State v. Bailey

IN THE SUPREME COURT OF NORTH CAROLINA
No. 360A19
Filed 1 May 2020
STATE OF NORTH CAROLINA
v.
NICHOLAS OMAR BAILEY
Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of
the Court of Appeals, 831 S.E.2d 894 (N.C. Ct. App. 2019), affirming a judgment
entered on 10 July 2018 by Judge Charles H. Henry in Superior Court, Carteret
County. Heard in the Supreme Court on 9 March 2020.
Joshua H. Stein, Attorney General, by Jessica Macari, Assistant Attorney
General, for the State-appellee.
Richard Croutharmel for defendant-appellant.
DAVIS, Justice.
The issue in this case is whether probable cause existed to support the issuance
of a search warrant for defendant’s residence. The warrant was issued based on
information contained in a law enforcement officer’s affidavit relating to the sale of
illegal drugs earlier that day by other residents of the home. Because we are satisfied
that the affidavit contained facts that were sufficient to provide a nexus between the
residence and suspected criminal activity, we conclude that the warrant was
supported by probable cause and affirm the decision of the Court of Appeals.
STATE V. BAILEY
Opinion of the Court
Factual and Procedural Background
On 25 April 2017, Detective Dallas Rose of the Carteret County Sheriff’s Office
applied for a warrant to search a residence located at 146 East Chatham Street in
Newport, North Carolina, based on events that had occurred earlier that day. In his
affidavit, Detective Rose set out the following information: At approximately 5:35
p.m. on that date, Detective Rose was conducting visual surveillance of a secluded
parking lot outside of an apartment complex in Newport, along with three other law
enforcement officers. Detective Rose observed a blue Jeep Compass pull into the
parking lot. He was familiar with the occupants of the Jeep, James White and
Brittany Tommasone, based on their previous drug-related activities, which included
the sale of illegal narcotics. He also knew that White and Tommasone did not live at
the apartment complex and instead lived across town at a residence located at 146
East Chatham Street.
Detective Rose then observed a female passenger get out of a nearby white
Mercury Milan and walk over to the blue Jeep. After entering the Jeep and spending
approximately 30 seconds inside the vehicle, the woman exited the Jeep and returned
to the white Mercury. Both vehicles then exited the parking lot at a high rate of speed
and drove away.
Based on his training and experience, Detective Rose believed that he had just
witnessed a transaction involving the sale of drugs. Along with two of the other
officers, he proceeded to follow the white Mercury and shortly thereafter pulled over
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Opinion of the Court
the vehicle upon witnessing its driver commit several traffic offenses. The female
passenger in the white Mercury, Autumn Taylor, admitted to Detective Rose that she
had just purchased a twenty-dollar bag of heroin from White, consumed it in the car,
and then thrown the bag out of the car window.
Meanwhile, Detective Tim Corey followed the blue Jeep as it left the parking
lot and proceeded to 146 East Chatham Street. Detective Corey observed the two
occupants of the Jeep, White and Tommasone, exit the vehicle and go into Apartment
1. Detective Rose was aware that White and Tommasone lived at this address.
The search warrant application submitted by Detective Rose described the
residence at 146 East Chatham Street as a “multi family wooden dwelling” divided
into “3 separate known living quarters.” The application contained a list of the items
to be seized from the residence, which included controlled substances, drug
paraphernalia, weapons, cell phones, computers, and “[a]ny United States Currency.”
After reviewing the search warrant application and supporting affidavit,
Carteret County Magistrate Erica Hughes issued a warrant authorizing a search of
the residence located at 146 East Chatham Street as well as of any persons present
at the time the warrant was executed and of any vehicles located on the premises.
Unbeknownst to the officers at the time the warrant was issued, defendant also lived
at the apartment on 146 East Chatham Street along with White and Tommasone.
Officers executed the search warrant at approximately midnight and found
White and Tommasone, along with defendant and his girlfriend, present at the
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Opinion of the Court
residence. Defendant was in a bedroom of the apartment in which approximately 41
grams of cocaine, drug paraphernalia, and $924 in cash were also discovered.
Defendant was indicted by a grand jury on 9 October 2017 on a charge of
trafficking in cocaine. On 3 July 2018, defendant filed a motion in Superior Court,
Carteret County, to suppress evidence seized during the execution of the search
warrant based on his contention that the facts contained in the affidavit were
insufficient to establish probable cause to search his residence. After conducting a
hearing on the motion to suppress, the trial court orally denied defendant’s motion
on 9 July 2018. Defendant subsequently entered into a plea agreement in which he
pled guilty to the offense of trafficking in cocaine, while preserving his right to appeal
the denial of his motion to suppress. Defendant was sentenced to 35–51 months
imprisonment and ordered to pay a $50,000 fine. On 12 July 2018, the trial court
entered a written order memorializing its prior ruling denying defendant’s motion to
suppress.
