Search and Seizure--search warrant--motion to suppress cocaine
The trial court did not err by denying defendant's motion to suppress cocaine found in his
home as the result of a search warrant, because: (1) the law does not require absolute certainty,
but only requires that probable cause exists to believe there are drugs on the premises; and (2)
based on a confidential informant's tip and the officer's training and experience, the totality of
circumstances provided sufficient probable cause to support issuance of the search warrant for
defendant's home.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General George K. Hurst, for the State.
Noell P. Tin and C. Melissa Owen for defendant-appellant.
HUNTER, Judge.
Larry Rodgers (“defendant”) appeals the denial of a motion to
suppress cocaine found in his home as the result of a search
warrant. For the reasons stated herein, we affirm.
On 23 June 2000, Detective M. D. Marlow (“Det. Marlow”), of
the Charlotte-Mecklenburg Police Department, filed an application
for a search warrant for the person and home of defendant. Det.
Marlow's affidavit supporting probable cause for the search warrant
provided:
On 6/23/00 I received information from a
confidential and reliable informant that the
above described subject [black male,
approximately five feet, five inches, 170
pounds, and 20-25 years of age] known asShorty, was in possession of a large quantity
of cocaine at his residence located at 3930
Tamerlane Rd. within the past forty[-]eight
(48) hours. The confidential informant said
that Shorty would be transporting a quantity
of cocaine from his residence in a white
Chrysler Sedan. The confidential informant
said that Shorty would be transporting and
delivering the drugs from his residence in the
white Chrysler Sedan on 6/23/00. Based upon
this information I set up surveillance at 3930
Tamerlane Rd. On 6/23/00 at approximately
1850 hours Shorty along with another subject
walked out of 3930 Tamerlane Rd. Shorty then
got into the driver's seat of a white Chrysler
Sedan that was parked in the driveway of 3930
Tamerlane Rd. The other subject then got into
the passenger seat of the same vehicle. The
subjects then headed outbound on Tamerlane Rd.
to N. Sharon Amity Rd. The vehicle was
stopped off of N. Sharon Amity Rd. by Officer
G.P. Brown #1686. The driver of the vehicle
known as Shorty along with the other occupant
then gave Officer Brown consent to search
their persons and the vehicle they occupied.
As a result of the search Shorty was found to
have a small bag of marijuana in his
possession and the other occupant had
approximately $1500.00 in U.S. Currency in his
possession.
This applicant has known this informant for
one month. During this time this informant
has given this applicant information regarding
persons involved in drug trafficking in the
Charlotte-Mecklenburg area which this
applicant has verified to be true through his
own independent investigation. This informant
has given this applicant information that has
led to the arrest of individuals in violation
of the North Carolina Controlled Substance
Act.
Based on this applicant[']s training and
experience to wit: This applicant has over 6
years law enforcement experience. This
applicant has been to drug schools on the
state and federal level. This applicant knows
that individuals involved in drug activities
frequently possess firearms[,] Beepers,
Cellular phones, Currency and Drug transaction
records.Based upon this affidavit, the warrant was issued and, during the
search, approximately 488 grams of cocaine were seized. Defendant
was subsequently indicted for Possession of Schedule VI Controlled
Substance, Trafficking in Cocaine, Maintaining a Place to Keep
Controlled Substances, and Possession of Drug Paraphernalia.
Defendant filed a motion to suppress the fruits of the search,
which was heard on 13 August 2001. For purposes of the suppression
hearing, defendant stipulated to the information in the search
warrant application with the exception of the make and model of the
vehicle. In an order filed 15 August 2001, the court denied
defendants motion after finding, inter alia:
8. That said application for the search
warrant contains an affidavit describing
certain events that occurred on June 23,
2000, before said search warrant was
issued.
9. That the description of events, together
with information from a confidential and
reliable informant described in said
application, constitutes a substantial
basis for the conclusion of said
Magistrate that probable cause for the
search did exist.
10. That the Court finds, determines and
concludes that on June 23, 2000, the
issuing Magistrate found probable cause
from the totality of the circumstances.
11. The . . . affidavit of Detective M.D.
Marlow, considered in its entirety, is
sufficient, in all regards, to supply and
support probable cause for the issuance
of said search warrant.
Thereafter, defendant entered into a negotiated plea of guilty
to one count of Trafficking in Cocaine. The other charges were
dismissed. As a condition of the plea, defendant reserved his
right to appeal the denial of his motion to suppress. Defendant argues the cocaine found in his home should have
been suppressed because Det. Marlow's affidavit lacked probable
cause to support issuance of a search warrant. We disagree.
