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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. HENRY DOWD EDWARDS, JR.
Filed: 4 September 2007
1. Search and Seizure_probable cause for warrant_evidence erroneously suppressed
A trial court order suppressing the evidence recovered during a search was reversed
where the court erred by deciding that a magistrate lacked a substantial basis for concluding that
probable cause for a warrant did not exist. Under the totality of the circumstances, the affidavit
provided the magistrate with probable cause through a common sense determination based on the
officer's extensive experience, his long established relationship with the informant, the
information provided, and the specificity of the type of drugs observed.
2. Drugs_ex mero motu dismissal of charges_evidence erroneously suppressed
The trial court erred by dismissing ex mero motu narcotics charges which arose from the
search of defendant's home where the court had erroneously suppressed the evidence seized from
the home. Even if the evidence had been properly suppressed, it is possible for the State to
present other evidence; the granting of a motion to suppress does not mandate the pretrial
dismissal of the underlying indictments.
Appeal by the State from order entered 11 April 2006 by Judge
Linwood O. Foust in Mecklenburg County Superior Court. Heard in
the Court of Appeals 20 August 2007.
Attorney General Roy Cooper, by Assistant Attorney General
William B. Crumpler, for the State.
Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., for
The State of North Carolina appeals from order entered
granting Henry Dowd Edwards, Jr.'s, (defendant) motion to
suppress evidence seized and dismissing the charges against
defendant. We reverse and remand.
On 14 July 2005, Charlotte-Mecklenburg Police Officer M.F.
Warren (Officer Warren) signed an affidavit, applied for, and was
issued a search warrant to search defendant's home. Officer Warren
executed the warrant later that day. During the search of
defendant's home, Officer Warren found and seized cocaine,
oxycodone, and drug paraphernalia.
Defendant was charged with: (1) trafficking in cocaine by
possessing more than twenty-eight grams, but less than 200 grams of
cocaine; (2) felony possession of oxycodone; (3) possession of drug
paraphernalia; and (4) intentionally maintaining a dwelling for the
purpose of keeping or selling cocaine.
On 14 March 2006, defendant filed a motion to suppress the
evidence seized from his residence. This motion was calendered
before the Mecklenburg County Superior Court on 10 April 2006.
Defendant asserted the affidavit failed to establish probable cause
for the magistrate to issue the search warrant. On 11 April 2006,
the trial court granted defendant's motion to suppress the evidence
seized and dismissed the indictments ex mero motu. The State
The State argues the trial court erred by: (1) granting his
motion to suppress evidence seized pursuant to the search of his
home with a search warrant and (2) dismissing the indictments
III. Standard of Review
The trial court's findings of fact regarding a motion to
suppress are conclusive and binding on appeal if supported by
competent evidence. This Court determines if the trial court's
findings of fact support its conclusions of law. State v. McHone,
158 N.C. App. 117, 120, 580 S.E.2d 80, 83 (2003), disc. rev.
denied, ___ N.C. ___, 628 S.E.2d 9 (2006); State v. Buchanan, 353
N.C. 332, 336, 543 S.E.2d 823, 826 (2001); State v. Brooks, 337
N.C. 132, 140-41, 446 S.E.2d 579, 585 (1994). Our review of a
trial court's conclusions of law on a motion to suppress is de
novo. State v. Chadwick, 149 N.C. App. 200, 202, 560 S.E.2d 207,
209 (citing Brooks, 337 N.C. at 140-41, 446 S.E.2d at 585), disc.
rev. denied, 355 N.C. 752, 565 S.E.2d 672 (2002).
Specifically, the standard for a court reviewing the issuance
of a search warrant is 'whether there is substantial evidence in
the record supporting the magistrate's decision to issue the
warrant.' State v. Ledbetter, 120 N.C. App. 117, 121, 461 S.E.2d
341, 343 (1995) (quoting Massachusetts v. Upton, 466 U.S. 727, 728,
80 L. Ed. 2d 721, 724 (1984)). After reviewing the purposes and
goals of the Fourth Amendment, the United States Supreme Court
adopted a flexible standard in which the duty of a reviewing court
is simply to ensure that the magistrate had a 'substantial basis
for . . . conclud[ing]' that probable cause existed. Illinois v.
