State v. Brown , 248 N.C. App. 72 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-1347
Filed: 21 June 2016
Gaston County, Nos. 12 CRS 65856, 14 CRS 3491-92
STATE OF NORTH CAROLINA
v.
DON NEWTON BROWN
Appeal by Defendant from order entered 19 March 2013 by Judge James W.
Morgan and judgment entered 20 July 2015 by Judge Jesse B. Caldwell III in Gaston
County Superior Court. Heard in the Court of Appeals 25 April 2016.
Attorney General Roy Cooper, by Special Deputy Attorney General Phillip K.
Woods, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Michele A.
Goldman, for Defendant.
STEPHENS, Judge.
In this case, a search warrant was issued based on an affidavit that failed to
specify when an informant witnessed Defendant’s allegedly criminal activities. Such
an affidavit contains insufficient information to establish probable cause and thus
cannot support the issuance of a search warrant. Accordingly, we reverse the trial
court’s order denying Defendant’s motion to suppress evidence discovered as a result
of the execution of that search warrant and vacate the judgment entered upon
Defendant’s subsequent guilty pleas.
STATE V. BROWN
Opinion of the Court
Factual and Procedural Background
This case arises from the execution of a search warrant applied for and granted
to Detective Kevin Putnam of the Gastonia Police Department (“GPD”) on 26
November 2012. On that date, Putnam sought and received a warrant to search the
residence of Defendant Don Newton Brown at 1232 North Ransom Street in Gaston
County for counterfeit currency and related items, as well as firearms. The
application included an affidavit by Putnam that averred, inter alia, Putnam had
received a counterfeit $100 bill from an informant who claimed it had been obtained
from Brown’s home, where the informant also claimed to have seen firearms,
including a handgun. As a result of items found during the search of Brown’s
residence, he was indicted on one count each of possession of a stolen motor vehicle,
possession of five or more counterfeit instruments, and possession of a firearm by a
felon.
On 7 January 2013, Brown moved to suppress the fruits of the search of his
residence, asserting that “[t]hat the application and warrant fail to contain the
information necessary to meet the ‘lack of staleness’ requirement . . . .” The motion
to suppress was heard in the Gaston County Superior Court on 18 March 2013 before
the Honorable James W. Morgan, Judge presiding. At the hearing, Putnam was the
sole witness, testifying about what he intended for the affidavit to state in an effort
to clarify vague language about when the informant obtained his information
-2-
STATE V. BROWN
Opinion of the Court
regarding Brown’s allegedly criminal activities. The trial court denied Brown’s
motion in open court and entered a written order memorializing the ruling on 19
March 2013 (“the suppression order”).
The case came on for trial at the 20 July 2015 criminal session of Gaston
County Superior Court, the Honorable Jesse B. Caldwell III, Judge presiding. Brown
pled guilty to all three charges against him, specifically reserving his right to appeal
the suppression order. The trial court consolidated the convictions for judgment,
imposing a term of 25-39 months in prison. Brown gave notice of appeal in open court.
Discussion
On appeal, Brown argues that the trial court erred in (1) denying his motion
to suppress the evidence discovered as a result of the search, (2) calculating his prior
record level, and (3) including a civil judgment for restitution in the written judgment
which was not part of the court’s oral ruling. We reverse the order denying the motion
to suppress and vacate the judgment entered upon Brown’s subsequent guilty pleas.
As a result, we do not consider Brown’s other arguments.
I. Motion to suppress
Brown argues that the trial court erred in denying his motion to suppress.
Specifically, Brown contends that Putnam’s affidavit in support of his search warrant
application was conclusory and lacked sufficient details about when the informant
-3-
STATE V. BROWN
Opinion of the Court
(“the CRI”) acquired the information that formed the basis of Putnam’s warrant
request. We agree.
A. Standard of review on appeal
The scope of appellate review of a ruling upon 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.
State v. Johnston, 115 N.C. App. 711, 713, 446 S.E.2d 135, 137 (1994) (citation and
internal quotation omitted). “The trial court’s conclusions of law . . . are fully
reviewable on appeal.” State v. Hughes, 353 N.C. 200, 208, 539 S.E.2d 625, 631
(2000). “An appellate court accords great deference to the trial court’s ruling on a
motion to suppress because the trial court is entrusted with the duty to hear
testimony (thereby observing the demeanor of the witnesses) and to weigh and
resolve any conflicts in the evidence.” Johnston, 115 N.C. App. at 713, 446 S.E.2d at
137 (citations omitted).
