State v. Allman , 244 N.C. App. 685 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-40
Filed: 5 January 2016
New Hanover County, Nos. 12 CRS 50964, 12 CRS 50965
STATE OF NORTH CAROLINA,
v.
BRITTANY ALLMAN, Defendant.
Appeal by the State from order entered 2 October 2014 by Judge Jack Jenkins
in New Hanover County Superior Court. Heard in the Court of Appeals 7 May 2015.
Attorney General Roy Cooper, by Assistant Attorney General Derrick C. Mertz,
for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Paul M.
Green, for defendant-appellee.
GEER, Judge.
The State appeals from an order granting defendant Brittany Allman’s motion
to suppress evidence of drug-related activity seized following the execution of a search
warrant at her residence. On appeal, the State argues that the search warrant
application revealed circumstances -- including the fact that two other residents of
the house were engaged in drug dealing and had lied to officers about where they
lived -- that gave rise to probable cause to believe evidence of drug-related activity
would be found in defendant’s residence. However, we conclude that these
circumstances, along with others in the search warrant affidavit, amount at most to
circumstances that our case law has held to be insufficient to establish probable cause
STATE V. ALLMAN
Opinion of the Court
that evidence of illegal activity exists at the location identified in the search warrant
application. We, therefore, affirm the trial court’s order granting defendant’s motion
to suppress.
Facts
Half-brothers Jeremy Lee Black and Sean Alden Whitehead lived at 4844
Acres Drive (“the Acres Drive residence”) in Wilmington, North Carolina together
with Logan McDonald and defendant, who was Mr. Black’s girlfriend. Officers
obtained a search warrant for the Acres Drive residence to search for evidence
relating to the sale of controlled substances. Officers conducted the search of the
Acres Drive residence while defendant was present and found various controlled
substances and paraphernalia. Defendant was then arrested.
On 19 March 2012, defendant was indicted for possession of marijuana,
possession of a schedule I controlled substance, manufacturing a schedule I controlled
substance, possession with intent to sell or deliver marijuana, maintaining a vehicle
or dwelling for the sale or distribution of a controlled substance, and possession of
drug paraphernalia. On 2 June 2014, defendant filed a motion to suppress the
evidence obtained in the search of the Acres Drive residence, arguing that the search
warrant did not allege sufficient facts to support probable cause that evidence of drug-
related crimes would be found at the Acres Drive residence and, therefore, violated
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N.C. Gen. Stat. § 15A-244 (2013). On 2 October 2014, the trial court entered an order
granting defendant’s motion to suppress.
The application for a search warrant was supported by the affidavit of
Detective Anthony Bacon of the Vice and Narcotics Unit of the New Hanover County
Sheriff’s Office. After Detective Bacon set out in the affidavit his experience and
certain “common characteristics” that “people who use illegal controlled substances
share,” Detective Bacon then made the following factual assertions to support a
search of the Acres Drive residence.1 On 21 January 2012, Agent Joe Cherry of the
Brunswick County Sheriff’s Office called Detective Bacon and told him that he had
conducted a vehicle stop on Highway 74/76 eastbound just before the New Hanover
County Line. Agent Cherry identified the driver as Mr. Black and the passenger as
Mr. Whitehead. According to Agent Cherry, when he asked Mr. Whitehead about his
whereabouts prior to the traffic stop, Mr. Whitehead told him that Mr. Black and he
were half-brothers, that they left their residence at 30 Twin Oaks Drive in Castle
Hayne, N.C., and that they then visited a friend in Brunswick County. Mr.
Whitehead told Agent Cherry that they were on their way back to 30 Twin Oaks
Drive.
1Thesearch warrant identified the residence to be searched as 4814 Acres Drive, while the
residence actually searched was at 4844 Acres Drive. Defendant did not make any arguments below
pertaining to the discrepancy between the address listed in the application and the address actually
searched, and that discrepancy is not an issue on appeal.
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Agent Cherry further told Detective Bacon that, during the roadside interview,
he called for a K-9 unit and the dog alerted to the presence of controlled substances
during an exterior “sniff.” Agent Cherry said he then searched the car and discovered
8.1 ounces of marijuana packaged in a Ziploc bag, which was inside a vacuum-sealed
bag, which in turn was inside a manila envelope. Agent Cherry said he also found
over $1,600.00 in cash. Agent Cherry reported to Detective Bacon that Mr.
