STATE OF NORTH CAROLINA
v. Buncombe County
Nos. 01 CRS 64343, 64399
KEITH LAMONT HOWARD, 02 CRS 12735
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
David J. Adinolfi II, for the State.
Eric A. Bach for defendant-appellant.
WYNN, Judge.
Absent exigent circumstances, the search of a private dwelling
must be supported by a warrant issued by a magistrate upon a
finding of probable cause to believe the search will yield evidence
of a crime. See State v. Bone, 354 N.C. 1, 9, 550 S.E.2d 482, 487
(2001). In this case, Defendant contends that the facts set out in
the affidavit supporting the search warrant were insufficient to
establish probable cause. As we find the affidavit was sufficient
to establish probable cause, the trial court did not err in denying
Defendant's motion to suppress.
In his motion and supplemental motion to suppress, Defendant
sought to exclude evidence obtained by police during a search,pursuant to a warrant, “of his residence at ap[artment]t F-53 Bear
Creek Apartments, Asheville, North Carolina on or about November
21, 2001.” A magistrate issued the search warrant based upon an
application and affidavit submitted by Sergeant Alfred F. Bottego
of the Buncombe County Sheriff's Office.
At the suppression hearing, the State adduced evidence that
Bottego worked as a counter-narcotics agent with the Metropolitan
Enforcement Group (MEG) in October and November of 2001. On 1
October of 2001, he learned from confidential source of information
-- identified at the hearing as Damion Hazel -- that Defendant was
involved in a large-scale cocaine-distribution network in the
Asheville area. Hazel advised Bottego that Defendant was using his
“Jiggy Styles” retail clothing store in Biltmore Square Mall as a
front for cocaine sales. Hazel further identified Defendant's
sources for cocaine as originating in Mullins, South Carolina, and
informed Bottego that Defendant lived with his girlfriend in a
rented house on Debra Lane in Asheville. Bottego independently
confirmed Defendant's residence at the Debra Lane address and
traced the license tags on a vehicle parked in the driveway of
Defendant's residence to confirm its registration in Mullins, South
Carolina. Bottego also corroborated Hazel's claims of Defendant's
illicit activity with a second confidential informant cultivated by
State Bureau of Investigation Special Agent Paula L. Ray.
On 9 October 2001, Bottego sent Hazel into Defendant's
clothing store “to find out if he, in fact, could make a controlled
purchase from [Defendant].” In a recorded conversation, Hazel andDefendant arranged “an open-ended deal” in which Hazel would buy
cocaine from Defendant once Defendant received “a large shipment”
expected to arrive “either that week or the beginning of the new
week.” Defendant gave Hazel his cellular telephone number and told
“him to call first so they could decide upon the where and the
when.”
Bottego continued his background investigation of Defendant
into November of 2001, learning that he was moving from his Debra
Lane residence to an apartment. Advised by Ray that Defendant was
residing at F-53 Bear Creek Apartments in Asheville, Bottego
instructed Hazel to telephone Defendant “to find out if [Defendant]
had cocaine ready for sale.” During the phone call, Hazel arranged
to purchase three ounces of cocaine from Defendant on 20 November
2001, using $3000 provided by MEG.
MEG initially planned to arrest Defendant upon his sale of
cocaine to Hazel on 20 November 2001, and to search his apartment
immediately thereafter. Bottego drafted an application for an
anticipatory search warrant for the apartment, to trigger upon the
probable cause provided by Hazel's successful purchase of cocaine
from Defendant at Jiggy Styles. Consistent with the operational
plan, MEG positioned surveillance units at Defendant's apartment
and at Biltmore Square Mall on 20 November 2001. Hazel was placed
with a member of the sheriff's department and instructed to make a
controlled call to Defendant. Before Hazel could place the call,
however, a surveillance officer observed Defendant driving away
from his apartment. At the agent's direction, Hazel called toDefendant to arrange the purchase. Defendant told Hazel “that he
would have to go back and get the cocaine.” The surveillance
officer then saw Defendant turn his car around and followed him
back to his apartment. Defendant went into the apartment briefly
before returning to his car and proceeding toward Jiggy Styles.
Advised of these events by a fellow officer, Bottego abandoned
the plan for an anticipatory search warrant and prepared a new
application seeking immediate authority for the search. He
presented the application to a magistrate, who signed the warrant
at 4:30 p.m. on 20 November 2001. Bottego then joined the MEG unit
at Biltmore Square Mall, arriving “just as the buy was taking place
at Jiggy Styles.” After Defendant was arrested for selling cocaine
to Hazel, Bottego went to F-53 Bear Creek Apartments, where the
warrant was executed at 5:15 p.m. Officers found about 460 grams
of cocaine in the master bedroom closet and a kilogram of cocaine
in a closet adjacent to the kitchen.
Reserving the right to appeal the denial of his motion to
suppress, see N.C. Gen. Stat. § 15A-979(b) (2005), Defendant
entered a conditional guilty plea to trafficking in at least 200
but less than 400 grams of cocaine by possession, conspiracy to
traffic in cocaine, and possession of cocaine with intent to sell
or deliver. The trial court sentenced him to consecutive prison
terms of seventy to eighty-four months for the trafficking and
conspiracy offenses and suspended an additional consecutive
sentence of six to eight months for possession with intent to sell
or deliver. Defendant gave notice of appeal from the denial of hismotion to suppress in open court.
