This chapter was updated on March 12, 2024, and reflects case and statutory law through December 1, 2023.
Links to previous versions of this chapter can be found immediately above the endnotes.
This chapter discusses how to prepare and execute search warrants, administrative inspection warrants, and nontestimonial identification orders. Sometimes stricter standards are recommended than are legally required so that law enforcement officers and issuing officials may be more confident that a court will rule that they complied with all federal and state constitutional and statutory requirements.
An unlawful search or seizure may result in several undesirable consequences, including (1) the exclusion of evidence from criminal proceedings, (2) disciplinary action against the officers conducting the search by their employing agency, (3) a civil lawsuit for money damages against the officers who made the illegal search or seizure, and (4) a criminal prosecution against the officers.
North Carolina law provides that evidence may not be admitted in court when either the United States Constitution or the North Carolina Constitution requires that it be excluded. The United States Supreme Court has ruled that the United States Constitution generally does not allow evidence that an officer obtains by violating a person’s Fourth Amendment rights to be used in court. This principle of law is commonly known as the Fourth Amendment exclusionary rule. For example, it bars the introduction of illegal drugs as evidence at trial if the illegal drugs were seized during an unconstitutional search of a person’s car. It also sometimes bars the use of a confession obtained after an unconstitutional arrest. (Exclusionary rules concerning confessions and lineups are discussed in Chapter 5.)
Similarly, if an officer conducts a search based on then-existing statutes or case law but the law subsequently changes, evidence found in the search need not be suppressed. Other potential exceptions to the exclusionary rule include the inevitable-discovery and independent-source exceptions.
A recent opinion from the Supreme Court of North Carolina appears to suggest that suppression under the United States Constitution should not be the rule absent an applicable exception; rather, it should be an extraordinary remedy applied only when specific circumstances support its use. Future cases may clarify whether that is indeed the court’s view, and if so, whether it is consistent with the way the Supreme Court of the United States understands the Fourth Amendment.
Thus, evidence may be excluded when officers obtain it as a result of a violation of one of these statutes, even if their actions do not violate a person’s constitutional rights. In determining whether a violation is substantial under issue 1, above, a court considers how a person’s privacy has been violated, the extent of the violation and whether it was deliberate, and whether the evidence should be excluded to deter future violations. Thus, for example, a court might not exclude evidence seized by officers who executed a search warrant and merely did not satisfy the statutory requirement that they swear to the inventory of seized items. On the other hand, a court might exclude evidence seized with a search warrant when officers deliberately violated the statutory requirement of giving notice before they entered a home. In determining the ground under issue 2, above, a court essentially considers whether or not a reasonably well-trained officer would have known that his or her conduct violated a statute.
Even if officers violated a constitutional provision when they conducted a search or made an arrest, a defendant cannot successfully move to exclude evidence that was obtained as a result of that constitutional violation unless his or her constitutional rights were violated. In the context of Fourth Amendment violations, a defendant normally has the burden of proving that officers violated the defendant’s reasonable expectation of privacy. A violation of another person’s Fourth Amendment rights generally does not result in the suppression of evidence at the defendant’s trial. Thus, evidence generally is not suppressed if officers unconstitutionally search a place in which a defendant cannot reasonably expect privacy—for example, in many instances a defendant has no privacy interests in another’s home, car, and other personal property, such as another’s pocketbook. In legal language, the fact that a defendant must prove that his or her constitutional rights were violated means that the defendant must have “standing” to contest a constitutional violation. The same standing principle also applies to a violation of a North Carolina statute.
Defendants who want to object to evidence that they believe was found as a result of an unconstitutional search or seizure or a substantial statutory violation must make a motion to suppress in court.
When a misdemeanor case is tried in district court, defendants may make their suppression motions before or during trial, except for impaired-driving cases, when the motion ordinarily must be made before trial. If defendants are convicted and appeal for a trial de novo in superior court, they must make their suppression motions before trial or lose their right to do so.
When felony cases are tried in superior court, defendants often must make their suppression motions before trial. If a search was made with a search warrant and a defendant was present during the search, the defendant must make a suppression motion before trial. If a search was made without a search warrant or if the defendant was not present when it was made with a search warrant, a prosecutor can require the defendant to make a suppression motion before trial by giving the defendant notice of the prosecutor’s intention to use the evidence gained in the search. Officers need to alert a prosecutor about such evidence so that he or she can give the proper notice to the defendant. If the prosecutor gives notice twenty working days or more before the trial begins, the defendant must make a suppression motion at least ten working days before trial or lose the right to do so. If the prosecutor does not give timely notice, the defendant may make a suppression motion during trial. If the defendant’s suppression motion is made before trial, a hearing normally will be conducted before trial. If the evidence is ruled inadmissible at a pretrial hearing, a prosecutor may appeal the ruling to an appellate court before the trial starts. If an appellate court reverses the trial judge’s ruling, the evidence will be admissible when the trial is conducted.
If a suppression motion is heard during a trial and the judge rules that the evidence is inadmissible, the prosecutor may not appeal and must try the case without the evidence. The importance of having suppression motions heard before trial—and therefore the importance of officers timely informing a prosecutor about evidence—is readily apparent.
The best way for an officer to ensure that there is a justification to make a search is to use a search warrant. A search warrant helps protect a person’s right to privacy because it is issued by an independent, disinterested judicial official who has reviewed the officer’s judgment that there is probable cause to justify a search in the place proposed to be searched. A judicial official, who has no interest or stake in the investigation, may be more likely than the officer to determine correctly whether the available information justifies the proposed search.
In North Carolina, only the following judicial officials may issue search warrants: appellate justices and judges, superior court and district court judges, clerks of superior court and assistant and deputy clerks, and magistrates. Because most search warrants are issued by magistrates, the term “magistrate” will be used exclusively throughout this chapter.
Unlike arrest warrants, search warrants are not always valid statewide. Clerks of superior court, assistant and deputy clerks, and magistrates generally may issue warrants to search only places located within their county; a search warrant issued to search a place located in another county is invalid. District court judges may issue search warrants to search anywhere in their districts. Appellate court justices and judges and superior court judges may issue warrants to search anywhere in the state.
When an officer applies for a search warrant, he or she must submit an affidavit. An affidavit is a sworn application containing facts supporting the issuance of the warrant. A magistrate must review the affidavit and may examine the officer under oath or affirmation to determine whether probable cause exists to issue the warrant. Although an examination is often done in person, state law allows oral testimony by a sworn officer by means of an audio and video transmission in which the magistrate and officer can see and hear each other. The search warrant proceeding must be conducted using videoconferencing applications approved by the Administrative Office of the Courts (AOC).
An officer typically prepares the application for the warrant, which includes the officer’s affidavit. The magistrate should read the application and may ask clarifying questions. If the application is missing information that may be necessary to establish or to help establish probable cause, it may be added to the application. Alternatively, such information could be “recorded or contemporaneously summarized in the record or on the face of the warrant.” The application should accurately reflect the officer’s knowledge so that the officer can sign it as a statement of his or her belief that there is probable cause to search. In a complicated case, an officer may want to ask a prosecutor or his or her agency’s legal advisor to assist in writing the application.
Officers need not state all they know about the investigation in the application, but they must provide enough information to establish probable cause. As discussed in the text below under “When an informant’s identity is revealed,” an informant’s identity need not be given if probable cause can be established without doing so.
Even though a magistrate’s primary function is to make an independent determination of whether probable cause exists, a magistrate’s careful review of the affidavit and examination of the applicant serves another important purpose. Officers may become so familiar with an investigation, having worked on it so long, that they state their conclusions about the investigation rather than the facts that led to those conclusions. If magistrates are to make independent determinations, they must know the facts that support officers’ conclusions so that they can decide on their own whether they would reach the same conclusions. When a magistrate who is unfamiliar with the investigation examines the application critically, the magistrate’s questions often elicit information that the investigating officer knows but has simply not included in the application. That information can then be added to strengthen the statement of probable cause in the application so that the search warrant is more likely to be ruled valid if it is challenged in court.
As stated above, a magistrate’s primary function is to determine independently whether there is probable cause to search. Thus, the magistrate is a check on an officer’s judgment concerning probable cause. The magistrate’s decision to issue a search warrant also is subject to review if a defendant challenges its legality in court. A judge must decide whether the magistrate had a “substantial basis” for concluding that probable cause existed to issue the search warrant.
When reviewing a magistrate’s decision to issue a search warrant, a North Carolina judge may consider only information that was written in the application or, if the facts were given orally, information that was recorded or summarized in writing when the search warrant was issued. And, of course, all this information must be given under oath or affirmation. Thus, if information is not written in the application, it is critical that the magistrate and officer make sure that the magistrate makes a record—written or tape recorded—of all the information the magistrate considered in determining probable cause.
Two basic documents are used in obtaining a search warrant—the application for the warrant and the warrant form itself. The application must be supported with one or more affidavits by individuals who have information establishing probable cause to search. The AOC prepares a two-sided form (AOC-CR-119) that contains the application—with an affidavit within the application—on one side and the search warrant on the other side. This form is available for download from the AOC’s website at nccourts.gov/documents/forms. The AOC also prepares a special search warrant to seize blood or urine in impaired-driving cases, AOC-CR-155, which also is available on the website. Both forms can be completed and printed at the website. (For a list of forms available on the AOC website, see Table 4.1.) These forms are convenient, but their use is not required, and some agencies have their own templates that may be used if they contain all legally required information.
Three copies of a search warrant must be prepared, although an officer may want an additional copy for his or her investigative file. After issuing the search warrant, the magistrate sends one copy—the clerk’s copy of record—to the clerk’s office. Two copies are given to the officer. After the warrant is executed, or if it is never executed, the officer returns one copy—commonly known as the original copy—to the clerk of court’s office (or the magistrate’s office, for forwarding to the clerk’s office). The officer who executes the search warrant gives a copy to the person whose premises are searched. (See the discussion on execution of search warrants on in the text below under “Execution and Return of the Search Warrant.”
If the information does not all fit on the warrant application form, additional sheets may be attached. A satisfactory procedure is to staple the additional sheets to the form and to insert a reference in the appropriate place on the form, such as “see attached,” for each addition; to date each attachment; and to include on each attachment the name of the search warrant (for example, “In the Matter of Howard Smith”) and the signatures of both the applicant and the issuing official. This procedure clearly identifies all attachments and helps prove that they were not added after the search warrant was issued.
As discussed above, if information other than what is written in the application is given to the magistrate when the magistrate is determining probable cause and does not appear in writing on the application, that information must be either recorded or summarized separately when the warrant is issued. Sometimes this is done so that a suspect will not learn of a confidential informant’s information when the suspect is served with his or her copy and will not be able to determine the informant’s identity from that information. The magistrate also should check the block on the application to indicate that sworn testimony was reduced to writing or tape recorded—if that information is not included in the application. In whatever form the information is recorded, a magistrate should give a copy of it to the clerk of court along with the copy of the application and search warrant.The officer who is applying for the search warrant must state the facts and sign the application under oath or affirmation. North Carolina law does not specify the exact wording of this oath or affirmation. It is sufficient if the applicant simply swears or affirms that the information in the application is true to the best of the applicant’s knowledge. The officer must sign the application, and the magistrate must sign and date the block in the form indicating that the applicant signed the application before the magistrate and swore to or affirmed the information contained within it.
The search warrant must be directed to officers authorized to execute it; the AOC form supplies that language. The magistrate must sign the search warrant and give the date and time of its issuance. The date and time are important because the officer has only forty-eight hours to execute a search warrant after it is issued.
Before officers write an application for a search warrant, they should consider organizing the pertinent investigative information in a written worksheet. This practice will be useful in writing a well-organized and coherent application and will make it more likely that all the necessary information will be included. In addition, the worksheet may alert officers that more information is needed to establish probable cause. The sample worksheet below asks for information that officers should consider for inclusion in the application. Not all of the information is necessarily legally required, however. (The legal requirements are discussed later in this chapter.) The worksheet is organized in the same order as the application for a search warrant.
In applying for a search warrant, an officer must describe the property to be seized. The purpose of this requirement is twofold:
Generally, an officer should try to identify the property clearly enough so that another officer, unfamiliar with the case, can read the description and know which items should be seized. When the property to be seized—for example, a television set—can be possessed lawfully, greater detail is required than when the property—for example, heroin—can never be possessed lawfully, because a greater possibility exists of wrongfully seizing lawfully possessed property.
Although there are no clearly defined rules on what constitutes an adequate description, it is helpful to discuss the subject by category of property.
If a search warrant authorizes an officer to seize a stolen television set, a description stating “a color TV” will probably not be sufficient because the executing officer who sees a television set will probably not be able to determine from the description whether the set the officer sees is the one that was stolen. With no further instruction than to seize “a color TV,” an officer may well seize a television set that is not connected with a crime.
The description of stolen goods should be as accurate as possible. Serial numbers should be given if they are available. If serial numbers are not available, a physical description of the goods—including make, color, size, and any scratches or other unique damage—should be provided. If an officer has an inventory of the stolen items prepared by the victim or by the investigating officer, it can be used to describe the items or can be attached to the application and incorporated by reference in the space provided for the description of the property—for example, “See attached list of property to be seized.”
The same rules governing the description of stolen goods apply to descriptions of weapons and other instruments used in committing crimes, such as burglary tools, a knife used in an assault, and a shotgun used in a murder. Officers should try to be as accurate as possible with the information they have collected. For example, they should not simply state “weapon used in felonious assault” when they know the kind of weapon—a revolver—and perhaps the weapon’s make, model, and serial number.
An object that is usually lawfully possessed may be so clearly connected with a crime that a general description may be acceptable when no greater specificity can be given—for example, “blood-stained clothes.” Of course, more detail should be given, if known—for example, a “blood-stained blue jacket.”
When investigating complex white-collar crimes, officers need not describe in the search warrant application each individual paper to be seized, although they should be as specific as the circumstances of the investigated activity permit. Officers should describe the specific documents they have probable cause to seize and then should list the types of items—checkbooks, canceled checks, deposit slips—that pertain to the crime under investigation and any other similar evidence related to the crime.
Officers who are executing a search warrant to seize illegal drugs also may seize items not named in the warrant—such as letters and photographs—that they see inadvertently in plain view if the items help prove who owns or lives in the premises where the drugs have been found. However, officers also may list these kinds of items in the search warrant so that they need not rely on the plain-view doctrine to justify their seizure; that is, the search warrant will specifically authorize the seizure. One way to describe them in the application is “items or articles of personal property tending to show ownership, dominion, or control of the premises.”
