State v. Moore ( 2020 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA20-16
Filed: 15 December 2020
Jones County, No. 14CRS050577
STATE OF NORTH CAROLINA
v.
CHRISTIAN CAPICE MOORE
Appeal by Defendant from judgment entered 29 July 2019 by Judge Paul M.
Quinn in Jones County Superior Court. Heard in the Court of Appeals 11 August
2020.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Melissa
H. Taylor, for State-Appellee.
Benjamin J. Kull for Defendant-Appellant.
COLLINS, Judge.
Defendant appeals from judgment entered upon his guilty plea to felony
possession of marijuana. Defendant argues that the trial court erred by denying his
motion to suppress, where (1) the officer applying for a warrant to search Defendant’s
residence acted in bad faith by presenting the magistrate with false and misleading
information and (2) no probable cause existed to issue the search warrant. We reverse
the trial court’s order denying Defendant’s motion to suppress and reverse the
judgment entered upon Defendant’s guilty plea.
I. Background
STATE V. MOORE
Opinion of the Court
Investigator Timothy W. Corey of the Jones County Sheriff’s Office applied for
a warrant on the eve of 25 November 2014 to search the premises at 133 Harriett
Lane in Pollocksville (“133 Harriett Ln.”), and any persons or vehicles located on that
premises at the time of the search. The affidavit in support of the application
included a “Statement of Probable Cause” in which Corey alleged the following:
(1) This investigation is part of a continuing and ongoing
narcotics investigation that involves the possibility of
further undiscovered illegal narcotics and/or other
narcotics paraphernalia or contraband in the
aforementioned home located at 133 Harriet Ln.
Pollocksville[.]
(2) The source of information is coming from a [sic] ongoing
investigation that leads investigators with the Jones
County Sheriff’s Office to introduce an informant that
would gain the trust of the subjects living at the home and
make controlled buys of illegal narcotics from this location.
(3) On 10-09-2014, investigators met with an Informant,
who stated that he was able to make buys from a subject
by the name of “Matt”, who lives at this location on Harriett
Ln. And stated that he is known for dealing powder
cocaine. I had the informant to set up [sic] a buy from this
subject for a gram of cocaine. That day we were able to buy
with no problem.
(4) On 10-21-2014, investigators met with the informant to
make a second buy from the same location, that time we
were able to set up and watch the suspect known as “Matt”
come out of the house and meet with the informant and
return back to the home afterwards.
(5) On 11-07-2014, investigators met with the informant to
make a third buy from this location same as the last with
no problems; subject known as “Matt” came from inside the
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STATE V. MOORE
Opinion of the Court
home and made the deal then returned back inside the
residence.
(6) On 11-25-2014, investigators met with the informant to
make a forth [sic] buy from this location. At that time the
suspect “Matt”, made it clear that he was re-upping
(getting more drugs) and told the informant that he would
be good for whatever he needed.
(7) Based off of this information in this investigation, I am
requesting this search warrant of this suspect’s property
for any and all narcotics and cash proceeds. Due to my
training and experience, I have reason to believe that
illegal narcotics, narcotic/drug paraphernalia, large
amounts of US Currency, are being kept and sold from this
location.
(8) Based on all of the findings of my investigation, I am
able to show that the suspect listed above is in direct
violation of the NC controlled substances act. By keeping
and selling illegal narcotics at the residence located at 133
Harriet Ln. Pollocksville.
Upon the information and allegations contained in the application and
affidavit, a magistrate determined that sufficient probable cause existed and issued
the search warrant. Corey and other officers executed the warrant the following
morning. Given the items seized during the search, Defendant, who is not the suspect
“Matt” referred to in the affidavit, was arrested and indicted for possession with
intent to sell or distribute a Schedule VI controlled substance, and maintaining a
dwelling house for using, keeping, or selling controlled substances.
On 11 May 2016, Defendant filed a motion to suppress the evidence seized as
a result of the search. Defendant argued that the search warrant was not supported
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STATE V. MOORE
Opinion of the Court
by probable cause and that the affidavit “contains unsubstantiated information from
an informant, false or misleading statements, and no allegations tending to establish
that controlled substances were present in the residence or the vehicles located
there.”
On 22 January 2019, Defendant filed a supplemental affidavit in support of his
motion to suppress in which defense counsel averred, in relevant part, as follows:
7. The [search warrant] application is written in such a way
as to lead a reader to conclude that the “buys” were made
at the property of 133 Harriett Lane, Pollocksville.
However, [I have] reviewed copies of Detective Corey’s
reports concerning October 9, October 21, and November 7,
2014 reports of controlled buys from a suspect known as
“Matt” on those days. According to those reports, the
October 9, 2014 buy occurred at the corner of Ten Mile Fork
Road and Highway 17, over one mile from 133 Harriett
Lane, Pollocksville. The October 21, 2014 buy occurred
“down the road”; and the November 7, 2014 buy occurred
on Killis Murphy Road, over one mile from the 133 Harriet
Lane address.
....
9. Upon information and belief, [t]he statements by the
affiant in his application for a search warrant that all the
“buys” were made from the same location, which he
previously referred to 133 Harriett Lane are misleading,
and to the extent intended to portray that the buys were
made from 133 Harriett Lane are false. As they were made
by Detective Corey, the same detective involved in
conducting the alleged controlled buys on the dates in
question, these statements were knowingly made, and
made with a reckless disregard for the truth.