__________________________________________
On appeal, Defendant argues that the trial court erred in
denying his motion to suppress the evidence seized at his residence
because the affidavit supporting the search warrant did not
demonstrate probable cause and contained false information.
On appeal, Defendant claims that the facts set forth in
Bottego's affidavit were insufficient to establish probable cause
to search the apartment. He argues that the affidavit failed to
establish the reliability of the two confidential informants, who
“had no track record for providing reliable information.” He
further avers that neither informant purported to have seen cocaine
in the apartment, and that the information they provided about his
alleged activities was stale.
In his affidavit, Bottego affirmed that he had seven years of
law enforcement experience, which included “involve[ment] in
numerous cases involving narcotics” and participation in
“undercover work, surveillance, case preparation, [and] execution
of search warrants[.]” Based on this experience, Bottego attested
that individuals involved in drug trafficking “will utilize the[ir]
residences to store . . . controlled substance[s]” as well as the
records, currency and paraphernalia associated with the drug trade.
As for the specific facts supporting a search of the apartment,
Bottego attested, inter alia, to the following:
A confidential source of information from here
out referred to as CSI provided information on
the illegal activit[ie]s of [Defendant].
The CSI has for the past several months
negotiated the sale of traffick[ing] amount[s]
of coacaine [sic] a schedule[] two controlled
substance . . . [.]
Within the last seventy-two hours agents of
the Metropolitan Enforcement Group (MEG) have
received information from a second
confidential source of information (CSI-2)
that [Defendant] (suspect) has purchased six
to ten kilos of cocaine from an unknown
source. The CSI has first hand knowledge that
several co-conspirators are involved in the
distr[i]bution of cocaine with the suspect.
CSI-2 stated that the suspect had moved from
his residence (36 Debra Lane Asheville) to an
unknown apartment.
MEG agents conducted physical surveillance on
the suspect and he returned from the Buncombe
County Court House, to F-53 Bear Creek
Apartments. This information corroborates
that provided by CSI-2.
Surveillance units followed the suspect from
his residence at F-53 Bear Creek Apartment[s]
in the direction of his business (Jiggy
Styles, Biltmore Square Mall). During the
su[r]veillance a controlled phone call from a
confidential source of information that has
proven to be accurate and reliable in the past
was placed to the suspect. The CSI requested
multiple ounces of cocaine, the suspect stated
he would need to go get it (the cocaine).
When the call was terminated the suspect
turned about and returned to the residence.
He exited his vehicle, went inside the
residence. A short time later the vehicle
left the area.
CSI-2 stated in an interview conducted by MEG
agents that the suspect stored his controlled
substance within his residence. The activity
of the suspect at the time of the controlled
phone call both verified and confirmed the
information of CSI-2.
It is your affiant['s] belief that the suspect
has an ongoing narcotic trafficking network .
. .. The activit[ie]s of the suspect are
supported by historical information dateing[sic] back to 1996.
In addition to prohibiting “unreasonable searches and
seizures[,]” the Fourth Amendment to the United States Constitution
provides that “no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.”
U.S. Const. amend. IV.; accord N.C. Const. Art. 1, § 20. Evidence
obtained by an unconstitutional search is subject to suppression in
a criminal trial. See State v. Carter, 322 N.C. 709, 712, 370
S.E.2d 553, 555 (1988); N.C. Gen. Stat. § 15A-974 (2005).
Absent exigent circumstances, the search of a private dwelling
must be supported by a warrant issued by a magistrate upon a
finding of probable cause to believe the search will yield evidence
of a crime. See Bone, 354 N.C. at 9, 550 S.E.2d at 487. A search
is justified by probable cause “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). “Probable cause is a flexible,
common-sense standard. It does not demand any showing that such a
belief be correct or more likely true than false. A practical,
nontechnical probability is all that is required.” State v.
Zuniga, 312 N.C. 251, 262, 322 S.E.2d 140, 146 (1984). Moreover,
“[c]ourts 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.” Barnhardt, 92 N.C. App. at 96, 373 S.E.2d at 462 (quoting U.S. v.
Ventresca, 380 U.S. 102, 106, 13 L. Ed. 2d 684, 687 (1965)).
Therefore, a magistrate's decision to issue a warrant “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. (quoting State v. Arrington, 311
N.C. 633, 640, 319 S.E.2d 254, 258 (1984)).
In conducting our review of the magistrate's finding of
probable cause, we employ the “totality of the circumstances” test
adopted by both the United States and North Carolina Supreme
Courts:
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.
Arrington, 311 N.C. at 638, 319 S.E.2d at 257-58 (quoting Illinois
v. Gates, 462 U.S. 213, 238-39, 76 L. Ed. 2d 527, 548 (1983).
“Timely information tied to the specific premises to be searched
can support a finding of probable cause.” Barnhardt, 92 N.C. App.
at 97, 373 S.E.2d at 463 (citing State v. Goforth, 65 N.C. App.
