State v. Lewis , 372 N.C. 576 ( 2019 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 140PA18
Filed 16 August 2019
STATE OF NORTH CAROLINA
v.
ROBERT DWAYNE LEWIS
On discretionary review pursuant to N.C.G.S. § 7A-31 of a consolidated appeal
from two decisions of the Court of Appeals, one a published opinion reported at 816
S.E.2d 212 (N.C. Ct. App. 2018), vacating and remanding judgments entered on 7
February 2017 by Judge Richard T. Brown in Superior Court, Hoke County, and the
other an unpublished opinion reported at 812 S.E.2d 730 (N.C. Ct. App. 2018),
vacating and remanding judgments entered on 6 April 2017 by Judge Kendra D. Hill
in Superior Court, Johnston County. Heard in the Supreme Court on 13 May 2019 in
session in the Halifax County Courthouse in the Town of Halifax pursuant to section
18B.8 of Chapter 57 of the 2017 Session Laws of the State of North Carolina.
Joshua H. Stein, Attorney General, by Milind Dongre, Assistant Attorney
General, for the State-appellant/appellee.
Glenn Gerding, Appellate Defender, by Kathryn L. VandenBerg, Assistant
Appellate Defender, for defendant-appellant/appellee.
DAVIS, Justice.
This case presents the unique circumstances of an officer possessing
information that would suffice to establish probable cause for the issuance of a search
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Opinion of the Court
warrant but failing to include pertinent portions of this information in his affidavit
in support of the warrant. Because we conclude that the omission of key facts in the
search warrant application in this case resulted in a lack of probable cause for the
issuance of the search warrant for either defendant’s residence or vehicle, we affirm
in part and reverse in part the decision of the Court of Appeals.
Factual and Procedural Background
On 21 September 2014, a man armed with a handgun and wearing dark
clothing and a blue piece of cloth covering his face entered a Family Dollar store in
Hoke County. The man told a store employee to take the money from the store’s safe,
place the money in a bag, and give the bag to him. After the employee complied with
his demand, the man told her to go into the bathroom and stay there until he had
exited the store. A witness outside the store saw the man flee the scene in a dark blue
Nissan Titan pickup truck.
A similar robbery occurred at a Dollar General store in Hoke County on 26
September 2014. On that occasion, as two employees were closing the store, a man
holding a handgun and wearing dark clothing and a blue face covering approached
them. He directed the employees to empty the money from the safe and cash registers
into a bag and give it to him. The suspect then ordered the employees to enter the
bathroom and remain there until he left the store.
Two days later, on 28 September, a third robbery took place at another Dollar
General store in Hoke County. A man armed with a handgun and wearing dark
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Opinion of the Court
clothing and a blue face covering ordered store employees to give him the money in
the store’s safe. Upon obtaining the money, the man ordered the employees to go into
the bathroom and then fled the premises. Law enforcement officers did not receive a
description of the vehicle driven by the suspect for either the 26 September or 28
September robberies.
A fourth robbery took place during the early morning hours of 19 October 2014
at a Sweepstakes store in Smithfield in nearby Johnston County. A man armed with
a handgun wearing dark clothing and a blue face covering forced an employee to
retrieve money from the store’s safe. As he exited the store, the man was recognized
and identified as defendant Robert Dwayne Lewis by a Smithfield police officer who
was familiar with him from a previous encounter. Defendant fled the scene in a dark
gray Kia Optima. Law enforcement officers subsequently engaged in a high-speed
pursuit but were unable to apprehend defendant during the chase.
That same day, officers from the Smithfield Police Department notified the
Hoke County Sheriff’s Office of the Sweepstakes store robbery and asked that
deputies be on the lookout for a dark gray Kia Optima being driven by defendant. The
officers also provided the license plate number of the Kia Optima and informed the
Sheriff’s Office that the address associated with the Kia Optima’s registration was
7085 Laurinburg Road in Raeford, North Carolina.
Shortly after beginning his shift at 7:00 a.m. on 19 October 2014, Deputy Tim
Kavanaugh of the Hoke County Sheriff’s Office drove past the residence located at
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7085 Laurinburg Road. He observed a blue Nissan Titan truck parked in the yard in
front of the home. Deputy Kavanaugh did not, however, see a Kia Optima matching
the description of the vehicle observed in connection with the Smithfield robbery
earlier that morning.
Deputy Kavanaugh then continued with his normal patrol duties. He drove
back by the home at 7085 Laurinburg Road at approximately 1:00 p.m. on that same
day. At that time, Deputy Kavanaugh saw a dark gray Kia Optima parked in the yard
in front of the house in addition to the Nissan Titan that he had previously observed.
He then parked across the street from the home “[t]o see if [he] could possibly identify
anybody coming from the residence . . . or . . . one of the vehicles leaving from the
residence.”
Shortly thereafter, a man matching the suspect’s description exited the house
and walked to the residence’s mailbox across the street. Deputy Kavanaugh
approached the man and asked him for his name. The man identified himself as
Robert Lewis, after which Deputy Kavanaugh immediately placed him under arrest.
