State v. McKinney , 368 N.C. 161 ( 2015 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 47PA14
(Filed 21 August 2015)
STATE OF NORTH CAROLINA
v.
WALTER ERIC MCKINNEY
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision
of the Court of Appeals, ___ N.C. App. ___, 752 S.E.2d 726 (2014), reversing a
judgment entered on 8 October 2012 by Judge Patrice A. Hinnant and an order
entered on 11 October 2012 by Judge William Z. Wood, Jr., both in Superior Court,
Guilford County. Heard in the Supreme Court on 16 March 2015.
Roy Cooper, Attorney General, by Derrick C. Mertz, Assistant Attorney General,
for the State-appellant.
Staples S. Hughes, Appellate Defender, by Jon H. Hunt, Assistant Appellate
Defender, for defendant-appellee.
EDMUNDS, Justice.
An investigation that began with an anonymous complaint to police led to a
search of defendant’s home, where contraband was found. After the trial court denied
defendant’s motion to suppress the evidence found during the search, he pleaded
guilty to several drug-related offenses. We conclude that the totality of circumstances
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Opinion of the Court
demonstrates that the magistrate had a substantial basis for concluding that
probable cause existed to justify issuing a warrant authorizing the search of
defendant’s home. Accordingly, we reverse the holding of the Court of Appeals to the
contrary.
On 22 April 2012, a citizen met with Officer Christopher Bradshaw of the
Greensboro Police Department and reported observing heavy traffic in and out of
Apartment C at 302 Edwards Road. Pointing out that the visitors made abbreviated
stays at the apartment, the citizen also reported having seen the resident of that
apartment dealing in narcotics in the parking lot of the apartment complex. The
citizen added that he or she believed that behavior was related to narcotics.
In response to this report, Officer Bradshaw and others in his unit immediately
began surveillance of the named apartment and saw a red Pontiac arrive there at
12:41 p.m. The driver of the vehicle entered the apartment, emerged six minutes
later, and drove away. One of the officers promptly stopped the Pontiac for a traffic
violation, and the driver, Roy Foushee, was found to have $4,258.00 in cash on his
person. A gallon-size plastic bag that contained marijuana remnants was recovered
from the interior of the vehicle.
The officers arrested Foushee, and, incident to the arrest, searched his cell
telephone. A series of text messages exchanged minutes before Foushee was seen
entering the Edwards Road apartment caught the officers’ attention. The first, timed
at 12:12 p.m., was sent to Foushee from “Chad” and said, “Bra, when you come out to
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Opinion of the Court
get the money, can you bring a fat 25. I got the bread.” The next, also from “Chad,”
asked, “Can you bring me one more, Bra?” Foushee replied, “About 45,” and “Chad”
responded, “ight.”
Inferring that Foushee had just completed a delivery of drugs for cash, Officer
Bradshaw applied for a search warrant for the Edwards Road apartment. The
attached affidavit 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. The warrant was issued and executed that same day.
After discovering controlled substances, drug paraphernalia, and a firearm and
ammunition in the apartment, the officers arrested defendant, who lived there and
was present during the search. The name “Chad” was never linked to anyone
identified in the investigation.
On 2 July 2012, defendant was indicted by a Guilford County grand jury for
trafficking in cocaine by possession, possession of cocaine, possession of marijuana
with intent to sell or deliver, possession of marijuana, and maintaining a dwelling
used for selling controlled substances, all in violation of the North Carolina
Controlled Substances Act. He also was indicted for possession of a firearm by a felon,
in violation of N.C.G.S. § 14-415.1. On 7 September 2012, defendant filed a motion
to suppress the evidence seized from his residence pursuant to the search warrant,
arguing that the warrant was not supported by probable cause. At the conclusion of
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Opinion of the Court
an evidentiary hearing held on 11 September 2012, the trial court orally denied the
motion. On 11 October 2012, the trial court filed a written order finding that under
the totality of circumstances, “a sufficient basis for probable cause in the supporting
attachment to the search warrant for the defendant’s residence” existed.
On 1 October 2012, defendant entered a negotiated agreement in which he
pleaded guilty to possession of a firearm by a felon, possession of marijuana with
intent to sell or deliver, possession of cocaine with intent to sell or deliver, and
maintaining a dwelling place to keep or sell controlled substances. In the agreement,
defendant reserved his right to appeal the trial court’s denial of his motion to
suppress. The trial court imposed an active sentence of eleven to twenty-three
months of imprisonment.
