State v. FrederickÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-370
Filed: 17 April 2018
Wake County, No. 15CRS208027
STATE OF NORTH CAROLINA
v.
KURT DEION FREDERICK, Defendant.
Appeal by defendant from an order entered 7 June 2016 by Judge W. Osmond
Smith III in Wake County Superior Court. Heard in the Court of Appeals 5 October
2017.
Attorney General Joshua H. Stein, by Assistant Attorney General J. Aldean
Webster III, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Amanda S.
Hitchcock, for defendant-appellant.
BERGER, Judge.
On June 8, 2016, a Wake County jury found Kurt Deion Frederick
(“Defendant”) guilty of trafficking heroin, maintaining a dwelling used for keeping or
selling heroin, and possession with intent to sell or deliver a Schedule I controlled
substance. Prior to trial, Defendant moved to suppress evidence obtained pursuant
to a search of his residence. Defendant appeals from the order denying his motion to
suppress, contending that the search warrant was improperly issued because it
lacked probable cause. We disagree.
STATE V. FREDERICK
Opinion of the Court
Factual and Procedural Background
On April 8, 2015, Detective J. Ladd with the Raleigh Police Department
applied for a warrant to search the premises of 3988 Neeley Street in Raleigh for
heroin, firearms, drug transaction records, and cash. The residence belonged to
Defendant.
Detective Ladd attached a sworn affidavit to the search warrant which
testified to his more than thirteen years of law enforcement experience, his work with
Raleigh’s drug and vice unit, and his specific drug interdiction training. The affidavit
also set forth the following facts:
Over the last sixty days, I received information from
a confidential source regarding a mid-level MDMA,
heroin[,] and crystal methamphetamine dealer in the
Raleigh, NC area. This source has always been trustworthy
and truthful with [d]etectives[,] and I consider his/her
information reliable. This confidential source is familiar
with MDMA, heroin[,] and crystal methamphetamine and
the way it is packaged and sold. This confidential source
has always provided [d]etectives with information in the
past concerning other criminal drug investigations that I
have been able to corroborate and determined to be truthful.
Within the last week, this confidential source was
used to arrange a controlled purchase of a quantity of
“Molly” (MDMA) from 3988 Neeley St[.] Raleigh, NC
27606. The confidential source met with [d]etectives prior
to making the controlled purchase of “Molly”. The
confidential source and his/her vehicle were searched for
any illegal contraband. There was none located. The
confidential source was provided with a sum of money from
the Raleigh Police Department’s informant funds. The
confidential source arranged to meet a middle man prior to
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STATE V. FREDERICK
Opinion of the Court
going to 3988 Neeley St[.] Raleigh, NC 27606. Detectives[]
maintained constant surveillance on the confidential
source while traveling to meet the middle man. Once the
source met with the middle man, they traveled to 3988
Neeley St[.] Raleigh, NC 27606. The middle man was
observed entering 3988 Neeley St[.] Raleigh, NC 27606 and
returning to the source approximately two minutes later.
Based on my training and experience, this was indicative of
drug trafficking activity. The source met with me at a pre-
determined meet location after the middle man was
returned to his residence. The source provided me with a
quantity of “Molly”. The source and his/her vehicle were
searched again for any illegal contraband. There was none
located.
Within the last 72 hours, the confidential source was
used to arrange a controlled purchase of heroin [from] 3988
Neeley St[.] Raleigh, NC 27606. The confidential source
met with [d]etectives prior to making the controlled
purchase of heroin. The confidential source and his/her
vehicle were searched for any illegal contraband. There
was none located. The confidential source was provided
with a sum of money from the Raleigh Police Department’s
informant funds. The confidential source arranged to meet
a middle man prior to going to 3988 Neeley St[.] Raleigh,
NC 27606. Detectives[] maintained constant surveillance
on the confidential source while traveling to meet the
middle man. Once the source met with the middle man,
they traveled to 3988 Neeley St[.] Raleigh, NC 27606. The
middle man was observed entering 3988 Neeley St[.]
Raleigh, NC 27606 and returning to the source
approximately three minutes later. Based on my training
and experience, this was indicative of drug trafficking
activity. The source met with me at a pre-determined meet
location after the middle man was returned to his
residence. The source provided me with a quantity of
heroin. The source and his/her vehicle was searched again
for any illegal contraband. There was none located. A small
sample of the heroin field tested positive for heroin.
