State v. Howard , 259 N.C. App. 848 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-1143
Filed: 5 June 2018
Mecklenburg County, No. 15 CRS 222077
STATE OF NORTH CAROLINA
v.
TAMMY RENEE HOWARD
Appeal by defendant from judgment entered 16 March 2017 by Judge Daniel
A. Kuehnert in Mecklenburg County Superior Court. Heard in the Court of Appeals
2 May 2018.
Attorney General Joshua H. Stein, by Assistant Attorney General Torrey D.
Dixon, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Jillian C.
Katz, for defendant-appellant.
TYSON, Judge.
Tammy Renee Howard (“Defendant”) appeals from judgment entered upon a
jury’s conviction of felonious use or possession of counterfeit trademark goods with
intent to sell and having a value exceeding $10,000. We find no error in the trial
court’s denial of Defendant’s motion to suppress. We remand to the trial court to
enter appropriate conclusions of law.
I. Background
STATE V. HOWARD
Opinion of the Court
On 22 June 2015, North Carolina Secretary of State’s Trademark Enforcement
Division Special Agent Derek Wiles (“Agent Wiles”) obtained a search warrant to
search the residence and vehicles located at 13606 Coram Place in Charlotte, North
Carolina. During the search of the premises, Agent Wiles and his team discovered
counterfeit items located in the house, garage, and inside a van parked adjacent to
the house. The officers seized hundreds of counterfeit items, including handbags,
watches, and sunglasses, as well as over 2700 designer labels, with an approximate
suggested retail value of two million dollars.
Defendant was indicted for felony criminal use of counterfeit trademark on 19
January 2016. On 13 March 2017, she filed a motion to suppress all the evidence
recovered and all statements made in connection with the search of 13606 Coram
Place. The trial court denied Defendant’s motion. Defendant failed to object to the
subsequent entry and admission at trial of evidence obtained as a result of the search.
The jury returned a verdict finding Defendant guilty of felony use or possession
of counterfeit trademark goods. Defendant was sentenced to 6-17 months
imprisonment, which was suspended for 36 months of supervised probation.
Defendant was required to serve an active sentence of 45 days during the first 12
months of her probation. Defendant entered timely notice of appeal.
II. Jurisdiction
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STATE V. HOWARD
Opinion of the Court
An appeal of right lies with this Court pursuant to N.C. Gen. Stat. §§ 7A-27(b)
and 15A-1444(a) (2017).
III. Issues
Defendant argues the trial court erred by denying her motion to suppress, and
in the alternative, the trial court erred by failing to provide its rationale during its
ruling from the bench.
IV. Motion to Suppress
A. Standard of Review
Defendant failed to object at trial to the entry of the evidence obtained from
the search of 13606 Coram Place to preserve the error, but has assigned plain error
review on appeal. See State v. Miller, 198 N.C. App. 196, 198, 678 S.E.2d 802, 805
(2009).
To show plain error, “a defendant must demonstrate that a fundamental error
occurred at trial. To show that an error was fundamental, a defendant must establish
prejudice—that, after examination of the entire record, the error had a probable
impact on the jury’s finding that the defendant was guilty.” State v. Lawrence, 365
N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (citation and internal quotation marks
omitted).
B. Probable Cause for Search
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STATE V. HOWARD
Opinion of the Court
Defendant argues the trial court erred in denying her motion to suppress. She
asserts no reasonable grounds existed to believe the search would reveal evidence of
criminal activity at 13606 Coram Place. We disagree.
A search warrant cannot be constitutionally issued absent a finding of probable
cause. U.S. Const. amend. IV; N.C. Const., art. I, § 20. “Probable cause means that
there must exist 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. Lindsey, 58
N.C. App. 564, 565, 293 S.E.2d 833, 834 (1982) (citation and internal quotation marks
omitted).
Our statutes mandate that an application for a search warrant must include a
statement under oath that probable cause exists to believe items subject to seizure
may be found at the described place that is the subject of the search, and allegations
of fact supporting the statement, which may be further supported by one or more
affidavits. N.C. Gen. Stat. § 15A-244 (2017). The affidavit “must establish a nexus
between the objects sought and the place to be searched. Usually this connection is
made by showing that criminal activity actually occurred at the location to be
searched or that the fruits of a crime that occurred elsewhere are observed at a certain
place.” State v. McCoy, 100 N.C. App. 574, 576, 397 S.E.2d 355, 357 (1990) (internal
citations and quotation marks omitted).
