G.S. 15A-245 provides that information other than that contained in a search warrant affidavit may not be considered by the issuing official in determining whether probable cause exists to issue the warrant unless the information is either recorded or contemporaneously summarized in the record or on the face of the warrant by the issuing official. This is commonly known as the “four corners” rule because the issuing official and later a judge at a suppression hearing may only consider information within the four corners of the search warrant (with the limited exception mentioned above). The issue does not arise often in appellate court opinions. However, it was involved in the June 21, 2016, North Carolina Court Appeals case of State v. Brown, available here, and is the subject of this post.
State v. Brown. An officer in 2012 applied for and received a warrant to search a residence for counterfeit currency and related items, as well as firearms. Charges against Brown resulted from what was found in the home, and the defendant moved to suppress the evidence seized during the execution of the search warrant.
The officer was sole witness at the suppression hearing. He sought to clarify language in the affidavit concerning when his confidential informant obtained the information concerning Brown’s alleged criminal activities. The affidavit essentially had said that in the past 48 hours the officer had spoken with the informant, who revealed that he had been in contact with Brown. The informant gave the officer a counterfeit $100 bill that he had obtained from defendant Brown’s home, where the informant also had seen firearms. The affidavit also revealed that the officer had spoken to a U.S. Secret Service agent about the bill’s serial number, which records had shown was circulated in 2005-2006, and the agent also told the officer about Brown’s involvement with another counterfeit case.
The officer testified that he meant to say that the 48 hours mentioned in the affidavit applied to when the informant spoke to the officer and when the informant had obtained the counterfeit bill. The court of appeals noted that the trial judge, in upholding the search warrant, had considered the officer’s testimony about what he intended the affidavit to mean, which testimony was outside the four corners of the affidavit and had not been recorded or contemporaneously summarized when the magistrate considered the application. The judge erred in considering this testimony under G.S. 15A-245(a).
The court concluded that the affidavit could not be fairly read as stating that the informant obtained the incriminating $100 bill from Brown within 48 hours of the warrant application. Based on this conclusion, the court ruled, relying on State v. Newcomb, 84 N.C. App. 92 (1987), that the affidavit contained insufficient information to establish probable cause to support the issuance of the search warrant. The informant’s information was stale when considering that, as alleged in the affidavit, there was no time period given when the informant received the counterfeit bill from Brown.
The ruling appears to be solidly grounded. But note that not all search warrant applications will necessarily be found deficient even though there is a missing time period for the informant’s information. An affidavit might contain other information establishing a reasonable basis to believe that the informant’s information was timely. Or perhaps other incriminating facts, aside from the informant’s information, might still establish probable cause.
Other North Carolina cases. The court in State v. Teasley, 82 N.C. App. 150 (1986), ruled that an officer’s oral testimony to a magistrate when he applied for a search warrant could not be considered by the trial judge in determining the sufficiency of the warrant because the magistrate did not record the oral testimony or contemporaneously summarize it in the record. On the other hand, in State v. Hicks, 60 N.C. App. 116 (1982), a magistrate made handwritten notes of information an officer gave to her under oath and considered this information in determining probable cause—in addition to the affidavit’s information. The notes were not attached to the search warrant so that the informant’s identity could be protected. However, the notes were preserved for a later suppression hearing. The court ruled that under G.S. 15A-245(a) the notes could be considered in determining whether probable cause supported the search warrant.
The AOC search warrant form (AOC-CR-119), available here, has boxes to check on the application (side two, lower right column) to document that the issuing judicial official considered information in addition to the affidavit, and either tape-recorded the information or reduced it to writing.
Advice to officers. After an officer drafts a search warrant application for submission to a judicial official, it would be beneficial to have it reviewed by someone else, preferably a person who was not involved in the investigation. There may not be time for such a review with every search warrant, but whenever there is, a disinterested review may result in changes in the application before its submission to a judicial official that may make the difference between a search warrant being upheld and one that is not.