State v. Williams ( 2019 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-1136
Filed: 17 September 2019
Brunswick County, No. 17 CRS051856-57
STATE OF NORTH CAROLINA
v.
ASHLEIGH CORRIN WILLIAMS
Appeal by defendant from judgments entered 27 April 2018 by Judge James F
Ammons Jr. in Superior Court, Brunswick County. Heard in the Court of Appeals 24
April 2019.
Attorney General Joshua H. Stein, by Assistant Attorney General Terence D.
Friedman, for the State.
Richard Croutharmel, for defendant-appellant.
STROUD, Judge.
Defendant appeals the denial of her motion to suppress and judgments for her
drug-related convictions. We reverse the denial of defendant’s motion to suppress
and judgment and remand for a new trial.
I. Procedural Background
We briefly summarize the procedural background. On 20 April 2017, based
upon a warrant application and affidavit by Agent Charles Melvin, the magistrate
issued a search warrant for defendant’s home, vehicles, and person. Based upon the
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Opinion of the Court
warrant, law enforcement searched defendant’s home and found heroin. Defendant
was then indicted for several drug-related offenses.
In March of 2018, defendant made a motion “to suppress all evidence collected
pursuant to the search warrant[.]” Defendant raised arguments regarding the
reliability of the informants, the lack of specificity of the property searched and
seized, and a lack of probable cause; she also requested a Franks hearing1 because
she believed the affiant “made material misrepresentations to the judicial officer
reviewing the search warrant application.”
In her “Motion to Suppress and Request for Franks Hearing[,]” (original in all
caps), defendant contended that Agent Melvin had “intentionally exaggerated” the
past cooperation and reliability of the confidential informant, Ms. Smith. Defendant
alleged Ms. Smith had done only one controlled drug buy for the Brunswick County
Vice Narcotics Unit (“BCVN”) prior to offering to buy heroin from a man known as
1 “It is elementary that the Fourth Amendment’s requirement of a factual showing sufficient to
constitute probable cause anticipates a truthful showing of facts. Franks v. Delaware, 438 U.S. 154,
57 L. Ed. 2d 667, 678 (1978). Truthful, as intended here, does not mean that every fact recited in the
warrant affidavit is necessarily correct, for probable cause may be founded upon hearsay and upon
information received from informants, as well as upon information within the affiant’s own knowledge
that sometimes must be garnered hastily. Rather, truthful in this context means that the information
put forth is believed or appropriately accepted by the affiant as true. Resolution of doubtful or
marginal cases in this area should be largely determined by the preference to be accorded to warrants.
Franks held that where a search warrant is issued on the basis of an affidavit containing false facts
which are necessary to a finding of probable cause, the warrant is rendered void, and evidence obtained
thereby is inadmissible if the defendant proves, by a preponderance of the evidence, that the facts were
asserted either with knowledge of their falsity or with a reckless disregard for their truth.” State v.
Fernandez, 346 N.C. 1, 13, 484 S.E.2d 350, 358 (1997) (citations, quotation marks, ellipses, and
brackets omitted).
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Opinion of the Court
Vaughn who would buy it from defendant because defendant would only sell to
Vaughn.2 Ms. Smith then participated in a controlled buy on 20 April 2017 equipped
with a recording device, which showed that she picked up “an unknown black male,
alleged to be Vaughn, and travel[ed] to an unknown destination” where Vaughn left
the vehicle and returned “when the deal was complete.” But the video did not show
defendant or defendant’s home, and Vaughn did not tell Ms. Smith he had gotten the
heroin from defendant. Thus, defendant alleged the video does not corroborate Ms.
Smith’s allegations that she went to defendant’s home or that Vaughn received heroin
from defendant. The motion included as exhibits the warrant affidavit, Ms. Smith’s
informant contract signed in January of 2017, and the search warrant.
At the beginning of the trial, the trial court heard the motion to suppress. The
State noted that defendant had requested a Franks hearing, so “it’s his burden to
produce substantial evidence of a violation, at which point the State would need to
respond.” Defendant then called Agent Charles Melvin of the Brunswick County
Sheriff’s Office to testify in support of her motion to suppress. The warrant affidavit
stated, “In the past year CS1 has worked with Agents and has provided correct and
accurate information leading to the arrests of narcotics dealers.” (Emphasis added).
As to the “[i]n the past year” language, during his testimony, Agent Melvin
acknowledged that he had “first dealt” with Ms. Smith in January of 2017, only a few
2 The warrant affidavit notes Vaughn is a nickname and does not provide his real name.
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Opinion of the Court
months prior to the search of defendant, and she had done one controlled buy prior to
the one from which defendant’s arrest arose. As to the plural “arrests of narcotics
dealers” language, Agent Melvin also admitted he knew the seller from the first
controlled buy was “charged” but he did not know when that occurred or if she had
been “arrested before April 20th[.]” (Emphasis added.)
