Heavy Traffic to a Residence and Probable Cause

The court of appeals decided a case today concerning a fact pattern that arises frequently in drug cases.

State v. McKinney began when an officer received a “citizen complaint” about “heavy traffic in and out of” a particular apartment, with the visitors staying only a short time. The citizen stated that he or she had “witnessed individuals exchanging narcotics in the parking lot with the person who lived in the apartment.” The officer set up surveillance on the apartment, and promptly saw an individual arrive, enter the apartment, and leave six minutes later. Another officer followed the visitor and stopped him for a traffic violation. The visitor had a history of narcotics arrests, and his car contained $4,258 and a gallon-sized bag with just 7 grams of marijuana inside. His cell phone showed recent text messages that appeared to concern a drug transaction. For example, about half an hour before the visitor’s arrival at the apartment, he received a text message stating, “when you come out to get the money can you bring me a fat 25. I got the bread.”

The officer obtained a search warrant for the apartment based on the above information. He executed the warrant, finding drugs and guns. The defendant, the occupant of the apartment, was arrested and charged with several offenses. He moved to suppress, arguing that the warrant was not supported by probable cause, but his motion was denied. He pled guilty and appealed.

The court of appeals reversed, ruling that probable cause was absent. It focused on the lack of evidence concerning the inside of the apartment, noting that neither the officer nor the citizen “witnessed any narcotics in or about the apartment,” and stating that although the officer saw the visitor enter the apartment, there was “nothing in his affidavit which suggests that he saw [the visitor] carry marijuana or anything else inside.” The court cited State v. Crisp, 19 N.C. App. 456 (1973) (finding no probable cause where there was heavy traffic into and out of a residence at all hours and a traffic stop of a resident revealed drugs on his person and in his vehicle), and State v. Hunt, 150 N.C. App. 101 (2002) (finding no probable cause where an officer received complaints of suspicious traffic at a residence and verified that a large number of vehicles visited the residence briefly).

This strikes me as a fairly close case that another court might view differently. For example, a Texas appellate court found sufficient probable cause to search a residence based mostly on a stream of short visits to the residence plus nearby outdoor hand-to-hand transactions. Polanco v. State, 475 S.W.2d 763 (Tex. Ct. Cr. App. 1972). But in light of McKinney and its forbears, North Carolina officers should look for factors like an odor associated with controlled substances, a customer’s admission that he or she purchased drugs at the residence, or a controlled buy or other evidence from an informant.

7 thoughts on “Heavy Traffic to a Residence and Probable Cause”

  1. The appeals court got it right: Suspicions do not equal probable cause, and if allegations by a citizen, who may have a grudge against someone else, slong with actions that do not implicate a residence is enough, then no one is safe from a search based on hunches. The article does not address the ” traffic stop ” , obviously a ruse to search, but was consent given or did the cop illegally search? How did the cop search the cellphone without a warrant during the stop without PC? If we accept the lowering of the bar for PC to include anything some cop see’s as suspicious we will see the 4th Amendment ebcome a dead letter, which it almost is now. Cops hate limitations on their power, and most would gladly shred any and all warrant requirements in order to get more busts, but we cannot accept a police state mentality as necessary for safety. From false dog alerts to perjury on the stand , it is plain that cops cannot be trusted to respect the rights we still have left, and so the courts must.

  2. This decision does not comport with common sense, and that is never a good sign for law abiding people. Using the decision as a platform to impugn the integrity of police officers makes even less sense than the court’s opinion.

    • Well, we live in a country governed by laws, not common sense, and that is a good thing. After all, common sense tells you the earth is flat…

      And, “common sense” guiding our courts would lead to such maxims as “He’s guilty because he looks guilty.”

    • The average citizen commits 3 federal offenses before they eat dinner each evening! The decision does indeed comport with common sense. That is, unless you benefit from a lack of freedom! There is no such thing as “Law Abiding people” in the technical sense! if someone within the power structure wants to get you, they can find a crime, regardless of how law abiding you think you are!

    • ” Fat 25 ” means a full quarter of an ounce of pot, meaning one that weighed a full 7 grams and not one that was light in weight. the term would assure a buyer that he was getting full measure for his purchase.

  3. How if at all would these presidents and rulings apply in the state of Kansas as just yesterday I was raided by the drug unit based on PC obtained by my neighbor reporting excessive traffic at my residence. But though the officers recovered a couple roaches and a few pipes from inside the residents during the search none of my traffic at the home was related to any drug activity and I’m sure nobody saw me carrying two joint roaches into the house in my cigarettes in my pocket nor did they see me give anything drug related or even illegal to anyone outside of the residents. My neighbor however has in the last week alone sent the cops to my home on at least three occasions after I asked him why he reported our dog to the animal control on may 25 he promptly called the cops saying I was harassing him. The cops advised me of trespass and had to come back the next day when my neighbor threw a bag of feces on my front porch that he picked up from his yard. Since then I’ve obtained video of more than one person walking their dogs threw his yard. After I called the cops for the incident with the bag said neighbor who happens to work for the city dept called the cops reporting that I was wanted and I was arrested falsely on that occasion and after reaching the jail the officers upon descovering I was not actually wanted released me and gave me a ride home. When that didnt work he sent a letter to my landlord about my lawn. My landlord gave me the notice and the same day I mowed the yard to meet ordinance. The very next day I was raided by the task force who stated they were there as a result of neighbors reports of the drug traffic. I only have an issue with the OE neighbor after 22 months in this house. And he just happens to be an employee of the city and apparently the judge took his statement as to the alleged traffic and its reason for being at my house as fact enough without corroboration of any evidence other than a prior charge of possession of marijuana as enough to establish PC I believe based solely on the fact that I have a criminal record and he works for the city. How about the fact that My neighbor is vindictive and using his possision with the city to abuse and harass me because my yard makes his yard look bad and he is mad cause I reported him for throwing the bat of shit on my porch. Also can I if I can show he’s been going out of his way to make my family move because he’s to good to live next to a family with three teens and a small dog. By the way I’m on chemo and most of the traffic is concerned members of my family and church checking on me as just last yr my sister in law passed away while on chemo. Traffic yes, illegal activity not that anyone can actually testify they ever really seen unless its not true.


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