Gates, 462 U.S. 213, 238-39, 76 L. Ed. 2d 527, 548 (1983) (quoting
Jones v. United States, 362 U.S. 257, 271, 4 L. Ed. 2d 697 (1960),
overruled on other grounds by United States v. Salvucci, 448 U.S.
83, 65 L. Ed. 2d 619 (1980)). When reviewing the magistrate'sdecision to issue a search warrant, the magistrate's determination
of probable cause should be paid great deference[.] Id. at 236,
76 L. Ed. 2d at 547 (citation omitted).
IV. Probable Cause
 Section 20 of Article I of the North Carolina Constitution
is similar to the Fourth Amendment to the United States
Constitution and states that probable cause [must] exist for
issuance of a search warrant. State v. Arrington, 311 N.C. 633,
643, 319 S.E.2d 254, 260 (1984). N.C. Gen Stat. § 15A-244 (2005)
governs the contents of the application for a search warrant:
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
(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.
Defendant asserted before the trial court that Officer Warren's
affidavit did not particularly allege facts and circumstances
establishing probable cause for the issuance of the search
warrant. Id. The United States Supreme Court has adopted a totality of the
circumstances approach in determining whether probable cause
exists in support of the issuance of a search warrant. Gates, 462
U.S. at 230, 76 L. Ed. 2d at 543. To establish probable cause, an
affidavit for a search warrant must set forth such facts that a
'reasonably discreet and prudent person would rely upon[.]' State
v. King, 92 N.C. App. 75, 77, 373 S.E.2d. 566, 568 (1988) (quoting
Arrington, 311 N.C. at 636, 319 S.E.2d at 256).
The issuing magistrate must determine whether probable cause
exists in order to support issuance of the search warrant. State
v. McKinnon, 306 N.C. 288, 293, 293 S.E.2d 118, 122 (1982). 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 . . . there is a fair probability
that contraband or evidence of a crime will be found in a
particular place. Gates, 462 U.S. at 238, 76 L. Ed. 2d at 548
(quotations omitted) (emphasis supplied). Probable cause need not
be shown by proof beyond a reasonable doubt, but rather whether it
is more probable than not that drugs or other contraband will be
found at a specifically described location.
Here, the magistrate determined sufficient and reliable
information was shown in Officer Warren's affidavit to establish
probable cause and that a search warrant should be issued.
Reviewing courts should give great deference to the issuing
magistrate's determination. Id. at 236, 76 L. Ed. 2d at 547. Officer Warren's affidavit states that he received
information from a confidential and reliable informant who had
seen hydrocodone inside defendant's home, without a prescription,
within the past forty-eight hours. (Emphasis supplied). The trial
court concluded Officer Warren's affidavit showed no basis for
believing the information was reliable. We disagree.
Officer Warren asserted in his affidavit he had known the
informant for nine years, during which time the informant had
provided confidential and reliable information in the past that
had proven to be true through independent investigations. The fact
that the word investigations was plural implies Officer Warren
had used this particular informant on more than one occasion
throughout the past nine years. Officer Warren's ongoing
relationship with the informant supports the magistrate's
determination that the information provided was reliable.
The affidavit also states that the informant was familiar with
this drug and its uses, further supporting the inference that the
information was reliable. An officer may rely upon information
received through an informant, rather than upon his direct
observations, so long as the informant's statement is reasonably
corroborated by other matters within the officer's knowledge. Id.
at 242, 76 L. Ed. 2d at 550 (citations omitted) (emphasis
Officer Warren's twenty-four years of prior experience with
the police department, including seven years of street level drug
interdiction, shows he has attained extensive knowledge regardingdrug investigations and the issuance of search warrants. Even
though Officer Warren did not spell out in exact detail the
connection between the informant and the previous drug
investigations, the magistrate could properly infer the
confidential informant had provided reliable information to Officer
Warren in previous situations. Following Gates, Officer Warren
supplied sufficiently reliable information in his affidavit through
his own extensive experience and his previous knowledge of the
informant's reliability throughout their nine year relationship.