After Agent Melvin’s testimony, defendant’s counsel and the State made
arguments regarding the Franks issue, and the trial court denied the motion:
All right. This matter coming on to be heard on defendant’s
motion to suppress a search warrant, a request for a
Franks hearing, the Court has pretty much given a hearing
on this. But after reviewing the motion to suppress, after
reviewing the search warrant and the affidavit, after
reviewing applicable case law, the statute law, and hearing
testimony from the witness and hearing arguments of
counsel, the Court denies the motion to suppress.
Defendant’s counsel then requested “to be heard on the other issue, which is
the reliability of the unknown informant.” The trial court stated, “The information
is not unknown; right? The informant is [Ms. Smith].” Defense counsel then noted
the information about defendant
came from ‘Vaughn’ through [Ms. Smith], that’s a separate
issue. On that issue – that’s where the law is very clear,
that they have to prove reliability of the middleman. The
middleman was unknown and known after all this and
arrested eight months later. But at the time the warrant
was issued, they took information – they say it’s from [Ms.
Smith]. It’s not from [Ms. Smith]. [Ms. Smith] didn’t see
anything. [Ms. Smith] didn’t know anything. [Ms. Smith]
never dealt with anybody . . . .
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Opinion of the Court
The trial court then denied defendant’s motion to suppress again, stating:
All right. That’s my ruling. Motion to suppress is denied.
....
. . . Court reserves the right to make further findings
of fact and conclusions of law with regard to this ruling at
a later time, should it become necessary.
The trial court made no later findings of fact or conclusions of law and did not enter
a written order regarding the motion to suppress. Defendant’s trial then began and
she was found guilty of all six charges against her and sentenced accordingly.
Defendant appeals.
II. Motion to Suppress
The motion to suppress raised four arguments for suppression; we will note the
first two as relevant to the issues on appeal. First, defendant argued the information
in the search warrant application “was derived from an unknown informant [Vaughn]
and was insufficient to support a search warrant.” Although Ms. Smith was known
to Agent Melvin, nearly all of the material information came from the unknown man
identified as Vaughn, and there was no indication of Vaughn’s reliability. Second,
defendant argued that “Agent Melvin’s exaggeration of [Ms. Smith’s] past
cooperation, as set forth in the affidavit of probable cause” was a material
misrepresentation.” The alleged misrepresentations were the time period of prior
assistance and the number of prior arrests and prosecutions based upon Ms. Smith’s
cooperation.
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Opinion of the Court
A reviewing court is responsible for ensuring that
the issuing magistrate had a substantial basis for
concluding that probable cause existed. Our Supreme
Court has stated, the applicable test is whether, given all
the circumstances set forth in the affidavit before the
magistrate, there is a fair probability that contraband will
be found in a particular place.
State v. Frederick, ___ N.C. App. ___, ___, 814 S.E.2d 855, 858, aff’d per curiam, ___
N.C. ___, ___, 819 S.E.2d 346 (2018) (citations, quotation marks, and brackets
omitted).
A. Failure to Make Findings of Fact and Conclusions of Law
Defendant contends the trial court violated North Carolina General Statute §
15A-977(f) when it failed to make written findings of fact and conclusions of law in
ruling on her motion to suppress, particularly as to the Franks issue. North Carolina
General Statute § 15A-977(f) requires the trial court to “set forth in the record his
findings of fact and conclusions of law” in ruling on a motion to suppress; N.C. Gen.
Stat. § 15A-977(f) (2017), although where there is no material conflict in the evidence
and the trial court’s legal conclusion is clear from the record, we may be able to review
the denial of a motion to suppress on appeal without written findings of fact and
conclusions of law:
After a motion to suppress evidence is presented at
the trial court, the judge must set forth in the record his
findings of fact and conclusions of law. Our Supreme Court
has held, the absence of factual findings alone is not error
because only a material conflict in the evidence—one that
potentially affects the outcome of the suppression motion—
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Opinion of the Court
must be resolved by explicit factual findings that show the
basis for the trial court’s ruling. Even so, it is still the trial
court’s responsibility to make the conclusions of law.
The State argues no material conflicts in the
evidence exist, and the trial court’s conclusion was clear
from its ruling. The record of the suppression hearing
reveals no material conflicts existed. . . .
....
While no material conflicts exist in the evidence
presented at the suppression hearing, the judge failed to
provide any rationale from the bench to explain or support
his denial of Defendant’s motion. The only statement from
the trial court concerning Defendant’s motion was, “I’m
going to allow the case to go forward with some reluctance,
but—I’m going to deny the Motion to Suppress.” This lack
of rationale from the bench precludes meaningful appellate
review.
The trial court’s failure to articulate or record its
rationale from the bench supports a remand.
State v. Howard, ___ N.C. App. ___, ___, 817 S.E.2d 232, 237–38 (2018) (emphasis
added) (citations and quotation marks omitted); see also State v. Faulk, ___ N.C. App.
___, ____, 807 S.E.2d 623, 630 (2017) (“Even though findings of fact are not required,
the trial court’s failure to provide its rationale from the bench, coupled with the
omission of any mention of the motion challenging the search warrant, precludes
meaningful appellate review of that ruling. It is the trial court’s duty to apply legal
principles to the facts, even when they are undisputed. We therefore hold that the
trial court erred by failing to either provide its rationale from the bench or make the
necessary conclusions of law in its written order addressing both of Defendant’s
motions to suppress.”).