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STATE V. FREDERICK
Opinion of the Court
While conducting surveillance during the controlled
buy of heroin, two males were observed entering 3988 Neeley
St[.] Raleigh, NC 27606. The two individuals exited 3988
Neeley St[.] Raleigh, NC 27606 approximately two minutes
later and returned to their vehicle. Based on my training
and experience, this was indicative of drug trafficking
activity.
(Emphasis added).
This search warrant was granted by a magistrate, and officers executed it at
the residence. More than 4.0 grams of heroin, 3.4 grams of MDMA, drug packaging
materials, and $600.00 in cash were discovered in the residence. Officers observed
Defendant leaving his residence with a Crown Royal bag, and detained him a short
time later in his vehicle. Officers found heroin packaged for sale and more than
$2,500.00 in cash in the Crown Royal bag located in the vehicle.
Defendant was arrested and charged with trafficking heroin, maintaining a
dwelling for keeping or selling controlled substances, and possession of MDMA. The
Wake County Grand Jury indicted Defendant on June 1, 2015 for trafficking in heroin
by possession, maintaining a dwelling for keeping or selling controlled substances,
and possession with intent to sell or deliver a Schedule I controlled substance.
Defendant filed a motion to suppress evidence obtained from the searches prior
to trial in Wake County Superior Court. In his motion, Defendant conceded that
during the first transaction, the middleman “entered the residence and
approximately three minutes later came out with what appeared to be a Molly.” For
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STATE V. FREDERICK
Opinion of the Court
the second transaction, Defendant conceded that the middleman “entered the
residence and returned in approximately three minutes with what appeared to be
heroin.” Defendant presented no evidence to support his motion, simply arguing the
search warrant was facially insufficient. The trial court denied Defendant’s motion,
finding there was no conflict in the information provided in Detective Ladd’s
application for the search warrant, and the affidavit was sufficient to establish
probable cause and justify issuance of the search warrant by the magistrate.
Defendant was convicted of trafficking in heroin by possession, maintaining a
dwelling for keeping or selling controlled substances, and possession with intent to
sell or deliver a Schedule I controlled substance. He was sentenced to a term of
seventy to ninety-three months in prison. It is from the order denying his motion to
suppress that Defendant timely appeals.
Standard of Review
“[A] reviewing court is responsible for ensuring that the issuing magistrate had
a substantial basis for concluding that probable cause existed.” State v. McKinney,
368 N.C. 161, 165, 775 S.E.2d 821, 825 (2015) (citation, quotation marks, brackets,
and ellipses omitted). Our Supreme Court has stated, “[t]he applicable test is
whether, given all the circumstances set forth in the affidavit before the magistrate,
. . . there is a fair probability that contraband . . . will be found in a particular place.”
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STATE V. FREDERICK
Opinion of the Court
State v. Riggs, 328 N.C. 213, 218, 400 S.E.2d 429, 432 (1991) (citation and brackets
omitted).
Analysis
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no warrants shall
issue but upon probable cause, supported by oath or
affirmation and particularly describing the place to be
searched and the persons or things to be seized.
U.S. Const. amend. IV. “Article I, Section 20 of the Constitution of North Carolina
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,
303 (2016). “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)
(citation omitted).
The quantum of proof required to establish probable cause is different than
that required to establish guilt. Draper v. United States, 358 U.S. 307, 311-12, 3 L.
Ed. 2d 327, 331 (1959). “Probable cause requires not certainty, but only a probability
or substantial chance of criminal activity.” McKinney, 368 N.C. at 165, 775 S.E.2d at
825 (emphasis in original) (citation and quotation marks omitted). “[The] standard
for determining probable cause is flexible, permitting the magistrate to draw
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Opinion of the Court
‘reasonable inferences’ from the evidence . . . .” Id. at 164, 775 S.E.2d at 824-25
(citation omitted).
To determine if probable cause exists, we look at the totality of the
circumstances known to the magistrate at the time the search warrant was issued.
