An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-295


Filed: 20 January 2004


v .                                     Onslow County
                                        No. 00CRS058621

    Appeal by defendant from judgments entered 8 October 2002 by Judge Charles H. Henry in Onslow County Superior Court. Heard in the Court of Appeals 3 December 2003.

    Attorney General Roy A. Cooper, III, by Assistant Attorney General William B. Crumpler, for the State.

    Miles & Montgomery, by Mark Montgomery, for defendant- appellant.

    HUNTER, Judge.

    James Godfrey, Jr. (“defendant”) appeals from judgments dated 8 October 2002 entered consistent with defendant's plea of guilty to first degree murder and first degree rape, in which he preserved the right to appeal the denial of his motions to suppress evidence seized pursuant to a search warrant. As a consequence of his plea arrangement, defendant was sentenced to consecutive terms of life imprisonment without parole on the first degree murder charge and a minimum term of 336 months and a corresponding maximum term of 413 months on the first degree rape charge. Because the affidavit submitted in support of the search warrant application is sufficient to support a finding of probable cause and the trialcourt made sufficient findings to establish that the affidavit was made in good faith, we affirm.
    On 9 August 2000, Detective Kaderbek of the Jacksonville Police Department applied for a search warrant to find and seize hair, DNA samples, and complete inked hand impressions from defendant. In support of the application, Detective Kaderbek submitted an affidavit that stated the following.
        1.    On [21 July 2000] at about 10:45 a.m. two Jacksonville city workers found the body of Kristy Thurston (hereinafter the victim) in a depressed area adjacent to Henderson Drive near a city sewer lift station. . . .

        2.    On [22 July 2000] Dr. John Almeida, a pathologist, performed an autopsy on the victim which I attended. . . . Dr. Almeida performed an internal examination of the victim's neck, which supported a conclusion that the victim was killed by manual strangulation. . . .

        3.    Prior to the autopsy, Hans Miller . . . an evidence technician with the SBI . . . was able to obtain what he believed to be latent palm prints on the victim's ankles. . . .

        . . . .

        5.    Agent Elwell of the SBI lab, Serology Department, told me a preliminary conclusion had been made by the lab that semen was found in the vaginal swabs taken from the victim.

        6.    After the victim's body was found . . . JPD started an investigation. . . . JPD Detective John Fifield spoke with people at businesses near where the victim's body was found. I am familiar with the area and Northwoods Tavern (tavern) is located two hundred and fifty yards from where the victim's body was found. While speaking with employees at the tavern, Fifield learned the victim was . . . at the tavern as recent as 2:30 a.m. on [21 July 2000].
        . . . .

        8.    The patrons [of the tavern] told me that the victim was seen in the company of David Henderson. . . . I spoke with Henderson and he informed me that he was outside talking with the victim and they were approached by a black male . . . . Henderson stated that the black male stayed in the general area for awhile and then left. The description provided by Henderson matches the description of [defendant].

        9.    At 2:30 a.m. [5 August 2000,] JPD received a complaint that involved a black male chasing a woman on Henderson Drive. The woman ran into the Snug Harbor tavern and cried out for help. . . . Both Mike Martin and the bartender Merrine Colon observed the black male from a distance of 4 to 5 feet away, in good light, in the parking lot . . . . Officer Ketchem located the black male and conducted a field interview[,] however, by this time the complainant had called a cab and left the area.

        10.    It was later discovered that the black male interviewed by Officer Ketchem had provided a false name, date of birth, and social security number. Detective Fifield was able to locate [defendant], who turned out to be the black male that was interviewed by Officer Ketchem. A picture of [defendant] was shown to Ms. Colon and she confirmed that was the black male. . . .

        11.    At 3:15 a.m., [11 August 2000], Ms. Colon and a female friend were walking from the Northwoods Tavern to Snug Harbor tavern. In the area of the Pantry, on Henderson Drive, they were approached again by [defendant] and [defendant] attempted to start a conversation with them. . . .

