State v. BrodyÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-336
Filed: 7 February 2017
Mecklenburg County, Nos. 14 CRS 242804-08
STATE OF NORTH CAROLINA
v.
JAMES PAUL BRODY
Appeal by defendant from judgment entered 1 October 2015 by Judge Carla N.
Archie in Mecklenburg County Superior Court. Heard in the Court of Appeals 21
September 2016.
Joshua H. Stein, Attorney General, by Jeremy D. Lindsley, Assistant Attorney
General, for the State.
Knox, Brotherton, Knox & Godfrey, by Allen C. Brotherton, for defendant-
appellant.
DAVIS, Judge.
In this appeal, we consider whether a search warrant application relying
principally upon information obtained from a confidential informant was sufficient to
support a magistrate’s finding of probable cause. James Paul Brody (“Defendant”)
appeals from the trial court’s order denying his motion to suppress evidence obtained
from his residence pursuant to a search warrant. Because we conclude that the
affidavit in support of the search warrant application was sufficient to establish
probable cause, we affirm.
Factual and Procedural Background
STATE V. BRODY
Opinion of the Court
On 14 October 2014, the Charlotte-Mecklenburg Police Department began an
investigation into possible drug trafficking by Defendant. On 28 October 2014,
Detective E.D. Duft applied for a warrant to search Defendant’s home located at 3124
Olde Creek Trail in Matthews, North Carolina. The application was supported by an
affidavit in which Detective Duft described his investigation of Defendant, including
information about Defendant’s drug dealing activity that was obtained through a
confidential informant (the “CI”). A magistrate issued the search warrant that same
day.
Upon executing the search warrant, Detective Duft seized evidence of illegal
drugs in Defendant’s home. On 30 March 2015, Defendant was indicted for
maintaining a place to keep controlled substances, possession with intent to sell or
deliver marijuana, possession of marijuana, possession with intent to sell or deliver
cocaine, carrying a concealed weapon, and possession of drug paraphernalia.
On 19 August 2015, Defendant filed a motion to suppress the evidence seized
pursuant to the search warrant, arguing that the affidavit submitted by Detective
Duft was insufficient to establish probable cause to issue the warrant. The motion
was heard before the Honorable Carla N. Archie in Mecklenburg County Superior
Court on 1 October 2015. After hearing arguments from the parties, the trial court
denied the motion.
-2-
STATE V. BRODY
Opinion of the Court
That same day, pursuant to a plea agreement, Defendant subsequently pled
guilty to the charge of possession with intent to sell or deliver cocaine, and the
remaining charges were dismissed. As part of the plea arrangement, Defendant
reserved his right to appeal the denial of his motion to suppress. The trial court
sentenced Defendant to 5 to 15 months imprisonment, suspended the sentence, and
placed him on 18 months of supervised probation. On 22 December 2015, the trial
court issued a written order denying Defendant’s motion to suppress. Defendant filed
a timely notice of appeal.
Analysis
Defendant’s sole argument on appeal is that the trial court erred in denying
his motion to suppress evidence found during the search of his home because the
search warrant obtained by Detective Duft was not supported by probable cause. A
defendant “is entitled to mandatory appellate review of an order denying a motion to
suppress when his conviction judgment was entered pursuant to a guilty plea” if he
expressly preserved the right to appeal that ruling. State v. Banner, 207 N.C. App.
729, 731, 701 S.E.2d 355, 357 (2010). Here, because Defendant specifically reserved
his right to appeal when he entered his guilty plea, his appeal is properly before us.
An application for a search warrant must include (1) a statement that there is
probable cause to believe that items subject to seizure may be found in the place
described; and (2) “one or more affidavits particularly setting forth the facts and
-3-
STATE V. BRODY
Opinion of the Court
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. Gen. Stat. § 15A-244
(2015). In determining whether to issue a warrant, the magistrate must “make a
practical, common sense decision whether, given all the circumstances set forth in
the affidavit before him, . . . there is a fair probability that contraband or evidence of
a crime will be found in a particular place.” State v. Arrington, 311 N.C. 633, 638,
319 S.E.2d 254, 257-58 (1984) (citation omitted).
When the motion to suppress is based upon a defendant’s contention that the
search warrant obtained was not supported by probable cause, the trial court must
determine whether, based on the totality of the circumstances, “the evidence as a
whole provides a substantial basis for concluding that probable cause exists.” State
v. Sinapi, 359 N.C. 394, 398, 610 S.E.2d 362, 365 (2005) (citation and quotation marks
omitted); see also State v. McCoy, 100 N.C. App. 574, 576, 397 S.E.2d 355, 357 (1990)
(“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.” (citation and quotation marks omitted)).
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. Probable cause does not mean actual and
positive cause, nor does it import absolute certainty. . . . .