State v. Arrington, 311 N.C. 633, 638, 643, 319 S.E.2d 254, 257, 261 (1984); see Illinois
v. Gates, 462 U.S. 213, 76 L. Ed. 2d 527, reh'g denied, 463 U.S. 1237, 77 L. Ed. 2d
1453 (1983). This test asks “whether the evidence as a whole provides a substantial
basis for concluding that probable cause exists.” State v. Williams, 319 N.C. 73, 81,
352 S.E.2d 428, 434 (1987). In applying this test, “great 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.” Arrington, 311 N.C. at 638, 319 S.E.2d at 258.
As stated above, an affidavit is sufficient to establish probable cause “if it
supplies reasonable cause to believe that the proposed search for evidence probably
will reveal the presence upon the described premises of the items sought and that
those items will aid in the apprehension or conviction of the offender.” Id. at 636, 319
S.E.2d at 256 (emphasis added) (citation omitted). Our Supreme Court noted that
federal courts have found “direct evidence linking the crime to the location to be
searched is not required to support a search warrant . . . .” Allman, 369 N.C. at 297,
794 S.E.2d at 305.
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STATE V. FREDERICK
Opinion of the Court
In State v. Riggs, the search warrant application provided that law
enforcement officers obtained information from a confidential informant that the
defendant was selling marijuana. Riggs, 328 N.C. at 214, 400 S.E.2d at 430. Officers
used two different confidential informants to set up two drug transactions with the
defendant. Id. at 214-15, 400 S.E.2d at 430. Prior to meeting a middleman, officers
searched the confidential informant and his vehicle, provided him with money to
purchase drugs, and equipped him with a recording device. Id. at 214, 400 S.E.2d at
430. The confidential informant met the middleman, and the two went to defendant’s
residence, where the middleman purchased drugs from defendant. Id. at 215, 400
S.E.2d at 431. A similar transaction with a separate confidential source was
undertaken approximately one month prior. Id. at 215, 400 S.E.2d at 430. Our
Supreme Court upheld the magistrate’s determination of probable cause, stating:
Where, as here, information before a magistrate indicates
that suspects are operating, in essence, a short-order
marijuana drive-through on their premises, the logical
inference is that a cache of marijuana is located somewhere
on those premises; that inference, in turn, establishes
probable cause for a warrant to search the premises,
including the residence.
Id. at 221, 400 S.E.2d at 434.
The only practical difference between Riggs and the case sub judice was the
use of a recording device by the confidential informant. However, the Riggs Court
focused its discussion of probable cause, not on the communication between the
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STATE V. FREDERICK
Opinion of the Court
middleman and the confidential source, but rather on the officers’ experience, the
conduct of the middleman, and the reasonable inferences drawn from the officers’
observations. Id. at 219-21, 400 S.E.2d at 433-34.
Here, Detective Ladd received information from a reliable confidential source
regarding a mid-level drug dealer who sold MDMA, heroin, and crystal
methamphetamine. The confidential source had previously provided truthful
information that Detective Ladd could corroborate, and the confidential source was
familiar with the packaging and sale of MDMA, heroin, and crystal
methamphetamine.
The same confidential source had assisted Detective Ladd with the purchase
of MDMA one week prior to issuance of the search warrant. At the time of that
purchase, Detective Ladd provided the confidential source with money to purchase
MDMA, and he searched the confidential source and his vehicle prior to any
interaction with the middleman. The confidential source met the middleman prior to
going to Defendant’s residence, and “[d]etectives[] maintained constant surveillance
on the confidential source while traveling to meet the middle man.” The confidential
source and the middleman then traveled to Defendant’s residence. Detectives
observed the middleman enter Defendant’s residence and return to the confidential
source after approximately two minutes in Defendant’s house. Detective Ladd swore
in his affidavit that this conduct “was indicative of drug trafficking activity” based on
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STATE V. FREDERICK
Opinion of the Court
his training and experience. The middleman returned to his residence, and the
confidential source met Detective Ladd. The confidential source provided him with
MDMA, and no other contraband was found on the confidential source or in his
vehicle.
A subsequent purchase of heroin took place seventy-two hours prior to issuance
of the search warrant. The details of that drug transaction are nearly identical to
those set forth above, except the middleman was in Defendant’s residence for
approximately three minutes. Further, while observing the second transaction,
Detective Ladd saw two males enter Defendant’s residence and exit approximately
two minutes later. Detective Ladd again indicated that the conduct he observed on
this occasion was “indicative of drug trafficking activity” based on his training and
experience.