Whitehead told Agent Cherry that he kept some marijuana in his vehicle at 30 Twin
Oaks Drive -- Mr. Whitehead claimed that he kept the marijuana in the vehicle so
that his mother would not know about it. Agent Cherry also said that Mr. Whitehead
owned two cell phones and one of those phones contained text messages related to the
sale of marijuana.
Detective Bacon then described Mr. Whitehead’s prior record of being charged
with trafficking marijuana and sale and distribution of marijuana and of having been
convicted of possession with intent to sell and deliver marijuana. The affidavit noted
that Mr. Black had been charged with cocaine distribution and possession of
marijuana in the State of Florida, while, in North Carolina, Mr. Black had pled guilty
to first degree burglary.
Detective Bacon asserted that according to Division of Motor Vehicles records,
both Mr. Black and Mr. Whitehead listed their home address at 30 Twin Oaks Drive.
The car Mr. Black was driving when stopped by Agent Cherry was registered to 30
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Opinion of the Court
Twin Oaks Drive. Detective Bacon obtained a search warrant for 30 Twin Oaks
Drive, but discovered, when executing the warrant, that Mr. Black and Mr.
Whitehead did not live there. Detective Bacon found no evidence of Mr. Black’s or
Mr. Whitehead’s belongings at 30 Twin Oaks Drive. Instead, Mr. Black’s and Mr.
Whitehead’s mother, Elsie Black, and their stepfather lived there. Ms. Black said
that her sons lived at “4814 Acres Drive” and described the residence to Detective
Bacon. She also said that there should be an old red truck and an old white truck at
the house. According to Ms. Black, her sons had a roommate named Logan
McDonald. She said that her sons used her address as a mailing address, but had
been living on Acres Drive for approximately three years.
Another detective went to 4814 Acres Drive and found the property matched
the description given by Ms. Black. The detective checked the registration of the old
red truck and the old white truck, and one was registered to Mr. Black and the other
was registered to Mr. McDonald.
Finally, Detective Bacon asserted that he “knows through training and
experience, subjects who deal in illegal controlled substances often use different
mailing addresses and lie to law enforcement about their home address to conceal
their illegal activities.”
The trial court found that when Detective Bacon served the search warrant on
the Acres Drive house, the door was opened by defendant and Mr. McDonald. Once
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Opinion of the Court
inside, the detectives found various amounts of marijuana in the living room, and a
search of defendant’s room yielded a shotgun. The detectives also located a wall safe
behind a tapestry in defendant’s room, although defendant did not know the safe was
there and could not provide the combination. The detectives eventually opened the
safe and found syringes filled with a liquid substance believed to be psilocybin
mushrooms.
The trial court further found that prior to applying for the search warrant,
Detective Bacon had not conducted surveillance or an investigation of the Acres Drive
residence to determine whether probable cause existed to believe that evidence of
violations of the North Carolina Controlled Substances Act had occurred or were
occurring there. Also, prior to submitting the search warrant application, Detective
Bacon “had not received any information that there would be controlled substances
found, kept, sold, manufactured or otherwise located at the residence of 4844 College
Acres Drive [in] Wilmington, NC.” Further, Detective Bacon’s supporting affidavit
attached to the warrant application contained no information that the Acres Drive
residence would contain evidence constituting a violation of the North Carolina
Controlled Substances Act, and, consequently, “did not contain any nexus between
the controlled substances sought to be found and the residence located at 4844 Acres
Drive[,] Wilmington, NC.”
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Based on these findings, the trial court made the following conclusions of law.
Because, at the time he applied for the search warrant, Detective Bacon “did not have
any information that controlled substances were likely to be found on the premises[,]”
and he “did not allege in his affidavit . . . that anyone had seen controlled substances
at the residence or that any controlled substances were being sold, kept or
manufactured” at the Acres Drive residence, the facts alleged in Detective Bacon’s
affidavit were insufficient, under the totality of the circumstances, to support a
finding of probable cause. Therefore, the trial court concluded, the evidence taken
from defendant “was in violation of her rights guaranteed by the Fourth, Fifth, and
Fourteenth Amendments to the United States Constitution and the parallel
provisions of the Constitution of the State of North Carolina. In addition, the
evidence was obtained in substantial violation of the provisions of Chapter 15A of the
North Carolina General Statutes.”