A few more issues concerning other aspects of computer searches are discussed below.
In order to establish probable cause to support the issuance of a search warrant for a computer or digital device, an applicant will need to show what courts call a “nexus” between the crime under investigation and the computer or device. In other words, there must be a reason to believe that the computer or digital device will contain evidence of the offense. For some crimes, like cyberbullying or accessing computers without authorization, the connection to computers and other digital devices will be obvious. For other offenses, such as drug trafficking, sexual assaults, or property crimes, the applicant may want to explain clearly why he or she believes that evidence will be found on the computer or digital device in question. Courts have not yet settled on how strong the nexus must be in order to support the issuance of a search warrant.
Officers who are executing a search warrant for records in a computer concerning one crime, such as a drug offense, and who discover evidence in plain view of an unrelated crime (for example, child pornography) may want under some circumstances to obtain another search warrant to continue searching the computer for evidence of child pornography.
If a search warrant authorizes a search of premises for a particularized list of records (for example, records of drug transactions), then the warrant ordinarily authorizes officers to seize a computer not named in the warrant that they discover in the premises if they reasonably believe that the described records may be stored on a computer. However, it is unclear under these circumstances whether the computer may be searched without obtaining another search warrant. Of course, if an officer applying for an initial search warrant for records has probable cause to believe that the premises may contain a computer or computers that may store records, computers should be specifically named as objects to be seized and searched.
Consent to search computers differs from other consent searches, such as consent to search a vehicle, and poses unique issues. See the discussion of computer consent issues under “Consent Searches of Computers and Other Electronic Devices” in Chapter 3 as well as the publication cited in the accompanying footnote.
Officers who are searching computers need to be aware of federal laws that restrict access to stored email and documents in the possession of the news media, writers, and publishers. These issues are discussed under “Access to Stored Communications (Email and Text Messages) and Related Information” in Chapter 3 and in the publication cited in the accompanying footnote
North Carolina cases that analyze probable cause to search computers are summarized in the accompanying footnote.
For warrants in drug-related cases, it is preferable to state the illegal drug to be seized specifically—for example, “marijuana”—rather than to state “controlled substances,” although that description is probably sufficient, particularly when the affidavit’s statement of probable cause names the specific drug that is to be seized. It is unnecessary to state the quantity of illegal drugs being sought, as possession of any amount is illegal.
Often an affidavit that establishes that a residence is a place for drug trafficking will support a search for items that are associated with drug trafficking—for example, an officer’s experience that drug traffickers keep records of transactions in their homes will support a seizure of such records. In addition to the warrant giving specific authority to seize evidence of ownership or possession of premises—discussed above under “Evidence of Ownership or Possession of Premises”—the warrant may specifically authorize officers to seize records of illegal drug activities, documents, photographs, letters, drug paraphernalia, money, beepers, firearms, telephone records, and other evidence of drug trafficking. Although officers generally will be authorized to seize these items under the plain-view doctrine, it is helpful to name them in the search warrant so that the warrant will specifically authorize their seizure.
Because books, magazines, and movies are presumptively protected by the First Amendment’s freedom of speech provisions, the United States Supreme Court has imposed stricter rules governing the search and seizure of allegedly obscene materials than those governing the search and seizure of criminal evidence such as contraband, stolen goods, and so forth. Thus, merely stating that “obscene materials” are to be seized is clearly inadequate. Instead, the allegedly obscene materials should be described by title and other identifying information so that only the allegedly obscene materials will be seized. Federal cases also have approved search warrant descriptions that specifically name the allegedly obscene materials to be seized and then also authorize the seizure of additional materials if they contain presentations of specifically named sexual acts.
A North Carolina Court of Appeals case resolved two legal questions concerning search warrants for child pornography. First, an application for a search warrant in a child pornography case does not need to include a copy of the image or images in question in order to establish probable cause. Second, when an image possessed by a suspect can be matched to a known image of child pornography through its SHA-1 or “hash” value, that is sufficient to provide probable cause. When an SHA-1 match is not possible, officers will often seek search warrants based on verbal descriptions of images viewed by an officer or another witness; in such a case, the description may need to be rather detailed and explicit to be sufficient.
The issues involved in search warrants for child pornography are discussed in the publication cited in the accompanying footnote.
After describing the property to be searched for and seized, the officer filling out the search warrant application will notice that the words printed on the form state that the property “constitutes evidence of a crime and the identity of a person participating in a crime.” The first phrase (“constitutes evidence of a crime”) describes circumstances when the property being sought is stolen (for example, a stolen television set); is contraband (for example, illegal drugs); or was used to commit a crime (for example, a gun used in a robbery). The second phrase (“[constitutes evidence of] the identity of a person participating in a crime”) describes circumstances when the property being sought does not fall into one of these categories but does help identify the defendant (for example, the shirt or hat that was worn during a robbery). The officer does not have to choose the appropriate phrase—both are alleged. If one of them does not apply, the additional language does not affect the warrant’s validity.
Next on the warrant application is the space where the kind of crime must be stated. Because the application is for a search warrant, not an arrest warrant, the crime may be stated summarily. The easiest way to state the crime is to cite the General Statutes section that has been violated, the common term for that crime, and the date and location—for example, “G.S. 14-87, armed robbery of Phil’s Quick-Service, Sunshine, N.C., on May 14, 2021.” If the property being sought is contraband and thus evidence of an ongoing possession offense, the location and date of the offense might be omitted. For example, “G.S. 90-95, possession of heroin, a Schedule I controlled substance” is sufficient. Also, the exact date and location of an already-completed offense may not be known when the search warrant is issued—for example, a murder weapon is being sought but the officers are not yet sure when and where the killing took place. In that case, officers may omit the date and location of the crime, because they must only establish that the property being searched for has some connection with the crime.
Officers must describe in the warrant application the premises, person, or vehicle to be searched. A separate space is provided for each description. In addition, a fourth space is provided for describing any other place or item to be searched that does not fit within any of the first three categories—for example, luggage that is already in an officer’s possession.
The purpose of describing the person or place to be searched is to avoid the possibility that officers might use the warrant to search a person or place for whom/which probable cause has not been established. The place description should be specific enough that someone unfamiliar with the case could accurately locate the place and distinguish it from any other place with which it might be confused. However, a court will be more likely to decide that a place description is sufficient if an executing officer personally knows the place that was intended to be searched with the warrant.
Usually, the best way to describe a place is to give the street address, because two places should not have the same address. If the address is correct, it is an adequate description, but a physical description of the premises may save a search warrant that may otherwise be invalid because it gave the wrong address. For example, the place to be searched may be described as “412 Elm Street, Smithville, N.C.” If that is the correct address, then the address alone is a satisfactory description. But what if officers who went to make the search with that warrant found 402 Elm Street and 422 Elm Street, but not 412? The warrant description might be invalid, and any search made at either 402 or 422 Elm Street may be unlawful. Suppose, however, that the description said “412 Elm Street, Smithville, N.C., a two-story white frame residence with red shutters,” and the residence at 422 Elm Street was the only one on Elm Street that met that physical description. Although there was no residence at 412 Elm Street, the warrant would likely be valid. Thus, an incorrect street number need not invalidate a warrant if enough other information is given to identify the premises to be searched.
Another useful piece of information is the name of the possessor of the premises—for example, “412 Elm Street, Smithville, N.C., a two-story white frame house with red shutters, occupied by Allen Greeby.” If that name appears on a mailbox in front of the house or by the front door, it will help officers determine which house is to be searched or which part of the building is to be searched if it is a duplex or apartment building. Although the possessor’s name helps a description, that information is not required and by itself is not sufficient. Describing the premises simply as “the home of Fred Johnson” without giving an address or any other information normally would be inadequate.
If the place to be searched is in a rural area and has no street address, the building or its location must be described in more detail than if it had a number. The description might be supplemented by information about the building’s distance from other structures and roads and directions on how to get there from a named highway or building.
If the place to be searched is a business, the address might be supplemented by information about signs on the premises—for example, “5580 Main Boulevard, a one-story building with a sign reading ‘Smithville Hardware.’ ”
Generally, a warrant to search premises gives executing officers the authority to search a vehicle on the premises, even though the vehicle is not specifically named in the warrant as a place to be searched, provided both of the following circumstances exist:
If a vehicle may not be searched under this authority, it may be searched without a warrant under certain circumstances if there is probable cause to search it, as discussed in Chapter 3.
If officers know that a vehicle may contain evidence that they are searching for, they should describe it specifically in the search warrant as an object to be searched so that (1) they need not rely on the implicit authority to search it if it is on the premises when they execute the warrant and (2) they may search the vehicle under the authority of the warrant even if it is not on the premises but is parked nearby (on a public street, for example). Characteristics that may be useful in describing a vehicle include “the make, model, year, color, license plate number, presence of bumper or dealer stickers, vehicle identification number (VIN), owner’s name, and location,” though none of these items are indispensable. Courts have accepted much more limited descriptions, including the make, model, and color of a vehicle.
The description “all vehicles present on the premises” is generally invalid unless there is probable cause to believe that all vehicles on the premises would contain the items to be seized. However, if the description is invalid, it would not affect the legality of a search of those vehicles under the occupant’s control because, as discussed above in this subsection, they may be searched without being specifically described in the warrant.
A search of a vehicle for which officers had an objectively reasonable belief that it was on a defendant’s premises, but in fact was on another’s property, is a valid search.
Generally, a search warrant to search premises authorizes the executing officers to search all outbuildings (unattached garages, storage buildings, and so forth) within the curtilage of the premises, even though they are not specifically named in the warrant as places to be searched, provided the evidence to be seized may reasonably be found there. Officers who know that outbuildings are on the premises may want to name them specifically in the warrant application as places to be searched—or at least mention them generally as “outbuildings”—so that the officers have explicit authority to search them, particularly if the outbuildings are on the premises but beyond the curtilage.
A search warrant for an apartment, duplex, or other structure in which separate living units are maintained must particularly describe the unit within the structure for which there is probable cause to search—unless, of course, there is probable cause to search the entire structure. The description should include the street address and apartment number or other means of identifying the particular unit to be searched—for example, “880 Davis Drive, Bellow, N.C., Apartment 2, the front right apartment occupied by Clarence and Patrice Mantle.”
A search warrant for a home of a named owner does not authorize a search of a separate rented room within the home or a separate rented building on the property that the renter exclusively occupies and uses. Thus, if there is probable cause to search the entire home and separate buildings, the search warrant should specifically name them and their possessors—or separate search warrants could be issued for each. But if the possessor of a separate room or building did not have exclusive control of it, or if the affiant on the warrant application or executing officers did not reasonably know about the multiple occupancy, a search warrant that describes the entire premises would be valid.
A search warrant to search premises occupied by a person does not authorize officers to search other separate premises. For example, if Fred Jones is selling drugs from his home and from his private business located several miles away, a search warrant that names only his home would not authorize a search of the business. If the facts in the warrant application affidavit establish probable cause to search both places, one search warrant could be used to search both if it particularly described them both. Or a separate search warrant could be obtained for each place.
If the facts establishing probable cause indicate that (1) a particular person is involved in the crime being investigated, (2) the person may be on the premises when they are searched, and (3) the evidence may be hidden on the person, the warrant application block should be checked to request authority to search for the evidence “on the following person(s)” as well as in the premises. The person should be particularly described. The easiest way to distinguish one person from another is by a name. If a person is using an alias, the alias may be used if it will help officers distinguish who is to be searched. If the name is questionable or completely unknown, a physical description of the person should be given—approximate age, sex, height, weight, race, and the like. If officers who have been investigating the case can identify the unknown person and will assist in executing the warrant, a conditional description might be used—for example, “a white male, approximately age 40, 6 ft., 170 lbs., to be identified by Detective Sylvia Goode when the officers enter the premises.” Because this is a search warrant and not an arrest warrant, the description need not be quite as specific. It only needs to be sufficiently specific to allow officers to be reasonably certain in identifying the person to be searched.
If a warrant specifically authorizes a search of a person in addition to premises, the person may be searched on or off the premises, as discussed above under “Vehicles on the Premises.” For example, if a warrant authorizes the search of a house, a vehicle, and a person, and the officers see the vehicle and the person two blocks before they reach the house, they can search the vehicle and the person there under the authority of the warrant and then search the house.
The description “all persons present” in the premises to be searched generally is not justified unless the facts in the affidavit provide probable cause to believe that anyone in the premises would have on his or her person the evidence that is being sought.
Even when a person is not named to be searched in a warrant, executing officers have authority, under certain circumstances, to detain, frisk, or search persons present during a search of the premises and other structures. And sometimes officers will have probable cause to arrest a person there, which will allow them to make a full search of that person incident to the arrest. This subject is discussed later in this chapter under “People on the Premises.”
If a warrant authorizes the search of a vehicle, either alone or in connection with a search of premises (see the discussion above under “Vehicles on the Premises”), the vehicle must be particularly described. The description should contain the license plate number or vehicle identification number, if known, and any other information that will enable executing officers to identify the car to be searched. This information may include the vehicle’s owner, year, model, color, and any unique characteristics.
The blank space in the warrant application that is located below the description of vehicles may be used when the place or item to be searched is not on the premises, on a person, or in a vehicle. For example, officers may seize luggage during a drug investigation and may need—or simply desire—the authority of a search warrant to search it. They could describe the luggage as follows: “Dark brown, Samsonite luggage, initials ‘Q’ and ‘R’ on top, American Airlines identification tag ‘Quincy Reynolds, 413 East Main Street, Muncey, N.C.’ Luggage now in possession of Detective Arthur Betters of the Muncey Police Department.”
Probable cause is a fluid concept that depends on an assessment of probabilities in particular situations, and it cannot be readily reduced to a neat set of legal rules. The degree of certainty corresponding to probable cause is fair probability, which means that more proof is required than reasonable suspicion but less proof than such legal evidentiary standards as preponderance of evidence, more probable than not, more likely than not, prima facie evidence, clear and convincing evidence, or beyond a reasonable doubt. A magistrate’s duty is to make a practical, commonsense decision on whether, given all the circumstances set forth in the affidavit—including hearsay information—there is a “fair probability” that evidence of a crime will be found in a particular place. In considering whether information establishes probable cause, courts place great weight on officers’ observations and conclusions about criminal activity that are based on their training and experience.