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Opinion of the Court
The State attempts to distinguish Howard and Faulk because
the Trial Court’s explanation of what it had reviewed in
arriving at its finding of probable cause, [which the State
notes is implicit,] is unlike the conclusion of law at issue in
State v. Faulk, ___ N.C. App. ___, 807 S.E.2d 623, 630
(2017), in which the trial court’s order failed to even
mention one of the two motions to suppress at issue.
Similar, the Trial Court’s conclusion of law in this case is
more detailed than the rote conclusion in State v. Howard,
___ N.C. App. ___, 817 S.E.2d 232, 238 (2018), in which the
trial court merely stated: “I’m going to allow the case to go
forward with some reluctance, but – I’m going to deny the
Motion to Suppress.” In sum, the Trial Court’s conclusion
of law denying defendant’s motion to suppress is sufficient
to satisfy N.C. Gen. Stat. § 15A_977(f).
But we decline the State’s invitation to find the trial court’s “conclusion” in this
case sufficient. First, we note that defendant’s motion to suppress raised several
issues, and at best, the trial court’s ruling from the bench addressed only two portions
of the motion, the Franks motion and the reliability of Ms. Smith as an informant.
But under the motion and facts here, to call the trial court’s statement a “conclusion
of law” is too generous; it is a merely a denial of the motion. Were we to adopt the
State’s argument that a conclusion of probable cause is “implicit” in the ruling there
would be no need for findings of fact or conclusions of law for any denial of a motion
to suppress of this nature, since the mere denial of the motion would “implicitly”
contain a conclusion of probable cause or a ruling on whatever issue the defendant
raised in the motion to suppress.
Also, the motion to suppress here included an issue not raised in Faulk and
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Opinion of the Court
Howard since defendant requested a Franks hearing. Contrast Howard ___ N.C. App.
___, 817 S.E.2d 232, Faulk, ___ N.C. App. ___, 807 S.E.2d 623. The affidavit could
support a conclusion of probable cause only if there was no Franks violation in the
allegations about Ms. Smith and Vaughn was also a reliable informant. On this
initial issue regarding the allegations of the affidavit, the trial court stated it had
“pretty much” given a Franks hearing, but defendant is only entitled to a Franks
hearing upon “a preliminary showing that the affiant knowingly, or with reckless
disregard for the truth, made a false statement in the affidavit.” Fernandez, 346 N.C.
at 13, 484 S.E.2d at 358 (1997). Based upon this statement, the trial court apparently
agreed that defendant had made the preliminary showing required for a Franks
hearing, but never made findings addressing the issues of credibility and good faith
raised by the motion.
B. Reliability of Middleman
But even if we assume the trial court did find that Agent Melvin’s statements
regarding the length of time Ms. Smith had worked as an informant and the number
of arrests made with her assistance were not intentional misrepresentations and
were made in good faith, most of the substantive allegations of the affidavit are based
upon Vaughn’s interactions with defendant, so his reliability as an informant was
also essential. The information provided by Ms. Smith can only be as reliable as
Vaughn, since she drove him to the general area of defendant’s home but did not
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Opinion of the Court
observe Vaughn going to defendant’s home or purchasing drugs. Only the allegations
that she had purchased drugs from defendant in the past and that she believed that
defendant would at that time sell only to Vaughn were based on Ms. Smith’s own
personal knowledge. Ms. Smith did not say that Vaughn never purchased drugs from
anyone but defendant or that there was no other potential source of drugs in the area
where she took Vaughn to buy drugs. In fact, Agent Melvin testified that the area
was known as an area of high drug activity. Even if Agent Melvin was acting in good
faith and his representations about Ms. Smith’s reliability were correct, very little of
the affidavit was based upon Ms. Smith’s own information.
Remand for additional findings regarding the Franks hearing and Ms. Smith’s
reliability would be necessary only if the affidavit demonstrates Vaughn’s reliability
as well:
If a defendant establishes by a preponderance of the
evidence that a false statement knowingly and
intentionally, or with reckless disregard for the truth” was
made by an affiant in an affidavit in order to obtain a
search warrant, that false information must be then set
aside. If the affidavit’s remaining content is insufficient to
establish probable cause, the search warrant must be voided
and the fruits of the search excluded to the same extent as if
probable cause was lacking on the face of the affidavit.
Id. at 322-23, 502 S.E.2d at 884 (emphasis added) (citations and quotation marks
omitted).
The “remaining content” of affidavit was based mostly upon information
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Opinion of the Court
provided by the unknown informant, Vaughn, to Ms. Smith, since she did not
personally participate in or observe the actual purchase of drugs by Vaughn. Unlike
the ruling upon the Franks motion, the basis for the trial court’s denial of this portion
of the motion is in our record:
THE COURT: The informant is not unknown;
right? The informant is Ashleigh.