Based on these conclusions of law, the trial court ordered the evidence obtained
against defendant from the Acres Drive residence to be suppressed. On 14 October
2014, the State gave notice of appeal from the order granting defendant’s motion to
suppress, certifying that the appeal was not taken for the purpose of delay pursuant
to N.C. Gen. Stat. § 15A-979(c) (2013).
Standard of Review
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In arguing that the trial court should have denied the motion to suppress, the
State argues that Detective Bacon’s affidavit alleged sufficient facts to support the
existence of probable cause to search the Acres Drive residence.
Our standard of review of an order granting or
denying a motion to suppress is strictly limited to
determining whether the trial judge’s underlying findings
of fact are supported by competent evidence, in which event
they are conclusively binding on appeal, and whether those
factual findings in turn support the judge’s ultimate
conclusions of law. [A] trial court’s conclusions of law
regarding whether the officer had reasonable suspicion [or
probable cause] to detain a defendant is reviewable de
novo. [T]he trial court’s conclusions of law must be legally
correct, reflecting a correct application of applicable legal
principles to the facts found.
State v. Hudgins, 195 N.C. App. 430, 432, 672 S.E.2d 717, 718 (2009) (internal
citations and quotation marks omitted).
Discussion
The State first challenges the trial court’s findings of fact that Detective Bacon
did not conduct surveillance on the Acres Drive residence to determine if there was
probable cause to search that location; that Detective Bacon had not received any
information that there would be controlled substances at the Acres Drive residence;
and that Detective Bacon’s affidavit did not have any information that the Acres
Drive residence would contain evidence constituting a violation of the North Carolina
Controlled Substances Act. These findings of fact simply identify what the trial court
deemed to be lacking in Detective Bacon’s affidavit. They show the trial court’s
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Opinion of the Court
reasoning in determining -- as set out in the final finding of fact challenged by the
State -- that Detective Bacon’s affidavit “did not contain any nexus between the
controlled substances sought to be found [at] the residence located at 4844 Acres
Drive[,] Wilmington, NC.”
We agree with the State that this last finding is more properly characterized
as a conclusion of law. See State v. Oates, 224 N.C. App. 634, 644, 736 S.E.2d 228,
235 (2012) (treating trial court’s determination of existence of “sufficient nexus
between the objects sought and the place to be searched” as conclusion of law), appeal
dismissed, 366 N.C. 585, 740 S.E.2d 473 (2013). However, the trial court’s
mislabeling of that conclusion of law as a finding of fact is immaterial to the question
whether the trial court properly concluded that Detective Bacon’s affidavit was
insufficient to support issuance of the search warrant.
To perform a search in North Carolina, under article I, section 20 of the State
Constitution, an officer must have “ ‘probable cause to believe that a crime has been
[or is being] committed and that evidence of it can likely be found at the described
locus at the time of the search.’ ” State v. Smith, 124 N.C. App. 565, 571, 478 S.E.2d
237, 241 (1996) (quoting United States v. Ricciardelli, 998 F.2d, 8, 10 (1st Cir. 1993)).
Additionally, a search warrant must comply with N.C. Gen. Stat. § 15A-244. State v.
Hyleman, 324 N.C. 506, 509, 379 S.E.2d 830, 832 (1989).
That statute provides,
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Opinion of the Court
Each application for a search warrant must be made
in writing upon oath or affirmation. All applications must
contain:
(1) The name and title of the applicant; and
(2) A statement that there is probable cause to
believe that items subject to seizure under
G.S. 15A-242 may be found in or upon a
designated or described place, vehicle, or
person; and
(3) Allegations of fact supporting the statement.
The statements must be supported by one or
more affidavits particularly setting forth the
facts and circumstances establishing probable
cause to believe that the items are in the places
or in the possession of the individuals to be
searched; and
(4) A request that the court issue a search
warrant directing a search for and the seizure
of the items in question.
N.C. Gen. Stat. § 15A-244 (emphasis added).