Defendant appealed to the Court of Appeals, arguing that the trial court erred
in denying his motion to suppress the evidence seized from his residence. That court
found that the information provided in Officer Bradshaw’s affidavit was “insufficient
to establish probable cause to search defendant’s apartment,” State v. McKinney, ___
N.C. App. ___, ___, 752 S.E.2d 726, 730 (2014), because it “implicates [defendant’s]
premises solely as a conclusion of the affiant,” id. at ___, 752 S.E.2d at 730 (alteration
in original) (quoting State v. Campbell, 282 N.C. 125, 131, 191 S.E.2d 752, 757 (1972)).
The court concluded that “[t]he inference the State seeks to draw from the contents
of this affidavit—that narcotic drugs are illegally possessed on the described
premises—does not reasonably arise from the facts alleged.” Id. at ___, 752 S.E.2d at
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730 (alteration in original) (quoting Campbell, 282 N.C. at 131, 191 S.E.2d at 757).
Concluding that no “reasonable nexus” existed between Foushee’s vehicle in which
marijuana was found and defendant’s residence, id. at ___, 752 S.E.2d at 730, the
Court of Appeals held that the search warrant was unsupported by probable cause
and reversed the trial court’s denial of defendant’s motion to suppress, id. at ___, 752
S.E.2d at 731.
In reviewing a trial court’s ruling on a motion to suppress, we consider
“whether the trial judge’s underlying findings of fact are supported by competent
evidence, in which event they are conclusively binding on appeal, and whether those
factual findings in turn support the judge’s ultimate conclusions of law.” State v.
Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). We review an opinion of the
Court of Appeals for error of law. N.C. R. App. P. 16(a); State v. Brooks, 337 N.C. 132,
149, 446 S.E.2d 579, 590 (1994).
Defendant argues that his Fourth Amendment rights were violated when his
apartment was searched pursuant to a warrant that he claims was issued without
probable cause. The Fourth Amendment protects citizens from “unreasonable
searches and seizures” and permits warrants to be issued only upon a showing of
probable cause. U.S. Const. amend. IV. A “neutral and detached magistrate”
determines whether probable cause exists. Johnson v. United States, 333 U.S. 10, 14,
68 S. Ct. 367, 369, 92 L. Ed. 436, 440 (1948); see also Campbell, 282 N.C. at 131, 191
S.E.2d at 756. Courts interpreting the Fourth Amendment have expressed a “strong
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preference for searches conducted pursuant to a warrant.” Illinois v. Gates, 462 U.S.
213, 236, 103 S. Ct. 2317, 2331, 76 L. Ed. 2d 527, 547 (1983); State v. Sinapi, 359 N.C.
394, 398, 610 S.E.2d 362, 365 (2005) (quoting State v. Riggs, 328 N.C. 213, 222, 400
S.E.2d 429, 434 (1991)). “A grudging or negative attitude by reviewing courts toward
warrants” is inconsistent with that preference. United States v. Ventresca, 380 U.S.
102, 106-08, 85 S. Ct. 741, 745, 13 L. Ed. 2d 684, 689 (1965). Recognizing that
affidavits attached to search warrants “are normally drafted by nonlawyers in the
. . . haste of a criminal investigation,” id. at 108, 85 S. Ct at 746, 13 L. Ed. 2d at 689,
courts are reluctant to scrutinize them “in a hypertechnical, rather than a
commonsense, manner,” id. at 109, 85 S. Ct. at 746, 13 L. Ed. 2d at 689.
Under North Carolina law, an application for a search warrant must be
supported by an affidavit detailing “the facts and circumstances establishing
probable cause to believe that the items are in the places . . . to be searched.” N.C.G.S.
§ 15A-244(3) (2013). A magistrate must “make a practical, common-sense decision,”
based on the totality of the circumstances, whether there is a “fair probability” that
contraband will be found in the place to be searched. Gates, 462 U.S. at 238, 103 S.
Ct. at 2332, 76 L. Ed. 2d at 548; e.g., State v. Benters, 367 N.C. 660, 664, 766 S.E.2d
593, 598 (2014). This standard for determining probable cause is flexible, State v.
Zuniga, 312 N.C. 251, 262, 322 S.E.2d 140, 146 (1984), permitting the magistrate to
draw “reasonable inferences” from the evidence in the affidavit supporting the
application for the warrant, see Riggs, 328 N.C. at 221, 400 S.E.2d at 434 (quoting
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Gates, 462 U.S. at 240, 103 S. Ct. at 2333, 76 L. Ed. 2d at 549), and from supporting
testimony, as set out in N.C.G.S. § 15A-245(a). That evidence is viewed from the
perspective of a police officer with the affiant’s training and experience, Benters, 367
N.C. at 672, 766 S.E.2d at 603 (citing Ornelas v. United States, 517 U.S. 690, 699, 116
S. Ct. 1657, 1663, 134 L. Ed. 2d 911, 920-21 (1996)), and the commonsense judgments
reached by officers in light of that training and specialized experience, see United
States v. Ortiz, 422 U.S. 891, 897, 95 S. Ct. 2585, 2589, 45 L. Ed. 2d 623, 629 (1975).