After arresting defendant, Deputy Kavanaugh approached the residence and
spoke to Waddell McCollum, defendant’s stepfather, on the front doorstep of the
home. McCollum informed Deputy Kavanaugh that defendant lived at the residence.
He further stated that defendant owned the Kia Optima and that, although
McCollum owned the Nissan Titan, defendant also drove that vehicle on occasion.
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When he finished speaking to McCollum, Deputy Kavanaugh walked over to
the Kia Optima parked in the front yard “and looked inside of the passenger area, the
rear of the vehicle, and observ[ed] in plain sight a BB&T money bag on the passenger
floor of the vehicle.” Deputy Kavanaugh also saw dark clothing in the back seat of the
Kia.
Following defendant’s arrest, Detective William Tart of the Hoke County
Sheriff’s Office—who had been investigating the three Hoke County robberies—
prepared a search warrant application seeking permission to search the residence at
7085 Laurinburg Road as well as the Nissan Titan and Kia Optima parked in front
of the home. The sworn affidavit accompanying Detective Tart’s search warrant
application described in detail the 21 September, 26 September, and 28 September
2014 Hoke County robberies as well as the 19 October 2014 Johnston County robbery.
The affidavit noted the similarities between the four robberies as to both the clothing
worn by the robber and the manner in which the crimes were carried out. The
affidavit also stated that Smithfield police officers had identified defendant as the
perpetrator of the 19 October 2014 robbery and that he had been arrested at the 7085
Laurinburg Road residence. The affidavit, however, failed to (1) disclose that
defendant lived at 7085 Laurinburg Road, (2) contain any other information linking
defendant to that address, (3) describe the circumstances surrounding his arrest at
that address, or (4) mention Deputy Kavanaugh’s interactions with defendant or his
stepfather.
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With regard to the vehicles, the affidavit stated that defendant had driven
away from the 21 September Hoke County robbery in a dark blue Nissan Titan and
that he had fled the scene of the 19 October Johnston County robbery in a Kia Optima.
The affidavit further related that a dark blue Nissan Titan “was observed at the
residence of 7085 Laurinburg Road . . . on October 19, 2014 by Hoke County Patrol
Deputies when serving a felony arrest warrant on [defendant].” The affidavit did not
mention the fact that Deputy Kavanaugh had also seen a Kia Optima parked in front
of the residence. Nor did it relate that the deputy had seen potentially incriminating
evidence upon looking into the window of the Kia Optima.
An unsworn attachment to the search warrant application listed a “dark blue
Nissan Titan pick-up truck” and a “gray 2013 Kia Optima EX four door car” among
the property to be searched by law enforcement officers if the warrant was issued.
This attachment also contained registration information and a VIN number for each
vehicle. Based upon the information provided in Detective Tart’s affidavit, a
magistrate issued a search warrant for the 7085 Laurinburg Road residence, the
Nissan Titan, and the Kia Optima.
Detective Tart executed the search warrant on 19 October 2014. He seized
various items of evidence that were located inside the Kia Optima. These items
included the BB&T bank bag that Deputy Kavanaugh had previously viewed through
the window of the vehicle, which contained receipts and other documents connected
to the Smithfield robbery. Detective Tart also seized a blue helmet liner that was
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consistent with the face covering worn by the suspect and a rusty handgun from the
Kia.1
On 21 September 2015, defendant was indicted by a Hoke County grand jury
on three counts of robbery with a dangerous weapon, five counts of second-degree
kidnapping, and one count of attempted robbery with a dangerous weapon.2 He was
indicted on 5 October 2015 by a Johnston County grand jury on charges of robbery
with a dangerous weapon and two counts of second-degree kidnapping. A second
Johnston County grand jury subsequently indicted him on 2 November 2015 for
common law robbery.3
On 2 March 2016, defendant filed motions to suppress in both the Superior
Court, Hoke County and the Superior Court, Johnston County in which he sought to
exclude evidence obtained during the execution of the search warrant by Detective
Tart. In his motion, he argued that the evidence should be suppressed on the grounds
that (1) an “insufficient connection” existed “between the items sought and property
to be searched,” and (2) the search of the Kia Optima was not permissible under the
plain view doctrine.
The record is unclear as to the nature of the evidence discovered by Detective Tart
1
during his search of the residence or the Nissan Titan.
Defendant’s indictment for attempted robbery with a dangerous weapon stemmed
2
from a separate incident that allegedly occurred on 9 September 2014.
The indictment for common law robbery was based on a separate incident alleged to
3
have occurred on 30 August 2014.