        12.    At 8:55 a.m., [7 August 2000], Ms. Connie Padilla was opening the Northwoods Tobacco Shop. As she approached the store she observed a black male loitering in the area in front of the store. Ms. Padilla opened the store and walked to the rear of the store and was startled to hear someone say, “Your smile has made my day[,”] she turned around and sawthe same black male standing very close to her. . . . The black male started asking her personal questions, her phone number, was she married, etc. . . . Ms. Padilla identified a picture of [defendant] as the black male that had been in the store.

        13.    At 2:10 a.m., [21 July 2000], Vonnie Downing stated that as she was driving down Henderson Drive on her way home from bingo she observed a white female and a black male having an argument on the bridge adjacent to the area where the victim was found. As Ms. Downing drove past the bridge, she looked in her rearview mirror and [saw] the black male grab the white female by the arm and drag her towards the bushes. The description of the black male matches the description of [defendant].

        14.    On [7 August 2000] detectives from JPD interviewed [defendant]. . . . [Defendant] admitted that he [was] a patron of the Northwoods Tavern in the past but could not account for his whereabouts the night of [20 July 2000]. [Defendant] was unable to provide any alibi for the timeframe of the [h]omicide.

    Based on this affidavit, a search warrant was issued, pursuant to which the following items were seized from defendant: one set of inked fingerprint impressions, including palms; pubic hair samples; a head hair sample; and saliva and blood samples. Defendant subsequently filed two motions to suppress evidence obtained as a result of the search warrant. The first challenged the sufficiency of Detective Kaderbek's affidavit to establish probable cause. The second motion alleged that the search warrant was invalid because of false statements made in Detective Kaderbek's affidavit. Following a hearing beginning on 12 September 2002, at which Detective Kaderbek testified, the trial court entered its 8 October 2002 order denying defendant's motionsto suppress. In the order, the trial court found, inter alia, the following.
            4.    Detective Kaderbek sought a search warrant after questioning . . . defendant at the Jacksonville Police Department during the evening of [9 August] 2000. [Defendant] had originally been questioned on [7 August] 2000 and had asked to be allowed to leave to return the next day. This was permitted. When he failed to appear as promised, he was brought down to the department on [9 August]. After he denied any knowledge of the victim or the murder, he was asked to voluntarily provide a suspect evidence kit, but he refused. He agreed to take a polygraph but declined that evening because he had “to do his laundry tonight” and had other things he had to do. After . . . defendant left the station at 7:30 p.m., Detective Kaderbek began working on the search warrant affidavit, which was issued at 10:28 p.m. Detective Kaderbek was concerned that he would not be able to get . . . defendant back to serve the search warrant. He believed that . . . defendant was avoiding law enforcement because he had failed to return on [8 August] as promised, and he had provided a weak excuse for not taking the polygraph that night.
            . . . .
            6.    In putting together the affidavit, Detective Kaderbek used the results of the investigative work conducted by seven other law enforcement officers assigned to this homicide. The statements contained in paragraph eight of the affidavit were based on personal interviews conducted by [Detective] Kaderbek of several patrons of Northwoods Tavern including David Henderson. Henderson described an individual in the area of the tavern near closing time as an older black male, unshaved and unclean with a gruff voice and gapped bottom teeth. He was wearing a multicolor striped T-shirt and blue jeans. [Detective] Kaderbek concluded that this description matched that of . . . defendant. . . . Kaderbek recalled that . . . defendant has some discoloration of his lower teeth.
            7.    The statements contained in paragraph nine of the affidavit are based upon information gathered by other law enforcement officers. . . . The lift station where the body was found is across the street from Northwoods Shopping Center where the Northwoods Tavern is located. The Snug Harbor Tavern is located about a quarter of a mile south of that location on Henderson Drive.

            . . . .