“Probable cause to search exists if a person of ordinary
caution would be justified in believing that what is sought will be
found in the place to be searched.” State v. Barnhardt, 92 N.C.
App. 94, 97, 373 S.E.2d 461, 462 (1988). When relying on an
affidavit to establish probable cause to issue a search warrant, we
are guided by the following:
Courts have accorded a preference to the
warrant process because it provides an orderly
procedure involving judicial impartiality
whereby “a neutral and detached magistrate”
can make “informed and deliberate
determinations” on the issue of probable
cause. As a result, in a doubtful or marginal
case a search under a warrant may be
sustainable where without one it would fall.
Further, appellate court review of a
magistrate's probable cause decision is not
subject to a technical de novo review, but is
limited to whether “the evidence as a whole
provided a substantial basis for a finding of
probable cause . . . .”
Id. at 96, 373 S.E.2d at 462 (citations omitted). Simply stated,
the application for a search warrant must be viewed using the
“totality of circumstances test” when determining whether there was
sufficient probable cause to issue the warrant. See State v.
Arrington, 311 N.C. 633, 319 S.E.2d 254 (1984). Specifically, if
these circumstances are established through the use of a reliable
confidential informant's tip and supplemented by an officer's
credentials and experience, it can amount to a substantial basis
for a magistrate's determination that probable cause existed. See
Barnhardt, 92 N.C. App. at 97, 373 S.E.2d at 462-63. When considering Det. Marlow's affidavit, the first paragraph
recites information he received from a “confidential and reliable
informant.” The indicia of reliability of an informant's tip “may
include (1) whether the informant was known or anonymous, (2) the
informant's history of reliability, and (3) whether information
provided by the informant could be independently corroborated by
the police.” State v. Collins, 160 N.C. App. 310, 315, 585 S.E.2d
481, 485 (2003). Det. Marlow stated in his affidavit that he had
known the informant for one month prior to the incident in question
and during that time, the informant had given him reliable
information on drug trafficking in the Charlotte-Mecklenburg area
which resulted in several arrests. With respect to defendant, the
informant gave Det. Marlow defendant's nickname, physical
description, and home address, as well as the make and model of the
vehicle defendant would be driving to transport the cocaine on 23
June 2000. Based on that information, Det. Marlow set up
surveillance of defendant's residence on 23 June 2000 and was able
to independently corroborate the informant's tip.
Additionally, the last paragraph of Det. Marlow's affidavit
set forth his credentials and experience as to drug activities.
This Court has 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 (citations omitted). When Det. Marlow subsequently stopped
defendant's vehicle and conducted a consensual search of that
vehicle and its occupants, he discovered marijuana in defendant'spossession and $1,500.00 in cash in the other occupant's
possession. With six years of law enforcement experience and drug
school training, Det. Marlow could justify his belief to a
reasonable third party that finding marijuana and a large sum of
money indicated that defendant was involved in drug activities.
Further, not finding the cocaine in the vehicle, as reported by the
informant, provided probable cause to believe that it was still in
defendant's home.
It should be noted that defendant also argues false
information in Det. Marlow's affidavit was used by the trial court
to provide a basis for establishing probable cause. Specifically,
defendant contends that the affidavit stated that the informant
said defendant would be transporting cocaine in a white Chrysler
sedan, but the officers actually stopped and searched a white Dodge
Dynasty. However, defendant has failed to make a “'substantial
preliminary showing that a false statement knowingly and
intentionally, or with reckless disregard for the truth, was
included by the affiant in the warrant affidavit[.]'” State v.
Crawford, 104 N.C. App. 591, 596-97, 410 S.E.2d 499, 502 (1991)
(quoting Franks v. Delaware, 438 U.S. 154, 155-56, 57 L. Ed. 2d
667, 672 (1978) (holding that a search warrant issued under those
circumstances lacks probable cause if the remaining content of the
affidavit is insufficient to establish probable cause)). In
reciting the facts at the suppression hearing, defendant's counsel
merely stated the officers “stopped a vehicle of similar
description” to that given by the informant offering no further
argument as to the vehicle's make or model. In the absence of apreliminarily showing of bad faith, the validity of the affidavit
must stand.
In conclusion, “[t]he law does not require absolute certainty,
it requires only that probable cause exists to believe there are
drugs on the premises.” Crawford, 104 N.C. App. at 596, 410 S.E.2d
at 502 (citation omitted). Based on the informant's tip and Det.
Marlow's training and experience, we conclude that the “totality of
the circumstances” provided there was sufficient probable cause to
support issuance of the search warrant for defendant's home. Thus,
the trial court's denial of defendant's motion to suppress was
proper.
Affirmed.
Judges McGEE and CALABRIA concur.
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