N.C. Court of Appeals Rules That Affidavit For Search Warrant to Search Residence Failed to Link Residence to Drug Activity That Had Occurred Elsewhere

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Last week a three-judge panel of the North Carolina Court of Appeals in State v. Allman (5 Jan. 2016), ruled (2-1) that a search warrant to search a residence for drugs was not supported by probable cause because the affidavit failed to link the residence to drug activity that had occurred elsewhere. This post discusses some of the interesting issues in this case, including possible state supreme court review.

Jeremy Black and Sean Whitehead lived at 4844 Acres Drive in Wilmington along with Logan McDonald and the defendant, who was Black’s girlfriend. Officers obtained a search warrant for drugs at this residence and found various drugs and paraphernalia.

The search warrant’s affidavit alleged the following facts. On January 21, 2014, a Brunswick County deputy sheriff (Cherry) told the affiant, a New Hanover County deputy sheriff (Bacon), that he had conducted a vehicle stop in which Black and Whitehead, half-brothers, were the vehicle’s occupants. Whitehead told Cherry that they lived at 30 Twin Oaks Drive in Castle Hayne. A search of the vehicle discovered 8.1 ounces of packaged marijuana and over $1,600.00 in cash. Whitehead told Cherry that he kept some marijuana in his vehicle at his residence so his mother would not know about it. Cherry also learned that Whitehead owned two cell phones, and one of the phones contained text messages concerning the sale of marijuana.

Bacon described in the affidavit the prior criminal history of Whitehead (convicted of possession of marijuana with intent to sell and deliver) and Black (charged with cocaine and marijuana offenses in Florida and convicted of first-degree burglary in North Carolina). DMV records listed 30 Twin Oaks Drive as Black and Whitehead’s address and the vehicle stopped by Cherry as registered to that address. Bacon had obtained a search warrant for that address but discovered that Black and Whitehead did not live there, nor did he see the vehicle there. Instead, he learned that Elise Black, mother of Black and Whitehead, lived there. Ms. Black said that her sons lived at Acres Drive for the past three years. She also said that her sons used her address as a mailing address and they had a roommate named Logan McDonald. She also described two vehicles that would be at that address, which Bacon corroborated by going there and discovering that one was registered to Whitehead and the other to Black. Bacon asserted in the affidavit that he knew through training and experience that drug dealers often use different addresses and lie to law enforcement about their home address to conceal their illegal activities.

The trial court granted the defendant’s motion to suppress evidence seized from the residence at 4844 Acres Drive, essentially finding that the affidavit did not establish probable cause to search because it failed to provide any information to show a nexus between drugs sought to be seized and the residence.

The court of appeals affirmed the trial court’s ruling, relying heavily on State v. Campbell, 282 N.C. 125 (1972). The officer’s search warrant affidavit in Campbell stated: (1) he had arrest warrants charging the defendant and two other residents of the premises with drug charges, (2) all three had sold drugs to an SBI agent, and based on the officer’s personal knowledge and interviews with informants and local police officers, they were actively involved in drug sales, and (3) the defendant leased the premises. The supreme court concluded that the affidavit did not state that the drugs were possessed or sold in or about the premises, there were no underlying circumstances from which a magistrate could conclude that a search would discover drugs, and an inference that drugs were possessed on the premises did not reasonably arise from the alleged facts. The court of appeals stated that this case was not materially distinguishable from Campbell. Responding to the State’s argument that Black and Whitehead were engaged in drug dealing, the court countered that Campbell had ruled that being an active drug dealer was insufficient, without more, to provide probable cause to search a dealer’s residence. The court also said that allegations that Black and Whitehead lied about their residence, while perhaps suggestive that drugs might be present at their actual residence, does not make probable the presence of drugs, especially given the affidavit’s allegation that Whitehead asserted that he kept his drugs in his vehicle. The court noted that in the recent case of State v. McKinney, 368 N.C. 161 (2015), the supreme court, while upholding a search warrant as having a sufficient nexus to the place to be searched, compared it to the nexus found insufficient in Campbell, which it described as providing no information indicating that drugs had been possessed in or sold from the residence to be searched.

The court of appeals distinguished State v. Mavroganis, 57 N.C. App. 178 (1982) (probable cause supported search of university student’s car when he was dealing marijuana, which was seen in his room and on his person). Unlike the Allman facts, there was the unique fact that Mavroganis was selling out of his dorm room, which was fraught with the danger of discovery and apprehension, and thus his car would be a convenient place to receive, store, and deliver drugs. Thus, it was fairly probable that drugs would be found there.

The court recognized the State’s citations to federal cases that essentially have found probable cause for the place to be searched based on the inference that with drug dealers, evidence is likely to be found where dealers live. See also Arrest, Search, and Investigation in North Carolina 384, 458-59 (4th ed. 2011) (hereafter, Arrest, Search, and Investigation). But the court stated that to the extent the federal appellate cases conflict with North Carolina case law, it is bound by state supreme court decisions.

Based on the court’s ruling in Allman, the lesson for officers applying for a search warrant with no direct information tying the object to be searched to the place to be searched is to articulate through facts, such as officer surveillance, citizen or informant’s information, etc., that supports a finding of probable cause because there is a nexus between the criminal activity and the place to be searched.

The dissenting opinion disagreed with the court’s opinion that Allman was materially indistinguishable from Campbell. The dissent stressed that unlike in Campbell, the affidavit did contain other information that implicated the residence to be searched; namely, the occupants of the vehicle (Black and Whitehead) where drugs had been found repeatedly lied (both before and after the drugs were seized) about where they lived. Although this information did not establish with certainty that drugs would be found in the residence, it contained facts and circumstances by which a magistrate could conclude that there was a “probability or substantial chance” that drugs would be discovered at the residence.

Based on the dissenting opinion, the State has a right to appeal the court’s ruling to the state supreme court. Whether it will do so remains to be decided. If it does, the supreme court will decide whether Campbell and other precedents support upholding the motion to suppress. Or it could decide that the more deferential standard of review of a magistrate’s decision to issue a search warrant set out in the post-Campbell case of Illinois v. Gates, 462 U.S. 213 (1983), and adopted under the state constitution in State v. Arrington, 311 N.C. 633 (1984) (see Arrest, Search, and Investigation at 376, 445, and 447-48) may call for a different ruling.

There is another potential issue if this case is considered by the state supreme court, although I am not sure whether it can be raised under the procedural circumstances of this case. That is, whether the court’s prior ruling in State v. Carter, 322 N.C. 709 (1988), which rejected under the state constitution the Fourth Amendment’s good-faith exception to the exclusionary rule, should be reconsidered to allow the Allman search warrant to be upheld under this exception. For a discussion of Carter, see Arrest, Search, and Investigation at 359, n. 1.

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