            9.    Detective Kaderbek admitted making a typographical error regarding the date and time of the events described in paragraph eleven [of the affidavit]. This event actually took place during the early morning hours of [6 August] 2000. The details of this event were verbally related to [Detective] Kaderbek by [Officer] Fifield . . . .

            10.    The source of the events described in paragraph number twelve of the affidavit was Officer Fifield who interviewed Connie Padilla. Padilla affirmed that the individual depicted in the photograph . . . the defendant . . . , was the one who entered her store . . . .

            11.    Part of the information contained in paragraph thirteen of the affidavit was the product of the interview and the written statement of Ms. Vonnie Downing. . . . Additional information contained in paragraph thirteen came from the written statement of Ms. Mary Mundy, who apparently observed the same individuals on the bridge. Mundy described the individual with the female on the bridge as a black male with a hat on his head and a silk shirt who was short and not that tall. Defendant . . . is a black male, 5'9" or 5'10" in height and in July of 2000 was 37 years old. Kaderbek admitted that he mistakenly and unintentionally attributed Mundy's description to Downing in his affidavit. Both Mundy and Downing witnessed an incident on the bridge within a short period of time of each other after 2 a.m. on [21 July] 2000. . . . In the opinion of [Detective] Kaderbek, the description given by these two witnesses matched . . . defendant.
            12.    By the use of the word “match” in the affidavit, [Detective] Kaderbek meant that the descriptions given by these witnesses were similar and consistent with the physical characteristics of . . . defendant.

            . . . .

            14.    In preparing the affidavit and application of the search warrant, [Detective] Kaderbek had a reasonable fear that . . . defendant would attempt to avoid law enforcement and be unavailable and not subject to the execution of the search warrant.

    Based on these findings, the trial court concluded that:
            1.    The allegations contained in the affidavit were based on the personal knowledge of the affiant, written statements of witnesses obtained by law enforcement officers, and upon information reported to him by other officers in the performance of their duties who had proven reliable in the past. . . .

            2.    Any misstatements by Detective Kaderbek in the affidavit were the result of the pressure of time and were not intended to mislead the magistrate in his determination as to probable cause.

            3.    [Defendant] has failed to produce evidence that [Detective] Kaderbek made any knowingly false allegations or any allegations in reckless disregard of the truth.

            4.    There were sufficient facts contained in the affidavit to establish reasonable grounds to believe a search of . . . defendant would reveal the items sought and these items would aid in the apprehension or conviction of the offender.

As a result, the trial court denied both of defendant's motions to suppress.
    The issues are whether (I) the affidavit in support of the search warrant application was sufficient to establish probablecause, and (II) the trial court's findings of fact support the conclusion that mistakes and omissions in Detective Kaderbek's affidavit were not intended to mislead the magistrate or were not made knowingly or with reckless disregard for the truth.


    Defendant first contends that the affidavit in support of the search warrant application did not contain sufficient factual allegations to establish probable cause and instead relied primarily on Detective Kaderbek's conclusory allegations. We disagree.
    This Court has recently reasserted the requirements for a valid search warrant application.
            A valid search warrant application must contain “[a]llegations of fact supporting the statement. The statements must be supported by one or more affidavits particularly setting forth the facts and circumstances establishing probable cause to believe that the items are in the places or in the possession of the individuals to be searched.” N.C. Gen. Stat. § 15A-244(2) (2001) (emphasis added). Although the affidavit is not required to contain all evidentiary details, it should contain those facts material and essential to the case to support the finding of probable cause. State v. Flowers, 12 N.C. App. 487, 183 S.E.2d 820, cert. denied, 279 N.C. 728, 184 S.E.2d 885 (1971). This Court has held that affidavits containing only conclusory statements of the affiant's belief that probable cause exists are insufficient to establish probable cause for a search warrant. [State v.] Hyleman, [324 N.C. 506, 379 S.E.2d 830 (1989)]; State v. Campbell, 282 N.C. 125, 191 S.E.2d 752 (1972). The clear purpose of these requirements for affidavits supporting search warrants is to allow a magistrate or other judicial official to make an independent determination as to whether probable cause exists for the issuance of the warrant underN.C. Gen. Stat. § 15A-245(b) (2001). N.C. Gen. Stat. § 15A-245(a) requires that a judicial official may consider only information contained in the affidavit, unless such information appears in the record or upon the face of the warrant.