Because probable cause to search depends on the probability that evidence of a crime may be in a certain place, the timeliness of the information that supports probable cause is critical. Information may become stale and therefore less valuable. Thus, although probable cause may exist at a particular time to search a house for illegal drugs, there may no longer be probable cause at a later time if it is no longer probable that the drugs are still in the house. Probable cause to search also focuses on the place where evidence of a crime probably is located. Even when information is timely, it must give a magistrate enough facts to support a fair probability that the evidence will be found where the officer wants to search. For example, the fact that a person is selling drugs from his or her house does not automatically provide probable cause to believe that drugs may be found at the person’s place of business—in some cases, however, evidence may support a finding that there is probable cause to search the business. Both concepts—that the information must be timely and that it must connect the evidence to be seized with the place to be searched—are discussed in more detail later in this chapter.
It is worth repeating here that North Carolina law requires that all the information used to establish probable cause must be either stated in the warrant application or summarized in writing or recorded when the warrant is issued. If the officer who is applying for the warrant gives the magistrate information that is not written in the application or is not recorded or summarized when the warrant is issued, the information will not be considered at a later court proceeding to determine whether there was probable cause to search.
Probable cause may be established with information from several sources, including
These sources of information, or any particular combination of them, need not all be present in each statement of probable cause. It is the total effect of whatever combination is used that must establish probable cause.
An officer should clearly indicate in the application that he or she personally made the observation. The officer should provide enough detail to show that he or she carefully observed the particular activity and should state when the observations were made. For example, in a search warrant for illegal drugs, the statement of probable cause might include a sentence like this:
The second statement takes a little more time to write than the first, but it is preferable for several reasons:
An officer’s statement of probable cause should be detailed enough so that a magistrate may determine probable cause independently and not have to rely on the officer’s conclusions. Thus, the magistrate should be informed of the officer’s observations, not just the officer’s conclusions from his or her observations. In both versions above, the officer described seeing the suspect carrying plastic bags containing a green vegetable matter. The officer supplied facts and not just an opinion that the suspect was carrying marijuana. The officer also could add that from training and experience, the officer knows that plastic bags are commonly used to carry marijuana, and he or she can correctly identify marijuana. The United States Supreme Court has clearly stated that evidence considered for probable cause determinations must be understood in light of a law enforcement officer’s training and experience.
With all this information—along with any other information the officer might have—a magistrate can decide whether it is fairly probable that marijuana will be found in that house. The magistrate can assess the value of the facts independently rather than simply rely on the officer’s conclusions.
Each time officers apply for a search warrant, they should try to record the following information:
Officers should follow this procedure for recording the information they receive from others as well as for their own observations.
There is little difficulty when an officer’s personal observations alone are used to establish probable cause, because the magistrate may question the officer if the magistrate has any doubt about the officer’s observations. Problems may arise, however, when hearsay information (information from another person) is used, although hearsay information is clearly admissible in determining probable cause. The report passes through at least one person before it reaches the magistrate, and the possibility that some of the information will be conveyed inaccurately is therefore increased. Because the person who made the observation is not present, the magistrate cannot ask questions about any ambiguities or assess the person’s truthfulness by observing the person’s demeanor.
Whether or not officers name the person who gave them hearsay information, they should make clear who gave them the particular information described in the affidavit, and they should say when they received that information. Of course, officers also should provide the other information discussed above, such as when the person made the observation, how the observation was made, and the like.
Although not legally required, the other officer could appear before the magistrate and complete his or her own affidavit, which would then be attached to the application.
Generally, officers applying for a search warrant may state information in the affidavit that they have received from a crime victim, witness, or other citizen-informant without indicating that person’s credibility or reliability, unless the person has a motive to falsify information or unless other circumstances indicate that the person’s credibility or information is questionable. However, officers can strengthen a statement in an affidavit by showing why the person who gave the information is truthful and why the information is reliable. Although officers need not reveal the person’s name (they may want to state the reason—for example, the person fears for his or her personal safety), the information may be more valuable if they do. If officers do not reveal the person’s name, they ordinarily must provide more corroboration of that person’s truthfulness or the reliability of the information. The fact that the person is willing to give his or her name is usually considered to increase the likelihood that the information is true. If the person’s identity is revealed, the magistrate may know the person or the person’s reputation and be better able to judge the reliability of the information. Even if the magistrate does not know the person, revealing something about the person’s standing in the community can help back up the information. When information is used from such a person, the same rules should be followed as when officers describe their own observations—when the observation was made, how it was made, and the like. For example, an application for a search warrant might include a summary statement like this:
Including the kind of detail in the second statement has several advantages. Identifying the person and his position in the community strengthens the information because it provides a basis for judging trustworthiness. Also, the detail clearly shows that the person made the observation and is not just passing on a rumor heard from someone else; third-hand information is less reliable. Giving the date and describing the goods indicates that the person carefully remembered his interaction with the suspect, and it makes the information more believable. These details also indicate that officers investigated the case carefully and that they listened closely to what the witness said and recorded it precisely. If officers were that careful about this part of their investigation, they probably were as careful about the rest of their information, and it is probably reliable. Finally, using detail about the suspect’s goods may make it possible to corroborate the report. Perhaps a house near the grocery store was burglarized that Saturday and these kinds of goods were stolen. Corroborating a detail that may be unimportant by itself (for example, that the television set had a 43-inch screen) makes it more likely that the other parts of the account are also true. This example gives more detail than officers ordinarily will want to include or will have time to write down in an application, but it illustrates the benefits of recording information precisely.
Although not legally required, a witness could appear before the magistrate and complete an affidavit, which would then be attached to the application.
In the 1980s, the Court abandoned the two-pronged test because it had become too technical and complex and had not applied a commonsense judgment about the value of an informant’s information. Instead, the Court adopted a totality-of-the-circumstances analysis of probable cause that examines the entire affidavit, gives appropriate weight to each relevant piece of information, and assesses the various indications of reliability or unreliability in an informant’s report. Essentially, the Court made it easier to establish probable cause under this new standard than under the two-pronged test.
Although officers no longer have to satisfy the two-pronged test, they should still attempt to comply with it when they prepare their affidavits. By satisfying the test, they can be more confident that the informant’s information (1) will be given the weight it deserves and (2) adequately establishes probable cause by itself or contributes to a finding of probable cause when it is considered with the other information in the affidavit.
Another way to support a confidential informant is to prove that part of his or her information is true: if part of the information can be corroborated, it is more likely that the rest of the information is true. For example, if the informant said that Joseph Liske is selling drugs from his house at 123 E. Main Street, officers help corroborate that information if they state that they went to the house and saw the name “Liske” on the mailbox. Still another way to enhance credibility is to show that the informant is making a statement against his or her penal interest—that is, the informant is admitting involvement in the crime being investigated or some other crime. Court cases recognize that a person does not lightly admit a crime and give incriminating evidence to law enforcement officers; thus, an informant’s admission of involvement in a crime gives credibility to his or her information. Finally, the way an informant’s information is given can by itself enhance its credibility. Detailed information can show that the informant personally made the observation, the information is recent, and the observation was made carefully.
The most common way to support a confidential informant’s information is to show that the informant previously has given information that was reliable—whether it was simply investigative information about drug activity in the community or information that led to arrests or convictions. Whether or not the informant has previously supplied information, his or her information can be used to help establish probable cause. But an officer’s lack of experience with a first-time informant generally means that the rest of the statement of probable cause will need to be stronger than if the person has been used many times before. If the informant has previously given information, officers should state something about the use of that information rather than simply stating that the informant is “reliable” and “has given good information in the past.” Some indication should be given of the kinds of cases for which the informant gave information, when those cases took place, and what the results were—although this amount of detail is not normally legally required.
One way to keep an informant’s track record readily available is to maintain records that show each informant’s code name or an identifying number, the dates on which the informant gave information, the cases in which the information was used, whether the information was accurate, and any other relevant data about the informant. By keeping such records current, officers will have a readily accessible means of establishing their informants’ reliability. When a warrant application requires the use of a particular informant’s report, officers can check these records to assist in completing the application and to enhance its accuracy.
Note that the second statement is more detailed than the first because it tells when the informant gave the officer the information, when the informant purchased the marijuana, and where the marijuana was purchased, and it then indicates that Jones has more marijuana in the mobile home. The second statement’s greater detail makes it more valuable in showing probable cause to search the mobile home, and it supports the informant’s conclusion that marijuana is in the mobile home. Although the first statement may help establish probable cause when considered with additional information, its lack of detail reduces its value.
Although probable cause can be established without revealing the confidential informant’s name, in some cases the prosecution may be forced either to reveal an informant’s name at trial or to dismiss the case. That may occur when the defendant needs to know the informant’s identity to assist in the defense at trial—as, for example, when the informant is a material witness to a drug transaction for which the defendant is being tried.
Information from an anonymous tipster typically cannot provide probable cause by itself. Because officers do not know the identity of the source, they generally will not know anything about the source’s prior track record or history of reliability. Therefore, information from an anonymous tipster normally must be corroborated before it can provide probable cause. As with information from a confidential informant, it is not enough to corroborate innocent, readily available information provided by an anonymous tipster; instead, officers must corroborate more substantial, predictive, or incriminating aspects of the tip. The level of corroboration required for an anonymous tip is higher than that required for information from a confidential informant.
Under state law, a source who has put his or her anonymity at risk—for example, by flagging down an officer to make a face-to-face report about criminal activity—should not be treated as an anonymous tipster, even if the officer did not in fact record the person’s identity. Rather, such a person should be treated just like any other citizen who reports a crime—a topic addressed above. Whether a particular mode of reporting, such as calling 911, places a reporting party’s anonymity at risk is an area in which the case law is evolving.
Finally, the Supreme Court of the United States has ruled that when a report of criminal activity is made contemporaneously, it may provide at least reasonable suspicion even if it is anonymous.
Other information from records could include law enforcement data on a suspect’s activities that have not resulted in criminal charges. For example, an officer who is seeking a warrant to search a suspect’s house for drugs may know from other law enforcement officers that the suspect has often been present where drug transactions frequently take place. Even though the officer who is completing the application does not personally know this information, it can be used. Obviously, this secondhand information of noncriminal activity may not by itself establish probable cause, but it may help somewhat in establishing probable cause under the totality-of-circumstances analysis.
Although a suspect’s reputation for involvement in criminal activity may be considered in establishing probable cause, its vagueness makes it less valuable than the information discussed above.
A suspect’s utility records may help establish probable cause by showing usage patterns consistent with criminal activity. For example, unusually high electricity consumption may be indicative of an indoor marijuana-growing operation using artificial lights. However, for this evidence to be meaningful, officers should provide context: “The weight given to power records increases when meaningful comparisons are made between a suspect’s current electricity consumption and prior consumption, or between a suspect’s consumption and that of nearby, similar properties.”
Finally, records from sources not associated with criminal activity may also be useful. For example, information from a telephone company or the city water department may be useful in showing that the suspect lives at the place to be searched.
Because probable cause to search focuses on the probability, when a search warrant is issued, that certain evidence will be found at a particular place, the timeliness (or staleness) of the information allegedly establishing probable cause is important. For example, if an officer receives information on December 20 that a certain car contains money taken from an armed robbery committed on December 19, probable cause to search that car will not exist one year later—absent unusual circumstances—because it is then no longer likely that the money is still in the car.
There are no simple rules for determining whether information has become too stale to support a finding of probable cause. The probability that evidence will still be found in a particular place cannot be measured by a particular number of days or weeks. How recently the information was observed is obviously important. Other factors to consider are the following:
Essentially, a commonsense judgment must be made on whether the facts in a particular case support a fair probability that the evidence will be found in the place for which the search warrant is sought.
It is helpful if the warrant application affidavit states when the officer’s and others’ observations were made so that the issuing magistrate and a later reviewing court can more easily determine the weight to give them in determining probable cause. A recurring issue is the timeliness of information to support a search of a home for drugs. A North Carolina case approved a search warrant for a home when the last reported sale of drugs occurred as long as two weeks before the date of the search warrant and a pattern of drug sales had taken place there. Federal cases have approved search warrants for residences when drug transactions occurred several months before the warrants were issued and when the affidavits detailed the suspects’ continuing drug-trafficking activities up to the date the warrants were issued. On the other hand, a North Carolina case disapproved a search warrant when it determined that drugs had last been seen in the home about a year before the search warrant was issued. Each case is unique, and officers should not assume that these cases set either minimum or maximum time limits in determining the existence of probable cause.
Sometimes an affidavit will say nothing at all about the age of the information on which it is based. The general rule is that such an affidavit does not establish probable cause, because it is the responsibility of the applicant to show that the information is sufficiently timely. However, one recent case has suggested that because digital evidence may persist indefinitely, a lack of information about its age is not necessarily fatal to a warrant application.
Even when information is timely, it must also link the crime, the evidence to be seized, and the place to be searched. The easiest way to connect these things is by direct observation. For example, if an officer’s confidential informant has recently observed drugs being sold in a particular house, the crime (possession of drugs), the evidence (drugs) to be seized, and the place (the house) to be searched have been sufficiently connected to authorize a search of the house. Normally, a sale of drugs at a place supports an inference that more drugs may be found there.
Direct observation is not the only way to connect a place with a crime and evidence to be seized. For example, assuming that the information is timely, court cases recognize that the proceeds from a burglary, breaking or entering, or robbery will likely be found in (1) the suspect’s home or other place where the suspect is residing or from which the suspect may sell the proceeds, such as a business, and (2) under certain circumstances, the suspect’s car.
Court cases recognize that if a person is selling drugs on the street or other similar place, more drugs will be found at the place from which the person is operating—whether that place is a house, motel, or car—if that place is sufficiently implicated by showing, for example, that the seller went to the place before the sale, that a sale occurred in or near the place, or that other information supports an inference that drugs will be found there.
Court cases recognize that drug traffickers may keep cash and records of their transactions at their residences, even if they are selling the drugs elsewhere, and, therefore, search warrants may be issued for their residences. Each case will present a unique set of facts, but the essential question in every case is whether it is fairly probable, judging from the totality of the circumstances, that the evidence will be found in the place sought to be searched.
It is often helpful to state in the warrant application affidavit that a residence is the likely repository of one’s personal possessions and—if factually appropriate—that the defendant is not known to keep any other residence, office, or storage facility. Thus, the issuing official may properly infer that the residence is the probable storage place for the evidence to be seized.