On two occasions, Detective Ladd personally observed his confidential source
meet the middleman and travel to Defendant’s residence, where the middleman
entered and exited shortly thereafter. The confidential source, who had been
searched and supplied with money to purchase controlled substances, provided
Detective Ladd with MDMA and heroin after his interaction with the middleman.
Detective Ladd also observed other traffic in and out of Defendant’s residence.
Detective Ladd’s experience and personal observations set forth in the affidavit were
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STATE V. FREDERICK
Opinion of the Court
sufficient to establish probable cause to believe that controlled substances would
probably be found in Defendant’s residence.
Based on Detective Ladd’s training and experience, the conduct of the
middleman, and Detective Ladd’s personal observations, the magistrate here could
reasonably infer that the middleman obtained MDMA and heroin from Defendant’s
residence. Further, the magistrate could reasonably infer that there would probably
be additional controlled substances at that location. Moreover, the magistrate could
reasonably infer that the middleman did not have the MDMA or heroin in his
possession when he met the confidential source, and his purpose in traveling to
Defendant’s residence was to obtain the controlled substance the confidential source
supplied to Detective Ladd. Based on the totality of the circumstances, the
magistrate had a substantial basis for concluding probable cause existed to believe
controlled substances were located on the premises of 3988 Neeley Street in Raleigh.
Conclusion
As our Supreme Court has stated, “[t]he resolution of doubtful or marginal
cases in this area should be largely determined by the preference to be accorded to
warrants.” Riggs, 328 N.C. at 222, 400 S.E.2d at 435 (emphasis added) (citations and
quotation marks omitted). That reasonable minds could disagree, as shown by the
dissent, demonstrates that this may be a marginal case. As such, the magistrate’s
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STATE V. FREDERICK
Opinion of the Court
probable cause determination is upheld and the trial court’s denial of Defendant’s
motion to suppress is affirmed.
AFFIRMED.
Judge DAVIS concurs.
Judge ZACHARY dissents with separate opinion.
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No. COA17-370 – State v. Frederick
ZACHARY, Judge, dissenting
The Fourth Amendment functions at its core to prohibit the government from
subjecting its citizens to unreasonable searches and seizures. The existence of a
warrant supported by probable cause protects this right, but only if it is inherently
dependable. E.g., Brinegar v. United States, 338 U.S. 160, 175, 93 L. Ed. 1879, 1890
(1949). Because of the lack of information concerning the reliability of the unknown
middleman, the lack of detail regarding the controlled purchases, and the lack of
independently corroborated facts contained in the affidavit, probable cause to search
defendant’s home was not established, and I respectfully dissent.
I.
The majority quotes State v. Riggs and insists that our inquiry today is limited
to determining “whether, given all the circumstances set forth in the affidavit before
the magistrate, . . . there is a fair probability that contraband . . . will be found in a
particular place.” 328 N.C. 213, 218, 400 S.E.2d 429, 432 (1991) (citations and
quotation marks omitted). The full scope of this Court’s review, however, is “whether,
given all the circumstances set forth in the affidavit before the magistrate, including
veracity and basis of knowledge of persons supplying hearsay information, there is a
fair probability that contraband . . . will be found in a particular place.” Riggs, 328
N.C. at 218, 400 S.E.2d at 432 (citations and quotation marks omitted) (emphasis
added). Probable cause to search “exists where ‘the facts and circumstances within .
. . the officers’ knowledge, and of which they had reasonably trustworthy information,
STATE V. FREDERICK
ZACHARY, J., dissenting
are sufficient in themselves to warrant a man of reasonable caution in the belief that’
an offense has been or is being committed.” Brinegar, 338 U.S. at 175-76, 93 L. Ed.
at 1890 (quoting Carroll v. United States, 267 U.S. 132, 162, 69 L. Ed. 543, 555 (1925))
(alterations omitted). The requirement that an inquiry be conducted into the
“veracity and basis of knowledge of persons supplying hearsay information” provides
the degree of reliability necessary to protect the security of citizens in their homes
from the unwarranted intrusion of the government long contemplated by the
Constitution. This is the basis of my dissent.
II.