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Defendant’s motion to suppress was heard on 7 April 2016 in Superior Court,
Hoke County before the Honorable Tanya T. Wallace. Both Deputy Kavanaugh and
Detective Tart testified at the hearing. During his testimony, Deputy Kavanaugh
related that he traveled to the Laurinburg Road residence on 19 October 2014 in
response to a report from Johnston County law enforcement officers that a possible
suspect living at that location had been seen fleeing the scene of the Smithfield
robbery in a Kia Optima. He further testified that the report provided a description
of the suspect as well as his name (identifying him as defendant) and address. Deputy
Kavanaugh also stated that while on the premises of the residence, he spoke with
defendant’s stepfather, who confirmed that defendant lived at 7085 Laurinburg Road.
Deputy Kavanaugh testified that following his conversation with defendant’s
stepfather, he observed dark clothing and a BB&T bank bag through the window of
the Kia Optima.
On 10 June 2016, the trial court entered an order denying defendant’s motion
to suppress. In its order, the court concluded that the affidavit in support of Detective
Tart’s search warrant application sufficiently established probable cause to support
the magistrate’s issuance of a warrant authorizing a search of the 7085 Laurinburg
Road residence, the Nissan Titan, and the Kia Optima. The court further ruled that
“[n]otwithstanding the affidavit of probable cause to search the Kia,” the evidence
viewed by Deputy Kavanaugh through the window of the Kia Optima before issuance
of the search warrant was lawfully obtained under the plain view doctrine.
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On 7 February 2017, defendant entered an Alford plea in Superior Court, Hoke
County as to all the charges for which he had been indicted in that county but
expressly preserved his right to appeal the denial of his motion to suppress. The
Honorable Richard T. Brown sentenced him to three consecutive terms of 103 to 136
months of imprisonment. Defendant gave timely notice of appeal from the Hoke
County judgments to the Court of Appeals.
On 6 April 2017, defendant entered an Alford plea in Superior Court, Johnston
County to the charges for which he had been indicted in that venue. He once again
preserved his right to appeal the denial of his motion to suppress.4 The Honorable
Kendra D. Hill sentenced him to terms of imprisonment of 103 to 136 months for his
robbery with a dangerous weapon conviction, 50 to 72 months for each second-degree
kidnapping conviction, and 25 to 39 months for his common law robbery conviction—
all to be served consecutively. Defendant filed a timely notice of appeal from the
Johnston County judgments to the Court of Appeals.
In the Court of Appeals, defendant argued that Judge Wallace erred by
denying his motion to suppress because (1) the search warrant affidavit submitted by
Detective Tart was insufficient to establish probable cause to search either the home
at 7085 Laurinburg Road or the two vehicles parked in front of the residence, and (2)
4 No separate order was entered in the Superior Court, Johnston County matter in
connection with defendant’s motion to suppress. Instead, it appears from the record that
Judge Wallace’s order was made a part of the court file in the Johnston County case.
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the plain view doctrine did not permit the search of the Kia Optima. On 1 May 2018,
the Court of Appeals issued two opinions regarding defendant’s separate appeals from
the Hoke County and Johnston County judgments. A published opinion, State v.
Lewis, 816 S.E.2d 212 (N.C. Ct. App. 2018) (Lewis I), addressed defendant’s Hoke
County appeal, and an unpublished opinion, State v. Lewis, 812 S.E.2d 730, 2018 WL
2016031 (N.C. Ct. App. 2018) (unpublished) (Lewis II), addressed his Johnston
County appeal.
In its published opinion, the Court of Appeals held that the affidavit supporting
Detective Tart’s search warrant application was sufficient to establish probable cause
to search the Nissan Titan and Kia Optima parked in front of the residence but was
insufficient to establish probable cause to search the dwelling itself. Lewis I, 816
S.E.2d at 213. With regard to its conclusion that the search warrant affidavit did not
establish probable cause to search the home, the Court of Appeals noted that the
affidavit failed to state that defendant resided at 7085 Laurinburg Road. Id. at 217.
The Court of Appeals further reasoned that, based solely upon the information
contained in the affidavit, “7085 Laurinburg Road could have been . . . someone else’s
home with no connection to Lewis at all. That Lewis visited that location, without
some indication that he may have stowed incriminating evidence there, is not enough
to justify a search of the home.” Id.
With regard to the vehicles, the Court of Appeals held that probable cause
existed for the issuance of the warrant because Detective Tart’s affidavit “contained
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enough information, together with reasonable inferences drawn from that
information, to establish a substantial basis to believe that the evidence sought
probably would be found in the blue Nissan Titan and Kia Optima located at 7085
Laurinburg Road.” Id. at 216. The Court of Appeals explained its reasoning as follows:
There was evidence that the same suspect committed four
robberies, the first while driving a dark blue Nissan Titan
and the fourth while driving a Kia Optima. Later on the
same day of the fourth robbery, officers arrested Lewis.
When they located him they saw—of all the makes, models,
and colors of all the vehicles in the world—a dark blue
Nissan Titan, matching the description of the vehicle used
in the first robbery. These facts were more than sufficient
for the magistrate to conclude that, if officers returned to
that location and found a dark blue Nissan Titan and Kia
Optima there, there was probable cause to believe that
those vehicles contained evidence connected to the
robberies.
Id. at 217.