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STATE V. HOWARD
Opinion of the Court
The Supreme Court of the United States has established a “totality of the
circumstances” test to determine whether the State has proved that probable cause
exists. Illinois v. Gates, 462 U.S. 213, 230, 76 L. Ed. 2d 527, 543 (1983). The Supreme
Court of North Carolina adopted this same test. State v. Arrington, 311 N.C. 633, 643,
319 S.E.2d 254, 260-61 (1984). When applying the “totality of the circumstances”
test, an “affidavit is sufficient if it supplies reasonable cause to believe that the
proposed search . . . 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 (citation omitted).
The affidavit Agent Wiles submitted to establish probable cause for the
warrant contains the following information: Agent Wiles possessed twenty-six years
of law enforcement experience, during which time he had investigated thousands of
cases involving counterfeit merchandise. At the time of the application, he was
employed and assigned to the Secretary of State’s Trademark Enforcement Division.
On 8 May 2013, a Mecklenburg County police officer informed Agent Wiles that
Defendant had been found to be in possession of possible counterfeit items. She was
charged with a violation of Charlotte’s peddler’s license ordinance. The items seized
were later confirmed to be counterfeit.
As part of a compliance check/counterfeit merchandise interdiction operation
at the DHL International Hub in Charlotte on 7 October 2013, Agent Wiles
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STATE V. HOWARD
Opinion of the Court
intercepted two packages from a known counterfeit merchandise distributor in China,
addressed to Defendant at 13606 Coram Place. The boxes were inspected and were
found to contain counterfeit handbags, wallets, watches, and headphones. Agent
Wiles attempted a “controlled delivery” of the packages to 13606 Coram Place, but no
one was home. Two other packages previously delivered by DHL were present on the
porch. Agent Wiles contacted Defendant, who agreed to meet with him and consented
to him bringing the other two packages with him. Defendant consented to a search
of the other two packages left at the address, which contained additional counterfeit
merchandise. Defendant stated she did not realize the merchandise was counterfeit,
voluntarily surrendered it all, and was issued a warning.
Agent Wiles was working as a part of a compliance check outside of the Bank
of America Stadium during a Carolina Panthers football game on 3 November 2013.
Defendant, doing business as “Store on Wheels,” was found selling counterfeit
handbags, wallets, and other items from two SUVs. Defendant was charged with
felony criminal use of a counterfeit trademark, and pled guilty to the lesser included
misdemeanor charge on 4 March 2014.
During another compliance check, outside of the Charlotte Convention Center
on 30 May 2015, Agent Wiles found a booth rented by a business called “Store on
Wheels.” The booth was unmanned, but contained a large display of counterfeit
items. Business cards were found at the booth with the “Store on Wheels” business
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STATE V. HOWARD
Opinion of the Court
name on them, along with the name “Tammy” listed as the owner. Prior to applying
for the search warrant, Agent Wiles substantiated the address of 13606 Coram Place
“to be the location of the [sic] Tammy Renee Howard.”
C. Location of Counterfeit Items
Defendant asserts the affidavit failed to contain sufficient evidence to support
a reasonable belief that evidence of counterfeit items would be found at 13606 Coram
Place.
Defendant argues State v. Parsons, __ N.C. App. __, 791 S.E.2d 528 (2016),
controls the outcome of this case. In Parsons, the defendant was dropped off at a
“burned residence and blue recreational vehicle/motor home located at 394 Low Gap
Road” after allegedly purchasing decongestant used to manufacture
methamphetamine. Id. at __, 791 S.E.2d at 538. The officers established surveillance
at that location, and witnessed the defendant exiting the recreational vehicle. Id. The
officers approached and asked the defendant to search the house and recreational
vehicle, but the defendant refused. Id.
This Court found that those allegations in the affidavit were insufficient to
connect the property location with any illegal activity. Id. Defendant asserts the
finding that “[n]othing in the affidavit provides context to where Defendant’s ‘home’
was or that his ‘home’ was 394 Low Gap Road” is similar to the situation in this case.
Id. “[T]he simple fact that an individual is dropped off at a particular address does
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STATE V. HOWARD
Opinion of the Court
not establish probable cause to search that address in the absence of other allegations
of criminal activity.” Id. (emphasis supplied).
The affidavit in the present case included evidence of counterfeit merchandise
being previously delivered to 13606 Coram Place, and evidence Defendant was
continuing to conduct her business selling counterfeit items, after previous warnings
and arrests, less than a month before the search warrant was executed. Agent Wiles
also attested under oath that he had substantiated Defendant resided at 13606
Coram Place. Even if Agent Wiles “did not spell out in exact detail” how he
substantiated Defendant’s address, the affidavit includes sufficient evidence
connecting the presence of counterfeit materials with the address of 13606 Coram
Place. See State v. Edwards, 185 N.C. App. 701, 705, 649 S.E.2d 646, 649 (2007).