MR. THOMAS: No. Ashleigh Williams is the
defendant. The informant is CS- --
THE COURT: I’m sorry. The informant is [Ms.
Smith]?
MR. THOMAS: Yes.
MR. WRIGHT: Correct.
THE COURT: You previously said that -- is it
“Vaughn” or Ryan that’s going to testify?
MR. THOMAS: Yes, sir. “Vaughn” is going to
testify.
THE COURT: “Vaughn,” the runner, is going to
testify. All right.
The trial court then denied the motion indicating that the fact that Vaughn was now
known cured the fact that he was not known at the time of the affidavit, but in fact it
does not. It is undisputed that at the time of the warrant affidavit, April 2017,
Vaughn was not known to law enforcement, and there is no mention of any effort to
identify him or determine his reliability. Vaughn is merely identified as “a middle
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Opinion of the Court
man nicknamed ‘Vaughn’” though Vaughn is the only individual who allegedly
interacted with defendant or even saw her.
In the substantive factual allegations of the warrant affidavit,3 the only
statements based upon Ms. Smith’s own knowledge are:
CS1 advised that CS1 has purchased fifty bags of heroin
five times from the residence in the past six months. CS1
advised that [defendant] used to sell to CS1 directly but
has been scared lately. CS1 advised that [defendant]
makes everyone use Vaughn as a middle man to come to
the residence.
Even if we assume Ms. Smith was properly considered as a reliable informant,
these factual allegations are the only statements for which only her reliability is
relevant. Standing alone, these allegations are not sufficient to form the basis for
probable cause to issue the search warrant. The affidavit included no information
regarding Vaughn’s reliability as an informant or even his identity, other than as a
man Ms. Smith believed defendant trusted as a drug buyer. This situation is quite
different from Frederick, because in Frederick, the reliability of the known
confidential reliable source was not questioned; the issue was regarding the
reliability of the middleman who purchased drugs. See Frederick, ___ N.C. App. at
___, 814 S.E.2d at 858-60. The warrant affidavit did not address the reliability of the
middleman, but the affidavit stated that
Detective Ladd personally observed his confidential source
3We are referring to the factual allegations regarding Ms. Smith, Vaughn, and defendant. There is
no issue on appeal regarding the factual allegations of Agent’s Melvin’s training and experience.
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Opinion of the Court
meet the middleman and travel to Defendant’s residence,
where the middleman entered and exited shortly
thereafter. The confidential source, who had been
searched and supplied with money to purchase controlled
substances, provided Detective Ladd with MDMA and
heroin after his interaction with the middleman. Detective
Ladd also observed other traffic in and out of Defendant’s
residence. Detective Ladd’s experience and personal
observations set forth in the affidavit were sufficient to
establish probable cause to believe that controlled
substances would probably be found in Defendant’s
residence.
Id. at ___, 814 S.E.2d at 860. In Frederick, the detective personally observed the
confidential source and the middleman go into the defendant’s residence and
purchase drugs. See id. There was no need to establish the reliability of the
middleman where the detective personally observed him going into the defendant’s
home to buy drugs. See generally id.
Here, neither Agent Melvin nor Ms. Smith observed Vaughn going to
defendant’s home to buy drugs. Instead, the affidavit states that Ms. Smith took
Vaughn to Victory Drive and saw him “run into the yard of the residence leading to
the house” but “could not see the residence[;]” Vaughn completed “the deal[;]” Vaughn
left and then Ms. Smith returned to Agent Melvin with “the heroin purchased from
‘Vaughn’ and [defendant].” The only information in the affidavit regarding where
Vaughn purchased the drugs is based upon what Vaughn told Ms. Smith and not
upon her observations, as she did not witness the purchase of the drugs or even
Vaughn entering defendant’s home. Although Ms. Smith was searched to ensure that
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Opinion of the Court
she had no drugs prior to the controlled buy, Vaughn was not searched prior to going
with Ms. Smith, so there was no way of knowing if he already had the drugs he
claimed to have purchased. Since the affidavit does not address Vaughn’s reliability
at all and the allegations based upon Ms. Smith’s knowledge are not sufficient to
establish probable cause, the motion to suppress should have been allowed.
III. Conclusion
Because the affidavit was insufficient to form the basis of probable cause for
issuance of the search warrant, we reverse the denial of defendant’s motion to
suppress and judgment and remand for a new trial.
REVERSED and REMANDED.
Judge COLLINS concurs in the result.
Judge BRYANT dissents.
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No. COA18-1136 – State v. Williams
BRYANT, Judge, dissenting.
Because I do not believe defendant’s challenge to the affidavit, which sets forth
probable cause for the search warrant, is sufficient to overcome the presumption of
validity accorded a search warrant granted by a neutral and detached magistrate, I
respectively dissent.
The Fourth Amendment to the United States Constitution
protects the people from “unreasonable searches and
seizures.” U.S. Const. amend. IV. Absent exigent
circumstances, the police need a warrant to conduct a
search of or seizure in a home, see Payton v. New York, 445
U.S. 573, 586 (1980), and a warrant may be issued only on
a showing of probable cause, U.S. Const. amend. IV.