In the instant case, the only information contained in the affidavit supporting
the application for search warrant that ties this defendant’s home to the sale of
narcotics was the hearsay information related to the two controlled purchases. An
unidentified “middleman” conducted the controlled purchases rather than the
confidential informant, and no basis was provided which would justify reliance on the
middleman. Nevertheless, in holding that the magistrate had a substantial basis for
concluding that probable cause existed, the majority focuses on Detective Ladd’s
experience and his report that:
[o]n two occasions, Detective Ladd personally observed his
confidential source meet the middleman and travel to
Defendant’s residence, where the middleman entered and
exited shortly thereafter. The confidential source, who had
been searched and supplied with money to purchase
controlled substances, provided Detective Ladd with
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STATE V. FREDERICK
ZACHARY, J., dissenting
MDMA and heroin after his interaction with the
middleman. Detective Ladd also observed other traffic in
and out of the residence.
This statement establishes merely that the unknown middleman entered
defendant’s home, and that the confidential informant provided law enforcement
officers with drugs at some time thereafter. Under this analysis, the focus is on the
drugs that the confidential informant delivered to the officers, which ostensibly were
acquired inside Defendant’s home. Without that connection, there can be no probable
cause.
III.
To be sure, the facts provided in an application for a search warrant need not
always have been personally observed or obtained by a law enforcement officer in
order to support a finding of probable cause. Information gleaned from a third-party
may support a finding of probable cause. Jones v. United States, 362 U.S. 257, 269,
4 L. Ed. 2d 697, 707 (1960). In the context of third-party information, however, the
totality of the circumstances test requires that the nature of the third-party
information “be such that a reasonably discreet and prudent person would rely upon
[it.]” State v. Arrington, 311 N.C. 633, 636, 319 S.E.2d 254, 256-57 (1984); see also
Illinois v. Gates, 462 U.S. 213, 238, 76 L. Ed. 2d 527, 548 (1983); State v. Johnson,
143 N.C. App. 307, 310, 547 S.E.2d 445, 448 (2001). Accordingly, where an officer
applies for a search warrant in reliance upon information that was supplied by a
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ZACHARY, J., dissenting
third-party, probable cause demands an analysis of whether there is “a substantial
basis for crediting the hearsay[.]” Jones, 362 U.S. at 269, 4 L. Ed. 2d at 707; see also
Alabama v. White, 496 U.S. 325, 328, 110 L. Ed. 2d 301, 308 (1990) (“[A]n informant’s
‘veracity,’ ‘reliability,’ and ‘basis of knowledge’ . . . remain ‘highly relevant in
determining the value of [the officer’s] report.’ ”) (quoting Gates, 462 U.S. at 230, 76
L. Ed. 2d at 543); Arrington, 311 N.C. at 643, 319 S.E.2d at 261 (adopting Gates
regarding “the sufficiency of probable cause to support the issuance of a search
warrant”).
There are various factors relevant to the determination of whether there is a
substantial basis for crediting third-party information. A recurrent consideration is
whether the tip is accompanied by statements in the affidavit establishing that the
informant is a reliable source. See e.g., Riggs, 328 N.C. at 219, 400 S.E.2d at 433.
The affiant’s statement that the informant has provided law enforcement officers
with accurate information in the past is usually sufficient to establish the informant’s
reliability under this standard. E.g., id. at 218, 400 S.E.2d at 432 (“[T]he informant
. . . had made two prior controlled purchases of drugs and also previously had given
accurate information which resulted in the arrest of a ‘narcotics violator.’ Such
evidence established that informant’s reliability.”).
In contrast, probable cause is more difficult to satisfy under the totality of the
circumstances test where the information supporting an officer’s application for
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ZACHARY, J., dissenting
search warrant was provided by an unverified or an anonymous source. In such a
case, additional indicia of reliability must be present. See Gates, 462 U.S. at 237-38,
244, 76 L. Ed. 2d at 548, 552. A tip that was provided by an anonymous source will
often be unable to satisfy the requisite indicia of reliability without a generous level
of detail, or without essential facts that law enforcement officers were able to
independently corroborate. See e.g., White, 496 U.S. at 329, 110 L. Ed. 2d at 308(“Some tips, completely lacking in indicia of reliability, would . . . require further
investigation before a [search] would be authorized[.]”) (citation and quotation marks
omitted); State v. Trapp, 110 N.C. App. 584, 588-89, 430 S.E.2d 484, 487-88 (1993).
