State v. McKinney

NO. COA13-384
NORTH CAROLINA COURT OF APPEALS
Filed: 7 January 2014
STATE OF NORTH CAROLINA
v. Guilford County
Nos. 12 CRS 75464-66
WALTER ERIC McKINNEY
Appeal by defendant from judgment entered 8 October 2012 by
Judge Patrice A. Hinnant and order entered 11 October 2012 by Judge
William Z. Wood, Jr. in Guilford County Superior Court. Heard in
the Court of Appeals 25 September 2013.
Attorney General Roy Cooper, by Special Deputy Attorney
General R. Marcus Lodge, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Jon H. Hunt, for defendant-appellant.
CALABRIA, Judge.
Walter Eric McKinney (“defendant”) appeals pursuant to N.C.
Gen. Stat. § 15A-979(b) (2011) from an order denying his motion to
suppress. We reverse.
On 22 April 2012, Officer Christopher Bradshaw (“Officer
Bradshaw”) of the Greensboro Police Department (“GPD”) received a
citizen complaint claiming that there was heavy traffic in and out
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of an apartment located at 302 Edwards Road in Greensboro (“the
apartment”). The tip indicated that people who came to the
apartment only stayed a short time. The complainant believed the
traffic was related to narcotics, in part because the complainant
had witnessed individuals exchanging narcotics in the parking lot
with the person who lived in the apartment.
After receiving the tip, Officer Bradshaw went to the
apartment and conducted surveillance in an unmarked automobile.
Shortly thereafter, he observed an individual arrive in an
automobile, enter the apartment, and then leave after
approximately six minutes. Officer Bradshaw followed the
automobile after it departed. Officer Strader of the GPD, who was
driving a marked police vehicle, conducted a traffic stop on the
automobile on the basis of minor traffic violations.
The individual driving the vehicle was identified as Roy
Foushee (“Foushee”), who had a history of narcotics-related
arrests. Subsequently, the officers searched Foushee and the
automobile and found $4,258 in cash and a gallon-sized plastic bag
containing seven grams of marijuana. Foushee was arrested for
possession of marijuana. Subsequent to the arrest, Officer
Bradshaw also searched Foushee’s cell phone and discovered a series
of recent text messages between Foushee and an individual named
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“Chad.” Officer Bradshaw believed that these texts were related
to a drug transaction.
Based upon the drugs and cash discovered from Foushee and the
information gathered during his investigation, Officer Bradshaw
obtained a search warrant to search the apartment. The subsequent
search revealed that the apartment contained drugs, drug
paraphernalia, and firearms. Officer Bradshaw arrested defendant,
who was the occupant of the apartment.
Defendant was indicted for trafficking in cocaine,
maintaining a dwelling for keeping and selling controlled
substances, possession of both cocaine and marijuana with intent
to sell and distribute, felony possession of marijuana, and
possession of a firearm by a felon. On 7 September 2012, defendant
filed a pretrial motion to suppress the evidence obtained from the
search of the apartment, contending that the warrant obtained by
Officer Bradshaw for that search was not supported by probable
cause. After a hearing, the trial court denied the motion.
Defendant then entered into a plea agreement whereby the State
dismissed the charges of trafficking cocaine and felony possession
of marijuana in exchange for defendant’s guilty plea to the
remaining charges. As part of the plea agreement, defendant
specifically reserved his right to appeal the trial court’s denial
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of his motion to suppress. The trial court consolidated all of
defendant’s charges for judgment and sentenced him to a minimum of
11 months to a maximum of 23 months in the North Carolina Division
of Adult Correction. Defendant appeals.
Defendant’s sole argument on appeal is that the trial court
erred in denying his motion to suppress the evidence obtained
during the search of the apartment. Specifically, defendant
contends that the warrant obtained by Officer Bradshaw to search
the apartment was not supported by probable cause. We agree.
Our review of a trial court’s denial of 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. Cooke, 306 N.C. 132, 134, 291 S.E.2d
618, 619 (1982). “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).
Pursuant to N.C. Gen. Stat. § 15A-244, an application for a
search warrant must contain “[a]llegations of fact supporting the
statement. The statements must be supported by one or more
affidavits particularly setting forth the facts and circumstances
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establishing 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(3) (2011). “Probable cause need not be
shown by proof beyond a reasonable doubt, but rather [by] whether
it is more probable than not that drugs or other contraband will
be found at a specifically described location.” State v. Edwards,
185 N.C. App. 701, 704, 649 S.E.2d 646, 649 (2007). “In
determining . . . whether probable cause exists for the issuance
of a search warrant, our Supreme Court has provided that the
‘totality of the circumstances’ test . . . is to be applied.” State
v. Witherspoon, 110 N.C. App. 413, 417, 429 S.E.2d 783, 785 (1993)
(citations omitted).