Because it could not determine from the record “which evidence officers seized
from the vehicles and which evidence they seized from the home,” the Court of
Appeals vacated defendant’s convictions and remanded the case “with instructions
for the trial court to allow [defendant’s] motion to suppress the evidence seized from
the residence located at 7085 Laurinburg Road.” Id. Based upon its holding that
probable cause supported the issuance of the search warrant for the vehicles, the
Court of Appeals did not address defendant’s additional argument that a search of
the Kia Optima was not supported by the plain view doctrine. Id. at 217. In its opinion
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in Lewis II, the Court of Appeals reached identical conclusions regarding the trial
court’s order denying defendant’s motions to suppress.5
The State filed petitions for discretionary review on the issue of whether
probable cause existed to support a search of the residence. Defendant, in turn, filed
petitions for discretionary review on the issue of whether the search warrant affidavit
established probable cause to search the Kia Optima. We granted all of the parties’
petitions.6
Analysis
The Fourth Amendment to the United States Constitution states that 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.” U.S. Const. amend. IV. “ ‘[A] neutral and detached
magistrate,’ not an ‘officer engaged in the often competitive enterprise of ferreting
out crime,’ must determine whether probable cause exists.” State v. Allman, 369 N.C.
292, 294, 794 S.E.2d 301, 303 (2016) (quoting Illinois v. Gates, 462 U.S. 213, 240, 76
L. Ed. 2d 527, 549 (1983)). This determination must be based upon the totality of the
circumstances. E.g., State v. Benters, 367 N.C. 660, 664, 766 S.E.2d 593, 597 (2014).
5 Based upon its ruling that defendant’s convictions must be vacated, the Court of
Appeals dismissed as moot a petition for certiorari filed by defendant seeking review of the
factual basis for his Alford pleas to the two second-degree kidnapping charges. Lewis II, 2018
WL 2016031, at *1.
6The parties’ appeals from Lewis I and Lewis II were subsequently consolidated for
review by this Court.
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“The task of the issuing magistrate is simply to make a practical, common[-
]sense decision whether, given all the circumstances set forth in the affidavit before
him . . . 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) (quoting Gates, 462 U.S. at 238, 76 L. Ed. 2d at 548). It is well established that
“a magistrate is entitled to draw reasonable inferences from the material supplied to
him by an applicant for a warrant.” State v. Sinapi, 359 N.C. 394, 399, 610 S.E.2d
362, 365 (2005) (citation omitted). This Court has opined that “as long as the pieces
fit together well and yield a fair probability that a police officer executing the warrant
will find contraband or evidence of a crime at the place to be searched, a magistrate
has probable cause to issue a warrant.” Allman, 369 N.C. at 294, 794 S.E.2d at 303.
We have recognized that “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. Thus,
“[r]eviewing ‘courts should not invalidate warrant[s] by interpreting affidavit[s] in a
hypertechnical, rather than a commonsense, manner.’ ” Allman, 369 N.C. at 294, 794
S.E.2d at 303 (second and third alterations in original) (quoting State v. Riggs, 328
N.C. 213, 221, 400 S.E.2d 429, 434 (1991)). “This deference, however, is not without
limitation. A reviewing court has the duty to ensure that a magistrate does not
abdicate his or her duty by ‘mere[ly] ratif[ying] . . . the bare conclusions of
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[affiants].’ ” Benters, 367 N.C. at 665, 766 S.E.2d at 598 (alterations in original)
(quoting Gates, 462 U.S. at 239, 76 L. Ed. 2d at 549).
I. Search of Residence
We first address whether the search warrant affidavit at issue established
probable cause for law enforcement officers to conduct a search of the residence
located at 7085 Laurinburg Road. In evaluating the sufficiency of the affidavit, we
are guided by our decision in State v. Campbell, 282 N.C. 125, 191 S.E.2d 752 (1972).
In Campbell the defendant lived in a home with two roommates. Id. at 130,
191 S.E.2d at 756. All three residents of the dwelling were suspected drug dealers
with outstanding arrest warrants for the sale and possession of narcotics. Id. at 130,
191 S.E.2d at 756. Law enforcement officers sought to obtain a search warrant for the
residence. The affidavit in support of the warrant stated that the affiant possessed
arrest warrants for the three men living in the home. Id. at 130, 191 S.E.2d at 756.
It further reported that the defendant and his roommates “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. at 130,
191 S.E.2d at 756.
We held that the affidavit was “fatally defective,” explaining our reasoning as
follows:
The affidavit implicates those premises solely as a
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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. Therefore,
nothing in the foregoing affidavit affords a reasonable basis
upon which the issuing magistrate could conclude that any
illegal possession or sale of narcotic drugs had occurred, or
was occurring, on the premises to be searched.
Id. at 131, 191 S.E.2d at 757.