4
STATE V. MOORE
Opinion of the Court
Attached to the supplemental affidavit were copies of Corey’s police reports
concerning the alleged controlled buys from a suspect known as “Matt” on 9 October,
21 October, and 7 November 2014.
The trial court held a hearing on Defendant’s motion to suppress on 23 January
2019. The trial court first considered the four corners of Corey’s search warrant
application and affidavit and heard arguments of counsel. No testimony or other
evidence was presented.
At the close of the arguments, the court announced, “I’ll do the order on this,
but I’m going to indicate to you the findings of fact that I’ll be including in that
order[.]” The court found that “[i]n the application for the search warrant, [Corey]
asserts there’s probable cause to believe that 133 Harriet Lane, Pollocksville, North
Carolina, a tan in color double-wide, with gray shingles are [sic] storing and selling
narcotics” and “[a]gain alleg[es] that it’s happening at 133 Harriet Lane in
Pollocksville.” The court then turned to the affidavit and considered the “eight,
numbered paragraphs which purport to be the statement of probable cause for the
issuance of the search warrant.” After reciting the allegations in those paragraphs,
and finding that the magistrate relied solely upon those factual allegations in issuing
the warrant, the trial court found, in part:
[I]t appears that based on the information and
personal observation of the detective, that a buy was made
at the 133 Harriet Lane address in Pollocksville on October
9, 2014. And, as I read it, it seems to me the plain language
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STATE V. MOORE
Opinion of the Court
of this affidavit is that on October 9, 2014, a gram of cocaine
was purchased at that location from a subject by the name
of Matt.
....
[T]he Court finds -- and this is the totality of the
circumstances, and giving proper deference to the decision
of the magistrate -- it appears there were two purchases
made, and that would be a substantial basis for concluding
there was probable cause to issue the search warrant.
The trial court then considered Defendant’s supplemental affidavit and Corey’s
police reports, and heard arguments from the State and Defendant on the threshold
inquiry required under Franks v. Delaware, 438 U.S. 154 (1978). Under this inquiry,
a defendant must make “a substantial preliminary showing that a false statement
knowingly and intentionally, or with reckless disregard for the truth, was included
by the affiant in the warrant affidavit” and the allegedly false statement must be
necessary to the probable cause determination. Id. at 155-56. Defendant argued that
the drug buys did not occur at 133 Harriet Ln., that Corey was the lead investigator
present for all of the buys and had knowledge of the actual locations of the buys, and
that Corey’s affidavit statements to the contrary were false and demonstrated a
reckless disregard for the truth. Defendant further argued that when the false
allegations were stricken from the affidavit, the search warrant application was not
supported by probable cause. The State argued to the contrary. The trial court
determined that Defendant met the threshold inquiry and allowed Defendant to put
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STATE V. MOORE
Opinion of the Court
on evidence of Corey’s allegedly false statements. Defendant introduced the police
reports and called Corey as witness.
During direct examination, Corey admitted that none of the buys actually took
place at 133 Harriet Ln. and affirmed that he knew that at the time he wrote his
affidavit in support of the search warrant. Defendant inquired about Corey’s affidavit
and his description that the informant made “controlled buys of narcotics from this
location.” He asked Corey, “are you talking about the home and location of [133
Harriet Ln.]?” Corey replied, “I’m talking about the subjects residing in that home
that’s selling narcotics, sir.” On cross examination, the State asked, “So you’re not
really -- when you say ‘the same location,’ you don’t mean Ten Mile Road or whatever
it is, and you don’t mean 133 Harriet Lane. You mean from this guy [‘Matt’], the
same location that we’re watching come out of the house, and go back in the house,
that’s how you’re characterizing this?” Corey replied, “Exactly. Yes.”
At the conclusion of the hearing, the trial court ruled as follows:
I am going to deny the motion. Here’s why, and I’ll
do the order. I gave my reason about the motion to
suppress the first motion and said that in reading it, I felt
that you should conclude that the location of the
transactions was the Harriet Lane address. At this stage,
I’ve got the benefit of what the magistrate got, plus the
attachments to the supplemental affidavit, and more
importantly the testimony of the officer. And then we
reading that language [sic], as the DA sort of focused in on,
those allegations in the warrant just say, “the location.”
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STATE V. MOORE
Opinion of the Court
The officer’s testified, you know, he’s talking about a
seller coming from Harriet Lane, going to these specific
places that he’s disclosed to where the transactions
actually took place. So, in looking at it with the benefit of
that extra information, I don’t believe there’s been any
showing that the statements were false, the statements in
the affidavit. I don’t believe they were false, so I don’t have
to reach anything else.
I think when you read them in light of the officer -- I
read them so I wouldn’t look at them and, after the fact,
based just on the warrant, and concluded that we’re talking
about Harriet Lane. When you go back and read them,
they don’t actually say the buys took place at Harriet Lane.
