State v. McCoy , 100 N.C. App. 574 ( 1990 )

397 S.E.2d 355 (1990) 100 N.C. App. 574

STATE of North Carolina
v.
Alfred Dixon McCOY.

No. 9021SC93.

Court of Appeals of North Carolina.

November 6, 1990.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Doris J. Holton, Raleigh, for the State, appellant.

No brief filed for appellee.

ARNOLD, Judge.

The standard for a court reviewing the issuance of a search warrant is "whether there is substantial evidence in the record supporting the magistrate's decision to issue the warrant." Massachusetts v. Upton, 466 U.S. 727, 728, 104 S.Ct. 2085, 2085, 80 L.Ed.2d 721, 724 (1984); see Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). North Carolina adopted the "totality of the circumstances" approach for determining the existence of probable cause in State v. Arrington, 311 N.C. 633, 643, 319 S.E.2d 254, 261 (1984). Thus the task of the issuing judicial officer is to make a common-sense decision based on all the circumstances that "there is a fair probability that contraband or evidence of a crime will be found in a particular place." Gates, 462 U.S. at 238, 103 S.Ct. at 2332, 76 L.Ed.2d at 548. The State contends that the trial judge applied a standard more stringent than "fair probability" in reviewing the application and erred by suppressing the evidence for lack of probable cause to search.

Application for a search warrant must be supported by statements "particularly setting forth the facts and circumstances establishing probable cause to believe that the items are in the places ... to be searched...." N.C.Gen.Stat. § 15A-244(3) (1988). Conclusory statements concerning the location of the items sought are not sufficient to establish probable cause. State v. Campbell, 282 N.C. 125, 191 S.E.2d 752 (1972). The affidavits must establish a nexus between the objects sought and the place to be searched. State v. Goforth, 65 N.C.App. 302, 309 S.E.2d 488 (1983); Campbell, 282 N.C. 125, 191 S.E.2d 752; LaFave, Search and Seizure, § 3.1(b) n. 26 (2d ed. 1987). Usually this connection is made by showing that criminal activity actually occurred at the location to be searched or that the fruits of a crime that occurred elsewhere are observed at a certain place. "Difficult problems can arise, however, where such direct information concerning the location of the objects is not available and it must be determined what reasonable inferences may be entertained concerning the likely location of those items." LaFave, supra § 3.7(d) at 103.

There is no firsthand evidence in the affidavits supporting this search warrant application that cocaine had been observed in room 403 of the Innkeeper Motel on 25 August. No controlled buys occurred at the location nor was any criminal activity observed by the surveillance team stationed outside the room that day. We are left here with deciding whether the circumstances of the two prior sales of cocaine in other motel rooms within a ten-day period reasonably leads to the inference that cocaine could be found in the third room. North Carolina case law supports the premise that firsthand information of contraband seen in one location will sustain a finding to search a second location. Probable cause was found for the search of a party's residence and automobile where drugs had previously been seen only in the party's residence. State v. Mavrogianis, 57 N.C.App. 178, 291 S.E.2d 163 (1982), disc. rev. denied, 306 N.C. 562, 294 S.E.2d 227 (1982).

When evidence of previous criminal activity is advanced to support a finding of probable cause, a further examination must be made to determine if the evidence of the prior activity is stale. In Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932), the Supreme Court held that a second search warrant cannot be issued on the same showing of probable cause that supported the issuance of an earlier warrant after the first search warrant becomes void. The first warrant had been issued three weeks prior to the second one. The Court said there must be additional proof of probable cause sufficient at the time of issuing the second warrant. Id. at 211, 53 S.Ct. at 140-41, 77 L.Ed. at 263. Whether the proof meets that test is determined by circumstances of each case. Id.

Generally, two factors determine whether evidence of previous criminal activity is sufficient to later support a search warrant: (1) the amount of criminal activity and (2) the time period over which the activity occurred. "Absent additional facts tending to show otherwise, a one-shot type of crime, such as a single instance of possession or sale of some contraband, will support a finding of probable cause only for a few days at best." LaFave, supra § 3.7(a) at 78. "However, where the affidavit properly recites facts indicating activity of a protracted and continuous nature, a course of conduct, the passage of time becomes less significant." U.S. v. Johnson, 461 F.2d 285, 287 (10th Cir.1972). The continuity of the offense may be the most important factor in determining whether the probable cause is valid or stale. In this case, two controlled buys of cocaine between an informant and defendant occurred within ten days of the application for the search warrant. The most recent purchase occurred not more than four days earlier.

In the end we must return to the question of whether it was reasonably probable, judging from the totality of the circumstances, that the contraband sought could be found in the location to be searched. The facts here show that a suspect, previously convicted of selling drugs, had within a ten-day period rented three different motel rooms, each time for several days, in a city in which he had a local address, and that at two of those locations he had sold cocaine. Based on these facts, it was reasonable to infer that when the suspect occupied the third room, he still possessed the cocaine.

The order of the trial court is reversed.

HEDRICK, C.J., and PHILLIPS, J., concur.