The standard for a court reviewing the
issuance of a search warrant is whether there
is substantial evidence in the record
supporting the magistrate's decision to issue
the warrant. [T]he duty of a reviewing court
is simply to ensure that the magistrate had a
substantial basis for . . . conclud[ing] that
probable cause existed.
State v. Torres-Gonzalez, ___ N.C. App. ___, ___, 741 S.E.2d 502,
507 (2013)(internal quotations and citations omitted).
In the instant case, Officer Bradshaw’s application for a
search warrant for defendant’s apartment, which was incorporated
by reference into the trial court’s order denying defendant’s
motion to suppress, was essentially based upon the following
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evidence: (1) an anonymous citizen’s complaint that the
complainant had previously observed suspected drug-related
activity occurring at and around the apartment; (2) a brief
investigation of that complaint in which Officer Bradshaw
witnessed Foushee come to the apartment and then leave after six
minutes; (3) the arrest of Foushee, who had a history of narcotics
arrests, shortly after he had left defendant’s apartment, due to
the discovery of a mostly-empty bag of marijuana and a large amount
of cash; and (4) text messages between Foushee and an individual
named Chad proposing a drug transaction. Defendant contends that
the trial court erred by concluding that this evidence established
the existence of probable cause.
The evidence included in Officer Bradshaw’s search warrant
application clearly establishes probable cause that Foushee had
been involved in a recent drug transaction. However, the
determinative question in this case is whether the application
provided a substantial basis to allow the magistrate to conclude
that there was probable cause of illegal drugs at defendant’s
apartment. See Edwards, 185 N.C. App. at 704, 649 S.E.2d at 649(Probable cause requires a showing that “it is more probable than
not that drugs or other contraband will be found at a specifically
described location.” (emphasis added)).
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Our Courts have previously analyzed search warrant
applications based upon information similar to Officer Bradshaw’s
application in the instant case in order to determine if probable
cause to search a specific location had been established. In State
v. Campbell, law enforcement obtained a warrant to search the
defendant’s residence based upon an affidavit stating that that
affiant had probable cause to believe the residence contained
drugs. 282 N.C. 125, 130, 191 S.E.2d 752, 756 (1972). To support
this statement, the affidavit specifically noted that the affiant
possessed narcotics-related arrest warrants for three individuals
who were known to sell drugs and that all three of those
individuals lived in the location to be searched. Id. Our Supreme
Court held that the search warrant did not establish probable cause
to search the subject premises:
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.
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In State v. Crisp, law enforcement also obtained a search
warrant to search the defendants’ residence based upon an affidavit
stating that the affiant had probable cause to believe the
defendants had drugs on the property. 19 N.C. App. 456, 457, 199
S.E.2d 155, 155 (1973). To support this statement, the affiant
stated that: (1) he had conducted a traffic stop of an individual
who lived at the residence and discovered marijuana, both on his
person and in his vehicle; and (2) he had conducted surveillance
on the residence for a period of three to four months, during which
time he observed heavy traffic entering and leaving at all times
of the day and night. Id. at 457-58, 199 S.E.2d at 156. Relying
upon the previously-quoted language in Campbell, this Court held
that the warrant did not establish probable cause to search the
defendants’ residence. Id. at 458, 199 S.E.2d at 156.
Finally, in State v. Hunt, law enforcement obtained a warrant
to search the defendant’s residence based upon the following facts:
(1) law enforcement had received “constant complaints” from
citizens regarding narcotics sales at the residence; (2) the
complaints specifically noted that there was consistent traffic at
the residence whereby incoming vehicles would conduct a short drug
transaction, either inside or in front of the residence, and then
leave; and (3) the affiant conducted surveillance for one day based
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upon the complaints and observed numerous vehicles come to the
residence, stay about five to eight minutes, and then leave. 150
N.C. App. 101, 102-03, 562 S.E.2d 597, 599 (2002). This Court
once again held that the application for the warrant failed to
establish probable cause to search the defendant’s residence:
All that the affidavit offers are complaints
from citizens suspicious of drug activity in
a nearby house. There is no mention of anyone
ever seeing drugs on the premises. The
citizens only reported heavy vehicular traffic
to the house. The officer verified the
traffic. His verification, as the trial court
found, was not a conclusion. What was a
conclusion was the determination of the
officer, based on his experience and the
vehicular traffic, that drug trafficking was
taking place. “The inference the State seeks
to draw from the contents of this affidavit
does not reasonably arise from the facts
alleged.” Crisp, 19 N.C. App. at 458, 199
S.E.2d at 156.
Id. at 107, 562 S.E.2d at 601.
Officer Bradshaw’s application in the instant case cannot be
materially distinguished from the defective search warrant
applications in Campbell, Crisp, and Hunt. His affidavit stated,
in relevant part:
Around 4-22-2012 I received a citizen
complaint for 302 Edwards Rd Apt C, Greensboro
NC. The citizen advised that there was heavy
traffic in and out of this apartment. They
advised the traffic made short stays and
believed it was narcotic related. They stated
that they had actually seen narcotics changing
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hands in the parking lot with the resident of
that apartment.
