Opinion
No. 07-556.
Filed March 4, 2008.
Davidson County Nos. 05CRS61088, 05CRS61089.
Appeal by Defendant from order entered 31 January 2007 and from judgment entered 7 February 2007 by Judge Susan C. Taylor in Davidson County Superior Court. Heard in the Court of Appeals 26 November 2007.
Attorney General Roy Cooper, by Assistant Attorney General John P. Scherer II, for the State. Barnes, Grimes, Bunce Fraley, PLLC, by Jerry B. Grimes and Shawn L. Fraley, for Defendant.
On 10 November 2005, Detective Jeffrey Jones of the Davidson County Sheriff's Office applied for a warrant to search (1) the premises located at 214 Eastdale Drive in Lexington, (2) the person of Defendant Steven Joseph Brightwell, Jr., and (3) a 1990 Chevy truck. In the affidavit for the application, Detective Jones alleged he had received training in narcotics investigations from four different schools and that he had been involved in over 150 cases involving the sale and distribution of controlled substances. Detective Jones alleged further:
The Davidson County Sheriff's Office Special Investigations Division is currently conducting investigation of Steven JosephBrightwell[,] Jr. and the illegal possession and sale of marijuana. Within the last week a Confidential Reliable Informant has been inside the residence of 214 Eastdale Drive and saw Steven Joseph Brightwell[,] Jr. with approximately a quarter pound of marijuana.
The Confidential Reliable Informant is familiar with the drug Marijuana and how it is used, packaged, sold, and distributed. This knowledge stems from his/her past associations with drug traffickers. This Confidential Reliable Informant has given information in the past to the Davidson County Sheriff's Office that has proven to be factual through other venues that are [at] this applicant[']s disposal. This information has proven to be an asset in the investigation of controlled substances violations. The Confidential Reliable Informant has given information in the past that has led to the seizure of narcotics and the arrest of individuals involved.
On 11/10/2005 this Detective conducted a utilities check on the residence of 214 Eastdale Drive. The utilities check revealed that a Steven Brightwell Social Security Number [] has been receiving utilities since December 2003. This Detective knows that [Defendant] has the same Social Security Number.
On 12/12/2001 [Defendant] was arrested by the Lexington police Department for the following charges: 1) Possession with Intent to Manufacture Sell and Deliver a Sch[edule] I drug. 2) Possession with Intent to Manufacture Sell and Deliver a Sch[edule] II drug. 3) Possession with Intent to Manufacture Sell and Deliver a Sch[edule] IV drug. 4) Maintain a Residence for a Controlled Substance.
A magistrate concluded that this affidavit established probable cause to search the premises, Defendant, and the truck and issued a warrant. Detective Jones and other deputies executed the warrant that day. Based upon the property seized by the deputies during the search, Defendant was arrested and indicted on multiple drug offenses.
On 7 February 2006, Defendant filed a motion to suppress the evidence obtained in the search on the basis that Detective Jones's affidavit did not establish probable cause. Defendant also filed a motion seeking an order directing the State to disclose the identity of the confidential informant. By order entered 31 January 2007, the trial court denied both motions. Defendant subsequently entered into a plea arrangement and pled guilty to one count of felony possession of marijuana. The trial court sentenced Defendant to three to four months in prison, suspended the sentence, and placed Defendant on supervised probation for one year.
Pursuant to the plea arrangement, the State dismissed three counts of possession with intent to sell or deliver controlled substances, one count of driving with license revoked, one count of possessing drug paraphernalia, and one count of assault on a female.
Defendant appeals.
Defendant first argues that the search warrant application "contained an insufficient basis upon which a detached judicial official could have found probable cause[.]" See N.C. Gen. Stat. § 15A-245(b) (2005) (requiring official to issue a search warrant if the application establishes "probable cause"). Because Defendant specifically notified the State and the trial court of his intention to appeal the denial of his motion to suppress, Defendant has preserved this issue for appellate review, notwithstanding his guilty plea. N.C. Gen. Stat. § 15A-979(b)(2005); State v. McBride, 120 N.C. App. 623, 463 S.E.2d 403 (1995), aff'd per curiam, 344 N.C. 623, 476 S.E.2d 106 (1996).
An application for a search warrant must be made in writing and must contain a statement, supported by allegations of fact as set forth in one or more affidavits, that there is probable cause to believe items subject to seizure may be found in the locations sought to be searched. N.C. Gen. Stat. § 15A-244 (2005).
