State v. Moore, 275 N.C. App. 302 (Dec. 15, 2020)

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.

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