Probable cause requires not certainty, but only “a probability or substantial
chance of criminal activity.” Riggs, 328 N.C. at 219, 400 S.E.2d at 433 (quoting Gates,
462 U.S. at 244 n.13, 103 S. Ct. at 2335 n.13, 76 L. Ed. 2d at 552 n.13 (emphasis
added)). The magistrate’s determination of probable cause is given “great deference”
and “after-the-fact scrutiny should not take the form of a de novo review.” State v.
Arrington, 311 N.C. 633, 638, 319 S.E.2d 254, 258 (1984) (citing Gates, 462 U.S. at
236, 103 S. Ct. at 2331, 76 L. Ed. 2d at 547). Instead, a reviewing court is responsible
for ensuring that the issuing magistrate had a “ ‘substantial basis for . . . conclud[ing]’
that probable cause existed.” Gates, 462 U.S. at 238-39, 103 S. Ct. at 2332, 76 L. Ed.
2d at 548 (alterations in original) (quoting Jones v. United States, 362 U.S. 257, 271,
80 S. Ct. 725, 736, 4 L. Ed. 2d 697, 708 (1960), overruled on other grounds by United
States v. Salvucci, 448 U.S. 83, 100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980)).
Defendant makes several arguments contending that the warrant was invalid.
He maintains that the citizen complaint underlying the officer’s application for the
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search warrant was unreliable because the complaint gave no indication when the
citizen observed either the short stays or drugs purportedly changing hands, that the
complaint was only a “naked assertion” that the observed activities were narcotics-
related, and that the State failed to establish a nexus between Foushee’s vehicle and
defendant’s apartment. None of these arguments are persuasive, either individually
or collectively.
As for the amount of detail in the citizen’s complaint, “an officer ‘may rely upon
information received through an informant, rather than upon his direct observations,
so long as the informant’s statement is reasonably corroborated by other matters
within the officer’s knowledge.’ ” State v. Bone, 354 N.C. 1, 10, 550 S.E.2d 482, 488
(2001) (quoting Jones, 362 U.S. at 269, 80 S. Ct. at 735, 4 L. Ed. 2d at 707). Moreover,
such a citizen complaint is not necessarily reviewed in isolation. In addition to the
information detailed above that the citizen gave Officer Bradshaw, the affidavit
stated that officers thereafter conducted surveillance of the identified apartment,
observed Foushee make a six-minute visit, and found both marijuana remnants in an
otherwise empty bag and a substantial cash sum during a subsequent investigatory
stop. The officer’s direct observations were thus consistent with the citizen’s
information.
As for the nexus between Foushee’s vehicle and defendant’s apartment, while
defendant points out that the evidence gave no indication how long the marijuana
could have been in Foushee’s car and that Foushee’s visit with defendant could just
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as easily have been innocent, the affidavit included relevant texts exchanged between
Foushee and “Chad” minutes before Foushee arrived at defendant’s apartment. The
timing and substance of these texts suggested preparation for and negotiation of a
drug transaction involving Foushee and someone he was about to meet. Although no
“Chad” was identified when defendant’s apartment was later searched, this
contingency could not be foreseen when Officer Bradshaw applied for the warrant.
Instead, the information available to the officer and provided to the magistrate at the
time the search warrant was requested and issued sufficiently indicated that the
transaction adumbrated in the texts was consummated moments later in defendant’s
apartment. Thus, this case is distinguishable from Campbell, cited both by defendant
and the Court of Appeals. In Campbell, the affidavit asserted only that the
defendants were named in arrest warrants charging narcotics offenses, were selling
drugs to certain individuals, and were residing at the residence to be searched. 282
N.C. at 130, 191 S.E.2d at 756. 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.
We conclude that, under the totality of circumstances, all the evidence
described in the affidavit both established a substantial nexus between the marijuana
remnants recovered from Foushee’s vehicle and defendant’s residence, and also was
sufficient to support the magistrate’s finding of probable cause to search defendant’s
apartment. Considering this evidence in its entirety, “the magistrate could
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reasonably conclude that the proposed search would reveal the presence of illegal
drugs in the dwelling.” Id. at 131, 191 S.E.2d at 757. Accordingly, we reverse the
holding of the Court of Appeals to the contrary.
REVERSED.
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