After viewed in its totality, and not as singular instances or isolated events,
sufficient evidence supports a reasonable cause to believe a search of 13606 Coram
Place would produce contraband evidence of Defendant’s criminal activity. See
Arrington, 311 N.C. at 636, 319 S.E.2d at 256. Defendant’s argument is overruled.
D. Evidence was not Stale
Defendant also argues the evidence alleged in the affidavit was stale, and
specifically asserts the only evidence linking the address of 13606 Coram Place with
criminal activity allegedly took place in October 2013, some twenty months prior to
the issuance of the search warrant.
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STATE V. HOWARD
Opinion of the Court
“Generally, two factors determine whether evidence of previous criminal
activity is sufficient to later support a search warrant: (1) the amount of criminal
activity and (2) the time period over which the activity occurred.” McCoy, 100 N.C.
App. at 577, 397 S.E.2d at 358. No bright line rule exists governing the amount of
time lapse considered reasonable, but such consideration depends “upon such
variable factors as the character of the crime and the criminal, the nature of the item
to be seized and the place to be searched.” Lindsey, 58 N.C. App. at 566, 293 S.E.2d
at 834 (citation omitted).
In cases where contraband is likely to be sold and disposed of, information
obtained over a year prior has been held to be too stale to support probable cause to
search. Id. at 567, 293 S.E.2d at 835. However, in cases where “the alleged crime is
a complex one taking place over a number of years [and] [t]he place to be searched is
an ongoing business,” information that is fourteen months old is not considered stale.
State v. Louchheim, 296 N.C. 314, 323, 250 S.E.2d 630, 636 (1979). “[W]here the
affidavit properly recites facts indicating activity of a protracted and continuous
nature, a course of conduct, the passage of time becomes less significant.” McCoy, 100
N.C. App. at 577, 397 S.E.2d at 358.
Defendant argues this case is more similar to the facts in Lindsey, as the
evidence concerned counterfeit contraband, likely to be sold and disposed of.
However, the evidence in Lindsey concerned marijuana, which is a substance not only
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STATE V. HOWARD
Opinion of the Court
likely to be sold, but is also “easily concealed and moved about.” 58 N.C. App. at 567,
293 S.E.2d at 835. It appears Defendant conducted her business out of multiple
vehicles and a rented booth, making the counterfeit items easy to move. It is
reasonable to believe Defendant kept a large stock of contraband inventory on hand
for sale, requiring an appropriate storage location. The evidence tends to show
Defendant had been conducting this business over a number of years, at numerous
locations, and the process was complex, necessitating the acquisition of knock-off
merchandise from China and the attachment of false designer labels.
The facts of this case are more similar to those in Louchheim, where
information supporting the warrant that was fourteen months old was held not to be
stale. 296 N.C. at 323, 250 S.E.2d at 636. Because of the history and apparent
continuous nature of Defendant’s business, evidence that occurred twenty months
prior to the execution of the search warrant is not so far removed to be considered
stale as a matter of law. Defendant’s argument is overruled.
V. Findings of Fact and Conclusions of Law
Defendant alternatively argues this matter should be remanded to the trial
court for findings of fact and conclusions of law to support its ruling on her motion to
suppress.
After a motion to suppress evidence is presented at the trial court, “[t]he judge
must set forth in the record his findings of fact and conclusions of law.” N.C. Gen. Stat.
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STATE V. HOWARD
Opinion of the Court
§ 15A-977(f) (2017) (emphasis supplied). Our Supreme Court has held, “the absence
of factual findings alone is not error because only a material conflict in the evidence—
one that potentially affects the outcome of the suppression motion—must be resolved
by explicit factual findings that show the basis for the trial court’s ruling.” State v.
Faulk, __ N.C. App. __, __, 807 S.E.2d 623, 630 (2017) (quoting State v. Bartlett, 368
N.C. 309, 312, 776 S.E.2d 672, 674 (2015)) (internal quotation marks omitted). Even
so, “it is still the trial court’s responsibility to make the conclusions of law.” State v.
McFarland, 234 N.C. App. 274, 284, 758 S.E.2d 457, 465 (2014).