This deference, however, is not without limitation. A
reviewing court has the duty to ensure that a [judicial
officer] does not abdicate his or her duty by “mere[ly]
ratif[ying] . . . the bare conclusions of [affiants].” [Illinois
v.] Gates, 462 U.S. [213,] 239, 103 S. Ct. [2317,] 2333, 76 L.
Ed. 2d [527,] 549 [(1983)]; see State v. Campbell, 282 N.C.
125, 130-31, 191 S.E.2d 752, 756 (1972) (“Probable cause
cannot be shown by affidavits which are purely conclusory
. . . .” (citation and internal quotation marks omitted)); see
also United States v. Leon, 468 U.S. 897, 914, 104 S. Ct.
3405, 3416, 82 L. Ed. 2d 677, 693 (1984) (“[C]ourts must . . .
-4-
STATE V. BROWN
Opinion of the Court
insist that the [judicial officer] purport to perform his
neutral and detached function and not serve merely as a
rubber stamp for the police.”) (citations and internal
quotation marks omitted), superseded in part by Fed. R.
Crim. P. 41(e).
State v. Benters, 367 N.C. 660, 665, 766 S.E.2d 593, 598 (2014).
B. Standard and scope of review at the suppression hearing
The question for a trial court
reviewing the issuance of a search warrant is whether
there is substantial evidence in the record supporting the
[judicial officer’s] decision to issue the warrant. North
Carolina [employs] the totality of the circumstances
approach for determining the existence of probable cause
. . . . 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.
State v. McCoy, 100 N.C. App. 574, 576, 397 S.E.2d 355, 357 (1990) (citations and
internal quotation marks omitted).
Because its duty in ruling on a motion to suppress based upon an alleged lack
of probable cause for a search warrant involves an evaluation of the judicial officer’s
decision to issue the warrant, the trial court should consider only the information
before the issuing officer. Thus, although our appellate courts have held that “the
scope of the court’s review of the [judicial officer’s] determination of probable cause is
not confined to the affidavit alone[,]” additional information can only be considered
where
-5-
STATE V. BROWN
Opinion of the Court
[t]he evidence shows that the [judicial officer] made his
notes on the exhibit contemporaneously from information
supplied by the affiant under oath, that the paper was not
attached to the warrant in order to protect the identity of
the informant, that the notes were kept in the magistrate's
own office drawer, and that the paper was in the same
condition as it was at the time of the issuance of the search
warrant.
State v. Hicks, 60 N.C. App. 116, 119, 120-21, 298 S.E.2d 180, 183 (1982) (internal
quotation marks omitted; emphasis added), disc. review denied, 307 N.C. 579, 300
S.E.2d 553 (1983). In such circumstances, an appellate court may consider whether
probable cause can be supported by the affidavit in conjunction with the
aforementioned notes. Id. at 121, 298 S.E.2d at 183; see also N.C. Gen. Stat. § 15A-
245(a) (2015) (“Before acting on the application, the issuing official may examine on
oath the applicant or any other person who may possess pertinent information, but
information other than that contained in the affidavit may not be considered by the
issuing official in determining whether probable cause exists for the issuance of the
warrant unless the information is either recorded or contemporaneously summarized
in the record or on the face of the warrant by the issuing official.”) (emphasis added).
Outside of such contemporaneously recorded information in the record, however, it is
error for a reviewing court to “rely[] upon facts elicited at the [suppression] hearing
that [go] beyond ‘the four corners of [the] warrant.’ ” See Benters, 367 N.C. at 673, 766
S.E.2d at 603.
C. “Staleness” of information supporting issuance of a search warrant
-6-
STATE V. BROWN
Opinion of the Court
The concern regarding the possible “staleness” of information in an affidavit
accompanying a search warrant application arises from the requirement that
proof of probable cause must be established by facts so
closely related to the time of issuance of the warrant so as
to justify a finding of probable cause at that time. The
general rule is that no more than a reasonable time may
have elapsed. The test for staleness of information on
which a search warrant is based is whether the facts
indicate that probable cause exists at the time the warrant
is issued. Common sense must be used in determining the
degree of evaporation of probable cause. The likelihood
that the evidence sought is still in place is a function not
simply of watch and calendar but of variables that do not
punch a clock.
As a general rule, an interval of two or more months
between the alleged criminal activity and the affidavit has
been held to be such an unreasonably long delay as to vitiate
the search warrant.
