel asked another officer have his K-9 sniff the vehicle. The dog gave a positive alert for drugs. Kimel obtained the keys to the vehicle from the defendant’s pocket and searched the car. In the trunk, officers found the defendant’s wallet, guns, ammunition, a digital scale, and drugs. After the defendant unsuccessfully moved to suppress evidence obtained from the search of the vehicle, the defendant pled guilty to multiple drug charges, reserving the right to appeal the denial of his suppression motion. On appeal the defendant argued that the officers searched the vehicle without either a search warrant or probable cause.

            The court began by holding that the trial court erred by concluding that the vehicle was within the curtilage of the residence while parked on the side of a public street opposite the home and outside the home’s fenced-in area. The State had conceded this issue at oral argument.

            The court went on to find however that the officers had probable cause to search the vehicle based on: the controlled purchases by the informant, during which times the Grand Marquis was always present; the officers’ observation of a drug transaction taking place at the trunk of the Grand Marquis; the Grand Marquis parked on a public street near the defendant’s residence during the officers’ investigation; the defendant’s possession of the keys to the Grand Marquis; and the K-9’s positive alert outside of the vehicle for the potential presence of narcotics. It concluded: “Based upon the automobile being located on a public road exception to the Fourth Amendment warrant requirement, probable cause justified the officers in conducting the warrantless search of the Grand Marquis.”

            In so holding, the court declined to consider the defendant’s argument, raised for the first time on appeal, that the reliability of the K-9 was not sufficiently established under Florida v. Harris, 568 U.S. 237 (2013), noting that a party may not assert on appeal a theory that was not raised at the trial court. It further noted that the K-9 sniff was not a search and the dog’s positive alert provided support for the trial court’s determination that officers had probable cause to conduct a warrantless search of the vehicle. The court did however note that officers had probable cause to search the vehicle even without the sniff.

The court rejected the defendant’s argument that the search of the premises was unreasonable. The defendant argued that because the officers deliberately waited until he vacated the premises before breaking open the door without knocking and announcing their presence, they violated the statutory knock and announce requirement. Here, before executing the warrant a detective loudly announced three times that officers would be entering the residence to execute the search warrant. After waiting a reasonable time and hearing no response officers made a forced entry into the residence. These facts establish that no statutory violation occurred.

In a drug case, officers properly knocked and announced their presence when executing a search warrant. The court rejected the defendant’s argument that the period of time between the knock and announcement and the entry into the house was too short. It concluded that because the search warrant was based on information that marijuana was being sold from the house and because that drug could be disposed of easily and quickly, the brief delay between notice and entry was reasonable.

Michigan v. Summers, 452 U.S. 692 (1981) (officers executing a search warrant may detain occupants on the premises while the search is conducted), does not justify the detention of occupants beyond the immediate vicinity of the premises covered by a search warrant. In this case, the defendant left the premises before the search began and officers waited to detain him until he had driven about one mile away. The Court reasoned that none of the rationales supporting the Summers decision—officer safety, facilitating the completion of the search, and preventing flight—apply with the same or similar force to the detention of recent occupants beyond the immediate vicinity of the premises. It further concluded that “[a]ny of the individual interests is also insufficient, on its own, to justify an expansion of the rule in Summers to permit the detention of a former occupant, wherever he may be found away from the scene of the search.” It stated: “The categorical authority to detain incident to the execution of a search warrant must be limited to the immediate vicinity of the premises to be searched.” The Court continued, noting that Summers also relied on the limited intrusion on personal liberty involved with detaining occupants incident to the execution of a search warrant. It concluded that where officers arrest an individual away from his or her home, there is an additional level of intrusiveness. The Court declined to precisely define the term “immediate vicinity,” leaving it to the lower courts to make this determination based on “the lawful limits of the premises, whether the occupant was within the line of sight of his dwelling, the ease of reentry from the occupant’s location, and other relevant factors.”

The defendant was cleaning his car in the street adjacent to his girlfriend’s apartment when several law enforcement officers arrived to execute a search warrant for the apartment. Before entering the apartment, a law enforcement officer approached the defendant and asked for his driver’s license.  Officers remained outside with the defendant while the search warrant was executed.  Defendant later consented to a search of his vehicle, where officers found marijuana, paraphernalia, and a firearm.  He was charged with drug crimes and possession of firearm by a felon.

The defendant moved to suppress the evidence seized from the search of his vehicle on the basis that the officers obtained the evidence as a result of an unlawful, suspicionless seizure.  The court of appeals in State v. Thompson, ___ N.C. App. ___, 809 S.E.2d 340 (2018) (Thompson I) determined, over a dissent, that the trial court’s order denying the defendant’s suppression motion did not resolve a pivotal issue of fact. Thus, the court vacated the judgment and remanded for further findings.  