Our Supreme Court has explained that “probable cause cannot be shown by
conclusory affidavits stating only the belief of the affiant or an informer that probable
cause exists to issue the warrant. Recital of some of the circumstances underlying
this belief is essential.” Hyleman, 324 N.C. at 509, 379 S.E.2d at 832 (internal
citation omitted). While our case law supports the premise that “ ‘first-hand
information of contraband seen in one location will sustain a finding to search a
second location[,]’ ” Oates, 224 N.C. App. at 644, 736 S.E.2d at 235 (quoting State v.
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Opinion of the Court
McCoy, 100 N.C. App. 574, 577, 397 S.E.2d 355, 357 (1990)), “ ‘evidence obtained in
one location cannot provide probable cause for the search of another location when
the evidence offered does not implicate the premises to be searched[,]’ ” id. (quoting
State v. Washburn, 201 N.C. App. 93, 101, 685 S.E.2d 555, 561 (2009)).
This Court has held, in applying N.C. Gen. Stat. § 15A-244(3), that “[t]he
affidavits must establish a nexus between the objects sought and the place to be
searched.” McCoy, 100 N.C. App. at 576, 397 S.E.2d at 357. “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.” Id. A search warrant applicant need not have direct information connecting
a particular place to be searched with fruits of a crime. Id. However, “ ‘[d]ifficult
problems can arise . . . where such direct information . . . is not available and it must
be determined what reasonable inferences may be entertained concerning the likely
location of those items.’ ” Id. (quoting Wayne R. LaFave, Search and Seizure, § 3.7(d)
at 103 (2d ed. 1987)).
In interpreting the requirement of a “nexus,” our Supreme Court, in State v.
Campbell, 282 N.C. 125, 130, 191 S.E.2d 752, 756 (1972), held that an affidavit was
insufficient to establish probable cause when the affidavit stated only that (1) the
officer had arrest warrants charging the defendant and two other residents of the
premises with the sale and possession of narcotics; (2) the three residents had all sold
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Opinion of the Court
narcotics to an SBI agent and, based on the officer’s personal knowledge and
interviews with informants and local police officers, were actively involved in drug
sales, and (3) the defendant leased the premises. The Court observed that “[n]owhere
in the affidavit is there any statement that narcotic drugs were ever possessed or sold
in or about the dwelling to be searched.” Id. at 131, 191 S.E.2d at 757. Further,
“[n]owhere in the affidavit are any underlying circumstances detailed from which the
magistrate could reasonably conclude that the proposed search would reveal the
presence of illegal drugs in the dwelling.” Id. The Court concluded that an inference
that narcotic drugs were illegally possessed on the premises at issue did “not
reasonably arise from the facts alleged.” Id.This case is materially indistinguishable from Campbell. Nothing in Detective
Bacon’s application and affidavit indicated that he observed or received information
that drugs were possessed or sold at the Acres Drive residence. The State argues,
however, that such an inference arose as a natural and reasonable inference from
circumstances indicating that Mr. Black and Mr. Whitehead were engaged in drug
trafficking. The State points to Detective Bacon’s allegations in the warrant affidavit
that he learned Mr. Black and Mr. Whitehead had been previously convicted of crimes
involving marijuana and that Agent Cherry found marijuana, cash, and a cell phone
with messages consistent with sales of marijuana in Mr. Whitehead’s possession
during the traffic stop. These facts were relevant to whether Mr. Black and Mr.
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Opinion of the Court
Whitehead were engaged in drug dealing, but the Supreme Court in Campbell held
that information that a defendant was an active drug dealer was not sufficient,
without more, to support a search of the dealer’s residence.
Indeed, our Supreme Court recently described Campbell as controlling when
“the affidavit . . . included no information indicating that drugs had been possessed
in or sold from the dwelling to be searched.” State v. McKinney, 368 N.C. 161, 166,
775 S.E.2d 821, 826 (2015). By contrast, in McKinney, the affidavit was found
sufficient when it alleged that (1) a citizen complained about heavy traffic in and out
of the defendant’s apartment with visitors making abbreviated stays; (2) officers
conducted surveillance of the apartment and saw a Pontiac arrive and the driver
enter the apartment, emerge six minutes later, and drive off; (3) officers stopped the
Pontiac for a traffic violation and the driver had $4,258.00 in cash and a gallon-size
plastic bag containing marijuana remnants; and (4) the driver’s cell phone had a
series of text messages sent and received just before the driver’s arrival at the
defendant’s apartment, suggesting that the driver had just completed a delivery of
drugs to the apartment. Id. at 162, 166, 775 S.E.2d at 823, 825. The Court
emphasized: “[T]he information available to the officer and provided to the magistrate
at the time the search warrant was requested and issued sufficiently indicated that
the transaction adumbrated in the texts was consummated moments later in
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Opinion of the Court
defendant’s apartment. Thus, this case is distinguishable from Campbell . . . .” Id. at
166, 775 S.E.2d at 825 (emphasis added).