For an analysis of the extent to which evidence must point directly to a suspect’s cell phone or computer before the device may be searched, see the discussion above under the heading “Evidence in Computers and Other Electronic Devices” as well as the blog post cited in the accompanying footnote.
Sometimes officers may not have enough information to establish probable cause to search a place unless a particular event occurs. In such a case, officers may want to obtain what is commonly known as an anticipatory search warrant—that is, a search warrant that may be executed only if the event occurs.
Officers may want to obtain an anticipatory search warrant (1) when they have intercepted a drug courier who is about to deliver a package of illegal drugs to a residence and now want to control the delivery of the illegal drugs there or (2) when a common carrier, such as Federal Express, has informed them that a package of illegal drugs has been discovered and that the common carrier will cooperate with law enforcement officers in making a delivery (or an undercover officer will make the delivery). The officers may allow the package or a substitute package to be delivered and then conduct a search of the premises with their anticipatory search warrant, which is to be executed only if the delivery takes place.
The court stated that these three conditions ensure that the required nexus between the criminal act, the evidence to be seized, and the identity of the place to be searched is achieved.
An example of what might be contained in an affidavit for an anticipatory search warrant to search premises, in addition to the statement establishing probable cause, is as follows:
The United States Supreme Court and the North Carolina Court of Appeals have ruled that an anticipatory search warrant is sufficient when the affidavit instead of the warrant itself contains the contingency language if the warrant incorporates the affidavit by reference (which the AOC search warrant does).
North Carolina law provides that a search warrant may be issued to search for evidence of obscenity offenses set out in G.S. 14-190.1 (disseminating obscenity and other offenses), 14-190.4 (coercing acceptance of obscene materials), and 14-190.5 (preparing obscene materials) only on the request of a district attorney or an assistant district attorney.
The following summaries of statements of probable cause in search warrants should provide a better understanding of the information that is necessary to satisfy constitutional requirements.
The officer obtained a search warrant on February 7, 1987, to search Lilly Ann Beam’s residence.
Houston, Texas, officers obtained a search warrant to search the defendant’s house for narcotics.
The affidavit statement then recited surveillance of the apartment by officers contained in an attached “affidavit,” but in fact there were two attachments that were unsworn statements of officers that could not be considered in determining probable cause. In addition, at the suppression hearing the officer-affiant testified that the support for the first statement above was a telephone call from an anonymous informant in which the caller did not mention the forty-eight-hour time frame or state that drugs were being sold at the location named in the affidavit. Rather, the caller said, “I know where there’s a place in Kinston and a lot of drugs in there . . . I went over there one time but I didn’t know it was that kind of place. . . .”
Before officers attempt to execute a search warrant, they should make sure that it has been properly filled out. They should particularly check that the magistrate has signed the warrant and given the date and time it was issued.
A search authorized by a search warrant may be made by officers who have jurisdiction over the crime (subject-matter jurisdiction) and are acting within their territorial jurisdiction. Generally, only certain state officers (State Bureau of Investigation agents, State Highway Patrol officers, wildlife law enforcement officers, marine fisheries enforcement officers, and others) need to be concerned about having jurisdiction over the crime. Local officers need to be concerned about their territorial jurisdiction. For example, city law enforcement officers generally can execute or assist in executing a search warrant only for a place in their city or within one mile beyond its limits.
The officer who makes the search need not be the same officer who applied for the warrant.
Officers should remember that certain judicial officials can issue search warrants only for limited areas. As discussed above under “Who May Issue a Search Warrant,” magistrates, clerks of superior court, and assistant or deputy clerks of superior court generally may issue warrants to search only places within their counties. District court judges may issue warrants to search anywhere within their districts. A warrant issued by any of these officials for a search outside their respective areas is invalid. Superior court judges and appellate court justices and judges may issue warrants to search anywhere in the state.
North Carolina law requires that a search with a search warrant must be made within forty-eight hours after the warrant is issued. (It is unclear whether the search must only begin within forty-eight hours or whether it must also end within that period. Although it appears that the search must only begin within forty-eight hours, cautious officers may want to obtain a second search warrant if the search extends beyond forty-eight hours.) If a search is not begun within forty-eight hours, the warrant must be marked “not executed” and returned to the clerk of court. Any evidence found as a result of a search executed after more than forty-eight hours is not justified by the warrant because the warrant is void after that time (but see the next paragraph concerning a computer search that is conducted after the forty-eight-hour period when the computer had been timely seized under the search warrant).
Often, after a computer is seized with a search warrant and within forty-eight hours of issuance of the warrant, a forensic or other comprehensive examination of the computer is undertaken that may take weeks or months. It would not appear that the later examination is a violation of the time limitation, based on cases from other jurisdictions involving their statutes or rules. North Carolina appellate courts would likely agree with these cases. A similar rationale would support conducting other forensic analyses on different types of seized evidence, such as chemical tests of controlled substances.
Although officers must return an unexecuted warrant after forty-eight hours have elapsed, they may use the same information to obtain another warrant if the facts still indicate that the evidence will probably be found in the place designated. But if they searched and did not find any evidence, no other search may be made with that warrant. The failure to find evidence destroys the probable cause, and additional facts must be presented before another warrant may be issued.
In an unusual case, a warrant could become invalid before the end of the forty-eight-hour period. That would occur if the facts establishing probable cause clearly indicate that the evidence will be in the place only briefly—for some period less than forty-eight hours. For example, officers might have an informant’s report that a person with stolen goods is in a local motel room and will leave the next morning. A warrant to search that motel room might become invalid after about twenty-four hours because the facts clearly indicate that the evidence is not likely to be found there after that time has passed—unless information showed that the person was still there.
Unlike some jurisdictions, North Carolina does not restrict when a search with a search warrant may be conducted. The search may be made at any time of day or night, whether or not anyone is home—although a search when someone is present helps establish the occupant’s possession of the evidence. However, the North Carolina Court of Appeals has indicated that the Fourth Amendment requires that a search conducted at night must be justified by a legitimate law enforcement purpose. For example, a nighttime search may be justified because occupants will be less aware of the search than during the daylight, and therefore they will be less able to destroy incriminating evidence.
North Carolina law requires that officers, before they enter premises to search with a warrant, give notice of their identity and purpose. This is usually satisfied by knocking on the door or ringing the doorbell and stating that they are officers with a search warrant. If the officers have reasonable grounds to believe that giving notice would endanger their lives or the life of someone else, they need not give notice before entering, and they may use deception or a ruse to gain entry. Officers who do not give notice must be able to articulate specific facts that made them fear for their lives, such as an informant’s report that the occupants were drug dealers who had threatened to kill law enforcement officers and had weapons in the house to be searched. Occasionally, an officer may ask a judicial official to authorize an unannounced entry in advance. It is unclear whether judicial officials in North Carolina may issue what are commonly called “no knock” warrants. That topic is explored in detail in the paper cited in the margin.
Notice before entry must be given—with the single exception noted above—even if it would increase the likelihood that evidence might be destroyed before officers can enter. Thus, an entry without notice by using deception or a ruse, such as by creating a traffic accident to draw the suspect out of the house and rushing in without notice, is not permissible. If officers have information that evidence will likely be destroyed, they may make a quick entry after giving notice. For example, officers with a search warrant for drugs would be justified in entering immediately after knocking and stating their purpose if they noticed that someone saw them from the window and immediately ran away toward the rear of the house. If it appears that no one is home and officers still want to enter to make the search, they must announce their authority loudly enough that someone inside could hear them. Officers may use force to enter a home if one of the following conditions exists:
North Carolina law requires that if someone is present at a home for which a warrant to search has been issued, officers must read the search warrant to that person before beginning their search. They need only read the warrant side of the form—not the side on which the application was filled out. If a person inside the premises is using or is likely to use the time while the warrant is being read to destroy evidence, officers may secure the premises before continuing to read it. In addition to reading the warrant, officers must leave a copy of the warrant and application and any affidavits with the person in charge of the premises. If no one is present, the copies should be left in a conspicuous place so that they will be found when the occupant returns. If someone is present and there is no danger to the officers or no likelihood that evidence will be destroyed, officers may want to give that person a few minutes to look over the warrant and application before the search begins.
Some of what is discussed here has already been discussed earlier in this chapter, but it is worth repeating so that all the information about the scope of a search with a warrant is presented together.
Generally, a search warrant to search premises authorizes the executing officers to search all outbuildings (unattached garages, storage buildings, and the like) within the curtilage of the premises, even though they are not specifically named in the warrant as places to be searched, provided the evidence to be seized may reasonably be found there. In other words, a warrant to search the “premises” at 345 Oak Street, Bovine, North Carolina, for stolen television sets would authorize a search of the dwelling house at that address, the garage attached to the side of the house, and the storage shed about twenty yards behind the house. However, that warrant would not authorize a search of a garage apartment rented to another person or a search of another house a block away that is owned and occupied by the person who owns the house specified in the warrant.
Although not legally required to do so, officers who are aware of outbuildings on the premises may want to name them specifically in the search warrant as places to be searched so that they have explicit authority to search them.
Where officers may search is determined by what they are looking for. A warrant authorizes the search of only those places on the premises that are large enough to contain the object of the search. A warrant to search for a stolen automobile authorizes a search of a home’s garage but not of its kitchen or any other part of the house where the car could not reasonably be found. A warrant to search for a large stolen television set authorizes a search of a home’s garage, its kitchen, and any bedrooms, but not of dresser drawers in the bedroom. A warrant to search for heroin authorizes a search of all those places. If officers search unauthorized places, the search may be unlawful, and the evidence found in the unauthorized places may be excluded from use at trial.
Court cases have authorized officers to bring private people with them to assist in executing a search warrant when it is reasonable to do so. For example, officers may take a burglary victim with them to help identify the victim’s stolen goods. Of course, officers should consider whether the execution of the search warrant may involve danger to private people they take with them.
Officers also may take dogs with them if they are useful in discovering drugs, accelerants, or other substances. Although not legally required to do so, officers may want to request in the search warrant application the authority to take a private person or a dog with them when they execute the warrant.
Officers violate the Fourth Amendment rights of a homeowner when they allow the news media to accompany them during the execution of a search warrant (or arrest warrant) in the person’s home or in another similar place where the person has a reasonable expectation of privacy.
While searching for a particular item named in a warrant to be seized, officers may search everywhere they reasonably may find the objects the warrant permits them to seize. Officers also may seize other property that they find “inadvertently” in plain view if they have probable cause to believe that the property is evidence of a crime, even if it is not related to the crime under investigation. For example, while searching for stolen television sets, officers may seize illegal drugs they see in plain view. Officers find and seize an object inadvertently if, before the warrant was issued, they did not have probable cause to seize it and did not specifically intend to search for and seize it. Officers’ authority to seize objects in plain view under these circumstances is known as the plain-view doctrine.
Officers also may seize evidence that bears a reasonable relationship (connection or nexus) to the crime for which the named object is evidence. For example, a search warrant for marijuana would allow officers to seize cigarette papers, scales, envelopes, and plastic bags—items well known for their connection with distributing marijuana. Large sums of money on the premises also may be seized when they are likely to be connected to gambling or drug offenses for which the search warrant was issued. Likewise, if possession of the premises may be necessary to prove an offense (for example, possession of illegal drugs) for which the search is made, evidence of possession or use of the premises—such as a checkbook, an electric bill, or a traffic citation issued to that address—may be seized. However, officers may want to describe these kinds of items in the search warrant so that they will not need to rely on the plain-view doctrine to justify their seizure—that is, the search warrant will specifically authorize the seizure. One way to describe them in the application is as “items or articles of personal property tending to show ownership, dominion, or control of the premises.”
Generally, a warrant to search premises gives executing officers the authority to search a vehicle on the premises, even though the vehicle is not specifically named in the warrant as a place to be searched, providing both of the following circumstances exist:
(If a vehicle may not be searched under this authority, it may be searched without a warrant under certain circumstances if there is probable cause, as discussed in Chapter 3.) If officers know that a vehicle may contain evidence that they are searching for, they should describe it specifically in the search warrant, as discussed above under “Description of the Premises, the Person to Be Searched, or the Vehicle,” “Vehicles on the Premises.”
There are no set time limits for a search with a warrant. (However, as discussed above under “Time of Execution,” it is not clear whether the search must only begin within forty-eight hours after the warrant is issued or whether it must end within forty-eight hours.) Officers may search as long as reasonably necessary to find what they are authorized to look for, but if they continue longer than that, the search may become unlawful and the evidence they find may be excluded. The length of time required will depend on the place being searched and what is being looked for. It will probably take longer to search a twelve-room house than a three-room apartment. A search for a stolen refrigerator, which cannot easily be hidden, does not usually take as long as a search for drugs, which can be secreted in many more places.
If a person is named in a warrant as someone to be searched or if officers have an arrest warrant or other justification for arresting the person, an immediate, thorough search of that person may be made. Otherwise, there are limitations on handling persons who are present when officers enter to search a place.
When officers enter a public place to make a search, they generally may not detain people there unless those people are named in the warrant to be searched or unless there is some other justification for detaining them. In addition, the officers may not automatically—that is, without reasonable suspicion—frisk a person there. Instead, they must have reasonable suspicion that a person is armed and dangerous before they may frisk that person—although knowledge that a place may contain weapons is a factor in determining dangerousness.
The authority to detain should not be abused; clearly innocent people (who have no connection with the crime under investigation) should not be inconvenienced. If a person tries to obstruct an officer or to frustrate the search in some other significant way, the person may be arrested for obstructing an officer, as discussed above under “Notice and Entry.”
If there is reasonable suspicion that a person is armed and poses a threat, the person may be frisked for weapons. To justify the frisk, officers generally must be able to articulate specific facts as to why the person was dangerous, such as hostility combined with a bulge on the person’s body where a weapon might be kept. However, officers normally may automatically—that is, without reasonable suspicion—frisk people present in a private residence, at least when their search involves a potentially dangerous activity, such as selling illegal drugs.
If a frisk indicates that an object might be a weapon, officers may remove it. If the object is not a weapon but the officer’s training and experience provide probable cause to believe that the object being touched is a package containing illegal drugs, such as crack cocaine, the officer may remove the object from the person. If the object is a weapon, officers must remember that while the offense of carrying a concealed weapon does not apply when a person is on his or her own premises, the offense of possession of a firearm by a convicted felon does apply on one’s own premises.
Under these circumstances, if the evidence that is the object of the search or evidence of a like kind—for example, all drugs are considered the same kind of evidence—is found on a person, it may be used at trial. If evidence of a different kind—for example, a stolen firearm discovered during a search for drugs—is found, it may be seized, but it may not be used at trial.