This Court reached a contrary conclusion in Allman with respect to whether a
search warrant affidavit established probable cause to search the defendant’s
residence. In Allman, the defendant, Brittany Allman, lived in a home with half-
brothers named Sean Whitehead and Jeremy Black, to whom she was not related.7
Allman, 369 N.C. at 292, 794 S.E.2d at 302. Law enforcement officers sought a search
warrant for the residence after stopping a vehicle in which Whitehead and Black were
traveling, leading to the discovery of 8.1 ounces of marijuana and over $1600 in cash
inside the car. Id. at 292–93, 794 S.E.2d at 302.
The affidavit accompanying the search warrant in Allman—in addition to
describing the discovery of contraband in the vehicle—stated that the affiant had run
7 Although the opinion in Allman related primarily to the activities of Whitehead and
Black, the defendant was also charged with offenses pertaining to the manufacture,
possession, and sale or delivery of illegal drugs.
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criminal record checks on the two men and learned that both of them had been
previously charged with offenses related to the sale and possession of illegal drugs.
Id. at 295, 794 S.E.2d at 304. The affidavit further stated the following:
During the vehicle stop, Whitehead maintained that he
and Black lived at 30 Twin Oaks Drive in Castle Hayne,
North Carolina. . . .
On the same day as the vehicle stop, [the affiant]
went to 30 Twin Oaks Drive. When he got there, he
discovered that neither half-brother lived at that address
but that Whitehead’s and Black’s mother, Elsie Black, did.
Ms. Black told Detective Bacon that the two men lived at
4844 Acres Drive in Wilmington and had not lived at 30
Twin Oaks Drive for about three years. She described the
Acres drive property as a small one-story residence that
had “a big, tall privacy fence in the backyard” and said that
“there should be an old red truck and an old white truck at
the house.” At that point, another detective went to 4844
Acres Drive. The property matched the description given
by Ms. Black, and one of the two trucks outside of the house
was registered to Jeremy Black.
Id. at 295, 794 S.E.2d at 304 (footnote omitted).
This Court held that the facts set out in the affidavit were sufficient to
establish probable cause to search the Acres Drive residence that the defendant
shared with the two men. Id. at 298, 794 S.E.2d at 306. While “acknowledg[ing] that
nothing in Detective Bacon’s affidavit directly linked defendant’s home with evidence
of drug dealing,” id. at 297, 794 S.E.2d at 305, we determined that the magistrate
could have reasonably inferred that evidence of drug dealing was likely to be found
in the home
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[b]ased on the mother’s statement that Whitehead and
Black really lived at [the same residence as the
defendant] . . . . [a]nd based on the insight from Detective
Bacon’s training and experience that evidence of drug
dealing is likely to be found at a drug dealer’s home, and
the fact that Whitehead lied about where he and Black
lived . . . .
Id. at 296, 794 S.E.2d at 305. We distinguished the facts and result in Allman from
our decision in Campbell, in part, by noting that “while a suspect in this case lied to
[the officer who stopped their vehicle] about his true address, nothing in the Campbell
opinion indicates that any of the subjects of that search lied to the authorities about
their home address. So Campbell does not alter our conclusion.” Id. at 297, 794 S.E.2d
at 305.
In State v. McKinney, 368 N.C. 161, 775 S.E.2d 821 (2015), we likewise
distinguished Campbell in holding that probable cause supported the issuance of a
warrant to search the dwelling of a suspected drug dealer. Id. at 166, 775 S.E.2d at
825–26. In McKinney, law enforcement officers received a tip that the defendant was
conducting drug deals in his apartment as well as in the parking lot of his apartment
complex. Id. at 162, 775 S.E.2d at 823. In response to the tip, officers began
surveilling the defendant’s residence. They observed a visitor leave the dwelling after
only being there six minutes. Id. at 162, 775 S.E.2d at 823. After stopping the visitor’s
vehicle for a traffic violation, officers discovered marijuana in the car and $4258 in
cash on the driver’s person. Id. at 162, 775 S.E.2d at 823. Officers arrested Roy
Foushee, the driver of the vehicle, and subsequently found texts on his cell phone in
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which he appeared to have arranged a drug transaction with the defendant that
coincided with the timing of his visit to the defendant’s apartment. Id. at 162, 775
S.E.2d at 823.
Following this arrest, law enforcement officers sought and obtained a search
warrant for the defendant’s apartment. The affidavit accompanying the warrant
application “described the nature of the citizen complaint that triggered the
investigation, the results of the officers’ surveillance, the arrest of Foushee, the
material found on Foushee’s person and in his car, and the text messages recovered
from Foushee’s telephone.” Id. at 162, 775 S.E.2d at 823. In concluding that the
statements contained in the affidavit were sufficient to support the issuance of a
search warrant for the defendant’s residence, we distinguished the circumstances at
issue in that case from those of Campbell. “Unlike the case at bar, the affidavit in
Campbell included no information indicating that drugs had been possessed in or sold
from the dwelling to be searched. As a result, Campbell does not control the outcome
here.” Id. at 166, 775 S.E.2d at 826.