They really don’t say that. They don’t say where. They
don’t say Harriet Lane. They just say “the location.” So
there’s nothing about that statement in light of the officer’s
explanation for what prompted him to submit that affidavit
that would lead the Court to conclude that he either made
a false statement or was somehow recklessly in disregard
of the truth. It appears to me, on its face, it’s true at this
point.
On 24 January 2019, the trial court issued a written order denying Defendant’s
motion to suppress. The trial court left undisturbed its oral findings of fact and
conclusions of law based on the evidentiary Franks hearing and did not reduce them
to writing. The written order included findings of fact upon which the trial court
concluded that “the application and affidavit of Detective Corey provided adequate
support for the magistrate’s finding of probable cause for the issuance of the search
warrant in this case.” The trial court denied Defendant’s motion to suppress.
Defendant pled guilty to felony possession of marijuana; pursuant to the plea
agreement, the State dismissed the remaining charge of maintaining a dwelling for
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STATE V. MOORE
Opinion of the Court
using, keeping or selling controlled substances. The trial court sentenced Defendant
to 8-19 months’ imprisonment, suspended the sentence, and placed Defendant on 24
months’ supervised probation. Defendant was ordered to pay $372.50 in court costs
and remain gainfully employed while on probation. Defendant gave proper notice of
appeal in open court.
II. Discussion
Defendant argues that the trial court erred by denying Defendant’s motion to
suppress, where (1) the officer applying for a warrant to search Defendant’s residence
acted in bad faith by presenting the magistrate with false and misleading information
and (2) no probable cause existed to issue the search warrant.
A. False and Misleading Information
The standard of review in evaluating a trial court’s rulings on a Franks hearing
is the same as the standard of review in evaluating a trial court’s ruling on a motion
to suppress. State v. Fernandez, 346 N.C. 1, 11, 484 S.E.2d 350, 357 (1997). Thus,
our review is limited to whether the trial court’s findings of fact are supported by
competent evidence, and whether the findings of fact support the trial court’s
conclusions of law. State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982).
“Further, the trial court’s conclusions of law must be legally correct, reflecting a
correct application of applicable legal principles to the facts found.” Fernandez, 346
N.C. at 11, 484 S.E.2d at 357 (citation omitted).
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STATE V. MOORE
Opinion of the Court
Although the trial court held an evidentiary Franks hearing on the veracity of
Corey’s allegations in the affidavit, the trial court did not include in its written order
denying Defendant’s motion to suppress findings of fact or conclusions of law
resulting from the hearing. However, as the trial court made oral findings of fact and
conclusions of law based on the Franks hearing, we will review the trial court’s oral
findings to determine if they are supported by competent evidence and to determine
if they support the trial court’s conclusions of law. See State v. Oates, 366 N.C. 264,
268, 732 S.E.2d 571, 574 (2012) (“While a written determination is the best practice,
nevertheless the statute does not require that these findings and conclusions be in
writing.”) (citation omitted).
It is well settled that a search warrant must be based on probable cause.
Fernandez, 346 N.C. at 13, 484 S.E.2d at 358; see U.S. Const. amend. IV. “Probable
cause for a search [warrant] is present where facts are stated which establish
reasonable grounds to believe a search of the premises will reveal the items sought
and that the items will aid in the apprehension or conviction of the offender.”
Fernandez, 346 N.C. at 13, 484 S.E.2d at 358 (citation omitted). An application for a
search warrant must include (1) a statement of probable cause indicating that the
items specified in the application will be found in the place described; and (2) “one or
more affidavits particularly setting forth the facts and circumstances establishing
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STATE V. MOORE
Opinion of the Court
probable cause to believe that the items are in the places or in the possession of the
individuals to be searched[.]” N.C. Gen. Stat. § 15A-244 (2019).
“It is elementary that the Fourth Amendment’s requirement of a factual
showing sufficient to constitute ‘probable cause’ anticipates a truthful showing of
facts.” Fernandez, 346 N.C. at 13, 484 S.E.2d at 358 (citing Franks, 438 U.S. at 164-
65). “[T]ruthful” in this context means “that the information put forth is believed or
appropriately accepted by the affiant as true.” Franks, 438 U.S. at 165; see also N.C.
Gen. Stat. § 15A-978(a) (2019) (“[T]ruthful testimony is testimony which reports in
good faith the circumstances relied on to establish probable cause.”). There is a
presumption of validity with respect to the affidavit supporting the search warrant.
Franks, 438 U.S. at 171.
“A defendant may contest the validity of a search warrant and the
admissibility of evidence obtained thereunder by contesting the truthfulness of the
testimony showing probable cause for its issuance.” N.C. Gen. Stat. § 15A-978(a).
“Where the defendant makes a substantial preliminary showing that a false
statement knowingly and intentionally, or with reckless disregard for the truth, was
included by the affiant in the warrant affidavit, and if the allegedly false statement
is necessary to the finding of probable cause, the Fourth Amendment, as incorporated
in the Fourteenth Amendment, requires that a hearing be held at the defendant’s
request.” Franks, 438 U.S. at 154.