[W]hen addressing whether a search warrant is supported by probable cause, a reviewing court must consider the totality of the circumstances. In applying the totality of the circumstances test, . . . an affidavit is sufficient if it establishes reasonable cause to believe that the proposed search . . . probably will reveal the presence upon the described premises of the items sought and that those items will aid in the apprehension or conviction of the offender. Probable cause does not mean actual and positive cause nor import absolute certainty. Thus, under the totality of the circumstances test, a reviewing court must determine whether the evidence as a whole provides a substantial basis for concluding that probable cause exists.
In adhering to this standard of review, we are cognizant that great deference should be paid a magistrate's determination of probable cause and that after-the-fact scrutiny should not take the form of a de novo review. . . . A grudging or negative attitude by reviewing courts toward warrants is inconsistent with the Fourth Amendment's strong preference for searches conducted pursuant to a warrant; courts should not invalidate warrant[s] by interpreting affidavit[s] in a hypertechnical, rather than a commonsense, manner. [T]he resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.
Most importantly, we note that a magistrate is entitled to draw reasonable inferences from the material supplied to [the magistrate] by an applicant for a warrant. To that end, it is well settled that whether probable cause has been established is based on factual and practical considerations of everyday life on which reasonable and prudent [persons], not legal technicians, act. Probable cause is a flexible, common-sense [sic] standard. It does not demand any showing that such a belief be correct or more likely true than false. A practical, nontechnical probability is all that is required.
State v. Sinapi, 359 N.C. 394, 398-99, 610 S.E.2d 362, 365 (2005) (quotation marks and citations omitted). Where a defendant does not challenge a trial court's findings of fact in a suppression order, the scope of our inquiry is limited to the trial court's conclusions of law, which are fully reviewable on appeal. Sinapi, 359 N.C. 394, 610 S.E.2d 362. In the case at bar, Defendant does not assign error to any of the trial court's findings of fact. Thus, our inquiry is limited to whether, under the totality of the circumstances, Detective Jones's affidavit established reasonable cause to believe that the proposed search probably would reveal the presence upon the described premises of the items sought and that those items would aid in the apprehension or conviction of Defendant. Id.
Defendant argues the affidavit does not establish the informant's reliability. We disagree. In State v. Riggs, 328 N.C. 213, 400 S.E.2d 429 (1991), a deputy's affidavit tended to show that a confidential informant had made "two prior controlled purchases of drugs and also previously had given accurate information which resulted in the arrest of a `narcotics violator.'" Id. at 218, 400 S.E.2d at 432. "Such evidence[,]" the Supreme Court held, "established that informant's reliability." Id. In this case, Detective Jones's affidavit states not only that the informant "has given information in the past . . . that has proven to be factual[,]" but also that the informant "has given information in the past that has led to the seizure of narcotics and the arrest of individuals involved." These statements establish the informant's reliability. See State v. Altman, 15 N.C. App. 257, 259, 189 S.E.2d 793, 795 ("While we do not approve of such brevity in an affidavit [that states an informant `has proven reliable and credible in the past'], it does meet the minimum standards [for establishing the informant's reliability].") (citation omitted), cert. denied, 281 N.C. 759, 191 S.E.2d 362 (1972).
Next, Defendant argues the affidavit did not set forth sufficient facts from which the magistrate could find probable cause to believe contraband would be found on the premises. Specifically, Defendant contends (1) the affidavit's statement that Defendant was "with" a quarter-pound of marijuana does not reasonably support the conclusion that Defendant "possessed" marijuana, (2) the affidavit does not describe how the informant knew Defendant, and (3) the information provided by the informant was stale. Defendant's first contention represents the kind of hypertechnical interpretation we do not condone and is wholly without merit. The commonsense interpretation of this statement is that the informant saw Defendant in possession of a quarter-pound of marijuana. In support of his second contention, Defendant cites only State v. Collins, 160 N.C. App. 310, 585 S.E.2d 481 (2003), aff'd per curiam, 358 N.C. 135, 591 S.E.2d 518 (2004), for the proposition that an informant must provide sufficient details describing how the informant recognized a suspect. Collins, however, enunciates rules to be followed when law enforcement officers conduct warrantless searches based on informants' tips, and, thus, Collins is not on point. Having concluded that the affidavit establishes the reliability of the informant, it is reasonable to conclude that the informant knew that the person he saw in possession of a quarter-pound of marijuana was Defendant. Defendant's second contention is likewise without merit.
Defendant also argues the affidavit does not set forth sufficient facts from which the magistrate could find probable cause to believe contraband would be found in the truck. While Defendant's argument concerning the truck is not without merit, Defendant's motion to suppress repeatedly states that the items were seized only from Defendant's residence. Thus, even if the warrant should not have issued to search the truck, there is no evidence to be excluded as a result of the alleged constitutional violation. See State v. McKinney, 361 N.C. 53, 637 S.E.2d 868 (2006) (explaining "exclusionary rule").