The North Carolina Supreme Court vacated Thompson I and remanded for reconsideration in light of State v. Wilson, 371 N.C. 920 (2018). Wilson addressed the authority of law enforcement officers to detain a person who arrives on the scene while a search warrant is being executed.  Wilson held that pursuant to the rule announced by the United States Supreme Court in Michigan v. Summers, 452 U.S. 692 (1981), a search warrant authorizes the detention of (1) occupants, (2) who are within the immediate vicinity of the premises to be searched, and (3) who are presented during the execution of a search warrant for the premises. An occupant is a person who poses a real threat to the safe and efficient execution of a search warrant.

On remand, and again over a dissent, the court of appeals held that the defendant was not an occupant of the searched premises. The court noted that he remained inside his vehicle and did not attempt to approach the apartment or otherwise interfere with the search. Thus, the court found no circumstances to indicate that the defendant posed a threat to the safe and efficient execution of the search. The court therefore again vacated the trial court’s judgment and remanded the matter to the trial court for resolution of material factual disputes, pursuant to Thompson I.

The dissent would have held that the defendant was an occupant of the premises as he was within the line of sight of the apartment being searched and was a threat to enter or attempt to enter the premises.

Officers did not unreasonably seize the defendant in connection with execution of the search warrant. The defendant asserted that his seizure was unreasonable because it occurred two miles away from the residence in question. The court noted in part that the warrant authorized a search of both the premises and the defendant.

The defendant in this drug case moved to suppress evidence discovered on his person by a law enforcement officer who was part of a team of officers executing a search warrant at the defendant’s residence.  At the time of the execution of the warrant, the defendant, who the day before had sold heroin to a confidential informant at the subject premises, was standing outside his grandfather’s home situated roughly 60 yards away.  Upon arriving to execute the search warrant, the officer noticed the defendant outside his grandfather’s home, approached him, and ordered him to submit to a pat-down where the officer discovered fentanyl in his pants pocket.  Analyzing the propriety of the seizure of the defendant under both Michigan v. Summers and Terry v. Ohio, the court determined that the seizure was illegal. 

The court explained that under Michigan v. Summers and related North Carolina cases including State v. Wilson, 371 N.C. 920 (2018), “a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain (1) the occupants, (2) who are within the immediate vicinity of the premises to be searched, and (3) who are present during the execution of a search warrant.”  Relying on reasoning from State v. Thompson, 267 N.C. App. 101 (2019) that a person is an “occupant” of premises for purposes of Summers when he or she poses a real threat to the safe and efficient execution of the search, the court concluded that the defendant, who was “simply leaning up against the rail” outside his grandfather’s house and “did not take any action to raise any suspicion of criminal activity on his part” did not pose such a threat and therefore was not at that time an “occupant” of the premises subject to the search warrant.

The court then determined, largely because the particular officer who seized the defendant was unaware of the defendant’s sale of heroin to the confidential informant, that there was no basis for the officer to seize the defendant under Terry v. Ohio and that the inevitable discovery doctrine was inapplicable.  Finally, the court remanded the case to the trial court to correct clerical errors arising from judgment forms that were inconsistent with the sentence rendered orally in open court.

Judge Stroud dissented, expressing the view that the trial court correctly denied the defendant’s motion to dismiss because the defendant, due to his proximity to the premises and criminal history which involved possession of firearms, posed a real threat to the safe and efficient execution of the search warrant and thus was an “occupant” of the premises within the meaning of Summers.  Judge Stroud also would have found the frisk of the defendant to be valid under Terry and the confiscation of the drugs on his person to be supported by the plain view doctrine.

An officer executing a search warrant at a home reasonably believed that for officer safety he should pat down the defendant, who was present at the house when officers arrived to execute the search warrant. The search warrant application stated that illegal narcotics were being sold from the residence and that officers had conducted two previous controlled buys there, one only 72 hours earlier. When officers entered, they found six individuals, including defendant and saw drugs in plain view. Based on his experience as a narcotics officer, the officer testified to a connection between guns and drugs.

The trial court did not err by denying the defendant’s motion to suppress statements made while a search warrant was being executed. The defendant and his wife were present when the search warrant was executed. After handcuffing the defendant, an officer escorted him to a bathroom, read him Miranda rights, and questioned him about drug activities in the apartment. While this procedure was applied to the defendant’s wife, an officer discovered a digital scale and two plastic bags of a white, powdery substance; the defendant then stated that the drugs were his not his wife’s. The court rejected the defendant’s argument that he was arrested when he was moved to the bathroom and read his rights, noting that the questioning occurred during the search.