The State argues no material conflicts in the evidence exist, and the trial
court’s conclusion was clear from its ruling. The record of the suppression hearing
reveals no material conflicts existed. Defense counsel called Agent Wiles as a
witness, and introduced a copy of the search warrant and a photograph taken at the
time the search warrant was executed.
Agent Wiles’ testimony revealed that (1) the search warrant had initially
included a typographical error, identifying the premise to be searched as 13605
Coram Place in a few paragraphs; (2) some houses in the location were of a similar
construction as Defendant’s; and, (3) the warrant referenced past events, specifically
the October 2013 incident, where multiple packages delivered by DHL to 13606
Coram Place were found to contain counterfeit evidence.
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STATE V. HOWARD
Opinion of the Court
On cross-examination, the State did not dispute any of the evidence, but
clarified that (1) the warrant also contained the correct address; (2) once Agent Wiles
realized the typographical error, he had the area secured and returned to the
magistrate to correct the address; and, (3) Agent Wiles experienced no issue
identifying Defendant’s house to execute the search warrant, because he had
previously been to her house, specifically in October 2013.
“It previously has been determined that a material conflict in the evidence does
not arise when the record on appeal demonstrates that defense counsel cross-
examined the State’s witnesses at the suppression hearing.” State v. Baker, 208 N.C.
App. 376, 383, 702 S.E.2d 825, 830 (2010). While Agent Wiles was called as
Defendant’s witness at the suppression hearing, he was a witness for the State in the
subsequent trial. Defendant presented evidence at the hearing, which was given by
the officer who had applied for and executed the search warrant, and none of which
was contradicted by the State’s cross-examination.
While no material conflicts exist in the evidence presented at the suppression
hearing, the judge failed to provide any rationale from the bench to explain or support
his denial of Defendant’s motion. The only statement from the trial court concerning
Defendant’s motion was, “I’m going to allow the case to go forward with some
reluctance, but – I’m going to deny the Motion to Suppress.” This lack of rationale
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STATE V. HOWARD
Opinion of the Court
from the bench “precludes meaningful appellate review.” Faulk, __ N.C. App. at __,
807 S.E.2d at 630.
The trial court’s failure to articulate or record its rationale from the bench
supports a remand. McFarland, 234 N.C. App. at 284, 758 S.E.2d at 465 (“The
mandatory language of N.C. Gen. Stat. § 15A-977(f) . . . forces us to conclude that the
trial court’s failure to make any conclusions of law in the record was error.”).
Where there is prejudicial error in the trial court involving
an issue or matter not fully determined by that court, the
reviewing court may remand the cause to the trial court for
appropriate proceedings to determine the issue or matter
without ordering a new trial. If the trial court determines
that the motion to suppress was properly denied, then
defendant would not be entitled to a new trial because
there would have been no error in the admission of the
evidence, and his convictions would stand. If, however, the
court determines that the motion to suppress should have
been granted, defendant would be entitled to a new trial.
We have found no other prejudicial error at defendant’s
trial. Therefore, the trial court’s failure to make adequate
conclusions to support its decision to deny defendant’s
motion to suppress does not require that we order a new
trial.
McFarland, 234 N.C. App. at 284, 758 S.E.2d at 465 (internal citations and quotation
marks omitted).
As in McFarland and Faulk, we remand for the trial court to make appropriate
conclusions of law to substantiate its ruling upon Defendant’s motion to suppress. See
id.; see also Faulk, __ N.C. App. at __, 807 S.E.2d at 630.
VI. Conclusion
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STATE V. HOWARD
Opinion of the Court
Applying the “totality of the circumstances” test, Agent Wiles’ affidavit
accompanying the application for the search warrant for 13606 Coram Place
contained sufficient evidence to show the required nexus between the items sought
and the location to be searched. McCoy, 100 N.C. App. at 576, 397 S.E.2d at 357. Due
to the nature of the alleged, continuing criminal activity, the evidence presented in
the affidavit was not stale and supports a finding of probable cause. Id. at 577, 397
S.E.2d at 358. Defendant has failed to show error, let alone plain error, in the trial
court’s denial of her motion to dismiss.
The statutorily mandated conclusions of law to support the trial court’s denial
were not met. N.C. Gen. Stat. § 15A-977(f). We remand to the trial court for entry of
appropriate conclusions of law in accordance with the statute and consistent with the
precedents cited above. See McFarland, 234 N.C. App. at 284, 758 S.E.2d at 465; see
also Faulk, __ N.C. App. at __, 807 S.E.2d at 630. It is so ordered.
NO ERROR IN PART AND REMANDED.
Judges ELMORE and ZACHARY concur.
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