Finally, Defendant contends the information provided by the informant was "stale" since the informant allegedly saw Defendant with marijuana "within the last week." Quoting State v. McCoy, 100 N.C. App. 574, 397 S.E.2d 355 (1990), Defendant argues "[a]bsent additional facts tending to show otherwise, a one-shot type of crime, such as a single instance of possession or sale of some contraband, will support a finding of probable cause only for a few days at best." The length of time that elapses between the observation of allegedly criminal activity and the issuance of a warrant, however, is not conclusive. State v. Louchheim, 296 N.C. 314, 250 S.E.2d 630, cert. denied, 444 U.S. 836, 62 L. Ed. 2d 47 (1979).
"The ultimate criterion in determining the degree of evaporation of probable cause . . . is . . . reason. The likelihood that the evidence sought is still in place is a function not simply of watch and calendar but of variables that do not punch a clock: the character of the crime (chance encounter in the night or regenerating conspiracy?), of the criminal (nomadic or entrenched?), of the thing to be seized (perishable and easily transferable or of enduring utility to its holder?), of the place to be searched (mere criminal forum of convenience or secure operational base?), etc." Andresen v. Maryland, 24 Md. App. 128, 172, 331 A. 2d 78, 106 (1975), cert. denied, 274 Md. 725 (1975), aff'd, 427 U.S. 463, 49 L.Ed. 2d 627, 96 S. Ct. 2737 (1976). See also United States v. Steeves, 525 F. 2d 33 (8th Cir. 1975).
Id. at 323, 250 S.E.2d at 636. The test
is whether the information constituting the probable cause in the search warrant is so remote from the date of the affidavit "as to render it improbable that the alleged violation of law authorizing the search was extant at the time the application for the search warrant was made." The time element, while a factor to consider, is not the only factor . . . As colorfully stated by the Andresen court: "The hare and the tortoise do not disappear at the same rate of speed."
State v. Ledbetter, 120 N.C. App. 117, 125, 461 S.E.2d 341, 346 (1995) (quoting Davidson v. State, 458 A.2d 875, 879 (Md.Ct.Spec.App. 1983)). In light of these principles, we hold that the information provided by the informant was not stale. In the end we must return to the question of whether it was reasonably probable, from the totality of the circumstances, that the contraband sought could be found in the locations to be searched. The facts here show that Detective Jones, an experienced law enforcement officer with training in narcotics investigations, had been investigating Defendant on the suspicion of illegal possession and sale of marijuana. Furthermore, Detective Jones had received reliable information that, some time within the past seven days, Defendant was seen inside his residence with a quarter-pound of marijuana. Detective Jones's affidavit was not purely conclusory. State v. Goforth, 65 N.C. App. 302, 308, 309 S.E.2d 488, 493 (1983) (invalidating warrant which was issued on basis of law enforcement officer's "conclusory" statement that premises was being used "for the storage of drugs and the furtherance of [an] illicit drug operation"). It was reasonable to infer that when the search warrant was issued, marijuana would be found in the locations to be searched. Riggs, 328 N.C. at 221, 400 S.E.2d at 434 ("[I]t is reasonable to infer that readily mobile contraband is kept at hand, whether in a dwelling, an outbuilding, or a vehicle.") (citations omitted). Defendant's argument is overruled.
Second, Defendant argues the trial court erred in sustaining the State's objections to the following questions posed by defense counsel during his cross-examination of Detective Jones at the suppression hearing:
Q . . . When you executed that search warrant and went in to 214 [Eastdale] Drive, it became immediately clear to you that more than one person resided in that apartment?
. . . .
Q When you went into the residence you discovered not only male clothing but female clothing within 214 [Eastdale] Drive, did you not?
After the trial court sustained the State's objection to the second question, defense counsel made the following proffer:
Q Let's go back to the first question when you went into the residence at 214 [Eastdale] Drive. You immediately determined that more than one person lived there?
A Yes, I did.
Q As you searched that residence you found clothing for both male and female persons, didn't you?
A I do not recall that.
Q Do you recall that you didn't find it?
A I do not recall any female clothing.
Defendant argues the trial court's rulings prevented him from contesting the reliability of the information given to Detective Jones by the confidential informant.
