Appeal by defendant from judgment entered 15 August 2000 by
Judge Robert F. Floyd, Jr., in Robeson County Superior Court.
Heard in the Court of Appeals 27 November 2001.
Attorney General Roy Cooper, by Assistant Attorney General
Grady L. Balentine, Jr., for the State.
Public Defender Angus B. Thompson, II, by Assistant Public
Defender Ronald H. Foxworth, for defendant appellant.
McCULLOUGH, Judge.
Defendant Russell Dean Hunt pled guilty to felonious
possession with intent to sell and deliver a controlled substance
and misdemeanor possession of drug paraphernalia on 15 August 2000.
He was sentenced to a minimum term of 9 months and a maximum term
of 11 months.
Defendant was arrested on or about 23 September 1997 by
Sergeant J. W. Jacobs of the Robeson County Sheriff's Department.
Sergeant Jacobs had gone to the magistrate the morning of the 23rd
and submitted an affidavit to establish probable cause for a search
warrant for defendant's premises. The magistrate found from the
affidavit that probable cause existed and issued the search
warrant.
Defendant filed a motion to suppress challenging the searchwarrant on 30 January 1998. In his motion, defendant claimed that
the affidavit submitted by Sergeant Jacobs was insufficient to
establish probable cause. The hearing was not held until 11 July
2000 during the 11 July 2000 Session of the Robeson County Superior
Court before the Honorable Robert F. Floyd, Jr. In the meantime,
defendant had been indicted on the above charges on 8 November
1999.
At the motion to suppress hearing, Sergeant Jacobs testified
as to his affidavit in support of probable cause. The following
affidavit was read into evidence:
Q.
Officer Jacobs, if you would, starting at
the beginning of that probable cause
affidavit that you have in your hand
there, read that through the close of the
information you provided pursuant to the
probable cause.
A.
Everything after the “probable cause”;
correct?
Q.
That's correct.
A.
“The applicant swears to the following
facts to establish probable cause for the
issuance of a search warrant: I, J.W.
Jacobs, am a drug agent with the Robeson
County Sheriff's Department Drug
Enforcement Division. . . . Continuation
page attached to search warrant
application by Drug Agent J.W. Jacobs
this date, September 23, 1997, to search
the premises of Tyrone Hunt, Indian male,
Russell Hunt, Indian male, Roger Dale
Hunt, Indian male, John Doe, Indian male,
also known as Fatboy, Jeff Locklear,
Indian male. The Robeson County
Sheriff's Department Drug Enforcement
Division has been receiving constant
complaints from concerned citizens in the
Jamestown community which is located near
Lumberton in Robeson County reference theillegal sale and distribution of
controlled substances at the dwelling of
the Defendants as described above. This
dwelling is well-known as Pookie's Old
Place. The citizen complaints advise
that there is [sic] a lot of vehicles
going to and from this dwelling. The
vehicles respectively only remain at the
residence for a very short period of time
and then will leave. When the vehicles
pull down the dirt road that leads to
this dwelling, the vehicle will stop in
front of the single-wide mobile home.
Either the passenger or the driver of the
vehicle will exit and go the (sic) front
door of the dwelling. Sometimes someone
will meet 'customer'” -- “customer” in
quotation marks -- “at car door. The
passenger or the driver will talk to
someone at this dwelling for about three
to five minutes and the drug transaction
will take place. The driver or the
passenger will then leave after the drug
transaction has taken place. I, Drug
Agent J.W. Jacobs, with the Robeson
County Sheriff's Department Drug
Enforcement Division observed this
dwelling for vehicular traffic on Monday,
September 22, 1997. On this date I
observed numerous vehicles pull down the
dirt road that leads to this dwelling.
Someone would exit the vehicle. Someone
would usually go into the dwelling, stay
about five to eight minutes, and then the
vehicle would leave. From my training
and experience as a drug agent with the
Robeson County Sheriff's Department Drug
Enforcement Division, it is of my opinion
that from the numerous citizen complaints
versus the heavy amount of vehicular
traffic observed at this dwelling, that
this concludes to be evidence of drug
trafficking from this dwelling.
Continuation page attached to the search
warrant application by Drug Agent J.W.
Jacobs, this date, September 23, 1997, to
search the premises of Russell Hunt,
Indian male, Roger Dale Hunt, Indian
male, Tyrone Hunt, Indian male, Jeff
Locklear, Indian male, John Doe, Indian
male, in Robeson County, North Carolina.
Sergeant Jacobs also testified that he had been a law enforcement
officer for ten years prior to October 1997, had aided in over 500
arrests, and had assisted state and federal agencies in
surveillance and arrests in substance abuse cases. This information
was also in Sergeant Jacobs' affidavit.