In the present case the search warrant affidavit submitted by Detective Tart
contained statements that a suspect wearing dark clothing, using a blue face
covering, and carrying a handgun had committed similar robberies of Hoke County
stores on 21 September, 26 September, and 28 September 2014. The affidavit also
stated that the suspect fled the scene of the first robbery in a “dark blue Nissan Titan
with an unknown NC registration. This description is consistent with a dark blue
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Nissan Titan that was observed at the residence of 7085 Laurinburg Road . . . on
October 19, 2014 by Hoke County Patrol Deputies when serving a felony arrest
warrant on Robert Lewis.”
The affidavit further asserted that a Sweepstakes store in Johnston County
was robbed “in the earlier hours of [the] morning” of 19 October by a man armed with
a handgun who was wearing dark clothing and a blue face covering. The affidavit
stated that “[t]he clothing description and method of operation were similar to those
robberies previously described within Hoke County.” In addition, the affidavit
contained a statement that the suspect had been identified as defendant by
Smithfield law enforcement officers and had fled the scene in a Kia Optima.
Critical to our analysis of this issue, however, is the information that was not
contained in Detective Tart’s affidavit. His affidavit failed to set forth any of the
circumstances surrounding defendant’s arrest at 7085 Laurinburg Road and offered
no explanation as to why law enforcement officers had gone to that address in the
first place. Notably, the affidavit did not include the fact that the address had been
provided by Johnston County law enforcement officers. It also failed to include any
details of Deputy Kavanaugh’s conversation with defendant’s stepfather—who had
confirmed that defendant lived in the home—and contained no mention of the fact
that a Kia Optima was parked in front of the residence at the time of defendant’s
arrest.
We conclude that the information contained in the affidavit failed to establish
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the existence of probable cause to search the residence at 7085 Laurinburg Road. The
affidavit simply did not connect defendant with the residence that the officers wished
to search in any meaningful way beyond the mere fact that he was arrested there and
that a dark blue Nissan Titan was observed in the vicinity of the house at that time.
Defendant could have been present at 7085 Laurinburg Road at the time of his arrest
for any number of reasons. Absent additional information linking him to the
residence or connecting the house with criminal activity, no basis existed for the
magistrate to infer that evidence of the robberies would likely be found inside the
home.
The State relies heavily on Allman in support of its argument that probable
cause existed to support the issuance of a search warrant for 7085 Laurinburg Road
even in the absence of evidence directly linking the residence with the robberies. But
Allman is easily distinguishable. In that case the officer’s affidavit established that a
suspected drug dealer had lied about where he lived—suggesting that evidence of
criminal activity would likely be found in his residence. Allman, 369 N.C. at 295, 794
S.E.2d at 304. The affidavit further noted that law enforcement officers had later
received information from the suspects’ mother as to their actual address and
subsequently corroborated that information before applying for a search warrant. Id.
at 295, 794 S.E.2d at 304. Unlike the present case, the affidavit in Allman stated not
only that the residence to be searched was connected to the suspects but also that—
based on the officer’s training and experience and the fact that one of the suspects
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STATE V. LEWIS
Opinion of the Court
had lied about where they lived—it likely contained evidence of the crime for which
a warrant was sought. Id. at 295–96, 794 S.E.2d at 304. McKinney is likewise
distinguishable from the present case because the search warrant affidavit there
contained information implicating both the defendant and his residence in the
criminal activity being investigated. McKinney, 368 N.C. at 166, 775 S.E.2d at 826.
We therefore hold that the allegations contained in Detective Tart’s affidavit
failed to provide the magistrate with a sufficient basis from which to conclude that
probable cause existed to search the 7085 Laurinburg Road residence.8 Accordingly,
we affirm the ruling of the Court of Appeals that defendant’s motion to suppress
evidence seized from the residence should have been allowed.
II. Search of the Kia Optima
The final issue before us is whether Detective Tart’s affidavit in support of the
search warrant established probable cause to support a search of the Kia Optima.9
Defendant argues that the Court of Appeals erred in affirming the trial court’s
8 We note that in its order denying defendant’s motion to suppress, the trial court
relied, in part, upon testimony at the suppression hearing from Deputy Kavanaugh and
Detective Tart that was not contained in Detective Tart’s affidavit. The court’s reliance on
this testimony was improper because it was required to evaluate the existence of probable
cause for the search warrant based solely on the information in the affidavit that was
available to the magistrate at the time the warrant was issued. See Benters, 367 N.C. at 673–
74, 766 S.E.2d at 603 (appellate court erred in determining existence of probable cause to
support issuance of search warrant by “relying upon facts elicited at [the suppression]
hearing that went beyond ‘the four corners of [the] warrant.’ ” (second alteration in original)).
9 In his appeal to this Court, defendant has not argued that probable cause was lacking
for the search of the Nissan Titan. Therefore, that issue is not before us.
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STATE V. LEWIS
Opinion of the Court
determination that probable cause existed to support that search because the
affidavit failed to “explain why evidence . . . would be found in the Kia Optima listed
as a vehicle to be searched” or “state that there was a Kia Optima at the Laurinburg
Road address.”