State v. Allman, 369 N.C. 292, 293, 794 S.E.2d 301, 302–03 (2016). “Probable cause
means that there must exist a reasonable ground to believe that the proposed search
will reveal the presence upon the premises to be searched of the objects sought and
that those objects will aid in the apprehension or conviction of the offender.” State v.
Howard, ___ N.C. App. ___, ___, 817 S.E.2d 232, 235 (2018) (citation omitted); see also
State v. Riggs, 328 N.C. 213, 219, 400 S.E.2d 429, 433 (1991) (“[P]robable cause
requires only a probability or substantial chance of criminal activity, not an actual
showing of such activity.” (quoting Illinois v. Gates, 462 U.S. 213, 243 n. 13, 76 L. Ed.
2d 527, 552 n. 13 (1983) (emphasis added))).
Per statute, each application for a search warrant must contain a statement
asserting there is probable cause to believe that an item subject to seizure will be
found in the place to be searched and an affidavit setting forth the facts and
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BRYANT, J., dissenting
circumstances establishing the probable cause. See N.C. Gen. Stat. § 15A-244 (2), (3)
(2017).
An “affidavit is sufficient if it supplies reasonable cause to
believe that the proposed search for evidence probably will
reveal the presence upon the described premises of the
items sought and that those items will aid in the
apprehension or conviction of the offender.” State v.
Arrington, 311 N.C. 633, 636, 319 S.E.2d 254, 256 (1984)
(citing State v. Riddick, 291 N.C. 399, 230 S.E.2d 506
(1976)). The applicable test is
whether, given all the circumstances set forth
in the affidavit before [the magistrate],
including “veracity” and “basis of knowledge”
of persons supplying hearsay information,
there is a fair probability that contraband or
evidence of a crime will be found in a
particular place. And the duty of the
reviewing court is simply to ensure that the
magistrate had a “substantial basis for . . .
conclud[ing]” that probable cause existed.
Id. 311 N.C. at 638, 319 S.E.2d at 257–58 (quoting Illinois
v. Gates, 462 U.S. 213, 238, 76 L. Ed. 2d 527, 548 (1983)).
State v. Riggs, 328 N.C. at 218, 400 S.E.2d at 432; see also State v. McKinney, 368
N.C. 161, 164, 775 S.E.2d 821, 824 (2015) (“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. Gates,
462 U.S. at 238, 103 S.Ct. at 2332, 76 L. Ed. 2d at 548; e.g., State v. Benters, 367 N.C.
660, 664, 766 S.E.2d 593, 598 (2014).”).
Courts interpreting the Fourth Amendment have
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BRYANT, J., dissenting
expressed a “strong preference for searches conducted
pursuant to a warrant.” Illinois v. Gates, 462 U.S. 213, 236,
103 S. Ct. 2317, 2331, 76 L. Ed. 2d 527, 547 (1983); State v.
Sinapi, 359 N.C. 394, 398, 610 S.E.2d 362, 365 (2005)
(quoting State v. Riggs, 328 N.C. 213, 222, 400 S.E.2d 429,
434 (1991)). . . . Recognizing that affidavits attached to
search warrants “are normally drafted by nonlawyers in
the . . . haste of a criminal investigation,” [United States v.
Ventresca, 380 U.S. 102, 108, 85 S. Ct. 741, 746, 13 L. Ed.
2d 684, 689 (1965)], courts are reluctant to scrutinize them
“in a hypertechnical, rather than a commonsense,
manner,” id. at 109, 85 S. Ct. at 746, 13 L. Ed. 2d at 689.
....
. . . 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.” State v. Arrington,
311 N.C. 633, 638, 319 S.E.2d 254, 258 (1984) (citing Gates,
462 U.S. at 236, 103 S.Ct. at 2331, 76 L. Ed. 2d at 547).
McKinney, 368 N.C. at 164–65, 775 S.E.2d at 824–25.
The majority appears to express sympathy toward defendant’s contentions:
that information in the search warrant affidavit “was derived from an unknown
informant[—a middle man—]” whose reliability was unknown; and that the affiant
Agent Melvin’s “exaggeration” of the confidential informant’s (Ms. Smith’s) past
cooperation was a material misrepresentation. The majority then discusses a lack of
written findings of fact and conclusions of law regarding defendant’s motion to
suppress, and cites to cases finding error in a trial court’s failure to either provide its
rationale from the bench or enter a written order with findings. Notwithstanding an
extensive discussion, the majority does not hold the trial court’s failure to make
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findings of fact was reversible error. Instead, the majority seems to hold that “since
the affidavit does not address [the middle man]’s reliability at all and the allegations
based upon Ms. Smith’s knowledge are not sufficient to establish probable cause, the
motion to suppress should have been allowed.” Then, finding “the affidavit . . .
insufficient to form the basis of probable cause for issuance of the search warrant,
[the majority] reverse[s] the denial of defendant’s motion to suppress and judgment
and remand[s] for a new trial.”