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STATE V. MOORE
Opinion of the Court
Upon an evidentiary hearing, the only person whose veracity is at issue is the
affiant himself. Id. at 171. “The defendant may contest the truthfulness of the
testimony by cross-examination or by offering evidence.” N.C. Gen. Stat. § 15A-
978(a). “A claim under Franks is not established merely by evidence that contradicts
assertions contained in the affidavit, or even that shows the affidavit contains false
statements. Rather, the evidence must establish facts from which the finder of fact
might conclude that the affiant alleged the facts in bad faith.” Fernandez, 346 N.C.
at 14, 484 S.E.2d at 358 (citation omitted). In the context of an omission, a violation
occurs where an “affiant[] omit[s] material facts with the intent to make, or in
reckless disregard of whether they thereby made, the affidavit misleading.” U.S. v.
Colkley, 899 F.2d 297, 300 (4th Cir. 1990) (internal quotation marks and citation
omitted).
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. Franks, 438 U.S. at 155-56. 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 156.
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STATE V. MOORE
Opinion of the Court
In this case, Corey’s affidavit in support of the application for a warrant to
search 133 Harriet Ln. stated that there was an investigation involving the
possibility of drugs and paraphernalia in the “home located at 133 Harriet Ln.”
(Emphasis added). Investigators “introduce[d] an informant that would gain the
trust of the subjects living at the home and make controlled buys of illegal narcotics
from this location.” (Emphasis added). The affidavit further stated:
(3) On 10-09-2014, investigators met with an Informant,
who stated that he was able to make buys from a subject
by the name of “Matt”, who lives at this location on Harriett
Ln. And stated that he is known for dealing powder
cocaine. I had the informant to set up a buy [sic] from this
subject for a gram of cocaine. That day we were able to buy
with no problem.
(4) On 10-21-2014, investigators met with the informant to
make a second buy from the same location, that time we
were able to set up and watch the suspect known as “Matt”
come out of the house and meet with the informant and
return back to the home afterwards.
(5) On 11-07-2014, investigators met with the informant to
make a third buy from this location same as the last with
no problems; subject known as “Matt” came from inside the
home and made the deal then returned back inside the
residence.
(6) On 11-25-2014, investigators met with the informant to
make a forth [sic] buy from this location. At that time the
suspect “Matt”, made it clear that he was re-upping
(getting more drugs) and told the informant that he would
be good for whatever he needed.
(7) Based off of this information in this investigation, I am
requesting this search warrant of this suspect’s property
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STATE V. MOORE
Opinion of the Court
for any and all narcotics and cash proceeds. Due to my
training and experience, I have reason to believe that
illegal narcotics, narcotic/drug paraphernalia, large
amounts of US Currency, are being kept and sold from this
location.
(Emphasis added).
Defendant moved to suppress the evidence seized from 133 Harriet Ln. on the
grounds that the affidavit contained false and misleading information because none
of the alleged controlled drug buys and meetings took place at 133 Harriet Ln.
Attached to the supplemental affidavit supporting the motion to suppress were
Corey’s police reports concerning the alleged controlled buys from “Matt” on 9
October, 21 October, and 7 November 2014.
Corey’s police report documenting the 9 October events states, in relevant part:
I had the informant make a call to the suspect to set
up a buy of cocaine. The suspect told the informant to meet
with him at the corner of tem [sic] mile fork and hwy 17,
stated that he didn’t need anyone at the house right now.
....
I . . . sent him to the meeting location to make the
buy of cocaine from the suspect.
Deputy Taylor and I then set up where we were able
to see the suspects home Just as we got in place we saw the
suspect come out of the house . . . and get in a small black
four door car. We fallowed [sic] the suspect down to where
our informant was weighting [sic] at the meeting location.
As the suspect pulled in to meet with our informant
we went down the road and parked where we had sight of
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STATE V. MOORE
Opinion of the Court
the meeting location after the deal was complete we
fallowed [sic] the suspect back to Harriett ln. . . .
Corey’s police report documenting the 21 October events states, in relevant
part:
I had the informant make a call to the suspect to set
up a buy of cocaine. The suspect told the informant to meet
with him at the same spot as last time (tem [sic] mile fork
and hwy 17).
....
Capt. Bateman and I then set up where we were able
to see the suspects home. I received a call from the
informant telling me that the suspect had called him and
changed the meeting location. The informant stated that
now he wanted him to pick up him up [sic] at the end of
Harriett Ln. . . .
We saw the suspect come out of the house, dressed
in a dark shirt and pajama pants then got in the vehicle
with the informant. they drove down the road a short way
and turned around then came back and dropped the
suspect off at the end of Harriett Ln. the transaction took
place darning [sic] this short ride down the road and back.
Corey’s police report documenting the 7 November events states, in relevant
part:
I had the informant make a call to the suspect to set
up a buy of cocaine. The suspect told the informant to meet
with him at the same spot as last time (tem [sic] mile fork
and hwy 17). . . .
....
. . . . I then . . . sent him to the meeting location to
make the buy of cocaine from the suspect.
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STATE V. MOORE
Opinion of the Court
Deputy Ervin and I then went to set up where we
were able to see the suspects home. I received a call from
the informant telling me that the suspect had called him
and changed the meeting location. The suspect told the
informant to follow him and the [sic] went down hwy 17
and turned on Killis Murphy rd. and the suspect stopped
and motioned for the suspect to come up to him as the
informant approached the vehicle the suspect gave him a
clear plastic bag with white powder inside and the
informant gave him the $85.00 in US Currency.