The extent of the details provided in the tip and the officer’s ability to corroborate the
information will factor considerably into the totality of the circumstances to be
reviewed. Gates, 462 U.S. at 241-42, 245, 76 L. Ed. 2d at 550-51, 552.
Likewise, where law enforcement officers apply for a search warrant based
upon information gleaned from a controlled purchase that was executed by a third-
party informant, the reliability of the controlled purchase itself must be analyzed in
order to determine whether it was sufficient to support a finding of probable cause.
Relevant indicia of reliability often include statements in the affidavit that either: (1)
the source was reliable; (2) the source was searched for drugs immediately before and
after the controlled purchase; (3) the source wore a hidden video or audio surveillance
device during the controlled purchase; or (4) law enforcement officers observed the
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STATE V. FREDERICK
ZACHARY, J., dissenting
source engaging in the hand-to-hand sale with the defendant. See e.g., Riggs, 328
N.C. at 214-16, 400 S.E.2d at 430-31; State v. Stokley, 184 N.C. App. 336, 341, 646
S.E.2d 640, 644 (2007). Where such protective measures are taken, this Court has
generally held that information obtained from a controlled purchase was sufficiently
reliable under the totality of the circumstances to support the issuance of a search
warrant. See e.g., Stokley, 184 N.C. App. at 341, 646 S.E.2d at 644; Johnson, 143
N.C. App. at 311, 547 S.E.2d at 448; Cf. State v. Collins, 216 N.C. App. 249, 250, 716
S.E.2d 255, 255-56 (2011). Where such protective measures are circumvented,
however, the courts become more concerned with the satisfaction of the constitutional
requisites for issuance of a search warrant.
The reliability of a controlled purchase must be particularly scrutinized by
magistrates where the reliability of the source of the operation cannot be shown. In
such a case, a greater level of detail or independent corroboration must be present in
order for the operation to support a finding of probable cause. See State v. Brody, ___
N.C. App. ___, ___, 796 S.E.2d 384, 388 (2017) (“The 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.”) (citation and quotation
marks omitted) (alteration omitted).
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STATE V. FREDERICK
ZACHARY, J., dissenting
IV.
While controlled purchases are often employed as a means to independently
corroborate an anonymous tip, in the instant case, the operations are themselves the
subject of the anonymity. Thus, the pertinent question is whether the controlled
purchases offer sufficient indicia of reliability to support a finding of probable cause
under the totality of the circumstances.
As the majority notes, the reliability of a narcotics operation that was
conducted by an anonymous or unknown source has been addressed by this Court on
only one prior occasion, in State v. Riggs. A comprehensive analysis of Riggs is
necessary in order to understand its application to the instant case.
In Riggs, the application for search warrant provided that law enforcement
officers had obtained information from a confidential informant that the defendant
Bobby Riggs was selling narcotics. Riggs, 96 N.C. App. 595, 386 S.E.2d 599 (1989),
rev’d, Riggs, supra. The confidential informant himself was shown to be reliable and,
thus, so too was his tip. In light of that reliable tip, the officers subsequently
conducted a controlled purchase in which the confidential informant arranged for an
unwitting middleman to purchase narcotics from the defendant Bobby Riggs. Riggs,
328 N.C. at 214, 400 S.E.2d at 430. The confidential informant was searched before
and after the operation and was equipped with an audio surveillance device during
his interactions with the middleman. Id. As officers watched, the middleman
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ZACHARY, J., dissenting
traveled by himself to the residence of defendants Bobby and Pamela Riggs and
purchased narcotics from defendant Bobby Riggs outside in the driveway. Id. at 214-
16, 400 S.E.2d at 430-31. The middleman then returned to his home and gave the
narcotics to the confidential informant. Id.On appeal from the trial court’s denial of the defendants’ motions to suppress,
this Court concluded, in part, that a controlled purchase conducted outside of the
defendants’ home was insufficient to establish probable cause that narcotics would
be found inside the home. Riggs, 96 N.C. App. at 598, 386 S.E.2d at 601. Our
Supreme Court reversed and concluded that, because the magistrate was simply
required to make a “common sense determination” of whether there was a fair
probability that narcotics would be found in the home, the fact that the defendant
had conducted the sale in the driveway to his home was sufficient to support the
magistrate’s finding of probable cause that narcotics would also be found inside the
home. Riggs, 328 N.C. at 220-21, 400 S.E.2d at 434.