If the apparent facts set out in an affidavit for a search
warrant are such that a reasonably discreet and prudent
-4-
STATE V. BRODY
Opinion of the Court
man would be led to believe that there was a commission
of the offense charged, there is probable cause justifying
the issuance of a search warrant.
State v. Campbell, 282 N.C. 125, 128-29, 191 S.E.2d 752, 755 (1972) (internal citations
and quotation marks omitted).
In the present case, Detective Duft’s affidavit in support of his warrant
application stated, in pertinent part, as follows:
Detective E. Duft, #1847, has received information from a
confidential and reliable informant that James Paul
BRODY is possessing and selling cocaine from his
residence at 3124 Olde Creek Trail, Matthews, NC.
On October 14, 2014, investigators received information
and began an investigation into the cocaine trafficking
activities of James Paul BRODY. This informant has
arranged, negotiated and purchased cocaine from BRODY
under the direct supervision of Detective Duft. This
informant has been to 3124 Olde Creek Trail, Matthews,
NC within the past 48 hours and has observed BRODY
possessing and selling cocaine. This informant has been to
this location on approximately 30 plus occasions and has
observed BRODY possessing and selling cocaine on each
occasion. This informant has also described seeing a
firearm at this location.
Investigators have known this informant for
approximately two weeks. This informant has provided
information on other persons involved in drug trafficking
in the Charlotte area which we have investigated
independently. Through interviews with the informant,
detectives know this informant is familiar with drug
pricing and how controlled substances are packaged and
sold for distribution in the Charlotte area.
Detective E.D. Duft, #1847, has eighteen (18) years of law
-5-
STATE V. BRODY
Opinion of the Court
enforcement experience with three (3) years as a street
drug interdiction officer, five (5) years as a vice and
narcotics detective for the Charlotte-Mecklenburg Police
Department and ten (10) years as a Task Force Officer for
the Drug Enforcement Administration (DEA).
[Detective Duft] has attended narcotics schools on both the
state and federal level including: a two day Street Drug
Interdiction school, an Undercover Drug School, a Pipeline
Drug School, Jetway Drug Training, DEA Basic Drug
Investigators School, DEA Task Force Officer school, Rave
and Club Drug Investigations, Financial Investigations,
Telephone Exploitation and Basic, Advanced Internet
Communication Exploitation and Clandestine Lab
Training and certification.
Based upon this affidavit, the magistrate determined that there was probable
cause to issue the search warrant. The trial court subsequently ruled that the
magistrate had properly granted the warrant, concluding that (1) “[s]ufficient detail
was present in the search warrant to assure the magistrate of the informant’s
reliability”; (2) “[t]here was a substantial basis to believe that a fair probability
existed that a controlled substance would be found in the residence identified in the
search warrant”; and (3) “[p]robable cause existed to issue the search warrant.”
On appeal, Defendant argues that probable cause was not established because
the affidavit failed to show that the CI was reliable and that drugs were likely to be
found in Defendant’s home. It is well established that probable cause may be shown
through the use of information provided by informants. State v. Brown, 199 N.C.
App. 253, 257, 681 S.E.2d 460, 463 (2009). “In utilizing an informant’s tip, probable
-6-
STATE V. BRODY
Opinion of the Court
cause is determined using a totality-of-the-circumstances analysis which permits a
balanced assessment of the relative weights of all the various indicia of reliability
(and unreliability) attending an informant’s tip.” State v. Holmes, 142 N.C. App. 614,
621, 544 S.E.2d 18, 22 (2001) (citation and quotation marks omitted).
The indicia of reliability of an informant’s tip may include
(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.
Brown, 199 N.C. App. at 258, 681 S.E.2d at 463 (citation and quotation marks
omitted).
“A known informant’s information may establish probable cause based upon a
reliable track record in assisting the police.” State v. Leach, 166 N.C. App. 711, 716,
603 S.E.2d 831, 835 (2004), appeal dismissed, 359 N.C. 640, 614 S.E.2d 538 (2005);
see also State v. McRae, 203 N.C. App. 319, 324, 691 S.E.2d 56, 60 (2010) (“[A] tip
from a reliable, confidential informant may supply probable cause[.]”).
Our caselaw emphasizes the importance of distinguishing between anonymous
informants and informants who are known to the officers and have provided reliable
information in the past. “[T]he difference in evaluating an anonymous tip as opposed
to a reliable, confidential informant’s tip is that the overall reliability is more difficult
to establish, and thus some corroboration of the information or greater level of detail
is generally necessary.” McRae, 203 N.C. App. at 325, 691 S.E.2d at 61 (citation,
-7-
STATE V. BRODY
Opinion of the Court
quotation marks, and brackets omitted); see also State v. Crowell, 204 N.C. App. 362,
366, 693 S.E.2d 370, 373 (2010) (concluding that corroboration by police was not
required to establish reliability of tip provided by known informant who had
demonstrated past reliability); Chadwick, 149 N.C. App. at 203, 560 S.E.2d at 209
(“A known informant’s information may establish probable cause based on a reliable
track record, or an anonymous informant’s information may provide probable cause
if the caller’s information can be independently verified.”).