In focusing—as we must—not on the totality of the evidence that Detective
Tart had gathered but rather solely on the information that was actually set out in
his affidavit, we agree that the affidavit failed to establish probable cause for the
search of the Kia Optima. As noted above, the statements in Detective Tart’s affidavit
failed to mention the presence of a Kia Optima at 7085 Laurinburg Road at the time
of defendant’s arrest. Indeed, beyond stating that defendant fled the scene of the 19
October 2014 robbery in a “new model 4-door Kia Optima,” the affidavit provided no
other information whatsoever concerning the Kia Optima.10
It is true that an unsworn attachment to the search warrant application listed
“[a] gray 2013 Kia Optima EX four door car with NC registration BMB4863; VIN#
5XXGN4A7XDG192163” among the property to be searched by officers upon
execution of the search warrant. But Detective Tart’s sworn affidavit itself contained
no mention of this identifying information for the vehicle. Nor did it explain how this
information had been obtained. Consequently, while the information possessed by
10 The affidavit failed to mention that Deputy Kavanaugh had even seen the Kia
Optima, much less that he had observed the presence of potentially incriminating evidence
upon looking through the window of the vehicle.
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Opinion of the Court
Detective Tart would have been sufficient to authorize a search warrant for the Kia
Optima had it all been contained within his affidavit, his failure to include crucial
information concerning the vehicle rendered the affidavit insufficient to establish
probable cause.
Accordingly, we hold that the Court of Appeals erred in affirming the trial
court’s determination that probable cause existed to support the issuance of a search
warrant for the Kia Optima. Because the Court of Appeals did not address the trial
court’s alternative ruling that the search of the vehicle was supported under the plain
view doctrine, we remand this case to the Court of Appeals for a determination of that
issue.
Conclusion
For the reasons set forth above, we affirm the portions of the Court of Appeals’
decisions holding that defendant’s motion to suppress should have been allowed as to
evidence seized from defendant’s residence and reverse the portions of the Court of
Appeals’ decisions holding that probable cause existed to support the issuance of the
search warrant for the Kia Optima. The Court of Appeals’ ruling that probable cause
existed to support the search of the Nissan truck is not before us and is left
undisturbed. We remand this case for determination by the Court of Appeals whether
the evidence seized from the Kia Optima was admissible under the plain view
doctrine.
AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
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Justice MORGAN concurring in part and dissenting in part.
I respectfully dissent from the position taken by my learned colleagues of the
majority that there was a lack of probable cause for the issuance of the search warrant
by the magistrate to authorize law enforcement’s search of defendant’s Kia Optima.
While I agree with the majority view which concludes that the Court of Appeals
correctly determined that defendant’s motion to suppress should have been allowed
as to evidence seized from his residence because the information contained in the
search warrant did not sufficiently connect defendant to the house so as to provide a
basis for the magistrate to infer that evidence of the robberies would likely be found
in the home, nonetheless I disagree with the outcome that the lower appellate court
should be reversed regarding its determination that probable cause existed to
authorize the magistrate’s issuance of the search warrant. Since I would therefore
affirm in totality the decision of the Court of Appeals, consequently there would be
no need for the case to be remanded to the lower appellate court, as directed by the
majority, for a determination concerning whether the evidence seized from the Kia
Optima was admissible under the plain view doctrine, because the application of the
doctrine would be of no consequence in light of the finding of probable cause.
My discomfort with the majority’s opinion stems from its regrettable rigidity
in tightly clinging to the legal rudiments of the establishment and recognition of
probable cause in search warrant affidavits which this Court has historically
declared, while exhibiting its remarkable reticence to equally embrace the practical
STATE V. LEWIS
Morgan, J., concurring in part and dissenting in part
realities which law enforcement officers and magistrates must face in the
establishment and recognition of probable cause in search warrant affidavits which
this Court has also addressed in its opinions. In my view, an appropriate balance of
the considerations of legal requirements and practical aspects which this Court has
cited regarding the existence of probable cause in search warrant applications would
better serve the ends of justice in the instant case by determining the existence of
probable cause in the search warrant affidavit at issue to allow the search of
defendant’s Kia Optima, demonstrating the proper balancing approach between legal
requirements and practical aspects which govern the ascertainment of probable cause
in search warrant affidavits, and providing a clearer precedent for law enforcement
officers and magistrates to consult in order to better comprehend the salient
circumstances to be submitted and evaluated for the existence of probable cause in
search warrants.