This case resembles Campbell and not McKinney. The affidavit here contained
no allegations evidencing the probable presence of drugs at the Acres Drive house.
No one observed any activity suggestive of drug trafficking or usage at the house, and
nothing connected the Acres Drive house with the cash, marijuana, and texts
suggestive of drug sales uncovered during the traffic stop. The State has cited no
opinions of this Court or the Supreme Court indicating that an affidavit comparable
to the one in this case is sufficient to support a search warrant. While the State
points to the allegation that Mr. Black and Mr. Whitehead lied about their residence,
that lie, while perhaps suggestive that drugs might be present at their actual
residence, does not make the drugs’ presence probable, especially given the affidavit’s
allegation that Mr. Whitehead claimed he kept his drugs in his vehicle.
Unlike this case, in the cases relied upon by the State -- State v. Sinapi, 359
N.C. 394, 610 S.E.2d 362 (2005), State v. Riggs, 328 N.C. 213, 400 S.E.2d 429 (1991),
Oates, State v. Crawford, 104 N.C. App. 591, 410 S.E.2d 499 (1991), and State v. Byrd,
60 N.C. App. 740, 300 S.E.2d 16 (1983) -- the warrants authorizing searches of the
suspect residences were upheld because officers had discovered some specific and
material connection between drug activity and the place to be searched. See Sinapi,
359 N.C. at 395, 610 S.E.2d at 363 (affiant performed inventory of trash bag located
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Opinion of the Court
on curb of suspect residence that revealed eight marijuana plants); Riggs, 328 N.C.
at 215-16, 400 S.E.2d at 431 (affiant successfully coordinated controlled purchase of
drugs using confidential source at suspect residence); Oates, 224 N.C. App. at 645,
736 S.E.2d at 236 (affiant had knowledge that defendant was traveling from New
York to “a specific location -- . . . ‘451 McKoy Street in Clinton, North Carolina’ -- . . .
for the purpose of selling drugs”); Crawford, 104 N.C. App. at 596, 410 S.E.2d at 501(affidavit indicated that while suspect residence was under surveillance, it had
“traffic pattern . . . with visitors only staying in the apartment for about one minute”
and also during that time “five persons were arrested for possession within an hour
[of each other] . . . ‘as they exited [the suspect] residence’ ”); Byrd, 60 N.C. App. at
744, 300 S.E.2d at 18-19 (affiant successfully conducted controlled purchase of drugs
using informant at suspect residence).
In State v. Mavrogianis, 57 N.C. App. 178, 291 S.E.2d 163 (1982), also cited by
the State, a connection between drugs and a student’s college dormitory room gave
rise to the inference that evidence of drug-related activity would be found in the
student’s car that was also parked on campus. In that case, the only circumstances
supporting the issuance of a search warrant were that “[t]he defendant was a student
living on campus [at North Carolina State University]. He possessed, actually or
constructively, a dormitory room and an automobile. There was reliable information
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Opinion of the Court
that he was dealing in marijuana; that marijuana was seen in his room and on his
person.” Id. at 181, 291 S.E.2d at 164.
This Court found that these circumstances supported probable cause to search
the defendant’s automobile for drugs, even though the officers did not have any direct
information that drugs were located in the vehicle, because “[a] man of reasonable
caution would be warranted in believing that a university student living on campus,
who possessed and dealt in drugs, had drugs in both his dormitory room and his
automobile parked on campus, even though the drug was seen only in his dormitory
room.” Id. In reaching this conclusion, this Court highlighted the special
circumstance of selling drugs out of a college dormitory room: “A college student living
on campus and dealing in drugs would probably find the operation of the illicit trading
within the confines of a dormitory room . . . to be fraught with the danger of discovery
and apprehension. The student’s automobile would be a convenient instrumentality
for receiving, storing, and delivering his illicit merchandise.” Id.In other words, the fact that the defendant, a suspected drug dealer, had a
reduced expectation of privacy in his dorm room, provided a fair probability that
drugs would be found in the defendant’s automobile, the only other place that the
student had available to store drugs and the only place over which he had complete
control. Here, on the other hand, the circumstances provide no particular and
material connection, or inference of such a connection, between drug trafficking and
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Opinion of the Court
the Acres Drive residence. Unlike the unique circumstances in Mavrogianis of a
drug-dealing student, the State has made no showing that Mr. Black and Mr.