We find instructive our decision in State v. Barnhardt, 92 N.C. App. 94, 373
S.E.2d 461, disc. review denied, 323 N.C. 626, 374 S.E.2d 593 (1988). In Barnhardt,
a detective stated in his affidavit supporting a search warrant application that he
had received information from a confidential informant who had “personally observed
a large amount of cocaine at the residence of [the defendant]” within 24 hours prior
to the affidavit being sworn and had provided a detailed description of the outside of
the defendant’s home. Id. at 97, 373 S.E.2d at 463. The detective’s affidavit also
reflected that the informant knew what cocaine looked like because he had purchased
the drug in the past. Id. at 98, 373 S.E.2d at 463. The detective acknowledged in the
affidavit that the informant had “never given any information to me before.” Id.
Based on this affidavit, the magistrate found probable cause to issue a search
warrant for the defendant’s home. On appeal, we held that the affidavit was
sufficient to support the magistrate’s probable cause determination, explaining that
-8-
STATE V. BRODY
Opinion of the Court
it
provided timely information, exact detail of the premises to
be searched, and it described the informant’s ability to
identify cocaine. These circumstances, supplemented by
the officer’s credentials and experience, amount to a
substantial basis for the magistrate’s determination that
probable cause existed.
Id.
The affidavit in the present case provided an even stronger basis for a probable
cause finding. Here, Detective Duft’s affidavit stated that investigators had known
the CI for two weeks, the CI had previously provided them with information on other
persons involved in drug trafficking in the area, and Detective Duft considered the
CI to be a “reliable informant.” The CI had demonstrated to Detective Duft that he
was “familiar with drug pricing and how controlled substances are packaged and sold
for distribution in the Charlotte area.” Moreover, the CI had previously “arranged,
negotiated and purchased cocaine from [Defendant] under the direct supervision of
Detective Duft.”1 In addition, the CI revealed to Detective Duft that he had visited
Defendant’s home approximately 30 times — including a visit that occurred within
48 hours prior to the affidavit being sworn — and “observed [Defendant] possessing
1 Defendant points out that the affidavit does not specify whether or not this purchase occurred
at Defendant’s home. However, regardless of whether it took place at Defendant’s residence or at some
other location, this purchase nevertheless (1) added support to Detective Duft’s determination that the
CI was reliable; and (2) demonstrated that Defendant was engaged in the sale of drugs. Thus, the
purchase, in conjunction with the CI having previously observed cocaine at Defendant’s home on
numerous occasions (including within the prior 48 hours), added support to the magistrate’s probable
cause determination.
-9-
STATE V. BRODY
Opinion of the Court
and selling cocaine on each occasion.” Finally, the affidavit reflected that Detective
Duft possessed 18 years of law enforcement experience, including significant
experience and training relating to the investigation of drug trafficking.
Accordingly, viewing all of these facts under the totality of the circumstances,
we conclude that the magistrate had a substantial basis for determining that
probable cause existed to believe cocaine was present in Defendant’s home based on
Detective Duft’s affidavit and the permissible inferences that could be drawn from it.
See State v. Taylor, 191 N.C. App. 587, 590, 664 S.E.2d 421, 423 (2008) (“[T]he duty
of the reviewing court is simply to ensure that the magistrate had a substantial basis
for concluding that probable cause existed.” (citation, quotation marks, brackets, and
ellipsis omitted)); State v. Benters, 367 N.C. 660, 665, 766 S.E.2d 593, 598 (2014) (“[A]
magistrate is entitled to draw reasonable inferences from the material supplied to
him by an applicant for a warrant.” (citation and quotation marks omitted)).
We are unpersuaded by Defendant’s contention that Detective Duft’s affidavit
failed to adequately demonstrate the CI’s reliability. The affidavit stated both that
(1) law enforcement officers independently investigated prior information provided
by the CI; and (2) Detective Duft considered the CI to be a “reliable informant.” The
fact that the affidavit did not describe the precise outcomes of the previous tips from
the CI did not preclude a determination that the CI was reliable. Although a general
averment that an informant is “reliable” — taken alone — might raise questions as
- 10 -
STATE V. BRODY
Opinion of the Court
to the basis for such an assertion, the fact that Detective Duft also specifically stated
that investigators had received information from the CI in the past allows for a
reasonable inference that such information demonstrated the CI’s reliability. See,
e.g., State v. Edwards, 185 N.C. App. 701, 705, 649 S.E.2d 646, 649 (“Even though
Officer Warren did not spell out in exact detail the connection between the informant
and the previous drug investigations, the magistrate could properly infer the
confidential informant had provided reliable information to Officer Warren in
previous situations.”), disc. review denied, 362 N.C. 89, 656 S.E.2d 281 (2007).