Defendant's arguments would require the officer's application
and affidavit to technically spell out every detail to specifically
show probable cause exists. [A]ffidavits 'are normally drafted by
nonlawyers in the midst and haste of a criminal investigation.
Technical requirements of elaborate specificity . . . have no
proper place in this area.' Id. at 235, 76 L. Ed. 2d at 546
(quoting United States v. Ventresca, 380 U.S. 102, 108, 13 L. Ed.
2d 684, 689 (1965)). Officer Warren's affidavit was drafted by an
experienced police officer during an investigation of a potential
drug offender and was sufficient to establish probable cause for
We find under the totality of the circumstances, the
affidavit provided the magistrate with probable cause through a
common sense knowledge determination based on the following: (1)
Officer Warren's extensive experience; (2) his long established
relationship with the informant; (3) the information provided; and(4) the specificity of the type of drugs observed. Id. at 230, 76
L. Ed. 2d at 543. The trial court erred in concluding the
magistrate did not have a substantial basis in fact for concluding
that probable cause existed to issue the search warrant. The trial
court's order suppressing the evidence recovered during the search
V. Case Dismissal
The State also argues the trial court erred by dismissing the
case when no motion to dismiss the indictments was pending or made
before the trial court and the case was still in its pretrial
stage. We agree.
Defendant asserts the issuance of a search warrant without
probable cause so fragrantly violated his constitutional rights
that the trial court's dismissal of the case was required to
comply with N.C. Gen. Stat. § 15A-954(a). The State argues the
trial court ex mero motu dismissed the charges because it
determined that without the suppressed evidence, the State did not
have sufficient evidence to submit this case to a jury.
The standard of review for deciding whether to dismiss is
whether there is substantial evidence (1) of each essential element
of the offense charged and (2) that defendant is the perpetrator of
the offense. State v. Wood, 174 N.C. App. 790, 795, 622 S.E.2d
120, 123 (2005) (quoting State v. Lynch, 327 N.C. 210, 215, 393
S.E.2d 811, 814 (1990)). Substantial evidence is relevant
evidence that a reasonable mind might accept as adequate to supporta conclusion. State v. Vick, 341 N.C. 569, 583-84, 461 S.E.2d
655, 663 (1995) (quoting State v. Vause, 328 N.C. 231, 236, 400
S.E.2d 57, 61 (1991)). The evidence is to be viewed in the light
most favorable to the State and the State is entitled to every
reasonable inference to be drawn therefrom. State v. Gibson, 342
N.C. 142, 150, 463 S.E.2d 193, 199 (1995) (citing State v. Powell,
299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980)). Ultimately, the
court must decide whether a reasonable inference of defendant's
guilt may be drawn from the circumstances. State v. Ellis, 168
N.C. App. 651, 657, 608 S.E.2d 803, 807 (2005) (citing Powell, 299
N.C. at 99, 261 S.E.2d at 117).
The granting of a motion to suppress does not mandate a
pretrial dismissal of the underlying indictments. The district
attorney may elect to dismiss or proceed to trial without the
suppressed evidence and attempt to establish a prima facie case.
If so, a defendant may move to dismiss at the close of the State's
evidence and renew his motion at the close of all evidence. N.C.
Gen. Stat. § 15-173 (2005). We have held the trial court erred by
granting defendant's motion to suppress. The issuance of the
search warrant did not violate defendant's Fourth Amendment
constitutional rights. The trial court's pretrial order to dismiss
defendant's charges is reversed.
Probable cause existed to support the issuance of the search
warrant. Defendant's constitutional rights were not violated when
the police legally and reasonably searched his home pursuant to avalid search warrant and seized illegal drugs and paraphernalia.
The search warrant was properly issued and the evidence seized from
the execution of the search should not have been suppressed.
Even if this evidence had been properly suppressed, it is
possible for the State to present evidence, apart from the
poisonous fruits of an illegal search, to survive defendant's
motion to dismiss and allow the jury to find the facts. The trial
court erred by granting defendant's motion to suppress evidence
seized and in dismissing the charges ex mero motu
. We reverse the
trial court's order and remand for further proceedings.
Reversed and Remanded.
Chief Judge MARTIN and Judge MCCULLOUGH concur.
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