Whitehead were more likely to store their drugs in the Acres Drive residence than
somewhere else. The evidence of drug trafficking found at the traffic stop, and the
totality of other circumstances, do not directly implicate the Acres Drive residence as
a repository for evidence related to drug trafficking, any more than did the
circumstances set out in Campbell.
Although the State also cites numerous federal decisions in support of its
argument, see, e.g., United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir. 1986)
(“In the case of drug dealers, evidence is likely to be found where the dealers live.”),
those cases, no matter how persuasive, cannot override controlling North Carolina
authority. To the extent that those federal cases conflict with our case law, we are
bound by decisions of our Supreme Court. See Dunn v. Pate, 106 N.C. App. 56, 60,
415 S.E.2d 102, 104 (1992) (“[T]his Court has no authority to overrule decisions of our
Supreme Court and we have the responsibility to follow those decisions[.]”), rev’d on
other grounds, 334 N.C. 115, 431 S.E.2d 178 (1993).
Because we cannot meaningfully distinguish Campbell and because nothing in
McKinney, the Supreme Court’s most recent ruling, undermines the controlling
nature of Campbell, we are bound by that decision, especially in the absence of the
State citing any controlling decision with comparable circumstances. Based on
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Opinion of the Court
Campbell, we hold that the trial court did not err in concluding that the allegations
in the affidavit indicating that Mr. Black and Mr. Whitehead were involved in drug
dealing and engaged in behaviors common to drug dealers were not sufficient to
implicate any particular place where Mr. Black and Mr. Whitehead might have been
engaged in drug-related activity. Because the affidavit filed by Detective Bacon did
not reveal a sufficient nexus between Mr. Black’s and Mr. Whitehead’s drug-related
activity and the Acres Drive residence, we affirm the trial court’s order granting
defendant’s motion to suppress.
AFFIRMED.
Judge ELMORE concurs.
Judge DILLON dissents in a separate opinion.
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No. COA15-40 – STATE v. ALLMAN
DILLON, Judge, dissenting.
Because I believe that there was a substantial basis for the magistrate to
conclude that probable cause existed to search Defendant’s residence, I respectfully
dissent.
In State v. McKinney, 368 N.C. 161, 775 S.E.2d 821 (2015), our Supreme Court
restated some basic principles regarding our role in reviewing the sufficiency of an
officer’s supporting affidavit to justify the issuance of a search warrant.
The affidavit must detail “the facts and circumstances establishing
probable cause to believe that items are in the places . . . to be searched.”
McKinney, 368 N.C. at 164, 775 S.E.2d at 824 (citing N.C. Gen. Stat. §
15A-244(3) (2013)).
“A magistrate must make a practical, common-sense decision, based on
the totality of the circumstances, whether there is a ‘fair probability’
that contraband will be found in the place to be searched.” Id. (internal
marks omitted).
“This standard for determining probable cause is flexible” and permits
“the magistrate to draw ‘reasonable inferences’ from the evidence in the
affidavit[.]” Id.
“Probable cause requires not certainty, but only a probability or
substantial chance of criminal activity.” Id. at 165, 775 S.E.2d at 825
(emphasis in original) (internal marks omitted).
“The magistrate’s determination of probable cause is given ‘great
deference’ and after-the-fact scrutiny should not take the form of a de
novo review. Instead, a reviewing court is responsible for ensuring that
the issuing magistrate had a substantial basis for concluding that
probable cause existed.” Id. (internal marks omitted).
Based on these principles, I agree with the State that the trial court erred in granting
Defendant’s motion to suppress.
