Establishing Probable Cause in a Search Warrant to Link the Residence to Be Searched With the Evidence to Be Seized

Last week, Jeff Welty wrote a post concerning the failure to allege in a search application that the premises to be searched is the suspect’s home, and it included a discussion of State v. Parson (N.C. App., October 18, 2016). This post supplements his post by discussing the issue of establishing probable cause to link a residence to be searched with evidence to be seized, and by adding a few other comments on Parson.

Linking the residence to the evidence to be seized. Even when information is timely, it must also link the crime, the evidence to be seized, and the place to be searched. The easiest way to connect them is by direct observation. For example, if an officer’s confidential informant has recently observed drugs being sold in a particular house, the crime (possession of drugs), the evidence (drugs) to be seized, and the place (the house) to be searched have been sufficiently connected to authorize a search of the house. Normally, a sale of drugs at a place supports an inference that more drugs may be found there. See State v. Riggs, 328 N.C. 213 (1991).

Direct observation is not the only way to connect the place with the crime and evidence to be seized. For example, assuming that the information is timely, court cases recognize that the proceeds from a burglary, breaking or entering, or robbery will likely be found in (1) the suspect’s home or other place where the suspect is residing or from which the suspect may sell the proceeds, such as a business, and (2) under certain circumstances, the suspect’s car. See State v. Whitely, 58 N.C. App. 539 (1982); State v. McKinnon, 306 N.C. 288 (1982).

Court cases recognize that if a person is selling drugs on the street or other similar place, more drugs will be found at the place from which the person is operating—whether that place is a house, motel, or car—if that place is sufficiently implicated by showing, for example, that the seller went to the place before the sale, that a sale occurred in or near the place, or that other information supports an inference that drugs will be found there. See State v. Riggs, 328 N.C. 213 (1991) (drug sales at driveway of residence supported search of residence); State v. McCoy, 100 N.C. App. 574 (1990) (drug sales at two other motel rooms within 10-day period supported search of another motel room); State v. Mavroganis, 57 N.C. App. 178 (1982) (although informant saw drugs only in college dormitory room, reasonable inference that drugs were also in defendant’s car parked 100 yards from dorm); State v. Byrd, 60 N.C. App. 740 (1983) (premises sufficiently connected as storage place for drugs). But see State v. Campbell, 282 N.C. 125 (1972) (premises not sufficiently connected by affiant’s conclusory statements); State v. Armstrong, 33 N.C. App. 52 (1977) (premises not sufficiently connected as place where drugs were located when sale of drugs occurred elsewhere); and State v. Parsons, discussed in Jeff Welty’s post mentioned above.

Court cases recognize that drug traffickers may keep cash and records of their transactions at their residences, even if they are selling the drugs elsewhere, and, therefore, search warrants may be issued for their residences. United States v. Fanin, 817 F.2d 1379 (9th Cir. 1987) (search warrant was properly issued to search defendant’s home for evidence of drug trafficking, even though defendant’s only participation in drug transaction that occurred elsewhere was to supply money for it; magistrate may find probable cause to search home based on experienced drug agent’s statement that drug traffickers keep records of transactions in their homes—even though there was no specific evidence in this case that defendant did so); United States v. Suarez, 906 F.2d 977 (4th Cir. 1990) (court rejects defendant’s argument that search warrant affidavit did not provide sufficient basis to believe that cash or records would be found at specific house sought to be searched; court noted that defendant was placed at that home and calls were made to him that led to arrest of associate and seizure of a quantity of marijuana; defendant and his girlfriend were spending money without legitimate sources of income). Each case will present a unique set of facts, but the essential question in every case is whether it is fairly probable, judging from the totality of the circumstances, that the evidence will be found in the place sought to be searched.

It is often helpful to state in the affidavit that a residence is the likely repository of one’s personal possessions and—if factually appropriate—that the defendant is not known to keep any other residence, office, or storage facility. Thus, the issuing official may properly infer that the residence is the probable storage place for the evidence to be seized.

For case summaries on the issue of probable cause for premises to be searched, see pages 455-59 in Arrest, Search, and Investigation in North Carolina (4th ed. 2011). Because it is likely that the new fifth edition of this publication will be available next month, the page references for the fifth edition are 487-91 in case you are reading this post at a future time when you possess that edition instead.

State v. Parson. Here are a few additional comments on State v. Parson, discussed in Jeff Welty’s post mentioned above.

As you may be aware, G.S. 15A-245(a) provides that, with limited exceptions not applicable to Parson, information other than that contained in the search warrant’s affidavit may not be considered in determining whether probable cause exists to support the issuance of the search warrant. The court in Parson noted that the defendant had challenged evidence not provided in the affidavit that could not (and should not have been) used by the trial court in making its determination that probable cause existed. So the State’s efforts to uphold the search warrant on appeal were diminished.

Concerning another issue, the court, noting that the North Carolina Supreme Court had previously ruled that the good faith exception to the exclusionary rule under the United States Constitution does not apply to violations of the North Carolina Constitution, rejected the good faith exception in this case. For a discussion of the good faith exception, see generally New North Carolina Legislation on Good Faith Exception to Exclusionary Rules (UNC School of Government, March 21, 2011).

It is unclear in Parson whether the inclusion in the affidavit of all the information known to the officers would have persuaded the court to rule that probable cause supported the issuance of the search warrant. In any event, this case is a reminder to officers to include in the affidavit all information pertinent to probable cause (unless an officer preserves the information in another way as permitted by G.S. 15A-245).

It is unknown whether the State will seek review of this ruling in the North Carolina Supreme Court, including a possible reconsideration of its prior ruling on the good faith exception under the North Carolina Constitution.

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