On direct examination, Corey admitted that, at the time he wrote his affidavit,
he knew that none of the drug buys took place at 133 Harriet Ln.
Although the trial court found that Corey testified that he was “talking about
a seller coming from Harriet Lane, going to these specific places that he’s disclosed to
where the transactions actually took place,” this finding is not supported as Corey
never “disclosed” in the affidavit “these specific places . . . where the transactions
actually took place.” Moreover, although the trial court found that the allegations in
the affidavit “don’t actually say the buys took place at Harriet Lane . . . [t]hey just
say ‘the location,’” this finding is not supported as the plain language of the affidavit
indicates that “this location” is 133 Harriet Ln. and that the alleged controlled drug
buys and meetings between “Matt” and the informant took place at 133 Harriet Ln.
The trial court was itself misled by the statements in the affidavit. After it
first reviewed Corey’s affidavit on its face, and found that the magistrate relied solely
on those factual allegations in issuing the search warrant, the trial court announced
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STATE V. MOORE
Opinion of the Court
it appears that based on the information and personal
observation of the detective, that a buy was made at the
133 Harriet Lane address in Pollocksville on October 9,
2014. And, as I read it, it seems to me the plain language
of this affidavit is that on October 9, 2014, a gram of cocaine
was purchased at that location from a subject by the name
of Matt.
The trial court determined that two of the four drug buys took place “at that address
on Harriet Lane” and concluded that probable cause existed to believe that “drug
offenses were being committed at that address on Harriet Lane.” Only after the
Franks hearing, wherein Defendant introduced Corey’s reports and questioned
Corey, did the trial court understand that the buys did not take place at 133 Harriet
Ln.
The trial court’s conclusion that the statements were not false is not supported
by the evidence presented at the Franks hearing, including the plain language of
Corey’s affidavit, his police reports, or his testimony. Contrary to the trial court’s
conclusion, Corey’s statements in his affidavit indicating that the alleged controlled
drug buys and meetings between “Matt” and the informant took place at 133 Harriet
Ln. were false and his material omissions regarding the actual locations of the drug
buys and meetings were misleading.
While “every false statement in an affidavit is not necessarily made in bad
faith[,]” State v. Severn, 130 N.C. App. 319, 323, 502 S.E.2d 882, 885 (1998), in this
case, Corey admitted that none of the controlled drug buys took place at 133 Harriet
Ln. and that he knew this at the time he applied for the search warrant. By omitting
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STATE V. MOORE
Opinion of the Court
that “Matt” drove from 133 Harriet Ln. to conduct the drug buys at locations over a
mile away, and indicating instead that they had occurred at 133 Harriet Ln., Corey
knowingly made false statements. “A person may not knowingly make a false
statement in good faith for the purposes of an affidavit in support of a search
warrant.” Id.Because the statements indicating the drug buys and meetings between “Matt”
and the informant were false and made in bad faith, they must be stricken from the
affidavit. Franks, 438 U.S. at 155-56. 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 156.
B. Probable Cause
A magistrate’s determination of probable cause must be based upon the totality
of the circumstances. State v. Benters, 367 N.C. 660, 664, 766 S.E.2d 593, 597 (2014).
Under the “totality of the circumstances” test,
[t]he task of the issuing magistrate is simply to make a
practical, common sense decision whether, given all the
circumstances set forth in the affidavit before him,
including the “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 a reviewing
court is simply to ensure that the magistrate had a
“substantial basis for . . . concluding” that probable cause
existed.
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STATE V. MOORE
Opinion of the Court
State v. Arrington, 311 N.C. 633, 638, 319 S.E.2d 254, 257-58 (1984) (brackets and
citation omitted).
An application for a search warrant must be supported by statements
“particularly setting forth the facts and circumstances establishing probable cause to
believe that the items are in the places . . . to be searched . . . .” N.C. Gen. Stat. §
15A-244(3). “Our case law makes clear that when an officer seeks a warrant to search
a residence, the facts set out in the supporting affidavit must show some connection
or nexus linking the residence to illegal activity.” State v. Bailey, 374 N.C. 332, 335,
841 S.E.2d 277, 280 (2020). This nexus is generally established by “showing that
criminal activity actually occurred at the location to be searched[.]” State v. McCoy,
100 N.C. App. 574, 576, 397 S.E.2d 355, 357 (1990). “[H]owever, where such direct
information concerning the location of the objects is not available[,] . . . it must be
determined what reasonable inferences may be entertained concerning the likely
location of those items.” Id. (quotation marks and citation omitted). “The affidavit
must also set forth circumstances from which the officer concluded that his informant
was reliable.” State v. Altman, 15 N.C. App. 257, 259, 189 S.E.2d 793, 795 (1972).