STATE V. ALLMAN
DILLON, J., dissenting
Defendant lives in a residence in Wilmington with her boyfriend (Mr. Black)
and his half-brother (Mr. Whitehead). Defendant was arrested for drug-related
offenses after officers obtained a warrant to search the Wilmington residence. The
officers obtained the search warrant after discovering drugs and evidence of drug
dealing in a car driven by Mr. Black and in which Mr. Whitehead was the sole
passenger.
The issue in the case is whether the facts in the officer’s affidavit were
sufficient to support the magistrate’s determination that there was a fair probability
that officers would find illegal drugs in the Wilmington residence. Our Supreme Court
held that an affidavit for a warrant to search a defendant’s residence was “fatally
defective” where it merely stated that the defendant was a known drug dealer and
attempted to sell narcotics to an undercover officer and otherwise contained no facts
or circumstances which “implicate[d] the premises to be searched.” State v. Campbell,
282 N.C. 125, 131, 191 S.E.2d 752, 756-57 (1972).
In a decision this past summer, our Supreme Court reached a contrary result,
sustaining a warrant to search the defendant’s apartment where the supporting
affidavit stated that a visitor to the apartment was pulled over immediately after his
visit to the apartment and drugs and other evidence of drug dealing were found in
the visitor’s car. See McKinney, 368 N.C. at 162, 775 S.E.2d at 823. The Court stated
that the affidavit differed from the affidavit at issue in Campbell because it contained
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facts which created a “nexus between [the visitor’s] vehicle and [the] defendant’s
apartment[.]” Id. at 166, 775 S.E.2d at 825. Specifically, the affidavit stated that the
visitor’s cell phone contained a text exchange which occurred shortly before the visitor
arrived at the defendant’s apartment and which suggested the “preparation for and
negotiation of a drug transaction[.]” Id. The Court held that the case was
distinguishable from its 1972 Campbell decision because the affidavit in Campbell
“included no information indicating that drugs had been possessed in or sold from the
dwelling to be searched.” Id. at 166, 775 S.E.2d at 826.
I respectfully disagree with the majority that the affidavit in the present case
“is materially indistinguishable from Campbell.” It is true that the affidavit, here,
did not contain the same type of information in the supporting affidavit in McKinney,
that is, information showing that the vehicle where the drugs were found had just
left the premises to be searched. However, unlike in Campbell, the officer’s affidavit
here did contain other information which implicated the Wilmington residence,
namely, that the occupants of the vehicle where illegal drugs were found repeatedly
lied about where they lived. For instance, the officer testified that prior to the drugs
being found in their vehicle, the brothers lied to the officers about their place of
residence, stating that they lived on Twin Oaks Drive in Castle Hayne, (located some
miles north of their actual residence in Wilmington). Also, after officers found 8.1
grams of marijuana, a large amount of cash, cell phone text messages indicative of a
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DILLON, J., dissenting
drug transaction, and other evidence of drug dealing, the brothers repeated the lie,
stating that they kept the drugs in their car so that their mother, who also lived at
the Castle Hayne residence, would not know about their involvement in illegal drugs.
Later, the mother informed an investigating officer that her sons did not live in Castle
Hayne but that her sons had lived at the Wilmington residence for three years and
only used the Castle Hayne residence to receive mail.
In conclusion, the affidavit in the present case did not contain information that
anyone had seen illegal drugs at the Wilmington residence or that anyone found with
illegal drugs had just left the Wilmington residence. I believe, though, that the
information did, otherwise, implicate the Wilmington residence; namely, the repeated
lies the brothers told the officers about where they lived. Though this information
did not establish with certainty that drugs would be found at the Wilmington
residence, it contained facts and circumstances from which a magistrate, exercising
common sense, could conclude that there was a “probability or substantial chance”
that drugs or evidence of other criminal activity would be discovered at the
Wilmington residence. Accordingly, my vote would be to reverse the trial court’s
order suppressing the evidence discovered during the search of the Wilmington
residence. See, e.g., People v. Nunez, 242 Mich. App. 610, 614, 619 N.W.2d 550, 552
(2000) (Michigan court holding that the “[d]efendant’s denial that he lived at [a
certain] apartment, combined with the reasonable inference that drug traffickers
4
STATE V. ALLMAN
DILLON, J., dissenting
often keep evidence of illicit activity in their homes, provided a substantial basis for
the magistrate’s finding of probable cause to search the apartment”).
5