The trial court noted that citizens' complaints, by
themselves, “would not be enough to rely on” in establishing
probable cause for a search warrant. Thus, the trial court looked
to other evidence to bolster the complaints. The trial court
looked to see “if any investigation or further verified complaint,
reliable informant was used, or if the officer himself made any
personal investigation.”
In ruling that the affidavit did provide probable cause, the
trial court reasoned:
It's noted that the citizens' complaints,
there's not a time indication as to the
citizens' complaints except it says “constant
complaints” of concerned citizens. [Sergeant
Jacobs] also went out on September 22nd, '97,
the day before the search was done, the day
before procuring the search warrant, and made
the observations as set forth -- specifically,
he said he verified what the citizens had
complained of, observed numerous vehicles pull
down the dirt road that leads to the dwelling,
someone would exit the vehicle, someone would
usually go into the dwelling and stay about
five to eight minutes, and then the vehicle
would leave. And therefore, that is not a
conclusory statement. It is a statement of
fact of what he did. And based upon his
factual statement, he made a conclusion based
on his experience and his observation as to
what he thought was evidence to support drug
trafficking at the dwelling. That, taken
together with the citizens' complaints, Ithink he verified the citizens' complaints,
and the Court denies the motion to suppress.
The trial court held the citizens' complaints that had been
verified by a law enforcement officer, combined with his belief
that the activity was drug related due his law enforcement
experience, constituted probable cause to search the residence for
drugs. Defendant appeals from this ruling.
Defendant's sole assignment of error is that the trial court
erred in denying defendant's motion to suppress evidence obtained
pursuant to a search warrant issued by a neutral and detached
magistrate based on facts insufficient to support the issuance of
the search warrant.
I.
Defendant contends that the trial court erred in denying his
motion to suppress evidence because the affidavit supporting the
application for the search warrant was insufficient to establish
probable cause. Defendant claims the affidavit was insufficient
because it contained unsupported conclusory statements by the
affiant. The affiant based his conclusion that drug trafficking
was occurring at the dwelling on complaints of concerned, anonymous
citizens of heavy vehicular traffic with very short visits, officer
verification by surveillance thereof, and his lengthy experience as
a drug agent.
“A search warrant may be issued only upon a finding of
probable cause for the search. This means a reasonable ground to
believe that the proposed search will reveal the presence upon thepremises to be searched of the object sought and that such object
will aid in the apprehension or conviction of the offender.”
State
v. Crisp, 19 N.C. App. 456, 458, 199 S.E.2d 155, 156 (1973).
In
State v. Arrington, 311 N.C. 633, 319 S.E.2d 254 (1984),
North Carolina adopted the “totality of the circumstances” test for
examining whether information properly before the magistrate
provides a sufficient basis for finding probable cause and issuing
a search warrant. The standard, established by the United States
Supreme Court in
Illinois v. Gates, 462 U.S. 213, 76 L. Ed. 2d 527,
reh'g denied, 463 U.S. 1237, 77 L. Ed. 2d 1453 (1983), is as
follows:
The task of the issuing magistrate is simply
to make a practical, common-sense decision
whether, given all the circumstances set forth
in the affidavit before him, including the
“veracity” and “basis of knowledge” of persons
supplying hearsay information, there is a fair
probability that contraband or evidence of a
crime will be found in a particular place.
And the duty of a reviewing court is simply to
ensure that the magistrate had a “substantial
basis for . . . conclud[ing]” that probable
cause existed.
Gates, 462 U.S. at 238-39, 76 L. Ed. 2d at 548;
Arrington, 311 N.C.
at 638, 319 S.E.2d at 257-58. When reviewing a magistrate's
determination of probable cause, this Court must pay great
deference and sustain the magistrate's determination if there
existed a substantial basis for the magistrate to conclude that
articles searched for were probably present.
Id.
Defendant contends that the facts in this case are similar to
the facts in
Crisp, 19 N.C. App. 456, 199 S.E.2d 155. We agree. The
Crisp case was controlled by
State v. Campbell, 282 N.C. 125,
191 S.E.2d 752 (1972). These cases hold that affidavits which
implicate the premises to be searched solely as a conclusion of the
affiant are fatally defective.
Crisp deals directly with an
affidavit somewhat similar with the one before us in that it relies
on the affiant's surveillance of heavy vehicular traffic.
