Smith's Criminal Case Compendium
Smith's Criminal Case Compendium
Table of Contents
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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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 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.”
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.