When Corey’s false statements are stricken, the affidavit essentially alleges
the following: There is an investigation involving the possibility of drugs and
paraphernalia at 133 Harriet Ln. An informant was introduced who was to make
controlled drug buys from 133 Harriet Ln. Investigators met with the informant on
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STATE V. MOORE
Opinion of the Court
9 October 2014. The informant stated he could make buys from “Matt,” who lives at
133 Harriett Ln. and is known for dealing powder cocaine. The informant was able
to buy an ounce of cocaine from Matt on 9 October 2014. Investigators met with the
informant on 21 October 2014 and watched “Matt” come out of the Residence, meet
with the informant, and go back into the Residence. Investigators met with the
informant on 11 November 2014; “Matt” came from inside the Residence, sold drugs
to the informant, then returned back inside the Residence. Investigators met with
the informant on 25 November 2014; Matt would be getting more drugs and told the
informant he would be good for whatever he needed.
The totality of the allegations potentially linking 133 Harriet Ln. to illegal
activity are that “Matt” is known for dealing powder cocaine; “Matt” lives at 133
Harriet Ln.; and on 11 November 2014, “Matt” came from inside 133 Harriet Ln., sold
drugs to the informant, then returned back inside 133 Harriet Ln. These allegations
are not sufficient to show a nexus linking 133 Harriet Ln. to illegal activity. See
Bailey, 374 N.C. at 338, 841 S.E.2d at 282 (holding that a nexus was established
where a detective personally observed an encounter which he believed was a drug
deal between two people who “had a history of dealing drugs”; the buyer was stopped
shortly after purchasing the drugs and confirmed that she had just purchased heroin;
that another officer continuously observed two of the participants travel from the
20
STATE V. MOORE
Opinion of the Court
drug deal to the residence; and that the detective knew that this was where the two
participants lived).
There is no allegation that “Matt” sold the drugs to the informant from, on, or
near 133 Harriet Ln.; no allegation that “Matt” was under continuous surveillance
from the time he left 133 Harriet Ln. to the time he sold the drugs to the informant
on 11 November 2014; and no allegation that the events on 11 November 2014 were
based on Corey’s own observation. See State v. Campbell, 282 N.C. 125, 131, 191
S.E.2d 752, 757 (1972) (holding an affidavit invalid where drugs were not possessed
in or sold from the dwelling to be searched, but were instead found inside a trash can
outside of the dwelling, and “[t]he inference the State [sought] to draw from the
contents of [the] affidavit . . . [did] not reasonably arise from the facts alleged”). The
lack of nexus is even more stark when the omitted facts—the actual locations of the
transactions, the fact that “Matt” drove to the first two transactions, and that the
informant picked “Matt” up at the end of Harriet Ln. and conducted the transaction
in the car—are read into the affidavit. See United States v. Lull, 824 F.3d 109, 118
(4th Cir. 2016) (determining that the investigators “omissions therefore prevented a
neutral magistrate from being able to accurately assess the reliability and the
veracity, and thus the significance, of the informant’s statements”).
Moreover, there are no allegations as to the reliability of the informant. See
Altman, 15 N.C. App. at 259, 189 S.E.2d at 795 (The affiant’s statement that the
21
STATE V. MOORE
Opinion of the Court
confidential informant “has proven reliable and credible in the past . . . are the
irreducible minimum on which a warrant may be sustained.”) (quotation marks
omitted).
The allegations in the affidavit do not support a determination that there is a
“fair probability that contraband or evidence of a crime will be found in” 133 Harriet
Ln. See McCoy, 100 N.C. App. at 576, 397 S.E.2d at 357. Accordingly, “‘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.’” Severn, 130 N.C. App. at
323, 502 S.E.2d at 884 (quoting Franks, 438 U.S. at 156).
III. Conclusion
The trial court erred by denying Defendant’s motion to suppress, where Corey
acted in bad faith by presenting the magistrate with false and misleading information
and no probable cause existed to issue the search warrant. We reverse the trial
court’s order denying Defendant’s motion to suppress and reverse the judgment
entered upon Defendant’s guilty plea.
REVERSED.
Chief Judge McGEE concurs.
Judge TYSON dissents by separate opinion.
22
No. COA20-16 – State v. Moore
TYSON, Judge, dissenting.
Defendant failed to show the search warrant or the affidavit was false, made
in bad faith, was contrary to the actual facts or was asserted “to conceal from the
defendant” how the evidence was obtained. State v. Severn, 130 N.C. App. 319, 323,
502 S.E.2d 882, 885 (1998). The majority’s opinion erroneously substitutes its
judgment on the evidence and findings, and reverses the trial court’s denial of
Defendant’s motion to suppress. I respectfully dissent.
I. Standard of Review
The scope of this Court’s review of a trial court’s order 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.” State v. Bone, 354 N.C. 1, 7, 550 S.E.2d 482,
486 (2001) (quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)),
cert. denied, 535 U.S. 940, 152 L. Ed. 2d 231 (2002)).
The trial court’s conclusions of law are reviewed de novo. State v. McCollum,
334 N.C. 208, 237, 433 S.E.2d 144, 160 (1993) (citation omitted), cert. denied, 512 U.S.
1254, 129 L. Ed. 2d 895 (1994). Whether an application for a search warrant is invalid
for including false or misleading information is a conclusion of law that is also
reviewed de novo. See State v. Parks, 265 N.C. App. 555, 570-73, 828 S.E.2d 719, 729-
31 (2019), disc. review denied, 374 N.C. 265, 839 S.E.2d 851 (2020).