The majority maintains that “[t]he only practical difference between Riggs and
the case sub judice was the use of a recording device by the confidential informant[.]”
This distinction is, by itself, significant. However, it is also not the “only practical
difference” involved. While the existence of the audio recordings alone certainly could
have been sufficiently corroborative to support a finding of probable cause from the
operation, the officers in Riggs were provided with reliable information tying the
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ZACHARY, J., dissenting
defendants to drug trafficking from the start. Id. at 215, 400 S.E.2d at 430. Thus,
the controlled purchase in Riggs was both corroborated and corroborative. The
combination of these factors provides the underpinning for our Supreme Court’s
determination in Riggs that the information in the affidavit was sufficient to support
the magistrate’s finding of probable cause. The initial suspicions were corroborated
by the tips, the tips were corroborated by the controlled purchase, and the controlled
purchase was corroborated by its own separate indicia of reliability.
The same cannot be said here. Although the confidential informant’s veracity
was established by his history of reliability with law enforcement, the confidential
informant did not accompany the middleman into defendant’s home. The confidential
informant did not observe the alleged drug transactions taking place, nor is this a
case in which any hand-to-hand transactions were observed by law enforcement
officers. Cf. Stokley, 184 N.C. App. at 340-41, 646 S.E.2d at 644. Further, the
affidavit does not contain information implicating defendant’s home from the outset,
such as, for example, that the confidential informant had claimed to have purchased
narcotics from defendant in the past. Cf. id. The middleman was not searched before
or after the alleged purchases, and the confidential informant was not searched after
he met privately with the middleman before traveling to defendant’s home. The
confidential informant did not wear an audio or video surveillance device during his
interactions with the unknown middleman.
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ZACHARY, J., dissenting
The existence of any one of these safeguards would have helped to establish
the reliability of the operations. However, no further details concerning the events
inside defendant’s home are provided. Rather, the only corroboration provided in the
affidavit is the fact that the middleman and two other individuals were observed
entering defendant’s residence. This alone is wholly insufficient to establish probable
cause in the instant case. E.g., State v. Ford, 71 N.C. App. 748, 752, 323 S.E.2d 358,
361 (1984); State v. Hunt, 150 N.C. App. 101, 107, 562 S.E.2d 597, 601 (2002). Beyond
the middleman having entered defendant’s home, the affidavit sets forth no basis to
otherwise justify law enforcement officers’ or the magistrate’s reliance on the
assumption that the unknown middleman purchased the narcotics while he was
inside.
While probable cause may indeed be established where the reliability of the
source of an operation is wanting, such is the case only where the operation itself
furnishes highly detailed information, or where the presumptions gathered from the
operation have been independently corroborated. Gates, 462 U.S. at 234, 76 L. Ed.
2d at 545. The reliability of the operation must be strong enough to compensate for
lack of reliability of the source. Absent any such corroboration or additional detail,
the essence of the affidavit in the case at bar established at most that the unknown
middleman claimed to have purchased the drugs when he was inside defendant’s
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STATE V. FREDERICK
ZACHARY, J., dissenting
home. I do not believe that it is constitutionally permissible for the officers or the
magistrate to take an unknown middleman at his word, and I will not do so.
***
I am reluctant to allow an affidavit describing the anonymous purveyance of
narcotics, and otherwise lacking in detail or corroboration, to serve as the primary
justification for an intrusion into a private residence, “the most highly protected of
all places under the Fourth Amendment[.]” Riggs, 328 N.C. at 222, 400 S.E.2d at
435. In upholding the issuance of the search warrant in the instant case, despite the
insufficiency of the initial information leading to the operations and despite the use
of a middleman whose identity and veracity remain a mystery, I fear that the majority
has created a dangerous precedent allowing for the issuance of search warrants upon
a finding of less than probable cause. I would hold that, given the unusual facts of
this case together with the absence of safeguards and indicia of reliability that are
typically present in a controlled purchase, the application for a search warrant was
insufficient to support the magistrate’s finding of probable cause.
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