This limitation on using evidence applies only when the evidence has been seized under the limited statutory authority to search people on the premises being searched under a search warrant who are not named in that warrant. Thus, if a person is named to be searched in a search warrant for stolen firearms and is searched under the authority of the warrant, illegal drugs found on that person will be admissible as evidence. The same is true if the person is arrested under an arrest warrant for larceny of firearms and drugs are found during a search incident to that arrest. Also, the drugs would be admissible if inadvertently found in plain view in a dresser drawer during the search of a house for the firearms. There is one situation in which the drugs would be inadmissible, however. If the search warrant is to search only the “premises,” the person is not under arrest, and the search of the person is made after the search of the house did not reveal any firearms (or the search revealed only some of the firearms present), the drugs would not be admissible as evidence. This limitation emphasizes the advisability of naming in the search warrant any suspects whom the statement of probable cause connects with the evidence being sought and who may be present when the search is made.
North Carolina law requires that officers write and sign a receipt (inventory) of all objects seized in a search. The AOC prepares form AOC-CR-206 (inventory of items seized pursuant to search) that officers may use for this purpose. This form is available from the AOC’s website at nccourts.gov/documents/forms, where it also may be completed and printed. (For a list of forms available on the AOC website, see Table 4.1.)
If officers seize evidence from a person, they must give the person a copy of the completed inventory form. If immediate delivery of the form is not practical, they may deliver it within a reasonable time thereafter. If they seize evidence from a building or vehicle, they must give a copy of the completed form to the owner or person in apparent control. If no one was present during the search, they must leave the form in a conspicuous place on the premises or vehicle searched.
The completed inventory form must be returned with the search warrant. The officer who fills out the form must swear or affirm to its contents. If the clerk’s office is not open, an officer may swear or affirm to the inventory before a magistrate (the AOC form provides for a magistrate’s signature), who will forward it to the clerk’s office.
For a discussion of special issues involved with the return of an inventory when a computer is searched off-site, see the publication cited in the accompanying footnote.
After a search is made, whether evidence was found or not, the officer executing the search must return the warrant to the clerk of the court who issued it. There is no time limit for returning the warrant, but it should be done without unreasonable delay. If the search is made on a weekend, the warrant may be returned when the clerk’s office opens on Monday. The officer may return the warrant to a magistrate if the magistrate is willing to forward it to the clerk’s office when it opens.
An officer who returns a warrant must complete the “Return of Service” section of the search warrant form. For a discussion of special issues involved with the return of a search warrant when a computer is searched off-site, see the publication cited in the accompanying footnote.
An officer may be subject to prosecution for a misdemeanor for not returning a warrant, but possible prosecution is remote and is not the most important reason for returning the warrant. If the search is unsuccessful, the warrant cannot be used again, and it should be returned to make certain that it is not inadvertently served by another officer. Also, the warrant will be needed to prove the legality of the search if a civil suit is brought against the officer. If the search is successful, the warrant should be returned so that it will be available at trial to show that the search was lawful. Before returning the document to the clerk or magistrate, the officer may want to make a photocopy of the application and warrant because a photocopy is admissible at trial if the original is lost.
A search warrant becomes available for public inspection when an officer returns it to the clerk’s office. A North Carolina Court of Appeals case has recognized that a court may issue an order sealing a search warrant from public inspection under certain circumstances.
North Carolina law requires that seized property be held by one of the following individuals: (1) the person who applied for the warrant, (2) the officer who executed the warrant or the officer’s employing agency, or (3) any other law enforcement agency or person who may evaluate or analyze the property. A court is authorized to retain the seized items or to order them delivered to another court.
As few people as possible should handle the evidence so that the chain of custody may easily be established at trial if it becomes necessary to do so. (See Chapter 6 for a discussion of chain of custody.)
Whether officers may immediately destroy hazardous chemicals and other dangerous items (for example, methamphetamine laboratories) before a defendant has had a chance to examine and test them is discussed in the blog post cited in the accompanying footnote.
The additional enforcement authority includes an expanded power to frisk and to use warrants to search vehicles near riots for any dangerous weapons or substances. “Dangerous weapons or substances” includes things that may destroy property as well as those that might cause serious bodily injury. This law does not restrict officers’ use of any other permissible authority to arrest, frisk, search, or the like.
A riot exists when three or more people assemble and by disorderly or violent conduct, or the imminent threat of that conduct, injure or damage persons or property or present a clear and present danger that they will do so. A declared state of emergency may be proclaimed by the governor, the state legislature, a mayor or municipal governing board, or a chair of a board of county commissioners or a county governing board. An emergency is an occurrence or imminent threat of widespread or severe damage; injury; or loss of life or property resulting from any natural or man-made accidental, military, paramilitary, weather-related, or riot-related cause.
Law enforcement officers have special powers to frisk people found near riots or found violating a curfew during a state of emergency. These powers are broader than the general power to frisk discussed in Chapter 3.
Officers may frisk a person and inspect personal belongings to discover whether the person has any dangerous weapons or substances if (1) the officers have reasonable grounds to believe that the person is or may become unlawfully involved in an existing riot and (2) the person is close enough to the riot that the person could become immediately involved in it. If the person is in a vehicle, it probably also may be inspected.
Officers may frisk a person and inspect personal belongings to discover whether the person has any dangerous weapons or substances if the person is violating a curfew proclaimed during a state of emergency or civil disorder. If the person is in a vehicle, it probably also may be inspected.
If a dangerous weapon or substance is found as a result of a frisk of a curfew violator or a person close to an existing riot, the person may be violating either (1) the concealed weapon law or (2) a governor’s declaration under G.S. 166A-19.30(c)(1) or a local ordinance enacted under G.S. 166A-19.31(b)(4) prohibiting the possession of a dangerous weapon or substance—whether concealed or not—within an emergency area during a state of emergency.
Officers have an inspection power under a special kind of search warrant to check all vehicles entering an area where a civil disorder is occurring to make sure that those vehicles are not bringing in dangerous weapons or substances.
Two kinds of search warrants may be issued: (1) warrants authorizing inspections for dangerous weapons or substances of all vehicles entering or approaching a municipality where an emergency exists and (2) warrants authorizing inspections for dangerous weapons or substances of all vehicles that may be within or approaching the immediate vicinity of a riot. The existence of the emergency or riot need not have been proclaimed, but the official who issues the warrant must have found such a condition. The only judicial officials who may issue these kinds of warrants are district, superior, or appellate court justices or judges—a magistrate or clerk of court may not do so. Officers may not seek the warrant on their own initiative; they must have authorization to apply for the warrant from the head of their agency.
When issued, the warrant must state which kind it is—whether for an inspection around a municipality under an emergency or for an inspection in the vicinity of a riot—and give the date and hour of issuance. It must also state that it will automatically expire twenty-four hours after it is issued.
The law does not specify the area where the warrant may be used, but the issuing official must place territorial limitations in the warrant because the law requires that the area be set out with “reasonable precision.” In this way, the search will be restricted to only places where it is necessary to halt the transportation of weapons into the area of violence. When officers apply for the warrant, they should be prepared to state the area where the riot or emergency exists and in which streets or in which area they want to exercise their inspection authority. A marked city-street map attached to the warrant application is the easiest way to meet this requirement.
The law does not specify how to execute the special warrant. Because executing the warrant will undoubtedly mean that different vehicles must be inspected at different intersections at the same time, it would be a good practice to make multiple copies of the warrant so that a copy may be shown to each driver who is stopped.
The law authorizes the search of vehicles for dangerous weapons or substances, and thus the search may be as thorough as is necessary to find these things. If a dangerous weapon or substance is found, the driver may be violating the state’s concealed weapon law. The roadblock where the vehicle was searched and the weapon discovered may be located outside the area where a declared state of emergency exists or outside the immediate vicinity of a riot. If so, officers should then determine whether the concealed weapon law applies; if so, an arrest and search may be made for that offense. If the weapon is not concealed, a violation has not occurred, and nothing may be seized. Officers may want to inform the driver that going to the area where a state of emergency has been declared or where a riot is occurring may violate the law and may result in the driver’s arrest.
The most important things to remember about these kinds of search warrants are as follows: (1) only certain judicial officials may issue them, (2) officers may apply for the warrant only if the head of their agency has authorized them to do so, (3) the warrant authorizes only a search of vehicles for dangerous weapons or substances, (4) the warrant is restricted to legally defined emergencies or riots, and (5) the warrant automatically expires after twenty-four hours.
North Carolina law authorizes an animal cruelty investigator to file a sworn complaint requesting an order to take custody of a cruelly treated animal and provide care for it. To issue an order, a magistrate must find probable cause to believe that the animal is being cruelly treated and that it is necessary for the investigator to take immediate custody. The order is valid for only twenty-four hours after it is issued. The investigator may request a law enforcement officer or animal control officer to assist in seizing the animal and must give notice of his or her identity and purpose before entering the premises where the animal is located. The investigator may use force to enter premises or a vehicle to execute the order only if (1) a district court judge issues an order authorizing forcible entry, (2) the investigator reasonably believes that the premises or vehicle is unoccupied and that the animal is there, (3) the investigator is accompanied by a law enforcement officer, and (4) the forcible entry occurs during daylight hours.
The investigator who seizes the animal must leave a copy of the magistrate’s order with the owner, if known, or must affix the order to the premises or vehicle. He or she must also leave a written notice with a description of the animal, the place where it will be taken, the reason for taking the animal, and the investigator’s intent to file a complaint in district court requesting custody of the animal.
After executing the order, the investigator must return it with a written inventory of the animal or animals seized to the clerk of court in the county where the order was issued.
There is another way in which a cruelly treated animal may be seized, which is unrelated to the legal provisions discussed above. An animal cruelty investigator could apply for a search warrant—or seek the cooperation of a law enforcement officer to apply for one—to seize an animal that is evidence of a crime, such as cruelty to animals. However, although any person may apply for a search warrant, only a law enforcement officer may execute a search warrant (animal cruelty investigators are usually not law enforcement officers).
Many state and local laws authorize public officials or employees to inspect certain places or records. For example, wildlife law enforcement officers and marine fisheries enforcement officers may inspect hunting and fishing equipment and game to see whether those who have used the equipment have complied with the game and fish laws. There are local government inspections for compliance with the state’s building code and housing code. Division of Motor Vehicles license and theft inspectors may inspect automobile dealers’ records. These inspections are almost always conducted without any objection by the person who is subject to the inspection. (Remember that the person who must consent to an inspection of a rented apartment is the tenant, not the landlord.) However, those who make these kinds of inspections must know what to do if someone refuses to allow the inspection.
North Carolina law authorizes the issuance of an administrative inspection warrant. This warrant may be issued to state or local officials or employees who have been designated to carry out a legally authorized program of inspection. (The terms “officer” and “inspector” will be used throughout this section to refer to all those authorized to conduct inspections and execute warrants.) A statute, ordinance, or administrative regulation must specify the circumstances under which a given inspection is authorized—for example, that a certain type of business will be inspected once every two years. If the inspection authorization exists, the warrant may be issued for either of two reasons:
Reason 1, above, exists when a program of inspection has been authorized in an area where the property to be inspected is located. For example, a county might decide to inspect all the restaurants in the county to see whether they comply with applicable environmental health laws and ordinances. A certain area of the county is designated for inspection in May, but the owner of one restaurant in the area refuses to admit the inspector. The warrant could be issued in that case by showing that (1) the county’s ordinances, or state law, authorize environmental health inspections; (2) the relevant office has set a schedule for making the inspections; (3) the schedule is reasonable and is applied neutrally to all restaurants; (4) this restaurant is within the area of inspection this month; and (5) the owner has refused to allow the inspection.
Legislation enacted in 2011 placed additional limitations on periodic inspections by counties and cities of residential buildings and structures. Such inspections may not be conducted solely on the basis that they are part of a systematic program of inspections. Rather, they may be conducted, with limited exceptions, only when there is “reasonable cause,” which means when
For an extensive analysis of this legislation, see the publication cited in the accompanying footnote.
Occupational Safety and Health Act (OSHA) inspections of businesses involve complex issues that will not be discussed in this book.
Reason 2, above, exists when the inspection occurs for a reason other than a periodic inspection of an area. For example, an inspection may be made when (1) a housing inspector receives information that rats have been seen near an apartment building, (2) the inspector sees rat feces by the building, and (3) a tenant complains about rats running throughout the apartment’s hallways.
Note that neither justification for obtaining an administrative inspection warrant requires a probability that a crime is being committed on the premises. If there is probable cause to believe that a crime is being committed, that information is a particularly persuasive version of reason 2. It could also be used to obtain a regular search warrant.
Usually, an administrative inspection warrant is not sought until the owner of a building/structure has refused to allow a voluntary inspection, but a refusal is not a prerequisite to issuing a warrant. If an inspector believes that his or her inspection might be resisted, he or she might want to obtain a warrant before attempting to make the inspection.
Only a judicial official may issue an administrative inspection warrant. Like search warrants, administrative inspection warrants do not always have statewide validity. Magistrates, clerks of court, and assistant or deputy clerks generally may issue warrants to inspect only places within their counties. District court judges may issue warrants to inspect anywhere within their districts. Superior court judges and appellate justices and judges may issue warrants to inspect anywhere within the state.
The AOC has prepared two forms that may be used for issuing administrative inspection warrants. AOC-CR-913M provides an affidavit and a warrant for inspections based on a particular condition or activity—reason 2, discussed above. AOC-CR-914M provides an affidavit and a warrant for periodic inspections—reason 1, discussed above. These are model forms; that is, they are not printed for distribution but are available from the office of the clerk of superior court for photocopying as necessary. They are also available from the AOC’s website at nccourts.gov/documents/forms, where they may be completed and printed. (For a list of forms available on the AOC website, see Table 4.1, above.
When inspectors apply for a warrant, they must complete an affidavit—which must be signed under oath or affirmation—stating the reason for the inspection. The judicial official reviewing the warrant application may examine the inspector about the contents of the affidavit. The premises to be inspected must be described with the same particularity as is required for a search warrant.
The warrant must bear the date and hour of issuance. This is important because a warrant must be executed within certain time limitations, discussed below under “Execution of an Administrative Inspection Warrant.”
