When a Person Sells Drugs Away from His or Her Home, Does that Provide Probable Cause to Search the Person’s Home?

The question in the title of this post is an oversimplified version of the issue addressed by the court of appeals last week in State v. Bailey, __ N.C. App. __, __ S.E.2d __, 2019 WL 3925864 (Aug. 20, 2019). But it isn’t oversimplified by much, and the appellate division may be inching closer to answering the question in the affirmative.

Facts. Bailey began when Carteret County officers saw a blue Jeep park in an apartment complex. Its occupants were a man and a woman who lived together. Each had a history of drug activity. A second woman emerged from another vehicle, entered the Jeep, and emerged 30 seconds later. Both vehicles then drove away. Suspecting that they had just witnessed a drug transaction, officers followed the second woman’s vehicle, stopped it for traffic infractions, and asked her whether she had just purchased heroin. She acknowledged that she had and was released with a “strong reprimand.” Meanwhile, other officers followed the Jeep until it arrived at the occupants’ residence. Both occupants went into their home.

Based on the above facts, officers sought and obtained a search warrant for the residence. When the warrant was executed, both were present, as was the eventual defendant, apparently a third roommate in the home. Officers seized drugs, paraphernalia, and $900 from the defendant and he was charged with trafficking in cocaine. He moved to suppress, arguing that the warrant was not supported by probable cause. The trial court denied the motion and the defendant pled guilty and appealed.

Majority opinion. Judge Berger wrote the majority opinion, joined by Judge Dietz. The majority relied heavily on State v. Allman, 369 N.C. 292 (2016). Bob Farb wrote about Allman here. In a nutshell, the court held that there was probable cause to support a search warrant for the residence of two men who (1) were found to have eight ounces of marijuana and $1600 in cash in their car and (2) lied to the officers who stopped them about their home address. The Allman court cited federal case law and concluded that “based on the insight from [the applicant’s] training and experience that evidence of drug dealing is likely to be found at a drug dealer’s home, and the fact that [one of the men] lied about where [they] lived, it was reasonable for the magistrate to infer that there could be evidence of drug dealing at [their home].”

Returning to Bailey, Judge Berger emphasized that probable cause is a low hurdle and that a reviewing court should defer to a magistrate’s determination of probable cause. Then he noted that the Jeep’s occupants had “traveled directly from the scene of the drug transaction to [their] residence” and that, at a minimum, the money they made from the drug transaction was evidence of the crime and was likely to be in their home. Finally, citing Allman, he argued that it would be “reasonable to infer” that the Jeep’s occupants “would have other additional drugs or paraphernalia stored in their residence or vehicle” and that “[t]he practical considerations involved in selling quantities of heroin require that the product be cut, weighed, and packaged at some location,” most likely a residence.

Dissent. Judge Zachary viewed the case as governed by State v. Campbell, 282 N.C. 125 (1972) (holding that there was insufficient probable cause to support a search warrant for a residence shared by three men, each of whom had sold drugs to an undercover officer, because “[n]owhere in the affidavit is there any statement that narcotic drugs were ever possessed or sold in or about the dwelling to be searched”). In Judge Zachary’s view, there was not a sufficient nexus between the apartment and the off-site drug activity. Accordingly, she would have reversed the trial court’s ruling on the motion to suppress.

Comment. Presumably the defendant will ask the state supreme court to review this case based on the dissent. If so, the court will have the opportunity to wade into a sprawling national split of authority. Professor Wayne LaFave explains that courts fall in two general camps. The first group of courts will find probable cause to search a drug seller’s home based on drug sales outside the home only when there are “some additional facts . . . which would support the inference that the supply [of drugs] is located [in the home].” Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 3.7(d) (5th ed. 2012) (exhaustively collecting authority). The “additional facts” need not be especially strong and may include an effort to conceal the location of the seller’s home from police; a visit to the home immediately before or after the sale; or a close proximity between the home and the sale, among other possibilities. But there must be some additional peppercorn connecting the drug activity and the home.

Professor LaFave summarizes the second perspective as follows: “[I]n more recent times, many courts have been disinclined to require such facts in the particular case to support that inference. Rather, it is commonly held that this gap can be filled merely on the basis of the affiant-officer’s experience (or, for that matter, the magistrate’s common-sense judgment) that drug dealers ordinarily keep their supply, records, and monetary profits at home.” Id. See also F. Lee Bailey & Kenneth Fishman, Handling Narcotic & Drug Cases § 131.2 (Feb. 2019 update) (citing State v. Thein, 977 P.2d 582 (Wash. 1999), for the proposition that “[g]eneral statements in a search warrant affidavit to the effect that drug dealers commonly keep drugs, drug-related records, and firearms in their homes, does [sic] not provide probable cause to search the home of a particular suspect,” but also noting contrary authority from other courts).

It isn’t totally obvious where North Carolina fits. Campbell suggests perhaps the first camp, but it is an older case and the court’s explanation of its reasoning isn’t crystal clear. Although Allman is certainly favorable for the State, the opinion emphasizes the “additional fact” that the suspects had lied to the officers about where they lived. Therefore, Allman doesn’t put North Carolina firmly in the second camp. Some of the language in Bailey comes closer to endorsing the second perspective, but Bailey may be appealed further. And there’s no guarantee that a further appeal will clarify the issue completely. The state supreme court could decide the issue on narrow grounds by focusing on the “additional fact” that the drug sellers returned to the residence immediately after the sale.

In the meantime, one suggestion for officers drafting, and judicial officials reviewing, search warrant applications is to pay close attention to what the affiant says about his or her training and experience with drug offenses and where drug sellers keep the tools of their trade. Judge Zachary, in distinguishing Allman, pointed out that the affidavit in Bailey contained no “insight from the affiant’s ‘training and experience’ which might have helped to link the single occurrence of a narcotics transaction with the presence of additional narcotics inside the suspected dealer’s home.” Courts elsewhere have also looked to officers’ training and experience, as reflected in the affidavit, to support the idea that people who sell drugs often keep contraband in their homes. Thus, careful drafting may make the difference between a valid warrant and an invalid one.