State v. Lindsey, 58 N.C. App. 564, 565-66, 293 S.E.2d 833, 834 (1982) (citations,
internal quotation marks, and ellipsis omitted; emphasis added). However, where
the alleged criminal activity has been observed within a day or two of the affidavit
and warrant application, the information is generally not held to be stale. See, e.g.,
State v. Walker, 70 N.C. App. 403, 405, 320 S.E.2d 31, 33 (1984) (upholding a search
warrant for a location where an informant had seen marijuana within the past 48
hours); State v. Barnhardt, 92 N.C. App. 94, 97, 373 S.E.2d 461, 463 (upholding a
search warrant for a location where an informant had seen cocaine within the past
24 hours), disc. review denied, 323 N.C. 626, 374 S.E.2d 593 (1988).
-7-
STATE V. BROWN
Opinion of the Court
D. Analysis
Here, in support of his warrant application, Putnam submitted an affidavit
stating:
In the past 48 hours, Det. Putnam spoke with a person
whose name cannot be revealed. This person has concern
for their [sic] safety, and Det. Putnam feels this person
would be of no further value to law enforcement if their [sic]
true identity was revealed. For the remainder of this
application Det. Putnam will refer to this person as “CRI
#1095.” CRI #1095 has been in contact with Don Brown
and has provided Det. Putnam with a counterfeit $100 bill
that came from 1232 N. Ransom St. Det. Putnam verified
that this is the addess [sic] of Don Newton Brown. Don
Brown resides at this residence with a black female by the
name of Kisha Harris. The house is also frequented by
Paquito Brown and Don . . . Brown. Don Brown is known
to have firearms and the CRI stated that Don Brown has
been seen with a handgun.
In the past 48 hours, Det. Putnam spoke to Special Agent
Rumney, United States Secret Service (USSS), Charlotte
Field Office. Agent Rumney conducted a couneterfeit [sic]
(CFT) note search on the serial number provided by CRI
#1095. The searial [sic] number is of record with the USSS
with passes having been conducted in the Gaston County
area in 2005 and 2006.
Furthermore, SA Rumney (USSS) stated that Don Brown
is of record with the USSS from a previous counterfeit case
involving the manufacturing a [sic] passing of CFT Federal
Reserve Notes (FRNS) in 2005 and 2006 in Gaston County
and surrounding counties.
Additionally, SA Rumney (USSS) stated that in Nov. 2010,
he interviewed Paquito Rafeal Brown, nephew of Don
Brown, at the Gaston County Jail, after P. Brown was
found to be in possession of a CFT $100 FRN. A CFT FRN
-8-
STATE V. BROWN
Opinion of the Court
inquiry on the serial number in P. Brown’s possession
matched those involved in the 2005-2006 counterfeit case
involving Don Brown.
(Emphasis added).
At the suppression hearing, Putnam testified that what he meant to say in the
first paragraph of the affidavit was both (1) that the CRI told Putnam the information
about Brown within 48 hours of applying for the warrant and also (2) that the CRI
had obtained the counterfeit money within that time period. At the hearing, as on
appeal, Brown did not dispute that Putnam intended to say that the CRI had gathered
the information he gave Putnam within 48 hours of the warrant application. Instead,
he argued that: (1) Putnam’s affidavit did not state when the CRI obtained the
information about Brown, making it impossible to evaluate the information’s
staleness; and, (2) in ruling on the question of staleness, the trial court should not
consider Putnam’s hearing testimony about what he intended to say in the affidavit:
. . . . Now, I understand [Putnam’s] explanation is that he
meant this to say that all of that occurred within 48 hours.
Any independent person reading [the affidavit] has no way
of understanding that. That’s not what—that’s not what’s
written here, that’s not what’s understood by any
independent person reading this. There is no way that
occurs.
There is no information in this affidavit as to when that
information the CRI supposedly gave this officer, there is
no information about when that information was gathered
by the CRI, anything. All we know is when that CRI told
that officer that information.
-9-
STATE V. BROWN
Opinion of the Court
....
As the [c]ourt is aware, the magistrate is stuck with what—
the magistrate and this [c]ourt are stuck with what’s in the
application in this writing unless they reduce or record any
other information, or put it on the search warrant,
anything like that. None of that occurred in this case.
When any independent third[]party reads this application
they [sic] have no idea when that information was
gathered. If you read the warrant actually it looks like it
could have been from 2005 through 2010, just as readily as
it was supposedly from what the officer said that day.
That’s what he put in the application. Any independent
third[]party doesn’t have the information necessary to
make a decision to issue a valid warrant.
The State, in contrast, “contend[ed] [Putnam] can explain what he put in the affidavit
. . . . This would go to explain his writing with regard to the affidavit and what
sources he relied on.”