An affidavit supporting a search warrant is presumably valid. State v. Fernandez, 346 N.C. 1, 484 S.E.2d 350 (1997). Where a search warrant is issued on the basis of an affidavit containing false facts, evidence obtained thereby is inadmissible if the defendant proves, by a preponderance of the evidence, that the facts were asserted "either with knowledge of their falsity or with a reckless disregard for their truth." Id. at 13, 484 S.E.2d at 358 (citing Franks v. Delaware, 438 U.S. 154, 155-56, 57 L. Ed. 2d667, 672 (1978); Louchheim, 296 N.C. at 320-21, 250 S.E.2d at 635). In a suppression hearing, "the only person whose veracity is at issue is the affiant himself." Id. at 14, 484 S.E.2d at 358 (citing Franks, 438 U.S. at 171, 57 L. Ed. 2d at 682), and "the evidence must establish facts from which the finder of fact might conclude that the affiant alleged the facts in bad faith." Id. (citing State v. Winfrey, 40 N.C. App. 266, 269, 252 S.E.2d 248, 249, disc. review denied, 297 N.C. 304, 254 S.E.2d 922 (1979)); see also N.C. Gen. Stat. § 15A-978(a) (2005) (codifying a defendant's right to contest the truthfulness of the testimony showing probable cause for a search warrant's issuance).
In this case, as in Fernandez, Defendant sought to suppress the evidence seized from his residence on the ground that the information used to obtain the search warrant was based on an unreliable, incompetent source. The information provided in the affidavit suggested that 214 Eastdale Drive was Defendant's residence. The evidence Defendant sought to elicit through cross-examination, however, served solely to show that Defendant was not the only resident of that premises. The excluded evidence did not challenge the affidavit's assertion that 214 Eastdale Drive was, in fact, Defendant's residence, and Defendant presented no evidence that Detective Jones made his allegations in bad faith such that they were knowingly false or in reckless disregard of the truth. The trial court did not abuse its discretion in sustaining the State's objections, and Defendant's argument is overruled. See State v. Syriani, 333 N.C. 350, 428 S.E.2d 118 (stating that the scope of cross-examination is within the sound discretion of the trial court), cert. denied, 510 U.S. 948, 126 L. Ed. 2d 341 (1993), reh'g denied, 510 U.S. 1066, 126 L. Ed. 2d 707 (1994).
Finally, Defendant purports to appeal the trial court's denial of his motion seeking disclosure of the confidential informant's identity. "In North Carolina, a defendant's right to appeal in a criminal proceeding is purely a creation of state statute." State v. Pimental, 153 N.C. App. 69, 72, 568 S.E.2d 867, 869 (citations omitted), disc. review denied, 356 N.C. 442, 573 S.E.2d 163 (2002). Pursuant to N.C. Gen. Stat. § 15A-1444, a defendant who pleads guilty may appeal only the following issues:
(1) whether the sentence is supported by the evidence (if the minimum term of imprisonment does not fall within the presumptive range); (2) whether the sentence results from an incorrect finding of the defendant's prior record level under N.C. Gen. Stat. § 15A-1340.14 or the defendant's prior conviction level under N.C. Gen. Stat. § 15A-1340.21; (3) whether the sentence constitutes a type of sentence not authorized by N.C. Gen. Stat. § 15A-1340.17 or § 15A-1340.23 for the defendant's class of offense and prior record or conviction level; (4) whether the trial court improperly denied the defendant's motion to suppress; and (5) whether the trial court improperly denied the defendant's motion to withdraw his guilty plea.
State v. Carter, 167 N.C. App. 582, 584, 605 S.E.2d 676, 678 (2004) (citation omitted). Following the trial court's ruling on his motion, Defendant entered a guilty plea. Thus, Defendant does not have a statutory right to appeal the trial court's ruling, and this argument is dismissed. Moreover, we note: In any proceeding on a motion to suppress evidence pursuant to this section in which the truthfulness of the testimony presented to establish probable cause is contested and the testimony includes a report of information furnished by an informant whose identity is not disclosed in the testimony, the defendant is entitled to be informed of the informant's identity unless:
(1) The evidence sought to be suppressed was seized by authority of a search warrant or incident to an arrest with warrant. . . .
N.C. Gen. Stat. § 15A-978(b)(1) (2005) (emphasis added). "By the express terms of the statute, [D]efendant is not entitled to disclosure of the identity of the informant. The evidence was seized pursuant to a search warrant; therefore [D]efendant is not entitled to this disclosure." State v. Creason, 313 N.C. 122, 128, 326 S.E.2d 24, 27 (1985) (citing N.C. Gen. Stat. § 15A-978(b)(1)).
The order and judgment of the trial court are affirmed.
AFFIRMED.
Chief Judge MARTIN and Judge McGEE concur.
Report per Rule 30(e).