STATE V. MOORE
TYSON, J., dissenting
II. Analysis
A. False and Misleading Information
“A defendant may contest the validity of a search warrant and the
admissibility of evidence attained from the evidence by contesting the truthfulness of
the testimony showing probable cause for its issuance.” N.C. Gen. Stat. § 15A-978(a)
(2019). A “truthful” showing of the facts does not require “every fact recited in the
warrant affidavit is necessarily correct, for probable cause may be founded . . . upon
information received from informants, as well as . . . the affiant’s own knowledge that
sometimes must be garnered hastily.” State v. Fernandez, 346 N.C. 1, 13, 484 S.E.2d
350, 358 (1997) (citing Franks v. Delaware, 438 U.S. 154, 165, 57 L. Ed. 2d 667, 678
(1978)). “Instead, truthful means that the information put forth is believed or
appropriately accepted by the affiant as true.” Severn, 130 N.C. App. at 322, 502
S.E.2d at 884 (citation and internal quotation marks omitted).
During the evidentiary hearing, only the affiant’s veracity is at issue. Id. A
defendant cannot suppress the warrant by simply presenting evidence which
“contradicts assertions contained in the affidavit or . . . shows the affidavit, contains
false statements.” Id. (citation omitted). Rather, the evidence presented “must
establish facts from which the finder of fact might conclude that the affiant alleged
the facts in bad faith.” Id. (citation omitted).
2
STATE V. MOORE
TYSON, J., dissenting
Defendant asserts Detective Corey gave false information to the magistrate in
bad faith because the drug buys did not take place at the residence, but rather from
two separate locations. Defendant argues this case is analogous to State v. Severn.
In Severn, during a drug investigation a detective surveilled the defendant's
residence and searched through the defendant's trash bin, located outside of the
residence. Id. at 321, 502 S.E.2d at 883. Inside the bin, the detective found “cocaine
residue on the inside of [a] straw and two grams of marijuana.” Id.The detective applied for a search warrant. The detective claimed in an
affidavit to have found the evidence inside the defendant’s residence, by using
“investigative means” in support of the search warrant. Id. at 320-21, 502 S.E.2d at
883-84. During the suppression hearing, the detective testified he had never
“personally [gone] inside the residence” and he had “deduced that the [evidence] had
been inside the residence.” Id.This Court held the detective knowingly made a false statement in bad faith
because the statement was contrary to the actual facts, the detective knew it was
false, and only did so “to conceal from the defendant” how the evidence was obtained.
Id. at 323, 502 S.E.2d at 885.
In the present case, Defective Corey’s affidavit stated: on 9 October 2014, the
confidential informant was able to buy from “Matt, who lives at this location on
Harriett Ln.” On 21 October 2014, investigators met with the confidential informant
3
STATE V. MOORE
TYSON, J., dissenting
to make a second buy from Matt, who lived at “the same location.” During this drug
buy, Detective Corey and other investigators watched the suspect known as Matt
“come out of the house and meet with the [confidential] informant and return back”
to the residence.
On 7 November 2014, “investigators met with the [confidential] informant to
make a third buy from this location same as the last.” The same suspect “Matt came
from inside the home and made the deal then returned back inside the residence.”
On 25 November 2014, investigators met with the confidential informant to meet
Matt and make a fourth “buy from this location.”
Unlike in Severn, Detective Corey did not state anywhere in his affidavit that
any of the drug buys were made at or from inside the Harriett Lane residence.
Detective Corey testified that when he referred to “this location” or “the same
location,” he was referring to the source or place from where Matt and the drugs are
coming from, not the physical location of the drug buys. Defendant offers nothing to
refute Detective Corey’s testimony of the other assertions made in the application
and affidavit. While the affidavit could have used clearer language, nothing asserted
in the affidavit was false, made in bad faith, was contrary to the actual facts or was
asserted “to conceal from the defendant” how the evidence was obtained. Id.4
STATE V. MOORE
TYSON, J., dissenting
Unlike the inside/outside statement in the officer’s affidavit from Severn,
Detective Corey did not make any false statement in bad faith. Id. Defendant’s
argument is properly overruled.
B. Probable cause
The Fourth Amendment of the Constitution of the United States provides “no
[w]arrants shall issue, but upon probable cause, supported by [o]ath or affirmation,
and particularity describing the place to be searched, and the persons or things to be
seized.” U.S. Const. amend. IV. Our Supreme Court has adopted the “totality of the
circumstances” test for determining whether probable cause exists for issuance of a
search warrant under the state’s constitution. State v. Lowe, 369 N.C. 360, 364, 794
S.E.2d 282, 285 (2016).
Under this test, an application for a search warrant must be supported by an
affidavit detailing “the facts and circumstances establishing probable cause to believe
that the items are in the places . . . to be searched.” N.C. Gen. Stat. § 15A-244(3)
(2019). The information contained in the affidavit “must establish a nexus between
the objects sought and the place to be searched.” State v. McCoy, 100 N.C. App. 574,
576, 397 S.E.2d 355, 357 (1990) (citation omitted). A magistrate must “make a
practical, common-sense decision,” based upon the totality of the circumstances,
whether “there is a fair probability that contraband” will be found in the place to be
searched. Illinois v. Gates, 462 U.S. 213, 238, 76 L. Ed. 2d 527, 548 (1983).