The trial court denied Brown’s motion in open court and entered a written
order memorializing the ruling on 19 March 2013. That order contains the following
findings of fact:
1. On November 26, 2012, Detective Putnam obtained a
search warrant from a Gaston County Magistrate related
to this matter, a copy of said search warrant was attached
to [the] defendant’s motion to suppress.
2. Detective Putnam stated in said application for search
warrant that in the past 48 hours Detective Putnam had
spoken with a confidential informant. That the
confidential informant had given him a counterfeit $100
bill that had come from 1232 North Ransom Street, an
address verified to be that of the defendant.
- 10 -
STATE V. BROWN
Opinion of the Court
3. Detective Putnam testified that the 48 hours referred to
conversations with the confidential informant occurring on
November 23rd, November 24th, and November 26th.
4. Further, Detective Putnam spoke with Special Agent
Rumney, of the United States Secret Service, regarding
connections between the counterfeit note and prior
investigations between 2005 and 2010, which referred to
the defendant.
(Emphasis added). As a result of these factual findings, the court concluded that the
motion should be denied because, “under the totality of the circumstances[,] there is
a substantial basis for the magistrate’s finding of probable cause . . . .”
The suppression order clearly indicates that the trial court did consider
Putnam’s hearing testimony about what he intended the affidavit to mean—evidence
outside the four corners of the affidavit and not recorded contemporaneously with the
magistrate’s consideration of the application—in determining whether a substantial
basis existed for the magistrate’s finding of probable cause. As noted supra, this was
error. See N.C. Gen. Stat. § 15A-245(a); see also Benters, 367 N.C. at 673, 766 S.E.2d
at 604. More importantly, however, a plain reading of the order indicates a more
significant error: the trial court did not resolve the critical issue of whether Putnam’s
affidavit could be fairly read as stating that the CRI obtained the information
allegedly incriminating Brown within 48 hours of the warrant application. Our case
law makes clear that it cannot.
- 11 -
STATE V. BROWN
Opinion of the Court
Regarding staleness, we find the wording of the affidavit here strikingly
similar to that in State v. Newcomb:
. . . . Within the past five days from [the date of the warrant
application], the person who I will refer to as “He,”
regardless of the person’s sex, contacted me. This person
offered his assistance to the City-county vice unit in the
investigation of drug sales in the Burlington-Alamance
County area. This person told myself [sic] that he had been
inside the residence described herein being Rt. 8, Box 122,
Lot #82 County Club Mobile Home Park, Burlington,
where he observed a room filled with marijuana plants. He
stated that the suspect Charles Wayne Newcomb was
maintaining the plants. . . .
84 N.C. App. 92, 93, 351 S.E.2d 565, 566 (1987). As did Putnam here, the officer in
Newcomb “failed to state . . . the time the informant’s observations were made.” Id.
at 93-94, 351 S.E.2d at 565. Rather, as in Putnam’s affidavit, the affidavit in
Newcomb only provided information regarding the time when the informant spoke to
the officer. Id. In determining that this “bare-bones affidavit” contained insufficient
information to establish probable cause and support the issuance of a search warrant,
this Court observed that
[t]he information [the informant] supplied is sparse. His
statement gives no details from which one could conclude
that he had current knowledge of details or that he had even
been inside the defendant’s premises recently. The affidavit
contains a mere naked assertion that the informant at
some time saw a ‘room full of marijuana’ growing in [the]
defendant’s house.
- 12 -
STATE V. BROWN
Opinion of the Court
Id. at 95, 351 S.E.2d at 567 (emphasis added). Compare id. with Walker, 70 N.C. App.
at 405, 320 S.E.2d at 33 (upholding search warrant based upon an affidavit stating,
inter alia, “the informant stated he had been in [the] defendant’s house within the
past 48 hours and had seen marijuana”) and Barnhardt, 92 N.C. App. at 97, 373
S.E.2d at 463 (upholding search warrant based upon an affidavit stating, inter alia,
“cocaine was seen in the residence located at 914 South Carolina Ave. by the
confidential informant within the past 24 hours”). We cannot distinguish the
staleness of the CRI’s information contained in Putnam’s affidavit from that in
Newcomb. Accordingly, we reverse the trial court’s suppression order and vacate the
judgment entered upon Brown’s subsequent guilty pleas. In view thereof, it is
unnecessary to address Brown’s remaining arguments.
ORDER REVERSED; JUDGMENT VACATED.
Chief Judge McGEE and Judge DAVIS concur.
- 13 -