State v. McHone, 158 N.C. App. 117, 120, 580 S.E.2d 80, 83 (2003). In preparing an affidavit in support of an application for a search warrant, “[t]he officer making the affidavit may do so in reliance upon information reported to him by other officers in the performance of their duties.” State v. Horner, 310 N.C. 274, 280, 311 S.E.2d 281, 286 (1984). “Whether an applicant has submitted sufficient evidence to establish probable cause to issue a search warrant is a 'nontechnical, common-sense judgment[] of laymen applying a standard less demanding than those used in more formal legal proceedings.'” State v. Ledbetter, 120 N.C. App. 117, 121, 461 S.E.2d 341, 344 (1995) (quoting Illinois v. Gates, 462 U.S. 213, 235-36, 76 L. Ed. 2d 527, 546 (1983)).
        “The affidavit [in support of an application for a search warrant] is sufficient if it supplies reasonable cause to believe that the proposed search for evidence 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.”

Id. (quoting State v. Arrington, 311 N.C. 633, 636, 319 S.E.2d 254, 256 (1984)).
    In this case, the affidavit does not contain only conclusory allegations that probable cause existed to search and seize evidence. Instead, the affidavit relied on facts obtained by Detective Kaderbek and other officers in the course of theirinvestigation. The affidavit in support of the search warrant application establishes that on the night of the murder, a man matching defendant's description approached the victim at the tavern. On the same night, a man matching defendant's description was seen arguing with a white woman and dragging her into some bushes near the area where the victim's body was found. During the following days there were several reports of defendant, or a man matching his description, accosting women around taverns and in a tobacco store. Further, defendant was unable to account for his whereabouts on the night of the murder. These factual allegations are sufficient to create reasonable cause to believe that the search proposed by the search warrant application would lead to the evidence sought, in this case DNA or fingerprint evidence, and would aid in the apprehension or conviction of the offender.

    Defendant also contends the trial court erred in denying the motion to suppress by concluding that “[a]ny misstatements by Detective Kaderbek in the affidavit were the result of the pressure of time and were not intended to mislead the magistrate[.]” Defendant contends this conclusion is insufficient because the trial court did not consider omissions or whether Detective Kaderbek was acting in good faith when he omitted information. Specifically, defendant argues the trial court failed to make findings that the affidavit does not include descriptions of the black male observed by the witnesses, any description of the whitefemale seen arguing with the black male, or that information in the affidavit was actually related to Kaderbek by other officers.
    The trial court's order, however, plainly shows the trial court considered these omissions. The trial court made detailed findings as to the descriptions of the black male relied on by Detective Kaderbek. The trial court also recognized the different sources that provided information to Detective Kaderbek. Further, we note that the omission of a detailed description of the white woman seen arguing with the man matching defendant's description is not material to the establishment of probable cause to search defendant, when taken together with all of the surrounding circumstances. As to whether Detective Kaderbek was acting in good faith, the trial court found that Detective Kaderbek had a reasonable fear that defendant would attempt to avoid law enforcement and noted other typographical errors and mistaken or unintentional errors in the preparation of the affidavit.
    We conclude that the trial court's findings are sufficient to support its conclusions of law that any misstatements by Detective Kaderbek were the result of time pressure and not intended to mislead the magistrate and that there was no evidence Detective Kaderbek made any false allegations knowingly or with reckless disregard for the truth. Accordingly, the trial court did not err in denying defendant's motions to suppress.
    Judges McGEE and GEER concur.
    Report per Rule 30(e).

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