5
STATE V. MOORE
TYSON, J., dissenting
Unlike the majority’s opinion’s analysis, the judicial officer’s determination of
probable cause is to be 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). Instead, as the trial court found, a reviewing court is responsible for
ensuring that the issuing magistrate had a “substantial basis for . . . conclud[ing] that
probable cause existed.” Gates, 462 U.S. at 238-39, 76 L. Ed. 2d at 548 (citation
omitted).
The trial court’s order asserts the following factors, inter alia, to support the
magistrate’s finding of probable cause: (1) a confidential informant advised the
investigators he was able to make illegal drug buys from Matt, who resided at the
residence at Harriett Lane; (2) Detective Corey dispatched the confidential informant
to make “buys” of illegal drugs from Matt on four separate occasions; (3) on 9 October
2014 the confidential informant purchased a gram of cocaine from Matt; (4) on every
occasion, Detective Corey witnessed Matt leave the residence at Harriett Lane, meet
with the confidential informant to complete the buy, and return to the residence; and,
(5) on 25 November 2014, Matt told the confidential informant he was, “re-upping,”
getting more drugs, and would be “good” for further supply. Defendant’s argument
is properly overruled.
1. Stale Information
6
STATE V. MOORE
TYSON, J., dissenting
Defendant argues the evidence described in Detective Corey’s affidavit was
stale. “Generally, two factors determine whether evidence of previous criminal
activity is sufficient to later support a search warrant: (1) the amount of criminal
activity and (2) the time period over which the activity occurred.” McCoy, 100 N.C.
App. at 577, 397 S.E.2d at 358.
“[W]here the affidavit properly recites facts indicating activity of a protracted
and continuous nature, a course of conduct, the passage of time becomes less
significant.” Id. (citation omitted). This Court has held evidence, which occurred
twenty months prior to the execution of a search warrant, was not so far removed to
be considered stale as a matter of law. State v. Howard, 259 N.C. App. 848, 854, 817
S.E.2d 232, 237 (2018).
Over the course of only two months, the confidential informant was able to
complete four illegal drug-related transactions with Matt while he resided at the
residence on Harriett Lane. The last buy occurred eighteen days before the search
warrant was issued. The last interaction, when Matt informed the confidential
informant, he was re-upping his supply, occurred on the same day the search warrant
was issued by the magistrate. The evidence of the four separate buys from Matt who
lived at Harriett Lane and was described in the affidavit was not stale. A short time
had passed from the last interaction with Matt, the search warrant being issued, and
the search warrant being executed. Defendant’s argument is properly overruled.
7
STATE V. MOORE
TYSON, J., dissenting
2. Reliable Information
Defendant also argues the application and affidavit did not establish probable
cause because Detective Corey’s affidavit did not show the confidential informant was
reliable. This Court has held probable cause may be shown through tips and
information provided by informants. State v. Brown, 199 N.C. App. 253, 257, 681
S.E.2d 460, 463 (2009). “The indicia of reliability of an informant’s tip” includes: (1)
“whether the informant was known or anonymous, (2) the informant’s history of
reliability, and (3) whether information provided by the informant could be
independently corroborated by the police.” Id. at 258, 681 S.E.2d at 463 (citation
omitted).
The information provided by the confidential informant was independently
verified by Detective Corey, who surveilled all four illicit drug interactions as they
occurred between “Matt” and the confidential informant at the residence. Also,
officers met with the confidential informant on 9 October 2014 and then had the
confidential informant buy one gram of cocaine from Matt on the same day. The
affidavit states the confidential informant was involved in an ongoing drug
investigation in Jones County. The magistrate could reasonably have concluded the
informant was known to the investigator from the multiple transactions and had a
history of reliability. Defendant’s argument is overruled.
8
STATE V. MOORE
TYSON, J., dissenting
Finally, applying the totality of circumstances test, the trial court properly
concluded a substantial basis was shown for finding probable cause to search the
residence. The confidential informant had purchased drugs from Matt at least four
times in a two-month period while Matt had lived at the residence. Detective Corey
witnessed Matt leave the residence, meet with the confidential informant, the illicit
exchanges occur, and Matt return to the residence. Matt told the confidential
informant he had resupplied his drug inventory the day before the search warrant
was issued.
The nexus and chain of custody between the residence, Matt, the informant,
and the contraband recovered therefrom on numerous occasions was sufficiently
established by the application and Detective Corey’s affidavit. A substantial basis
was presented for the magistrate to conclude illegal drugs were located inside of the
residence and to deny Defendant’s motion to suppress. Probable cause supports the
issuance of the warrant to search the residence. Defendant’s arguments are properly
overruled.
III. Conclusion
Defendant failed to show Detective Corey provided false and misleading
information or used bad faith in preparing the application for the search warrant and
his supporting affidavit to the magistrate. The search warrant was based upon timely
and reliable information of multiple drug transactions over a two-month period to
9
STATE V. MOORE
TYSON, J., dissenting
support probable cause to search the residence. Using the proper appellate standard
of review of the trial court’s order, Defendant’s motion to suppress was properly
denied. The judgments entered upon Defendant’s guilty plea are properly affirmed.
I respectfully dissent.
10