In State v. Frederick, ___ N.C. App. ___, 814 S.E.2d 855, aff’d per curiam, ___
N.C. ___, 819 S.E.2d 346 (2018), a divided panel of this Court affirmed the issuance
of a search warrant predicated on the sworn affidavit of a law enforcement officer
describing his observations of a confidential source conducting controlled buys of
“Molly” (MDMA) and heroin from a Raleigh residence through a middleman. The
informant provided law enforcement officers with the identity of “a mid-level MDMA,
heroin[,] and crystal methamphetamine dealer in Raleigh.” Id. at ___, 814 S.E.2d at
857. The informant arranged and conducted the purchase through a middleman who
traveled with the informant to the Raleigh residence. Id. Law enforcement officers
observed the informant meet the middleman and watched the middleman enter the
suspect Raleigh residence, emerge two minutes later, and return to the informant,
after which, the informant provided law enforcement officers with a quantity of
MDMA. Id. The informant conducted a second controlled buy from the same
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BRYANT, J., dissenting
residence also via a middleman shortly before the submission of the search warrant
application. The affiant wrote, “[b]ased on my training and experience, this was
indicative of drug trafficking activity.” Id. at ___, 814 S.E.2d at 858. A majority of
this Court held that “[b]ased on the totality of the circumstances, the magistrate had
a substantial basis for concluding probable cause existed to believe controlled
substances were located on the premises of [the Raleigh residence].” Id. at ___, 814
S.E.2d at 860; see also State v. Jackson, ___ N.C. App. ___, ___, 791 S.E.2d 505, 511
(2016) (“In order for a reviewing court to weigh an informant’s tip as confidential and
reliable, ‘evidence is needed to show indicia of reliability[.]’ [State v. Hughes, 353 N.C.
200, 204, 539 S.E.2d 625, 628 (2000)]. Indicia of reliability may include statements
against the informant’s penal interests and statements from an informant with a
history of providing reliable information. Benters, 367 N.C. at 665, 766 S.E.2d at 598.
Even if an informant does not provide a statement against his/her penal interest and
does not have a history of providing reliable information to law enforcement officers,
the Supreme Court has suggested that ‘other indication[s] of reliability’ may suffice.
Hughes, 353 N.C. at 204, 539 S.E.2d at 628.”).
In McKinney, 368 N.C. 161, 775 S.E.2d 821, our Supreme Court held that a
search warrant application affidavit provided sufficient facts to support a finding of
probable cause on the following facts: “a citizen” met with a law enforcement officer
in the Greensboro Police Department and “reported observing heavy traffic in and
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BRYANT, J., dissenting
out of [an apartment] . . . . Pointing out that the visitors made abbreviated stays”
and that the citizen had seen the apartment resident dealing narcotics in the parking
lot of the apartment complex. Id. at 162, 775 S.E.2d at 823. In response to the report,
law enforcement officers began surveillance of the apartment and observed a vehicle
driver arrive in the afternoon, enter the apartment, and exit six minutes later. Id.
An officer conducted a traffic stop of the vehicle and discovered $4,258.00 in cash on
the person of the driver, as well as a gallon-size bag containing marijuana remnants.
Id. Incident to the driver’s arrest, law enforcement officers searched the driver’s cell
phone and discovered a series of text messages exchanged minutes before the driver
entered the apartment: “Bra, when you come to get the money, can you bring a fat
25. I got the bread.” Id. The next stating, “Can you bring me one more, Bra?” In
response, “About 45,” “ight.” Id. The person to whom the driver sent the texts was
never linked to the residence under surveillance. Id.
In a pretrial motion and hearing, the McKinney defendant moved to suppress
the evidence seized during the search of the apartment arguing there was a lack of
probable cause to support the search. Id. at 163, 775 S.E.2d at 823. The trial court
denied the motion, and defendant pled guilty preserving his right to appeal the denial
of his motion to suppress. On appeal, the Court of Appeals reversed the trial court’s
order holding that the warrant was unsupported by probable cause. Id. at 163, 775
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STATE V. WILLIAMS
BRYANT, J., dissenting
S.E.2d at 824 (citing State v. McKinney, ___ N.C. App. ___, 752 S.E.2d 726 (2014)).
Reversing the Court of Appeals, our Supreme Court noted the following:
[The defendant] maintains that the citizen complaint
underlying the officer’s application for the search warrant
was unreliable because the complaint gave no indication
when the citizen observed either the short stays or drugs
purportedly changing hands, 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 [the driver]’s vehicle and [the] defendant’s
apartment.
Id. at 165, 775 S.E.2d at 825. The Court found “[n]one of these arguments . . .
persuasive, either individually or collectively.” Id. The Court noted that information
contained in the citizen complaint was consistent with the officer’s observations of
activity around the apartment and the contents of the vehicle in conjunction with the
text messages indicated preparation for a drug transaction involving the vehicle
driver and someone he was about to meet. Id. at 166, 775 S.E.2d at 825.