Moreover, Detective Duft had further opportunity to gauge the CI’s reliability when
“he arranged, negotiated and purchased cocaine from [Defendant] under the direct
supervision of Detective Duft.”
We also reject Defendant’s assertion that this case is controlled by Taylor. In
that case, a special agent for the sheriff’s office with two years of law enforcement
experience submitted an affidavit in support of a search warrant for a location
containing both a mobile home and a house. Taylor, 191 N.C. App. at 588, 664 S.E.2d
at 422. In his affidavit, the special agent averred that a confidential informant —
whom he had previously found to be reliable — had “visited the described location at
the direction and surveillance of this [a]pplicant and while at the location . . . made a
purchase of the controlled substance.” Id.
A magistrate issued a warrant, and drugs were found in the house when the
- 11 -
STATE V. BRODY
Opinion of the Court
warrant was executed. The defendant filed a motion to suppress, which the trial
court granted on the ground that the special agent’s affidavit did not establish
probable cause. Id. at 589, 664 S.E.2d at 422. The State appealed, and we affirmed
the trial court’s ruling, explaining as follows:
[N]o facts were alleged in the affidavit that particularly set
forth where on the premises the drug deals occurred. The
affidavit merely stated that the CI “had visited the
described location” and made controlled purchases of
cocaine “while at the location,” without particularly stating
which, if any, of the two dwellings he entered to make the
purchases. There were also no facts alleged in the affidavit
that identified the defendant as the owner of either
residence. Additionally, Special Agent Perry had only been
working in law enforcement for two years at the time he
applied for the search warrant. He also failed to include
facts regarding whether he observed the transactions
between the CI and the seller himself, and did not establish
the identity of the seller of the cocaine as defendant.
Finally, Special Agent Perry’s affidavit failed to identify
the Sampson County Sheriff’s Office procedure for
controlled purchases of controlled substances and was
silent as to whether he followed that procedure with the CI.
Special Agent Perry merely stated that the CI had been
proven reliable in the past by following the controlled
purchase procedure, but did not allege that the procedure
was followed in the present investigation, alleging only
that “while at the location the [CI] made a purchase of the
controlled substance. Immediately after leaving the
location, the [CI] met with the applicant and turned over
the controlled substance.”
Id. at 590-91, 664 S.E.2d at 423-24 (emphasis omitted).
The present case is distinguishable from Taylor for a number of reasons. First,
there is no ambiguity here as to which of multiple dwellings listed in an affidavit was
- 12 -
STATE V. BRODY
Opinion of the Court
likely to contain the contraband sought or whether the defendant was the owner of
the home at issue. Detective Duft’s affidavit stated that the CI had seen Defendant
inside the one residence listed in the affidavit — Defendant’s home — approximately
30 times in the past, including within 48 hours of the affidavit being sworn.
Moreover, unlike the officer in Taylor — who possessed only limited law enforcement
experience — Detective Duft has worked in law enforcement for 18 years and has
extensive drug enforcement experience and training.
In reaching our decision in this case, we are mindful that our Supreme Court
has cautioned that a “grudging or negative attitude by reviewing courts toward
warrants is inconsistent with the Fourth Amendment’s strong preference for searches
conducted pursuant to a warrant; courts should not invalidate warrants by
interpreting affidavits in a hypertechnical, rather than a commonsense, manner.”
State v. Riggs, 328 N.C. 213, 222, 400 S.E.2d 429, 434-35 (1991) (citation, quotation
marks, and brackets omitted). “[G]reat deference should be paid a magistrate’s
determination of probable cause and . . . after-the-fact scrutiny should not take the
form of a de novo review.” Benters, 367 N.C. at 665, 766 S.E.2d at 598 (citation and
quotation marks omitted). Therefore, “[t]he resolution of doubtful or marginal cases
in this area should be largely determined by the preference to be accorded to
warrants.” Id. at 675, 766 S.E.2d at 604 (citation and quotation marks omitted).
We are satisfied that Detective Duft’s affidavit contained sufficient
- 13 -
STATE V. BRODY
Opinion of the Court
information to support the magistrate’s determination that probable cause existed to
issue the search warrant. Accordingly, we affirm the trial court’s denial of
Defendant’s motion to suppress.
Conclusion
For the reasons stated above, we conclude that the trial court did not err in
denying Defendant’s motion to suppress.
AFFIRMED.
Judges CALABRIA and TYSON concur.
- 14 -