State v. Howard, ___ N.C. App. ___, 817 S.E.2d 232 (Jun. 5, 2018)

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.

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