On 4-22-2012 I established surveillance on the
apartment. At 1241 hours I observed a red
Pontiac, NC tag ALW-2397 arrive at the
apartment. The driver exited the vehicle and
entered the apartment. At 1247 hours the
driver returned to the vehicle and left the
area. A traffic stop was conducted on the
vehicle for a violation of a chapter 20 law.
During the investigation the driver was
arrested for marijuana. He was also in
possession of $4258 US currency. The driver,
Roy Foushee, had a history of narcotics
arrests. The marijuana was found in a large
bag and was almost empty.
I searched the driver’s cell phone incident to
arrest. Looking through his text messages I
read several open messages. Most of the
messages were related to the sale of
narcotics. The last messages that were sent
before the traffic stop were from Chad, 910-
571-8959..
Chad- Bra when you come out to get the
money can you bring a fat 25. I got the
bread-
1212pm
-can you bring me one more bra
ME- about 45
Chad- ight
Through my training and experience I believe
that Mr. Foushee delivered marijuana to the
residents at 302 Edwards Rd Apt C.
Based upon the facts described above and my
training and experience, I believe that there
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is probable cause that items to be seized,
particularly controlled substances in
violation of GS 90-95, and other items listed
herein, are in the premises to be searched, as
described herein.
This information is insufficient to establish probable cause to
search defendant’s apartment. Just as in the previous cases,
Officer Bradshaw’s affidavit “implicates [defendant’s] premises
solely as a conclusion of the affiant.” Campbell, 282 N.C. at
131, 191 S.E.2d at 757. Neither Officer Bradshaw nor the anonymous
citizen ever witnessed any narcotics in or about the apartment.
While Officer Bradshaw specifically saw Foushee enter and exit the
apartment prior to his arrest, there is nothing in his affidavit
which suggests that he saw Foushee carry marijuana or anything
else inside or that he brought anything back out upon his exit,
despite Officer Bradshaw’s conclusion that Foushee was making a
delivery at that time. Moreover, while the text messages recovered
from Foushee’s phone suggest that he recently engaged in a
narcotics transaction with an individual named Chad, Chad is never
identified or connected with defendant’s apartment in any way.
Ultimately, “[t]he 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. Thus, the search warrant used to
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search defendant’s apartment was defective because it was not
supported by probable cause.
Nonetheless, the State contends that Officer Bradshaw’s
affidavit was sufficient to provide probable cause under this
Court’s decision in State v. McCoy, 100 N.C. App. 574, 397 S.E.2d
355 (1990). In McCoy, law enforcement officers conducted two
controlled drug buys between an informant and the defendant in two
different hotel rooms, but the defendant vacated the premises
before search warrants could be obtained and executed. 100 N.C.
App. at 576-77, 397 S.E.2d at 357. Noting that “North Carolina
case law supports the premise that firsthand information of
contraband seen in one location will sustain a finding to search
a second location,” this Court held that there was probable cause
to search a third hotel room which was registered to the defendant:
The facts here show that a suspect, previously
convicted of selling drugs, had within a ten-
day period rented three different motel rooms,
each time for several days, in a city in which
he had a local address, and that at two of
those locations he had sold cocaine. Based on
these facts, it was reasonable to infer that
when the suspect occupied the third room, he
still possessed the cocaine.
Id. at 578, 397 S.E.2d at 357-58. While the State correctly cites
the McCoy Court’s holding that contraband in one location can
create probable cause to search a second location, it misrepresents
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the breadth of this holding. As both Campbell and Crisp
demonstrate, the mere discovery of contraband on an individual
does not provide carte blanche probable cause to search any
location that may be remotely connected to that individual for
additional contraband. See Campbell, 282 N.C. at 130-31, 191
S.E.2d at 756-57 (discovery of contraband during traffic stop of
the defendant insufficient to provide probable cause to search the
defendant’s residence) and Crisp, 19 N.C. App. at 457-58, 199
S.E.2d at 156 (same). Instead, the State must still establish a
reasonable nexus between the discovered contraband and the new
location sought to be searched. While in McCoy, the State was
able to adequately connect the defendant’s very recent possession
of cocaine in two nearby hotel rooms to the potential contraband
in a third room at the same hotel, the mostly empty marijuana bag
found on Foushee in the instant case has a much more tenuous
connection to defendant’s apartment which is insufficient to
establish probable cause to search that location. Thus, we find
the McCoy Court’s holding inapplicable to this case.
Pursuant to Campbell, Crisp, and Hunt, we hold that the search
warrant for defendant’s apartment was not supported by probable
cause. Accordingly, the trial court erroneously denied
defendant’s motion to suppress the evidence uncovered as a result
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of that search. The trial court’s denial of that motion is
reversed.
Reversed.
Judges ELMORE and STEPHENS concur.