In
Crisp, the officers obtained a search warrant for
defendant's residence because they believed drugs were contained
therein. During the subsequent search, the officers found
marijuana in the house. Defendant sought to suppress the evidence
on the grounds that the affidavit was insufficient to justify the
issuance of a search warrant. The affidavit read, in pertinent
part:
“The facts which establish probable cause for
the issuance of a search warrant are as
follows: on 12-19-72 Deputy Roy Chaney, Union
County Sheriff Dept. stopped Dana Michael
Conlon for improper Equopment, [
sic] to wit:
no lights on vehicle, and after placing Dana
Michael Conlon in his, Deputy Chaney's
vehicle, he smelled the strong odor of what he
believes to be Marijuana. Upon searching Dana
M. Conlon, deputy Chaney found over five grams
of Marijuana, and upon searching the vehicle
that Dana M. Conlon was operating, deputy
Chaney found over five more grams of
Marijuana. Further investigation by deputy
Chaney revealed that Dana M. Conlon has been
living at the above location for the passed
[
sic] three or four months. During the passed
[
sic] three or four months deputy Chaney has
been observing heavy traffic eterning [
sic]
and leaving the above described location.
Deputy Chaney states also, that various
vehicles, cars and trucks, are in and out at
various times of the day and night. But mostly
at night. After stopping Dana M. Conlon and
finding Controlled Substances on his personand in his vehicle, and after personally
observing the various traffic in and out of
the above described location, it is the belief
of this affiant that drugs are being contained
in the above location.”
Crisp, 19 N.C. App. at 457-58, 199 S.E.2d at 156. The Court found
the affidavit to be fatally defective because it was devoid of
underlying circumstances from which probable cause could be
determined. Indeed, the Court said:
The affidavit implicates those premises solely
as a conclusion of the affiant. Nowhere in
the affidavit is there any statement that
marijuana was ever possessed or sold in or
about the dwelling to be searched. Nowhere in
the affidavit are any underlying circumstances
detailed from which the magistrate could
reasonably conclude that the proposed search
would reveal the presence of any illegal drug
in the dwelling. The inference the State
seeks to draw from the contents of this
affidavit does not reasonably arise from the
facts alleged. Nothing in the affidavit in
the instant case affords a reasonable basis
upon which the issuing magistrate could
conclude that any illegal possession or sale
of narcotic drugs had occurred or was
occurring on the premises to be searched.
Crisp, 19 N.C. App. at 458-59, 199 S.E.2d at 156;
State v.
Campbell, 282 N.C. 125, 130, 191 S.E.2d 752, 757 (1972). Thus,
Crisp stands for the proposition that unusual traffic at a
residence may not, in itself, constitute probable cause to justify
the issuance of a warrant authorizing a search of that residence
for drugs.
See State v. Ford, 71 N.C. App. 748, 752, 323 S.E.2d
358, 361,
appeal dismissed, disc. review denied, 313 N.C. 511, 329
S.E.2d 397 (1985).
Ford, relying on
Crisp, and decided subsequent
to
Gates, held that unusual traffic at a residence in itself doesnot constitute probable cause.
The very same can be said of the affidavit in this case as was
said by the Court of the
Crisp affidavit. All that the affidavit
offers are complaints from citizens suspicious of drug activity in
a nearby house. There is no mention of anyone ever seeing drugs on
the premises. The citizens only reported heavy vehicular traffic
to the house. The officer verified the traffic. His verification,
as the trial court found, was not a conclusion. What was a
conclusion was the determination of the officer, based on his
experience and the vehicular traffic, that drug trafficking was
taking place. “The inference the State seeks to draw from the
contents of this affidavit does not reasonably arise from the facts
alleged.”
Crisp, 19 N.C. App. at 458, 199 S.E.2d at 156.
We note that this Court has ruled that probable cause may be
established through timely and detailed information by an
unfamiliar confidential informant when some of that information has
been verified.
State v. Barnhardt, 92 N.C. App. 94, 373 S.E.2d
461,
disc. review denied, 323 N.C. 626, 374 S.E.2d 593 (1988). The
Barnhardt case also held that “[t]he experience and expertise of
the affiant officer may be taken into account in the probable cause
determination, so long as the officer can justify his belief to an
objective third party.”
Barnhardt, 92 N.C. App. at 97, 373 S.E.2d
at 462.
The informant in
Barnhardt had seen drugs inside the house and
could describe them. He gave a detailed description of the outside
of the house and the suspect. He also gave a detailed descriptionof his knowledge of drugs. The officers verified the informant's
description of the house and the identity of the suspect. These
facts, along with the officer's experience, were held to be a
substantial basis for finding probable cause.
The facts in the present case do not rise to the level of
those in
Barnhardt. All the citizen informants report is the
traffic; there was nothing else to verify. No one ever saw drugs
on the premises.
We conclude that defendant's motion to suppress should have
been allowed.
Reversed and remanded.
Judges GREENE and CAMPBELL concur.
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