Defendant appealed to the Court of Appeals, arguing that the trial court had
erred in denying his motion to suppress. The Court of Appeals majority affirmed the
trial court’s order, holding that the magistrate had a substantial basis for concluding
that probable cause existed to issue the warrant. State v. Bailey, 831 S.E.2d 894, 895
(N.C. Ct. App. 2019). In a dissenting opinion, Judge Zachary stated her belief that
the warrant was not supported by probable cause due to the absence of any
information in the affidavit specifically linking the residence to the sale or possession
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of drugs. Id. at 900. Based on the dissent, defendant appealed as of right to this Court
on 10 September 2019.
Analysis
The Fourth Amendment to the United States Constitution states that “no
Warrants shall issue but upon probable cause.” U.S. Const. amend. IV. Our state
constitution “likewise prohibits unreasonable searches and seizures and requires that
warrants be issued only on probable cause.” State v. Allman, 369 N.C. 292, 293, 794
S.E.2d 301, 302–03 (2016) (citing N.C. Const. art. I, § 20). Pursuant to these
constitutional directives, our General Statutes provide that a search warrant “must
be supported by one or more affidavits particularly setting forth the facts and
circumstances establishing probable cause to believe that the items are in the places
or in the possession of the individuals to be searched.” N.C.G.S. § 15A-244(3) (2019).
With regard to a search warrant directed at a residence, probable cause “means 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. Campbell, 282 N.C. 125, 128–29,
191 S.E.2d 752, 755 (1972).
Our prior decisions provide a well-established framework for reviewing
determinations of probable cause.
This standard for determining probable cause is flexible, permitting the
magistrate to draw “reasonable inferences” from the evidence in the
affidavit supporting the application for the warrant . . . . That evidence
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is viewed from the perspective of a police officer with the affiant’s
training and experience, and the commonsense judgments reached by
officers in light of that training and specialized experience. Probable
cause requires not certainty, but only “a probability or substantial
chance of criminal activity.” 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. McKinney, 368 N.C. 161, 164–65, 775 S.E.2d 821, 824–25 (2015) (citations
omitted).
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. Such a connection need not be direct,
but it cannot be purely conclusory.
For example, in State v. Arrington, 311 N.C. 633, 319 S.E.2d 254 (1984), officers
obtained a warrant to search a mobile home for evidence of drug dealing based on the
following facts: (1) a confidential informant stated that he had previously purchased
marijuana from the defendant and that the defendant was growing marijuana at his
mobile home; and (2) a second confidential source stated that he had observed “a
steady flow of traffic” in and out of the mobile home within the past month, consisting
of many known drug users. Id. at 634, 319 S.E.2d at 255. Upon executing the warrant,
officers found large amounts of marijuana on the premises. Id. at 635, 319 S.E.2d at
256.
We held that the warrant was supported by probable cause because the two
tips provided a “strong inference” that the defendant was growing and selling
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Opinion of the Court
marijuana inside the mobile home. Id. at 641–42, 319 S.E.2d at 259–60. We stated
that “[a] common sense reading of the information supplied by both informants
provides a substantial basis for the probability that the defendant had sold marijuana
[in the residence] . . . . No more is required under the Fourth Amendment.” Id. at 642,
319 S.E.2d at 260.
Our decision in Allman provides another pertinent illustration. In that case,
three roommates were pulled over while riding in a car together, and a search of their
vehicle revealed the presence of a large quantity of marijuana and over $1,600 in
cash. Allman, 369 N.C. at 292–93, 794 S.E.2d at 302. An officer applied for a warrant
to search their home for evidence of drug dealing and asserted in his affidavit that:
(1) large quantities of drugs and cash were found in their car; (2) two of the occupants
of the car had a criminal history of drug offenses; and (3) the occupants had lied to
officers about where they lived. Id. at 295–96, 794 S.E.2d at 304–05. The affidavit
also stated, “based on [the officer’s] training and experience, that drug dealers
typically keep evidence of drug dealing at their homes.” Id. A warrant was issued,
and a search of the residence revealed the presence of illegal narcotics and drug
paraphernalia. Id. at 296, 794 S.E.2d at 304.
Based on the facts contained in the affidavit, when viewed in light of the
officer’s training and experience, we determined that “it was reasonable for the
magistrate to infer that there would be evidence of drug dealing” found at the
residence. Id. at 296–97, 794 S.E.2d at 305. We acknowledged that “nothing in [the
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officer’s] affidavit directly linked defendant’s home with evidence of drug dealing” but
stated that such direct evidence is not always necessary to establish probable cause.
Id. at 297, 794 S.E.2d at 305.