Although not legally required, at least two copies of the original warrant and affidavit should be made. The issuing official should keep one copy, to be filed in the clerk’s office. The second copy should be given to the person whose property is to be inspected. The executing officer will return the original warrant and affidavit to the clerk’s or magistrate’s office after it is executed. The executing officer may want to make a third copy for his or her files. Remember that the affidavit and warrant should be attached to each other if they are not on a single sheet of paper.
The affidavit for an administrative inspection warrant based on a periodic inspection must indicate the condition, object, activity, or circumstance for which the inspection is being made, but sometimes a general statement may be sufficient. What follows is a fictitious example:
The following fictitious example shows how an officer might complete an affidavit to obtain an administrative inspection warrant for a particular condition or activity to inspect a fire scene:
G.S. 58-79-1 authorizes inspections to determine the cause of fires in which property has been damaged or destroyed.
An administrative inspection warrant is valid for only twenty-four hours from the time it is issued. It must be (1) personally served on the owner or possessor of the property to be inspected, (2) executed between 8:00 a.m. and 8:00 p.m., and (3) returned to the clerk’s or magistrate’s office within forty-eight hours, whether or not it is executed. But if the warrant is issued to inspect the cause of a fire under G.S. 58-79-1, it may be executed at any hour. It is valid for forty-eight hours after its issuance and must be returned to the clerk’s or magistrate’s office without unnecessary delay after its execution or after the forty-eight-hour period if it is not used.
The inspection warrant need not be personally served on the owner or possessor of the property to be inspected if the executing officer cannot find that person after making a reasonable effort to do so. The officer may inspect the premises in the owner’s or possessor’s absence—still between 8:00 a.m. and 8:00 p.m., except for fire inspections—but the officer must leave a copy of the warrant in a conspicuous place so that the owner or possessor may see it later.
Anyone who willfully interferes with officers in entering the premises or making the inspection is guilty of resisting, delaying, or obstructing public officers in performing their duties, a Class 2 misdemeanor. Generally, verbal abuse alone is not considered a violation unless it is so severe that it keeps officers from talking to witnesses or otherwise carrying out their inspection. Although the law is not completely settled on this point, it is likely that reasonable force may be used to accomplish an inspection, if necessary. Officers may inspect the premises as extensively as is reasonably necessary to carry out the purposes of the inspection.
If, during the inspection with a warrant, an officer discovers evidence of a crime not related to the purpose of the inspection, North Carolina law prohibits the use of the evidence in any civil, criminal, or administrative proceeding or as a basis for obtaining any warrant. For example, if a housing inspector saw marijuana while inspecting a house with a warrant for housing code violations, a law enforcement officer could not use that information later to obtain a search warrant to search that house. This prohibition does not apply, however, if the inspection was conducted with consent or if the inspection could have been made constitutionally without a warrant—for example, an emergency inspection—even though a warrant was used.
Sometimes an inspection may be made without a warrant in an emergency when officers have the authority to inspect but they reasonably believe that if they took the time to obtain a warrant, the condition or object for which they are making the inspection would likely disappear. For example, wildlife law enforcement officers and marine fisheries enforcement officers would have authority with some of their inspection powers to inspect without a warrant if evidence (wildlife, seafood products, and the like) would probably disappear if they took the time to obtain a warrant. These officers, whose duties include looking for unlawfully possessed things that can be disposed of easily, will sometimes encounter situations when an emergency inspection is justified. But building inspectors and others whose jobs are to inspect relatively permanent conditions will rarely be justified in conducting an emergency inspection, particularly an inspection of a home—a place entitled to the greatest protection of privacy under the Fourth Amendment.
Wildlife law enforcement officers and marine fisheries enforcement officers also are authorized (1) to arrest for the misdemeanor offense of refusing to exhibit a license or, (2) under certain circumstances, to allow inspection of weapons, equipment, fish, or wildlife. A person who refuses to allow an inspection and is told that he or she will be arrested for that refusal may reconsider and permit the inspection.
The United States Supreme Court has recognized the constitutionality of legislation that authorizes warrantless administrative inspections—or criminal prosecution or a civil penalty for not permitting a warrantless inspection—of commercial property of certain industries or enterprises (for example, mining, gun dealers, or liquor dealers) that are subject to pervasive regulation. This subject will not be discussed further in this book.
Sometimes an investigation clearly establishes probable cause that a crime was committed but only reasonable suspicion that a particular person or persons committed the crime. As discussed in Chapter 2, reasonable suspicion ordinarily allows officers only to detain a person briefly. If probable cause to arrest does not develop, they must release the person. Without that person’s consent, officers may not take the person for interrogation elsewhere—for example, to their agency’s headquarters—or conduct various searches and seizures that are permitted incident to arrest.
What may officers do when they have only reasonable suspicion that a person committed a crime, but they need to obtain that person’s fingerprints, conduct a lineup, or the like and the person will not consent? North Carolina law authorizes the use of a nontestimonial identification order to require that person to submit to certain identification tests that may possibly connect the person with a crime, even though there is not yet probable cause to arrest the person. For example, a drug dealer has been murdered, and fingerprints and hair samples have been found at the scene. The crime scene indicates that robbery was the motive. Several people immediately become prime suspects because of their close connection with the victim, their involvement in drug trafficking, their probable match with the hair sample, and their lack of an alibi for the time of the murder. Probable cause may not yet exist to arrest any of the suspects, but a hair sample and fingerprints taken from each would clearly help establish whether one or more of them committed the crime. A district attorney or an assistant district attorney may request a nontestimonial identification order from a district or superior court judge that would require each suspect to provide hair samples and submit to fingerprinting. A suspect who does not comply with the order may be held in contempt of court, discussed later in this chapter under “Criminal and Civil Contempt.”
A judge also may issue a nontestimonial identification order to require a person who has been arrested with probable cause and has been released from custody pending trial to submit to a nontestimonial identification procedure, even if the procedure could have been conducted automatically incident to arrest without a nontestimonial identification order. However, if the arrestee is still in custody, a judge has no authority (on the State’s motion) to issue a nontestimonial identification order. Instead, an officer should obtain a search warrant or a court order. (See also the discussion of nontestimonial identification orders in “Part II Lineups and Other Identification Procedures,” in Chapter 5.)
A nontestimonial identification order may be used only for a nontestimonial identification, which means that it may not be used to bring a suspect in for interrogation. The kinds of tests or procedures that might be required include fingerprints, palm prints, footprints, measurements, urine specimens, saliva samples, hair samples, handwriting samples, voice samples, photographs, lineups or similar identification procedures requiring the presence of a suspect, hand wiping for gunshot residue, and the like. Although the statute involving adult suspects also permits taking a blood sample with a nontestimonial identification order based on reasonable suspicion, the North Carolina Supreme Court has ruled that the North Carolina Constitution requires probable cause and a search warrant to take a blood sample unless exigent circumstances permit taking the blood sample without a search warrant (of course, probable cause must also exist when acting without a search warrant). The statute involving juvenile suspects, discussed later in this chapter under “Blood Samples,” permits taking a blood sample with a nontestimonial identification order based on probable cause and thus effectively complies with the North Carolina Supreme Court ruling.
A nontestimonial identification order may be used only to determine whether the suspect committed the offense. For example, a North Carolina case ruled that a judge did not have authority to issue a nontestimonial identification order to require a defendant charged with automobile manslaughter to take a visual-acuity test to determine whether the defendant was grossly negligent in driving his car, because the test did not help identify the defendant as the driver who committed the offense.
The AOC prepares four forms that may be used to apply for and obtain a nontestimonial identification order. Two forms involving adult suspects are AOC-CR-204 (prosecutor’s application, with an affidavit to support it) and AOC-CR-205 (nontestimonial identification order). These forms should be used with a person who is charged with a crime committed on or after his or her 18th birthday, a juvenile charged as an adult, or a juvenile whose case has been transferred to superior court for trial as an adult. (The Juvenile Justice Reinvestment Act, enacted in 2017, S.L. 2017-57, raised the age of juvenile jurisdiction from 16 to 18 in most cases, effective for offenses committed on or after December 1, 2019.)
Two forms involving juvenile suspects are AOC-J-204 (prosecutor’s application, with an affidavit to support it) and AOC-J-205 (nontestimonial identification order). These forms should be used with a person who is charged with a crime committed before his or her 18th birthday, who is not charged as an adult, and whose case has not been transferred to superior court for trial as an adult.
All four forms are available for download on the AOC’s website at nccourts.gov/documents/forms, where they also may be completed and printed. (For a list of forms available on the AOC website, see Table 4.1.)
A nontestimonial identification order may be issued only by a judge, not by a magistrate or clerk, and only a district attorney or assistant district attorney may apply for the order. An affidavit—ordinarily filled out by the investigating officer—must be submitted with the prosecutor’s application, which must establish that (1) a felony or Class A1 or Class 1 misdemeanor has been committed (for juveniles, a felony only); (2) there are reasonable grounds to suspect that the person to be tested has committed the offense; and (3) the results of the nontestimonial identification procedure would materially aid in determining whether the suspect committed the offense. The same kind of information that may establish probable cause to issue a search warrant (discussed earlier in this chapter under “Statement of Facts Showing Probable Cause to Search”) or arrest warrant may be used to establish reasonable grounds to suspect that the person committed the offense—and the same rules about confidentiality of informants apply.
“Reasonable grounds to suspect” is the same as reasonable suspicion, which is discussed in Chapter 2. Reasonable suspicion is something less than probable cause, but the reasons for suspicion must be specifically stated. The prosecutor’s nontestimonial identification order application with its supporting affidavit must provide facts to show why the person is suspected of committing the crime. It is not enough that the suspect has a bad reputation, the prosecutor has a hunch that the suspect committed the robbery, or that the suspect is “known” to be involved in this kind of crime. For example, some relevant factors in a robbery case would include whether the suspect matched an eyewitness’s description, had a prior history of similar crimes, had been seen near the crime scene, recently threatened the victim, owned a gun like the one used in the robbery, or had distinctive clothes similar to those seen on the robber; whether there were reports from informants of the suspect’s involvement; and whether there were any specific facts that point to the suspect (not all of these would be necessary to establish reasonable suspicion).
In applying for a nontestimonial identification order, prosecutors must state what specific procedures they are requesting and why the procedures will materially aid in determining whether the suspect committed the offense at issue.
If the judge issues the order, the order must tell the person when and where to appear, what procedures will be used and how long they will take, the reasons for suspecting the person, and the consequences of not appearing—being found in contempt of court. The order also must state that the person will not be subject to interrogation and is entitled to be represented by counsel, that counsel will be appointed if the person cannot afford to pay for counsel, and that the person may request a change in the time and place of appearance. This information is printed on both AOC-CR-205 and AOC-J-205.
A nontestimonial identification order must be served on the suspect personally. Officers should obtain a search warrant to enter private premises to serve the order if they do not obtain consent to enter. Generally, service must be made at least seventy-two hours before the suspect’s appearance is required. However, if the judge who issues the order determines that delay would probably adversely affect the probative value (usefulness in establishing proof) of the evidence being sought, the judge may set the notice period earlier or dispense with notice altogether. Abandoning the seventy-two-hour notice period might be justified, for example, if there was evidence that a male suspect might substantially alter his appearance by shaving off his beard to reduce the likelihood of identification at a lineup or if the suspect might flee the jurisdiction.
The person who is ordered to appear may ask the judge who issued the order to change the time or place of appearance. For example, the person may ask that a procedure, other than a lineup, take place at his or her residence. Although the statute does not say so, the person probably could also request a change in the nature of the procedure if it is more intrusive than necessary to achieve its purpose.
A person who is ordered to submit to a nontestimonial identification procedure may be found in contempt for either willfully not appearing or not cooperating, and the person’s noncompliance with the order may be considered with other evidence in determining whether there is probable cause to arrest the person for the crime. The procedure may be conducted by any law enforcement officer or other person designated by the judge who issued the order. Any extraction of bodily fluid must be done by a qualified health professional, such as a doctor, nurse, or medical technician. The judge can order medical supervision of any other kind of test.
The person is entitled to have counsel present—and counsel appointed if the person is indigent—and must be told about this right before any testing takes place. If the person makes any statement during the identification procedure—other than that required by a procedure, such as a voice identification—the statement is not admissible as evidence against the person unless counsel was present.
A person may be held only long enough for the test to be conducted—no more than six hours, unless the person is arrested. No unreasonable or unnecessary force may be used in conducting the identification procedure.
If a person willfully fails to appear or refuses to cooperate in connection with a nontestimonial identification procedure, the prosecutor may inform the judge who issued the order. The judge may then order the suspect to appear in court and show why he or she should not be held in civil or criminal contempt. But the suspect may not be found in both civil and criminal contempt for the same conduct.
The purpose of civil contempt is to compel compliance with a court order. If the judge finds the suspect in civil contempt, the judge may order the person imprisoned for up to 90 days, unless the suspect had been arrested before the nontestimonial identification order was issued. A suspect who had been arrested may be imprisoned for successive 90-day periods, up to 12 months, for as long as he or she continues to refuse to comply with the nontestimonial identification order.
The purpose of criminal contempt is to punish contemptuous conduct. If a judge finds a suspect in criminal contempt, the judge may order the suspect imprisoned for up to 90 days and fined up to $500.
A procedure that might be done without a suspect’s cooperation, such as taking a hair sample or fingerprints, can be accomplished with reasonable force. But if a procedure, such as the taking of a handwriting or voice sample, requires the suspect’s cooperation, the only apparent option would be to seek a recommitment for an additional 90 days when a civil-contempt term expires (assuming the defendant had been arrested based on probable cause) and to try again to conduct the procedure.
A person’s refusal to submit to a nontestimonial identification procedure may be admissible at trial.
A suspect or his or her counsel must be given a copy of the report of the nontestimonial identification procedure results as soon as it becomes available. Within ninety days after the procedure for an adult suspect, an inventory of the results must be returned to the judge who issued the order or to another judge designated by the issuing judge. If probable cause to arrest has not been established then, the person who was tested may move for the destruction of copies of products and test results from the procedure. The motion must be granted unless the prosecutor can show good reason for not doing so.
Detailed procedures for the destruction or retention of records of a nontestimonial identification procedure conducted with a juvenile are set out in G.S. 7B-2108.
An adult arrested for or charged with a felony or a Class A1 or Class 1 misdemeanor, or a juvenile in custody or charged with a felony, may request that nontestimonial identification procedures be conducted on him or her. For example, the person may request that a lineup be conducted to determine whether the robbery victim can identify the person. Just as with the prosecutor’s request, however, before a judge is required to order the State to conduct the procedure, the person must show that the procedure will materially aid in determining whether the person committed the offense.