We conclude that, under the totality of circumstances, all
the evidence described in the affidavit both established a
substantial nexus between the marijuana remnants
recovered from [the driver]’s vehicle and [the] defendant’s
residence, and also was sufficient to support the
magistrate’s finding of probable cause to search [the]
defendant’s apartment. Considering this evidence in its
entirety, the magistrate could reasonably conclude that the
proposed search would reveal the presence of illegal drugs
in the dwelling.
Id. at 166, 775 S.E.2d at 826 (citation omitted); cf. Benters, 367 N.C. 660, 766 S.E.2d
593 (holding that the search warrant application failed to provide a substantial basis
7
STATE V. WILLIAMS
BRYANT, J., dissenting
to believe probable cause existed to find a marijuana grow operation at the suspect
residence where the affidavit mainly provided that the residence windows were
covered with thick mil black plastic; potting soil, fertilizer, seed starting trays, plastic
cups, metal storage rack, and portable pump sprayers were observed on the curtilage
of the residence; and the energy usage records for the residence indicated “extreme
high and low kilowatt usage”); State v. Campbell, 282 N.C. 125, 130–31, 191 S.E.2d
752, 756 (1972) (holding the search warrant application affidavit did not support a
finding of probable cause where “purely conclusory” statements indicated
substantively that persons named in the warrant application all lived in the residence
to be searched and “reliable confidential informants” had provided that the named
persons had sold narcotics to college students).
Here, in the case before us, the affidavit submitted by Agent Melvin contained
his work history as a law enforcement officer, including his experience investigating
narcotics cases since 2012, and the following factual basis for the search warrant
application:
In April 2017 Affiant received information from a
confidential source of information, hereafter referred to as
[Ms. Smith] that a black female with the first name Ashley
lives on Victory Drive off of Freedom Star Drive. [Ms.
Smith] advised that Ashely [sic] lives on the left of Victory
Drive . . . and sells heroin from the residence. [Ms. Smith]
advised that Ashley’s residence to [sic] a cream colored
double wide residence with a swing set in the front yard.
[Ms. Smith] advised that Ashley drives a burgundy Jeep
Liberty with a tire cover on the back that has animal paws
8
STATE V. WILLIAMS
BRYANT, J., dissenting
on it. [Ms. Smith] advised that Ashley only sells fifty bags
of heroin at a time and will not sell any less. . . . [Ms. Smith]
advised that [Ms. Smith] has purchased fifty bags of heroin
five times in the past six months from the residence on
Victory Drive . . . . [Ms. Smith] advised that Ashley has
been scared recently and is making all her customers use a
middle man named “Vaughn” to conduct the controlled
purchase from the residence. [Ms. Smith] advised that
another black male with the name “Ryan” lives at the
residence and is known to conduct heroin deals.
In the past 48 hours [Ms. Smith] advised Affiant that [Ms.
Smith] could purchase heroin from “Vaughn” and Ashley
on Victory Drive . . . . Affiant met with [Ms. Smith] at a
secured location. [A law enforcement officer] searched [Ms.
Smith] for any illegal contraband or narcotics. [The law
enforcement officer] found no illegal contraband or
narcotics on [Ms. Smith]. [The law enforcement officer]
searched [Ms. Smith’s] vehicle for any illegal contraband or
narcotics. [The law enforcement officer] advised that no
illegal contraband or narcotics were located. Affiant
provided [Ms. Smith] with an amount of U.S. Currency . . .
. Affiant provided [Ms. Smith] with a recording device.
[Ms. Smith] traveled . . . and picked up “Vaughn” at his
residence while Agents followed. [Ms. Smith] and
Vaughn” traveled to Freedom Star Drive. [Ms. Smith] and
“Vaughn” traveled down Freedom Star Drive and took a
left onto Victory Drive. Agents were not able to follow due
to counter surveillance and high narcotic area. [Ms. Smith]
stayed on Victory Drive for approximately five minutes and
[Ms. Smith] advised the deal was complete. [Ms. Smith]
and “Vaughn” traveled back to “Vaughn’s” residence . . . .
“Vaughn” departed [Ms. Smith’s] conveyance and [Ms.
Smith] departed. Agents followed [Ms. Smith] back to the
staging area. Once back at the secured location Affiant
searched [Ms. Smith] for any illegal contraband and
narcotics. Affiant located no illegal contraband or narcotics
except the heroin purchased from “Vaughn” and
[defendant]. [A law enforcement officer] searched [Ms.
Smith’s] vehicle for any illegal contraband or narcotics.
9
STATE V. WILLIAMS
BRYANT, J., dissenting
[The law enforcement officer] found no illegal contraband
or narcotics in the vehicle. . . . [Ms. Smith] advised that
[after picking up “Vaughn,” she and “Vaughn”] went to the
first house on the left on Victory Drive. [Ms. Smith] advised
she parked beside the wood line on Victory Drive. [Ms.
Smith] advised [Ms. Smith] gave the issued U.S. Currency
to “Vaughn” and he departed. [Ms. Smith] advised that
“Vaughn” departed the vehicle and ran to [defendant’s]
residence. . . . [Ms. Smith] advised that [Ms. Smith] could
not see the residence but observed “Vaughn” run into the
yard of the residence leading to the house. [Ms. Smith]
advised that “Vaughn” stayed an estimated five minutes at
the residence and came back to [Ms. Smith’s] vehicle. [Ms.
