STATE OF NORTH CAROLINA
v. Lenoir County
Nos. 01 CRS 5759, 53390
BILLY EDWIN PERRY
Attorney General Roy Cooper, by Special Deputy Attorney
General Douglas A. Johnston, for the State.
William H. Dowdy, for defendant-appellant.
CALABRIA, Judge.
On 6 May 2001, Detective Alana Teresa Liberty (“Detective
Liberty”) of the Lenoir County Sheriff's Office applied for a
search warrant to search 2768 Vine Swamp Road in Kinston, North
Carolina. According to the application, Detective Liberty was
assigned to the Narcotics Unit and was investigating violations of
the North Carolina Controlled Substances Act. Detective Liberty
had been an officer for over six years and had been assigned to the
Narcotics Unit for almost three years. Detective Liberty stated
that she had probable cause to believe marijuana was being
distributed from the residence on Vine Swamp Road. Detective
Liberty cited information from a confidential informant who was“very familiar with the way marijuana is sold, bought and used” and
had “provided information in the past . . . that has been proven
reliable.” Detective Liberty stated that the informant had “been
to the described above residence in the past (72) seventy two hours
and observed a quantity of green leafy substance being represented
as Marijuana by a white male known to the informant as Billy.”
A search warrant was issued at 11:31 p.m. on 6 May 2001.
After receiving the warrant, Detective Liberty served the warrant
on Billy Edwin Perry (“defendant”) and searched the defendant's
residence. The search produced both marijuana and cocaine.
Defendant was subsequently arrested and charged with possession of
cocaine and maintaining a dwelling for the use of controlled
substances.
Prior to trial, defendant moved to suppress the evidence.
Defendant argued that the warrant was illegally issued because it
did not show probable cause and was based on hearsay information.
The motion was denied. The court found that given the “totality of
the circumstances,” the confidential informant was both credible
and reliable and the magistrate “had a substantial basis to
conclude that probable cause existed to issue [the] search
warrant.”
Following the denial of his motion to suppress, defendant pled
guilty pursuant to a plea agreement to maintaining a dwelling for
the use of controlled substances. Defendant also agreed to admit
his habitual felon status. In accordance with the plea agreement,
the State dismissed a charge of possession of a controlledsubstance and agreed that defendant should be sentenced in the
mitigated range of punishment. Defendant was sentenced to a term
of seventy to ninety-three months' imprisonment. Defendant
expressly reserved his right to appeal the denial of his motion to
suppress in the agreement.
Defendant's sole argument on appeal is that the trial court
erred by denying his motion to suppress because the search warrant
was not predicated upon probable cause. Specifically, defendant
contends that the search warrant was based upon the hearsay
statement of an informant who stated that he “observed a quantity
of green leafy substance” which “Billy” told him was marijuana.
Defendant notes that the informant failed to state how much of the
substance was seen, whether it was seen inside or outside the
dwelling, whether it was owned by the defendant, or any other
information about the substance. Defendant asserts that the
affidavit accompanying the search warrant application stated
“nothing more than the naked conclusion of the affiant that the
premises to be searched likely contain[ed] contraband.” Defendant
argues that there was insufficient information in the application
from which the magistrate could reasonably and independently
determine that contraband was anywhere on the premises.
After careful review of the record, briefs, and contentions of
the parties, we affirm. North Carolina General Statutes § 15A-244
(2003) provides that:
Each application for a search warrant must be
made in writing upon oath or affirmation. All
applications must contain:
(1) The name and title of the
applicant; and
(2) A statement that there is
probable cause to believe that items
subject to seizure under G.S.
15A-242 may be found in or upon a
designated or described place,
vehicle, or person; and
(3) Allegations 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; and
(4) A request that the court issue a
search warrant directing a search
for and the seizure of the items in
question.
“'The affidavit 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.'” State v. Graham, 90 N.C. App. 564, 567, 369 S.E.2d
615, 617 (1988) (quoting State v. Arrington, 311 N.C. 633, 636, 319
S.E.2d 254, 256 (1984)).
“In Arrington, our Supreme Court adopted the 'totality of
circumstances' test set out in Illinois v. Gates, 462 U.S. 213,
reh'g denied, 463 U.S. 1237 (1983), for determining the
constitutionality of a magistrate's finding of probable cause.”
Graham, 90 N.C. App. at 567, 369 S.E.2d at 617. In analyzing this
test, our Court has stated that: the question is whether the evidence as a
whole provides a substantial basis for
concluding that probable cause exists. In
applying the “totality of circumstances” test
“great deference should be paid a magistrate's
determination of probable cause and . . .
after-the-fact scrutiny should not take the
form of a de novo review.”
Id., 90 N.C. App. at 567, 369 S.E.2d at 617-18 (citations omitted).
In the case sub judice, there were sufficient facts under the
“totality of circumstances” test to support a finding of probable
cause. Detective Liberty had received information from a
confidential informant who had provided reliable information in the
past. The informant was familiar with marijuana and how it was
sold, purchased and used, had been to the defendant's residence
within the seventy-two hour period listed in the affidavit and
observed a green leafy substance that he was told was marijuana.
The information provided a substantial basis for the probability
that marijuana was present in the described residence within the
preceding seventy-two hours. See id., 90 N.C. App. at 565, 369
S.E.2d at 616 (probable cause for search warrant where informant
who had been proven reliable had been inside residence within the
past forty-eight hours, had seen cocaine inside the residence, and
was familiar with how cocaine was packaged and sold on the
streets). Thus, we conclude the trial court properly denied
defendant's motion to suppress the evidence seized from the
residence. Accordingly, we affirm.
Affirmed.
Judges TIMMONS-GOODSON and ELMORE concur.
Report per Rule 30(e).
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