In Campbell, conversely, this Court determined that probable cause to search
a residence was lacking when the facts set out in the officer’s affidavit failed to
establish any meaningful connection whatsoever between the illegal activity and the
residence. Campbell, 282 N.C. at 128–32, 191 S.E.2d at 755–57. In that case, an
officer sought a warrant to search the residence of three suspected drug dealers for
evidence of illegal drugs. Id. at 130, 191 S.E.2d at 756. The warrant stated, in part,
as follows:
All of the . . . subjects live in the house across from Ma's Drive-in on
Hwy. 55. They all have sold narcotics to Special Agent J. M. Burns of
the SBI and are all actively involved in drug sales to Campbell College
students; this is known from personal knowledge of affiant, interviews
with reliable confidential informants and local police officers.
Id.A warrant was issued, and a search of the residence revealed 289 LSD tablets
on the premises. Id. at 126–27, 191 S.E.2d at 754. The defendant argued on appeal
that no probable cause had existed to support the issuance of the search warrant. Id.
at 127, 191 S.E.2d at 754. We agreed that the affidavit supporting the warrant was
“fatally defective” because it “failed to implicate the premises to be searched.” Id. at
131, 191 S.E.2d at 757. We explained that “[p]robable cause cannot be shown ‘by
affidavits which are purely conclusory, stating only the affiant’s or an informer’s
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Opinion of the Court
belief that probable cause exists without detailing any of the underlying
circumstances upon which that belief is based.’ ” Id. at 130–31, 191 S.E.2d at 756(quoting United States v. Ventresca, 380 U.S. 102, 108–09 (1965)).
[The affidavit] details no underlying facts and circumstances from which
the issuing officer could find that probable cause existed to search the
premises described. The affidavit implicates those premises solely as a
conclusion of the affiant. Nowhere in the affidavit is there any statement
that narcotic drugs were ever possessed or sold in or about the dwelling
to be searched. Nowhere in the affidavit are any underlying
circumstances detailed from which the magistrate could reasonably
conclude that the proposed search would reveal the presence of illegal
drugs in the dwelling. The inference the State seeks to draw from the
contents of this affidavit—that narcotic drugs are illegally possessed on
the described premises—does not reasonably arise from the facts
alleged.
Id. at 131, 191 S.E.2d at 757. Accordingly, we concluded that the warrant was not
supported by probable cause and that the evidence gathered as a result of the search
was inadmissible. Id. at 132, 191 S.E.2d at 757.
Applying these principles to the present case, we are satisfied that the
magistrate had a sufficient basis to conclude that probable cause existed to search
the residence on East Chatham Street based on the facts contained in Detective
Rose’s affidavit. His affidavit included the following key information: (1) Detective
Rose personally observed an encounter between Taylor, White, and Tommasone in a
secluded parking lot that he believed—based on his training and experience—likely
involved the sale of drugs; (2) Detective Rose knew White and Tommasone had a
history of dealing drugs; (3) when Taylor was pulled over shortly after leaving the
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parking lot, she confirmed that she had just purchased heroin from White; (4) an
officer observed White and Tommasone travel from the scene of the drug deal to the
residence on East Chatham Street, exit the vehicle, and go inside the apartment; and
(5) Detective Rose knew that this address was, in fact, where White and Tommasone
lived.
As in Allman and Arrington, these facts supported a reasonable inference that
a link existed between the apartment on East Chatham Street and the sale of drugs
by White and Tommasone. The information set out in Detective Rose’s affidavit
allowed the magistrate to infer that evidence related to this criminal activity—such
as drugs, drug paraphernalia, proceeds from drug sales, or associated items—would
likely be found at the residence.1
It is true that Detective Rose’s affidavit did not contain any evidence that drugs
were actually being sold at the apartment. But our case law makes clear that such
evidence was not necessary in order for probable cause to exist. Rather, the affiant
was simply required to demonstrate some nexus between the apartment on East
Chatham Street and criminal activity. Because Detective Rose’s affidavit set out
information that established such a nexus, we are unable to conclude that the
magistrate lacked a sufficient basis for determining that probable cause existed to
search the apartment.
1 Indeed, at a bare minimum, the affidavit clearly permitted an inference that the
proceeds from the sale of the heroin to Taylor several hours earlier would be located at the
apartment.
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While defendant relies heavily on our decision in Campbell in arguing for a
different result, we believe that the present case is readily distinguishable from
Campbell. In that case, there was no information contained in the officer’s affidavit
to support a reasonable inference that the residence at issue was in any way
connected to the suspects’ alleged drug dealing. Rather, the affidavit merely relied on
the bare fact that the suspects lived there. Here, conversely, Detective Rose’s affidavit
provided a link between the apartment and criminal activity.
To be sure, Detective Rose could have included greater detail in his affidavit
as to why—based on his training and experience—he believed that evidence of
criminal activity was likely to be present in the residence. Nevertheless, viewing the
affidavit in its totality and remaining mindful of the deference that we accord to a
magistrate’s determination of probable cause, we conclude that the trial court did not
err in denying defendant’s motion to suppress. In so holding, we break no new legal
ground and instead simply apply well-settled principles of law to the facts presented
in this case.
Conclusion
For the reasons stated above, we affirm the decision of the Court of Appeals.
AFFIRMED.
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