The majority is certainly correct in its recitation of principles enunciated by
this Court in such cases as State v. Allman, 369 N.C. 292, 794 S.E.2d 301 (2016),
State v. Benters, 367 N.C. 660, 766 S.E.2d 593 (2014), State v. Sinapi, 359 N.C. 394,
610 S.E.2d 362 (2005), and State v. Arrington, 311 N.C. 633, 319 S.E.2d 254 (1984)
regarding the requirement that a neutral and detached magistrate is to issue a search
warrant only upon the existence of probable cause being shown, with such a
determination to be made based upon the totality of the circumstances in arriving at
a practical and commonsense decision in light of all of the circumstances set forth in
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Morgan, J., concurring in part and dissenting in part
the affidavit. The prevailing viewpoint also recognizes the considerations declared in
these rulings that appellate “courts should not invalidate [search] warrant[s] by
interpreting [search warrant] affidavit[s] in a hypertechnical, rather than a
commonsense, manner,” State v. Riggs, 328 N.C. 213, 222, 400 S.E.2d 429, 434 (1991)
(quoting Illinois v. Gates, 462 U.S. 213, 236 (1983)), and that a magistrate is entitled
to draw reasonable inferences from the material supplied through application for a
search warrant and has probable cause to issue the warrant “as long as the pieces fit
together well and yield a fair probability that a police officer executing the warrant
will find contraband or evidence of a crime at the place to be searched . . . .” Allman,
369 N.C. at 294, 794 S.E.2d at 303 (citing Massachusetts v. Upton, 466 U.S. 727, 733
(1984) (per curiam) and Gates, 462 U.S. at 230–31).
In the present case, while the majority has demonstrated its awareness of all
of these guiding principles by citing them in its opinion, unfortunately the majority
readily implements only the standards that it chooses to employ, and conveniently
neglects the standards that it chooses to ignore. The majority has elected to
emphasize that the investigating detective’s search warrant affidavit “failed to
mention the presence of a Kia Optima at 7085 Laurinburg Road at the time of
defendant’s arrest” and that “beyond stating that defendant fled the scene of the 19
October 2014 robbery in a ‘new model 4-door Kia Optima,’ the affidavit provided no
other information whatsoever concerning the Kia Optima.” However, as to the fact
that “an unsworn attachment to the search warrant application listed ‘[a] gray 2013
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STATE V. LEWIS
Morgan, J., concurring in part and dissenting in part
Kia Optima EX four door car with NC registration BMB4863; VIN#
5XXGN4A7XDG192163’ among the property to be searched by officers upon execution
of the search warrant,” the majority has elected to minimize the extensive detail
utilized to identify the vehicle sought to be searched by opting to emphasize that the
investigating detective’s “sworn affidavit itself contained no mention of this
identifying information for the vehicle.” Based on these considerations, the majority
concludes that if all of the aforementioned information had been contained in the
investigating detective’s sworn search warrant affidavit rather than in an unsworn
attachment to the search warrant application, coupled with a sworn description of
the manner in which he obtained this identifying information for the Kia Optima,
then the search warrant would have been deemed to contain the requisite probable
cause.
In applying this Court’s enunciated principles that a magistrate is entitled to
draw inferences from the material supplied to obtain a search warrant based upon
the totality of the circumstances in arriving at a practical and commonsense decision
in light of all of the circumstances set forth in the affidavit, I conclude that the
magistrate satisfactorily determined that probable cause existed for the issuance of
a search warrant to authorize law enforcement’s search of defendant’s Kia Optima.
The majority’s requirement that the information which establishes probable cause
must be included in the sworn search warrant affidavit instead of attached to the
sworn search warrant affidavit in order to be considered by a magistrate invokes the
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STATE V. LEWIS
Morgan, J., concurring in part and dissenting in part
type of hypertechnical mandate for a probable cause determination which this Court
has expressly disavowed. Unfortunately, however, the majority here demands this
kind of precision in lieu of the magistrate’s practical and commonsense approach to
construe the informative material which was physically appended to the sworn search
warrant affidavit as being inherently intended in its presentation format to illustrate
that it was a part of the entire search warrant application to be evaluated by the
magistrate as to its fair probability that a police officer executing the warrant would
find contraband or evidence of the Johnston County robbery in the Kia Optima. In
light of all of these facts and circumstances which were being navigated by two
different law enforcement agencies in two different counties which were coordinating
their investigative resources in an effort to resolve a spate of crimes, the magistrate
involved here should have been accorded the authority to refrain from imposing a
hypertechnical requirement upon the investigating detective in favor of the practical
and commonsense decision to consider the totality of the information contained in the
combined application of the sworn search warrant affidavit as well as the unsworn
attachment of detailed information which was physically appended to it in order to
arrive at the determination of the existence of probable cause to search defendant’s
vehicle.
In the very first sentence of its opinion, the majority acknowledges that this
case presents unique circumstances regarding an officer’s possession of information
“that would suffice to establish probable cause for the issuance of a search warrant
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Morgan, J., concurring in part and dissenting in part
but fail[s] to include pertinent portions of this information in his affidavit in support
of the warrant.” “The 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 (quoting Gates, 462 U.S. at 237 n.10) (brackets omitted).
Guided by this Court’s precedent in applying it to the recognized uniqueness of the
circumstances presented in this case, I would affirm the decision of the Court of
Appeals.
Justice NEWBY joins in this dissenting opinion.
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