Smith] advised that [Ms. Smith] has purchased fifty bags
of heroin five times from the residence in the past six
months. [Ms. Smith] advised that [defendant] used to sell
to [Ms. Smith] directly but has been scared lately. [Ms.
Smith] advised that [defendant] makes everyone use
Vaughn as a middle man to come to the residence [Ms.
Smith] advised that [Ms. Smith] transported “Vaughn”
back to his residence . . . [Ms. Smith] advised [Ms. Smith]
departed. [Ms. Smith] advised that [defendant’s] residence
is the only residence on the left side of Victory Drive.
Affiant conducted a google maps search of Victory Drive
and observed one residence on the left side of Victory Drive
. . . [Ms. Smith] identified [defendant’s] residence on the
left of Victory Drive . . . to be the same residence on Google
Maps. Affiant conducted a search using Brunswick County
GIS on Victory Drive . . . . Affiant observed only one
residence on the left side of Victory Drive . . . . Brunswick
County GIS showed the address to be 7655 Victory Drive .
. . . Affiant conducted a search on the address 7655 Victory
Drive . . . using the law enforcement database CJLEADS.
Affiant located an Ashleigh Corrin Williams and a Richard
Ryan Stallings with the listed address of 7655 Victory
Drive . . . . [Ms. Smith] identified [defendant] from the
heroin purchases to be Ashleigh Corrin Williams by photo
identification and advised that [defendant] lives at 7655
Victory Drive . . . .
10
STATE V. WILLIAMS
BRYANT, J., dissenting
The majority’s analysis of challenges to the sufficiency of the affidavit to
support a finding of probable cause hinges in large part on the reliability of Ms. Smith
and Vaughn. Absent the trial court’s findings of fact and conclusions as to Vaughn’s
reliability, the majority holds that the affidavit fails to provide sufficient probable
cause to find illegal narcotics: “Ms. Smith did not say that Vaughn never purchased
drugs from anyone but defendant or that there was no other potential source of drugs
in the area where she took Vaughn to buy drugs.” However, “[p]robable cause does
not mean . . . absolute certainty. State v. Campbell, 282 N.C. 125, 191 S.E.2d 752
(1972)). . . . A determination of probable cause is grounded in practical
considerations. Jaben v. United States, 381 U.S. 214 (1965).” State v. Arrington, 311
N.C. 633, 636, 319 S.E.2d 254, 256–57 (1984).
The majority seems to predicate its disposition to reverse the trial court’s
ruling to deny the motion to suppress on the premise that the affidavit, standing
alone, does not support a finding of probable cause, especially when averments
potentially made in violation of Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667
(1978), are excluded. However, the challenged averments of the affidavit (the length
of time Agent Melvin worked with Ms. Smith as a confidential informant and the
number of arrests made and convictions entered in direct relation to Ms. Smith’s
information) do not appear to be essential to a finding of probable cause.
11
STATE V. WILLIAMS
BRYANT, J., dissenting
Per the unchallenged averments in the affidavit, Ms. Smith—a confidential
informant known to law enforcement officers and whom the trial court was aware
was available to testify, along with Vaughn, at defendant’s trial—made a statement
against penal interest regarding her multiple purchases of heroin directly from
defendant at the defendant’s residence, see Jackson, ___ N.C. App. ___, 791 S.E.2d
505; Ms. Smith’s description of the protocol to purchase heroin from defendant’s
residence matched the conduct law enforcement officers could practically observe, see
McKinney, 368 N.C. 161, 775 S.E.2d 821; and the use of a middle-man to deliver
narcotics from the location of defendant’s residence—the same residence from which
Ms. Smith had previously purchased heroin five times within the previous six
months—along with the short delivery time (five minutes), did not make the
likelihood of finding narcotics at the suspect residence less probable, see Frederick,
___ N.C. App. ___, 814 S.E.2d 855.
Given the totality of the circumstances set forth in the affidavit, including the
basis of knowledge provided by Ms. Smith, the affidavit describes circumstances
establishing a probability that contraband or evidence of heroin trafficking would be
found at defendant’s residence. See McKinney, 368 N.C. at 166, 775 S.E.2d at 825–
26. In accordance with our duty as a reviewing court, I would hold the magistrate
had a substantial basis for concluding there existed probable cause to search
defendant’s residence for narcotics, see id.; the trial court’s denial of defendant’s
12
STATE V. WILLIAMS
BRYANT, J., dissenting
motion to suppress was supported by the affidavit establishing probable cause; and
the record showed no proof of a violation of Franks. As with many cases, this Court
would prefer detailed findings of fact and conclusions of law regarding the trial court’s
rationale for its ruling. However, where, as here, the record provides sufficient basis
to support the trial court’s ruling, and given that a neutral and detached magistrate’s
grant of a warrant to search defendant’s residence was valid and any potential defects
in the warrant application were not substantial, I would affirm the trial court’s denial
of defendant’s motion to suppress.
13