Controlled Buys, Middlemen, and Probable Cause

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Last week, the Court of Appeals of North Carolina decided State v. Frederick, a case about whether a controlled purchase of drugs provided probable cause to issue a search warrant. Before you say “the answer is yes, that fact pattern happens all the time,” be aware that Frederick presents a wrinkle. The wrinkle is that the controlled buy was conducted not by a confidential informant, but by an unknown “middleman” who the informant drove to the suspect’s home. Does the injection of an intermediary undermine probable cause? Read on to find out!

Facts. A Raleigh detective sought a search warrant for the defendant’s home. The affidavit in support of the application stated that a “confidential source” had recently given the officer “information . . . regarding a [drug] dealer.” The detective considered the source reliable as he had provided accurate information in the past.

The detective and the source attempted to corroborate the information by conducting two controlled buys in the week before the application was submitted. In both cases, the informant met with a “middle man,” who was apparently unknown to the detective, and took him to the suspect’s home. Officers watched the middleman enter the home and exit a few minutes later. The informant dropped the middleman off at his residence and then met with the detective. Each time, the informant had no drugs at the outset, and had drugs at the end of the expedition.

A magistrate issued the warrant. When officers executed it, they found heroin and MDMA.

Procedural history. The defendant was charged with trafficking in heroin and other offenses. He moved to suppress, arguing that the application did not provide probable cause. A superior court judge denied the motion. The defendant was convicted at trial and appealed, again advancing his argument that the search warrant was deficient.

Majority opinion. Two judges agreed with the State that there was probable cause to support the warrant. Considering the totality of the circumstances, noting the deference due to magistrates’ findings of probable cause, and citing State v. Riggs, 328 N.C. 213 (1991) (holding that probable cause existed for the issuance of a search warrant where informants had “been able to secure drugs by sending an observed third party,” also described as an “unwitting middleman,” to the defendants’ home), the majority stated:

“Based on [the detective’s] training and experience, the conduct of the middleman, and [the detective’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 [the detective].”

Dissent. Judge Zachary dissented. She was troubled by “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.” In short, given that the original information from the informant was scant, “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 home.”

Analysis. The affidavit certainly could have been stronger. First, it said only that the detective received “information . . . regarding a [drug] dealer” from the informant. At least as far as the court’s opinion reveals, it did not indicate what the information was or how the informant had acquired it. Had the informant been in the suspect’s home and seen drugs? Had the informant purchased drugs from the suspect? Or was the “information” merely a rumor that the informant had picked up? The answers to these questions would help determine whether the controlled buys were playing a supporting role (needing only to corroborate information already provided by the informant) or a starring role (needing to support probable cause essentially on their own).

Second, the description of the controlled buys was quite brief, leaving the magistrate to make a number of inferences. For example, presumably the informant told the detective after each purchase that he provided the departmental funds to the middleman; that the middleman took them into the suspect’s residence; and that the middleman came out of the suspect’s residence with the drugs but no money. Yet this chain of events is not explicitly recounted in the affidavit. It also seems likely that the middleman said something about the transaction to the informant, like “I got what I needed from [the suspect].” But such comments, if indeed they were made, are not memorialized in the application either.

At the same time, probable cause is relatively low hurdle, and reviewing courts generally defer to magistrates’ determinations of probable cause. Those principles are well illustrated by United States v. Artez, 389 F.3d 1106 (10th Cir. 2004), a very helpful out-of-state case. The court there reversed a suppression order and ruled that two controlled buys, each made using an “unwitting informant” as an intermediary, helped to corroborate an informant’s report that a suspect was selling drugs. The court acknowledged that the use of an intermediary “introduces an additional layer of uncertainty to the transaction because it leaves open the possibility that the narcotics were acquired not at the suspect residence but at the location where the confidential and unwitting informants met before and after the transaction.” Yet the court still found that the controlled purchases had some corroborative value, and together with other incriminating facts, were sufficient to provide probable cause.

In light of the dissent, I would expect the defendant to ask the state supreme court to review Frederick. I don’t think that the outcome is a foregone conclusion. Stay tuned for further developments.

6 comments on “Controlled Buys, Middlemen, and Probable Cause

  1. The 4th amendment weeps again; welcome to the police state of north carolina

  2. Probable cause should not be a ” low hurdle “…RAS is low enough. How easy for a dealer to make it look like the visit was for the drugs when he was selling it all along. Did the snitch search the middleman completely to determine that the money was gone, or search him to make sure he had no drugs when going to the supposed source? Assumptions do not make solid law. Facts do. The sanctity of the home means nothing if all it takes to get a warrant are beliefs that sleight of hand and lies never happen in controlled buys. The affidavit was weak but most magistrates sign the form automatically to placate the police and could care less if it is overturned later…sad.

    • So very True. I think all control buys should be at least 3 times and should be recorded hand to hand and audio as well. The US constitution is fading away daily

  3. I’m a magistrate and i don’t appreciate your hasty generalization that magistrates do not take their work seriously. i’m not exactly popular with the local law enforcement agencies because i expect more than supposition in search warrants presented to me. By negative implication, you assume that the law enforcement agency here, picked this defendant out of the phone book and set him up for a drug bust. That is a much larger assumption than that this defendant sold drugs to a middle man. Believe it or not, you represent people who are guilty of crimes and would not hesitate to lie to avoid conviction. i’m sure this def’s attorney made the “i was set up” argument and the jury found it unpersuasive.

    • I did not mean to imply that all magistrates are prone to granting weak warrant applications, and I am glad you are one of the few that are not popular with the police for carefully scrutinizing affidavits. In many rural areas magistrates are appointed with little or no legal education, and defer to the police as a matter of habit. After all, with immunity, the worst that can happen is that at some later date a remedy will happen for the accused. Better to side with the police than against. Since an appeals court justice found the affidavit too weak to support probable cause there is room for doubt. As proven so many times, the police will lie also, to arrest or convict someone and unlike accused ( or as you say, guilty , parties ) we do not expect them to, and rely on their honesty. No one, of course, suggested that the police picked someone ” out of a phone book ” , the issue was whether the middleman was the guilty party or the accused. If all a drug dealer has to do is briefly visit some address in the course of a transaction to avoid complicity many innocent homes could get raided. Also, it is a defense attorneys duty to make any and all arguments that might bring an acquittal . The point is that lowering an already low standard for a warrant will destroy our 4th Amendment protections even more than we have seen already, and making ” assumptions ” rather than demanding evidence will surely promote more wrongful convictions. Better that a thousand guilty people escape justice than for one innocent to be denied full due process. I congratulate you for acting as an example for all magistrates, although I believe that you are the exception rather than the rule .

    • Not true. Magistrate judges dont even allow the defendant to speak. With all the shit on tv and internet of law enforcement planting drugs and guns, it doesn’t cross your mind that they might be guilty. All snitches should be questioned by a magistrate to see if the stories fit. But hey you and all other bias ass magistrates could care less. I wonder how many times you told a officer they dont have enough evidence. Lol count it on one hand. Judging is a sensitive matter and today magistrate judges go with the flow. Time for all who work for the system that don’t judge fairly to be punished themselves. The next person you judge keep this in mind!

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