North Carolina law specifically provides that the nontestimonial identification order provisions do not prohibit the use of other lawful identification procedures. Thus, a search warrant, a court order, the authority flowing automatically from arrest, and reasonable force when appropriate (see the discussions in Chapters 2 and 3) may be used instead of a nontestimonial identification order.
North Carolina law generally prohibits officers from conducting any nontestimonial identification procedure on a juvenile unless a superior or district court judge issues a nontestimonial identification order. However, there are exceptions for fingerprinting or photographing a juvenile. First, a law enforcement officer or agency must fingerprint and photograph a juvenile who was 10 years old or older when the juvenile allegedly committed a nondivertible offense: first-degree and second-degree murder, rape, sexual offense, and arson; first-degree burglary; crime against nature; felony drug violation; and any felony involving the willful infliction of serious bodily injury or committed with a deadly weapon. The duty to fingerprint occurs when a complaint has been prepared for filing as a petition and the juvenile is in the physical custody of law enforcement or the Division of Juvenile Justice. Second, a juvenile may be fingerprinted and photographed if the juvenile has been charged as an adult or the juvenile’s case has been transferred to superior court for trial as an adult. Third, a law enforcement officer or agency must fingerprint and photograph a juvenile who has been adjudicated delinquent if the juvenile was 10 years old or older when the juvenile committed a felonyand the juvenile has not been previously fingerprinted in connection with the offense or fingerprints previously obtained in connection with the offense have been destroyed.
In addition to the exceptions described above that allow fingerprinting and photographing of a juvenile without a nontestimonial identification order, an officer must photograph a juvenile suspect who is 10 years of age or older at the time and place of a show-up if the juvenile is reported to have committed a nondivertible offense under G.S. 7B-1701 or common law robbery. G.S. 15A-284.52(c1)(4), enacted in 2019, also sets out duties concerning the retention or disposal of any photos of juvenile suspects and who may examine the photos and under what conditions.
Unlike the situation with adults, a nontestimonial identification order may be used when a juvenile is in custody. Also unlike with adults, an officer may not conduct a nontestimonial identification procedure on a juvenile (for example, photographing the juvenile) without an order even if the juvenile consents to the procedure.
An officer who willfully violates the laws concerning nontestimonial identification procedures on juveniles is guilty of a Class 1 misdemeanor.
The Juvenile Justice Reinvestment Act, S.L. 2017-57, Section 16D.4., raised the age of juvenile jurisdiction to 18 in most cases, effective for offenses committed on or after December 1, 2019. This legislative change requires the use of the juvenile nontestimonial identification procedures in G.S. 7B-2103 et seq. for offenses committed at ages 16 and 17 that now fall under juvenile jurisdiction, rather than the adult nontestimonial identification procedures in G.S. 15A-271 et seq. Most offenses committed at ages 16 and 17 and on or after December 1, 2019, fall under juvenile jurisdiction with the following exceptions. A juvenile must be tried in adult court when (1) the juvenile has been emancipated;(2) the juvenile at age 16 or 17 was charged with a violation of the motor vehicle laws of G.S. Chapter 20; or (3) the juvenile commits a criminal offense after a district or superior court conviction and either of the following applies: (a) the juvenile had previously been transferred to and convicted in superior court or (b) the juvenile had previously been convicted in either district or superior court for a felony or misdemeanor, excluding any violation of motor vehicle laws punishable as a misdemeanor or infraction, unless the conviction was for impaired driving or commercial impaired driving. In all of these circumstances the offense will not fall under juvenile jurisdiction, and the adult procedures therefore apply.
Chapter 4 Appendix: Case Summaries
Part I. Search Warrants
Probable Cause
Generally
Because InDesign 2022 (the latest version) was crashing so much, I went back to 2021 for this project.
Unfortunately, I hadn’t realized that the conditional text option would work in the 2021 version of InD, so in the first chapter the [[bracketed instructions]] are still linked text. . . .
From here on out, I’ll use the conditional text trick. Thanks for telling me about it!—AEL
KJ NOTE:
Case paragraphs were styled as BT Indented and Character Style “D Head Run-in” applied to the case name. This removed them from the TOC. So, I removed the nested style from the D HEAD RUN IN paragraph style and re-styled the case paragraphs. They are visually the same but technically different.
(This topic is discussed in the chapter text under “Sources of Information to Establish Probable Cause.”)
United States Supreme Court
Massachusetts v. Upton, 466 U.S. 727 (1984). The Court reaffirmed its abandonment in Illinois v. Gates, 462 U.S. 213 (1983), of the two-pronged test for determining probable cause based on information from an informant and again made clear that a reviewing court must not conduct a de novo determination of probable cause but rather must merely decide whether the evidence viewed as a whole provided a “substantial basis” for the issuing official’s finding of probable cause. The Court determined that the warrant to search a motor home in this case was supported by probable cause. An officer received a telephone call from a person he reasonably believed was the suspect’s girlfriend, who told him that she saw stolen items in the motor home. He also corroborated some of her information, including verifying that the motor home was where she said it was.
Illinois v. Gates, 462 U.S. 213 (1983). The Court abandoned the two-pronged test of Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410 (1969), which had been used for determining probable cause based on information supplied by informants. Instead, the Court held that the two prongs (the informant’s veracity or the reliability of the information and the informant’s basis of knowledge) are simply relevant factors when considering the totality of circumstances that guides probable cause determinations. The warrant-issuing official’s task is to make a practical commonsense decision whether—given all the circumstances set out in the warrant’s affidavit, including the veracity and basis of knowledge of persons who supply hearsay information—there is a “fair probability” that evidence of a crime will be found in a particular place. A reviewing court’s duty in evaluating the official’s determination of probable cause is simply to ensure that the official had a substantial basis for concluding that probable cause existed; a court is not to make a de novo determination of probable cause.
The Court determined that the warrant to search a home and car in this case was supported by probable cause. The police received an anonymous letter describing how an Illinois couple planned to go to Florida and drive back with drugs, and officers corroborated a major part of the letter’s predictions. One inaccuracy in the letter did not undermine the probable cause finding. The Court stated that police informants need not be infallible. See also United States v. Walker, 237 F.3d 845 (7th Cir. 2001) (anonymous tip plus police corroboration provided probable cause to issue search warrant).
United States v. Harris, 403 U.S. 573 (1971). If an informant has made a statement against his or her penal interest (that is, an admission that he or she has committed a crime), that statement may be considered in crediting the information the informant gave an officer in an affidavit for a search warrant. The Court ruled that probable cause existed when the informant told the officer-affiant that (1) he had purchased illegal liquor in a residence for more than two years and most recently within the last two weeks and (2) he had personal knowledge that purchasers consumed illegal liquor on the premises.
United States v. Ventresca, 380 U.S. 102 (1965). Other officers’ observations that are included in an applying officer’s warrant affidavit are considered reliable for purposes of determining probable cause to issue a search warrant. The Court ruled that the affiant’s and a fellow officer’s observations (including the smell of fermenting mash that they detected outside a house from the sidewalk) detailed in an affidavit established probable cause to search the house for an illegal distillery. The Court stated that reviewing courts should interpret affidavits in “commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.” Id. at 108.
Aguilar v. Texas, 378 U.S. 108 (1964). An affidavit failed to supply probable cause when it merely provided a conclusory statement—without any underlying facts—that the affiant “received . . . information from a credible person and [believed] that heroin, marijuana, barbiturates and other narcotic paraphernalia [were] being kept at the above described premises for the purpose of sale and use contrary to the provisions of the law.” Id. at 109 (footnote omitted) (quoting affidavit).
Rugendorf v. United States, 376 U.S. 528 (1964). The Court ruled that probable cause existed for a search warrant when a reliable informant had seen stolen furs (the informant’s description of the furs closely matched an officer’s description of furs recently stolen in the area) in a home within the past week, and other information indicated that the defendant fenced stolen goods.
Jones v. United States, 362 U.S. 257 (1960). Probable cause for a search warrant may be based essentially on hearsay information supplied by a reliable informant when there is a substantial basis for crediting the hearsay. The Court ruled that probable cause existed when the officer-affiant established the informant’s reliability and provided the underlying facts—for example, that the informant had recently purchased drugs from the defendant’s apartment—to support a belief that illegal drugs were in the place to be searched.
Nathanson v. United States, 290 U.S. 41 (1933). An affidavit failed to supply probable cause when it merely provided a conclusory statement—without any underlying facts—that the affiant believed that certain liquor had been brought illegally into the United States and was located in certain described premises.
North Carolina Supreme Court
State v. Lewis, 372 N.C. 576 (2019). A sheriff’s deputy arrested at a certain residence Robert Lewis, the defendant, who had been recognized as the possible perpetrator of a string of bank robberies committed over two months. After arresting the defendant, the deputy observed in plain sight a BB&T money bag on the floor of a Kia Optima that matched the description of a vehicle reportedly used to flee the scene of one of the robberies. The deputy also spoke with the defendant’s stepfather, who confirmed that the defendant lived at the residence at which he was arrested. A detective prepared a search warrant application seeking permission to search the residence where the defendant was arrested, the Kia, and another vehicle reportedly used to flee a different robbery. The affidavit accompanying the search warrant application failed to list several pieces of information. It did not (1) disclose that the defendant lived at the residence; (2) contain any other information linking the defendant to that address; (3) describe the circumstances surrounding the defendant’s arrest at that address, including that a Kia was parked at the residence at the time of arrest; or (4) mention the deputy’s interactions with the defendant or his stepfather, who had confirmed that the defendant lived at the residence. Absent information linking the defendant to the residence, the court ruled that the magistrate lacked probable cause to issue a warrant to search it, and so the court affirmed the court of appeals’ ruling that the defendant’s motion to suppress evidence obtained from the search should have been granted. A magistrate nonetheless issued the warrant, which led to the seizure of more evidence linking the defendant to the robberies.
The defendant filed multiple motions to suppress, arguing (1) that there was an insufficient connection between the items sought and the property to be searched and (2) that the search of the Kia was not permissible under the plain-view doctrine. The trial court denied the motion. The court of appeals ruled that the detective’s search warrant application was sufficient to establish probable cause to search the cars but insufficient to establish probable cause to search the residence because the supporting affidavit failed to state that the defendant resided there.
The state supreme court noted that the warrant to search the residence—though much of the information in the supporting affidavit linked the defendant to the robberies—failed to set forth the circumstances of the defendant’s arrest at this particular address, including how the detective who prepared the warrant initially obtained the address from officers in Johnston County, and how the defendant’s stepfather had confirmed where the defendant resided. Absent information linking the defendant to the residence, the court ruled that the magistrate lacked probable cause to issue a warrant to search it, and so the court affirmed the court of appeals’ ruling that the defendant’s motion to suppress should have been granted. Concerning the search of the Kia, the court concluded that the limited information actually set out in the affidavit failed to establish probable cause for the search. As a result, the court reversed the portion of the court of appeals’ decision concluding that there was probable cause and remanded the case for consideration of the trial judge’s alternative finding that the vehicle search was valid under the plain-view doctrine.
State v. Frederick, 371 N.C. 547 (2018). The supreme court affirmed per curiam and without an opinion the ruling of the court of appeals, 259 N.C. App. 165 (2018), that probable cause supported a search warrant. A detective sought a search warrant for the defendant’s home. The affidavit in support of the warrant application stated that a “confidential source” had recently given the officer “information . . . regarding a [drug] dealer.” The detective considered the source reliable, as he had previously provided accurate information. The detective and the source attempted to corroborate the information by conducting two controlled buys in the week before the warrant application was submitted. In both cases, the informant met with a “middle man” who was apparently unknown to the detective and who took the informant to the suspect’s home. Officers watched the middle man enter the home and exit a few minutes later. The informant dropped the middle man off at his residence and then met with the detective. Each time, the informant had no drugs at the outset and had drugs at the end of the event. A magistrate issued a search warrant based on these transactions, and the court of appeals ruled that probable cause supported the issuance of the search warrant.
State v. Lowe, 369 N.C. 360 (2016). A search warrant authorizing a search of the premises where the defendant was arrested was supported by probable cause. The affidavit supporting the warrant stated that officers received an anonymous tip that Michael Turner was selling, using, and storing narcotics at his house; that Turner had a history of drug-related arrests; and that a detective discovered marijuana residue in the trash from Turner’s residence, along with correspondence addressed to Turner. Under the totality of the circumstances, there was probable cause to search the home for controlled substances.
State v. McKinney, 368 N.C. 161 (2015). Reversing the court of appeals, 231 N.C. App. 594 (2014), the supreme court ruled that the trial court properly denied the defendant’s motion to suppress, finding that probable cause existed to justify issuance of a search warrant authorizing a search of the defendant’s apartment. The application was based on the following evidence: an anonymous citizen reported observing suspected drug-related activity at and around the apartment; an officer then saw an individual named Foushee come to the apartment and leave after six minutes; Foushee was searched and, after he was found with marijuana and a large amount of cash, arrested; and a search of Foushee’s phone revealed text messages between Foushee and an individual named Chad proposing a drug transaction. The court rejected the defendant’s argument that the citizen’s complaint was unreliable because it gave no indication when the citizen observed the events, that the complaint was only a “naked assertion” that the observed activities were narcotics-related, and that the State had failed to establish a nexus between Foushee’s vehicle and the defendant’s apartment, finding none of these arguments persuasive, individually or collectively. The court held that “under the totality of circumstances, all the evidence described in the affidavit both established a substantial nexus between the marijuana remnants recovered from Foushee’s vehicle and defendant’s residence, and also was sufficient to support the magistrate’s finding of probable cause to search defendant’s apartment.” 368 N.C. at 166.
