An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-645


Filed: 18 May 2004


         v.                        Lenoir County
                                Nos. 01 CRS 5759, 53390
BILLY EDWIN PERRY                        

    Appeal by defendant from judgment entered 28 January 2003 by Judge Paul L. Jones in Lenoir County Superior Court. Heard in the Court of Appeals 3 May 2004.

    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.     
    Judges TIMMONS-GOODSON and ELMORE concur.
    Report per Rule 30(e).

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