In this drug case, the court rejected the defendant’s argument that the trial court erred by denying his motion to suppress evidence collected from his residence on the grounds that the inventory list prepared by the detective was unlawfully vague and inaccurate in describing the items seized. The defendant argued that the evidence gathered from his residence was obtained in substantial violation of G.S. 15A-254, which requires an officer executing a search warrant to write and sign a receipt itemizing the items taken. Specifically, he asserted that the inventory receipt was vague and inaccurate and thus failed to satisfy the statute’s requirements. In order for suppression to be warranted for a substantial violation of the statute, G.S. 15A-974 requires that the evidence be obtained as a result of officer’s unlawful conduct and that it would not have been obtained but for the unlawful conduct. Here, citing prior case law, the court held, in part, that because the evidence was seized before the inventory required by the statute had to be prepared, the defendant failed to show that the evidence would not have been obtained but for the alleged violations of G.S. 15A-254. The court held that G.S. 15A-254 “applies only after evidence has been obtained and does not implicate the right to be free from unreasonable search and seizure. In turn, because evidence cannot be obtained ‘as a result of’ a violation of [G.S.] 15A-254, [G.S.] 15A-974(a)(2) is inapplicable to either alleged or actual [G.S.] 15A-254 violations.”

The defendant was indicted for trafficking opium and possession of a firearm by a felon, and he filed a motion to suppress evidence obtained during a search of his residence on the grounds that the officers executing the search turned off their body cameras after conducting the initial walk-through of the residence. The trial court denied the motion to suppress, finding that there was no evidence of bad faith and no showing that any materially exculpatory evidence was lost – only potentially useful evidence was lost. The defendant pleaded guilty, and the trial court declined the defendant’s request to make a substantial assistance deviation at sentencing, but did make note of his assistance and imposed one consolidated sentence of 90 to 120 months. The defendant filed a notice of appeal and a petition for writ of certiorari.

The appellate court first found that the defendant failed to preserve his right to appeal because he did not give notice of his intent to appeal when the plea was entered. However, the court granted the petition for writ of certiorari and reached the merits on the grounds that the defendant’s trial counsel was responsible for this deficiency, rather than the defendant. Defendant’s appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that he could not find any meritorious issues to argue and asking the court to conduct its own review. The appellate court reviewed the record and the majority likewise concluded that there were no meritorious issues regarding the sufficiency of the indictments, denial of the motion to suppress, factual basis for the guilty plea, or sentencing. On the motion to suppress, the majority agreed with the trial court that there was no evidence of bad faith on the part of the officers in turning off their body cameras, since they were instructed to do so by a supervisor on scene after the walk-through was completed, and they were acting in accordance with their department’s policy. Additionally, the defendant was present during the execution of the search warrant, and there was no showing that any materially exculpatory evidence was lost. The majority therefore found no error.

Judge Murphy dissented, and would have remanded the case for appointment of new appellate counsel to brief issues of potential merit, including whether the officers’ execution of the search warrant may have violated the notice and entry requirements in G.S. 15A-249, and whether the trial court may have erred in its application of the substantial assistance provisions in G.S. 90-95(h)(5).

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.

Although an officer “inappropriately” took documents related to the defendant’s civil action against A&T and covered by the attorney-client privilege during his search of her residence, the trial court properly suppressed this material and the officer’s actions did not otherwise invalidate the search warrant or its execution.

In Re Baker, 220 N.C. App. 108 (Apr. 17, 2012)

Where search warrants were unsealed in accordance with procedures set forth in a Senior Resident Superior Court Judge’s administrative order and where the State failed to make a timely motion to extend the period for which the documents were sealed, the trial judge did not err by unsealing the documents. At least 13 search warrants were issued in an investigation. As each was issued, the State moved to have the warrant and return sealed. Various judges granted these motions, ordering the warrants and returns sealed “until further order of the Court.” However, an administrative order in place at the time provided that an order directing that a warrant or other document be sealed “shall expire in 30 days unless a different expiration date is specified in the order.” Subsequently, media organizations made a made a public records request for search warrants more than thirty days old and the State filed motions to extend the orders sealing the documents. A trial judge ordered that search warrants sealed for more than thirty days at the time of the request be unsealed. The State appealed. The court began by rejecting the State’s argument that the trial court erred by failing to give effect to the language in the original orders that the records remain sealed “until further order of the Court.” The court noted the validity of the administrative order and the fact that the trial judge acted in compliance with it. The court also rejected the State’s argument that the trial judge erred by having the previously sealed documents delivered without any motion, hearing, or notice to the State and without findings of fact. The court noted that the administrative order afforded an opportunity and corresponding procedure for the trial court to balance the right of access to records against the governmental interests sought to be protected by the prior orders. Specifically, the State could make a motion to extend the orders. Here, however, the State failed to make a timely motion to extend the orders. Therefore, the court concluded, the administrative order did not require the trial court to balance the right to access against the governmental interests in protecting against premature release. The court further found that the State had sufficient notice given that all relevant officials were aware of the administrative order.

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