302, 307, 309 S.E.2d 488, 492-93 (1983)). Furthermore, “[t]he
direct personal observation by the officer/affiant or his fellow
officers is plainly a reliable basis for issuance of a warrant.”
State v. Leonard, 87 N.C. App. 448, 454, 361 S.E.2d 397, 400(1987), disc. review denied, 321 N.C. 746, 366 S.E.2d 867 (1988)
(citations omitted). Finally, “'[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.'” State v. Rodgers, 161 N.C. App. 311, 315,
588 S.E.2d 481, 484 (2003) (quoting Barnhardt, 92 N.C. App. at 97,
373 S.E.2d at 462).
With these principles in mind, we find the facts contained in
Bottego's affidavit sufficient to support the magistrate's finding
of probable cause to search the subject apartment. While Defendant
challenges the lack of a “track record of reliability” of the two
informants cited in the affidavit, we believe the direct
observations of Bottego and other officers in the course of their
investigation both corroborated the informants' claims and provided
sufficient independent evidence to justify a reasonable belief that
cocaine or other evidence of Defendant's drug-related activity
would be found in the apartment on the afternoon of 20 November
2001. Specifically, Bottego's affidavit alleged that an informant
was involved in ongoing negotiations with Defendant to purchase
“traffic[king] amounts of” cocaine. After confirming by
surveillance Defendant's change of residence from Debra Lane to the
subject apartment, MEG agents were privy to a “controlled phone
call” between Defendant and the informant on the very day of the
warrant application. When the informant requested “multiple ounces
of cocaine” from Defendant, Defendant “stated he would need to go
get it[.]” At the completion of the call, Defendant was observedturning his car around and going into the apartment briefly, before
resuming his trip. Under the circumstances, a reasonable person
could conclude that Defendant returned to the apartment in order to
retrieve the cocaine he had just agreed to provide to the
informant. Bottego's affidavit further affirmed, based on his
years of relevant experience, that a person involved in the sale of
illegal drugs would also have additional evidence of this illicit
activity at his residence. Although the events giving rise to
probable cause were conveyed to Bottego by his fellow MEG agents,
an affiant may rely upon the firsthand observations of other
officers in his warrant application. State v. Horner, 310 N.C.
274, 280, 311 S.E.2d 281, 286 (1984) (citations omitted).
Defendant next faults the trial court for failing to grant his
motion to suppress under the holding in Franks v. Delaware, 438
U.S. 154, 155-56, 57 L. Ed. 2d 667, 672 (1978), based on the
“intentionally or recklessly false statements” and omissions
contained in Bottego's affidavit. However, we conclude this issue
is not properly before this Court. “Franks holds that when a
defendant makes allegations that an affidavit to support the
issuance of a search warrant contains deliberate falsehood or
reckless disregard for the truth and the affidavit would not be
sufficient to support the issuance of a search warrant without the
false or reckless statements, the defendant is entitled to a
hearing on his allegations.” State v. Barnes, 333 N.C. 666, 676,
430 S.E.2d 223, 228, cert. denied, 510 U.S. 946, 126 L. Ed. 2d 336
(1993) (citing N.C. Gen. Stat. § 15A-978 (2005)). Here, whileDefendant purports to “appeal[] the trial court's ruling from a
Franks hearing,” the record shows that he did not assert a Franks
claim in his motion to suppress, his supplemental motion to
suppress, or at the suppression hearing. See State v. Fernandez,
346 N.C. 1, 14, 484 S.E.2d 350, 358 (1997) (“Before a defendant is
entitled to a hearing on the issue of the veracity of the facts
contained in the affidavit, he must make a preliminary showing that
the affiant knowingly, or with reckless disregard for the truth,
made a false statement in his affidavit.” (citing Franks, 438 U.S.
at 155-56, 57 L. Ed. 2d at 672)). Although Defendant cross-
examined Bottego about the timing and number of warrants issued by
the magistrate, the duration of the search undertaken by police,
the meaning of certain slang terms used by Defendant and an
informant in a conversation recorded by police at Jiggy Styles on
9 October 2001, and the reliability of the informants, Defendant
offered neither evidence nor argument that any facts alleged in
Bottego's affidavit were intentionally or recklessly false.
“[W]here a theory argued on appeal was not raised before the trial
court, 'the law does not permit parties to swap horses between
courts in order to get a better mount'” on appeal. State v.
Sharpe, 344 N.C. 190, 194, 473 S.E.2d 3, 5 (1996) (quoting Weil v.
Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934)); accord State v.
Benson, 323 N.C. 318, 322, 372 S.E.2d 517, 519 (1988) (noting that
a defendant whose motion to suppress is denied “may not swap horses
after trial in order to obtain a thoroughbred upon appeal”).
Accordingly, Defendant has failed to preserve his Franks claim forappeal.
The record on appeal includes additional assignments of error
not addressed in Defendant's brief to this Court. Pursuant to N.C.
R. App. P. 28(b)(6), we deem them abandoned.
Affirmed.
Judges McGEE and HUNTER concur.
Report per Rule 30(e).
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