State v. Elder, 368 N.C. 70 (2015). Modifying and affirming the court of appeals, 232 N.C. App. 80 (2014), the supreme court ruled that the district court exceeded its statutory authority under G.S. 50B-3 by ordering a search of the defendant’s person, vehicle, and residence pursuant to an ex parte civil Domestic Violence Order of Protection (DVPO) and that the ensuing search violated the defendant’s constitutional rights. Relying on G.S. 50B-3(a)(13) (authorizing the court to order “any additional prohibitions or requirements the court deems necessary to protect any party or any minor child”), the district court included in the DVPO a provision stating, “[a]ny Law Enforcement officer serving this Order shall search the Defendant’s person, vehicle and residence and seize any and all weapons found.” 360 N.C. at 71 (quoting DVPO). The district court made no findings or conclusions that probable cause existed to search the defendant’s property or that the defendant even owned or possessed a weapon. Following this mandate, the officer who served the order conducted a search as instructed. As a result of evidence found, the defendant was charged with drug crimes. The defendant unsuccessfully moved to suppress evidence found during the search, was convicted, and appealed. The supreme court concluded that the catchall provision in G.S. 50B-3 “does not authorize the court to order law enforcement, which is not a party to the civil DVPO, to proactively search defendant’s person, vehicle, or residence.” Id. at 73. The court further concluded that “by requiring officers to conduct a search of defendant’s home under sole authority of a civil DVPO without a warrant or probable cause, the district court’s order violated defendant’s constitutional rights” under the Fourth Amendment. Id. at 74–75.
State v. Benters, 367 N.C. 660 (2014). The court ruled that an affidavit supporting a search warrant failed to provide a substantial basis for a magistrate to conclude that probable cause existed. In the affidavit, the affiant-officer stated that another officer conveyed to him a tip from a confidential informant that the suspect was growing marijuana at a specified premises. The affiant then recounted certain corroboration done by officers. The court first held that the tipster would be treated as anonymous, not as one who is confidential and reliable. It explained: “It is clear from the affidavit that the information provided does not contain a statement against the source’s penal interest. Nor does the affidavit indicate that the source previously provided reliable information so as to have an established ‘track record.’ Thus, the source cannot be treated as a confidential and reliable informant on these two bases.” Id. at 667. The court rejected the State’s argument that because an officer met “face-to-face” with the source, the source should be considered more reliable, reasoning: “The affidavit does not suggest [the affiant] was acquainted with or knew anything about [the] source or could rely on anything other than [the other officer’s] statement that the source was confidential and reliable.” Id. at 668. Treating the source as an anonymous tipster, the court found that the tip was supported by insufficient corroboration. The State argued that the following corroboration supported the tip: the affiant’s knowledge of the defendant and his property resulting “from a criminal case involving a stolen flatbed trailer,” id. at 662; subpoenaed utility records indicating that the defendant was the current subscriber and that the kilowatt usage hours were indicative of a marijuana growing operation; and officers’ observations of items at the premises indicative of an indoor marijuana growing operation, including potting soil, starting fertilizer, seed starting trays, plastic cups, metal storage racks, and portable pump-type sprayers. Considering the novel issue of utility records offered in support of probable cause, the court noted that “[t]he weight given to power records increases when meaningful comparisons are made between a suspect’s current electricity consumption and prior consumption, or between a suspect’s consumption and that of nearby, similar properties.” Id. at 670. It continued: “By contrast, little to no value should be accorded to wholly conclusory, non-comparative allegations regarding energy usage records.” Id. at 671. Here, the affidavit summarily concluded that kilowatt usage was indicative of a marijuana growing operation and that “the absence of any comparative analysis severely limits the potentially significant value of defendant’s utility records.” Id. Thus, the court concluded: “[T]hese unsupported allegations do little to establish probable cause independently or by corroborating the anonymous tip.” Id. at 671–72. The court was similarly unimpressed by the officers’ observation of plant growing items, noting:
As to the affidavit’s extensive recounting of the officers’ experience, the court ruled:
State v. Dickens, 346 N.C. 26 (1997). An officer’s affidavit provided probable cause to take blood samples from the defendant. The affidavit contained (1) a description of the murder at issue (the female victim was beaten to death with a hammer); (2) a statement from an accomplice that the defendant struck the victim several times but that the accomplice was uncertain as to whether the defendant sexually assaulted the victim; (3) the defendant’s assertion that he did not actually see his accomplice sexually assault the victim, although she was on the floor and the mattress was partially off the bed when the defendant entered the bedroom; (4) the accomplice’s description of the clothes the defendant was wearing when the murder was committed; (5) confirmation that the defendant’s clothes were submitted to the State Bureau of Investigation serology laboratory; (6) an officer’s advice concerning the advantages of obtaining a DNA profile from a suspect; and (7) the defendant’s admission that he struck the victim on the head multiple times with a hammer. The court concluded that the cumulative effect of this information established that the blood samples to be seized from the defendant would provide evidence of the murder and the identity of the person participating in the murder.
State v. Riggs, 328 N.C. 213 (1991). On February 26, 1987, and March 25, 1987, officers used different informants to purchase marijuana. On each occasion, the officers gave money to the informant to purchase marijuana from an unwitting middleman of the defendants. After the informant worked out a deal for marijuana with the middleman, the middleman walked to the defendants’ residence and returned to conduct the transaction on the defendants’ driveway. On March 27, 1987, an officer received a warrant to search the defendants and their home. The court ruled that probable cause existed to search the defendants’ residence, even though there was no direct evidence that marijuana was located there. The information in the search warrant’s affidavit indicated that the defendants were operating a marijuana business on their premises, and this information supported an inference that the marijuana was somewhere on the premises, which included the residence.
During the suppression hearing, an officer testified that the informant he used during one of the marijuana transactions was not reliable, contrary to what the officer had stated in the search warrant’s affidavit. However, the officer incorrectly believed that by law an informant was not reliable until the informant had made at least two prior controlled drug purchases—the informant in this case had made only one such purchase. The court ruled that the officer’s subjective belief of the law’s requirements was irrelevant. The court also ruled that the officer’s statement in the affidavit—that the source was reliable because he knew what marijuana looked like and his information had always been true and exact—was an accurate statement, even if it was based on only one prior controlled purchase, and was sufficient evidence of the informant’s reliability.
State v. Beam, 325 N.C. 217 (1989). The search warrant’s affidavit supported probable cause to search the defendant’s home when it stated that (1) a reliable informant, who had previously provided accurate and reliable information that led to drug arrests and convictions, told the officer-affiant that about one week earlier the informant had seen the defendant with about 1 pound of marijuana at her home; (2) another informant told the officer-affiant that the defendant had sold marijuana to “them” [sic] on February 7, 1987, the day the search warrant was issued; and (3) the defendant was on probation for a drug-law conviction. The court ruled that the first informant’s veracity was sufficiently shown and that the second informant’s credibility was supported by the statement against penal interest—that is, an admission that the informant had committed a crime, the purchase of an illegal drug. The court noted that if the defendant’s 1 pound of marijuana was for personal use, it is unlikely it would be consumed in a week. On the other hand, if it was kept for sale, then both informants’ information indicated that the defendant was selling marijuana as an ongoing criminal activity. Either scenario provided a substantial basis to support the magistrate’s conclusion that there was a fair probability that marijuana would be found at the defendant’s home on the day the search warrant was issued.
State v. Hyleman, 324 N.C. 506 (1989). An officer-affiant stated in a search warrant application that he purchased 2 ounces of cocaine from three people, who were then arrested when they delivered the cocaine. The officer-affiant had paid $1,650 in marked currency for the cocaine; the money had been paid a few hours before the actual delivery, but that information was not included in the affidavit. The officer-affiant then stated that, based on “the movement of the suspects during, and before the purchase, and information received during the purchase, and information from two confidential sources of information after the purchase,” he had reason to believe that the marked currency was located in the defendant’s residence. Id. at 509 (quoting affidavit).
Instead of analyzing the search warrant under the United States or North Carolina constitution, the court determined that the search warrant violated G.S. 15A-244(3), which restates the Fourth Amendment’s command that there must be facts in the affidavit setting forth probable cause to believe that the items to be seized are in the places or in the possession of the people to be searched. The affidavit failed to state what information the officer had received from the informants and failed to disclose facts to link the items to be seized, the marked currency, to the residence to be searched. The affidavit contained mere conclusory statements. The court then ruled that the affidavit’s failure to comply with G.S. 15A-244(3) was a substantial violation that required exclusion under G.S. 15A-974(2) (now, G.S. 15A-974(a)(2)) because (1) the “bare bones” conclusory affidavit was totally inadequate to establish probable cause, (2) the affiant’s statement about the extent of surveillance of the suspects was willfully inaccurate, (3) the defendant had a fundamental constitutional and statutory right in North Carolina to be free from unlawful searches and seizures, and (4) the exclusion of illegally seized evidence is the greatest deterrent to future similar violations.
State v. Greene, 324 N.C. 1 (1989). A search warrant for the defendant’s home was supported by probable cause when the officer-affiant stated that (1) the murder victim—the defendant’s father—appeared to have been beaten to death, resulting in a large amount of blood at the scene; (2) a confidential informant, described in the accompanying affidavit as a “reliable citizen,” told the officer-affiant that on the day of the murder she saw the defendant, who lived in a trailer behind his father’s house, wearing clothing apparently covered with blood and carrying what appeared to be the barrel of a long gun; and (3) officers had found the splintered stock of a long gun at the home of the murder victim, who had been beaten to death there. The court ruled that although it was later determined, after the search warrant was issued, that the splintered stock of the long gun was unrelated to the murder, that fact did not adversely affect the finding of probable cause because a reviewing court must view the evidence as it was presented to the magistrate when the warrant was issued. The court also ruled that the officer did not deliberately withhold information about the informant’s veracity because there was no evidence that the officer-affiant knew when he applied for the search warrant that the informant had been indicted eleven times for obtaining property by false pretenses.
State v. Kornegay, 313 N.C. 1 (1985). There was probable cause to support a warrant to search a law firm’s and the defendant-attorney’s records when information and records supplied by the law firm’s secretary and the defendant’s law partners demonstrated that the defendant had criminally mishandled the law firm’s and clients’ funds.
State v. Arrington, 311 N.C. 633 (1984). The court adopted the totality-of-circumstances test set out in Illinois v. Gates, 462 U.S. 213 (1983), and Massachusetts v. Upton, 466 U.S. 727 (1984), to determine whether probable cause existed for the issuance of a search warrant under Article I, Section 20, of the North Carolina Constitution. The court ruled that information in an officer’s affidavit from two informants supplied probable cause. Although the first informant did not specify when he obtained his information or the basis of his knowledge, he did state that he had bought marijuana from the defendant—a statement against his penal interest—and that the defendant was growing marijuana in his home. The court noted that this information supported a probability that the informant spoke with personal knowledge and that the marijuana would be found at the defendant’s home. The second informant told the officer-affiant that within the last twenty-four hours—as well as over the past two months—there had been a steady flow of drug traffic to the defendant’s home. The court noted that this information supported a strong inference that the illegal activity was continuing and had occurred within the last twenty-four hours. The affidavit also supplied sufficient information to show reliability, for example, that the informants had supplied previous information leading to arrests.
North Carolina Court of Appeals
State v. Lenoir, 259 N.C. App. 857 (2018). The court ruled that an application for a search warrant contained insufficient details to support issuance of the warrant. When officers went to the defendant’s home to conduct a knock and talk, the defendant’s brother answered the door and invited them in. After an officer asked if anyone else was present, the brother said he was alone but gave consent for the officer to check a back bedroom. In the bedroom the officer saw a woman lying on a bed and a “glass smoke pipe” on a dresser. The officer applied for and was issued a search warrant for the residence. A search of the home revealed a shotgun in the back bedroom. After the defendant admitted that he owned the gun, he was charged with possession of a firearm by a felon. The court observed that the affidavit supporting the warrant application stated that the officer saw a “smoke pipe used for methamphetamine” in the bedroom. The application did not mention the officer’s training and experience, nor did the officer provide information explaining the basis for his belief that the pipe was being used to smoke methamphetamine as opposed to tobacco. The affidavit did not explain how the officer was qualified to distinguish between a pipe used for lawful versus unlawful purposes. And it did not purport to describe in any detail the appearance of the pipe or contain any indication as to whether it appeared to have been recently used. The affidavit further lacked any indication that information had been received connecting the defendant or his home to drugs. The court stated that “a pipe—standing alone—is neither contraband nor evidence of a crime.” Id. at 863. Because the affidavit was insufficient to establish probable cause for issuance of the warrant, the court ruled that the trial court erred in denying the defendant’s motion to suppress the shotgun.
State v. Bernard, 236 N.C. App. 134 (2014). In a case involving unlawful access to computers and identity theft, the court ruled that a search warrant authorizing a search of the defendant and her home and vehicle was supported by probable cause. The court rejected the defendant’s argument that hearsay evidence was improperly considered in the probable cause determination. It went on to conclude that the warrant was supported by probable cause where the defendant’s home was connected to an IP (Internet Protocol) address used to unlawfully access an email account of a North Carolina A & T University employee.
State v. Rayfield, 231 N.C. App. 632 (2014). The court in a child sex case ruled that the trial court did not err by denying the defendant’s motion to suppress evidence obtained pursuant to a search warrant authorizing a search of his house. The victim told officers about various incidents occurring in several locations (the defendant’s home, a motel, etc.) from the time that she was 8 years old until she was 11. The affidavit alleged that the defendant had shown the victim pornographic videos and images in his home. The affidavit noted that the defendant is a registered sex offender and requested a search warrant to search his home for magazines, videos, computers, cell phones, and thumb drives.
The court rejected the defendant’s argument that the information the victim gave to officers was stale, given the lengthy gap of time between when the defendant allegedly showed the victim the images and the actual search. It concluded: “Although [the victim] was generally unable to provide dates to the attesting officers . . . her allegations of inappropriate sexual touching by Defendant over a sustained period of time allowed the magistrate to reasonably conclude that probable cause was present to justify the search of Defendant’s residence.” Id. at 640. The court noted that “when items to be searched are not inherently incriminating [as here] and have enduring utility for the person to be searched, a reasonably prudent magistrate could conclude that the items can be found in the area to be searched.” Id. at 641. The court concluded:
State v. Oates, 224 N.C. App. 634 (2012). Reversing the trial court, the court of appeals ruled that probable cause supported the issuance of a search warrant to search the defendant’s residence. Although the affidavit supporting the warrant was based on information from anonymous callers, law enforcement corroborated specific information provided by a certain caller so that the tip had sufficient indicia of reliability. In addition, the affidavit provided a sufficient nexus between the items sought and the residence to be searched. Finally, the court ruled that the information was not stale.
State v. McCain, 212 N.C. App. 157 (2011). The court ruled that a search warrant in a drug investigation was supported by probable cause. The affidavit of the officer applying for the search warrant stated that he had received information within the past thirty days from confidential reliable informants (CRIs) that the defendant was selling narcotics from his residence. During June and July of 2008, the sheriff’s department had received information from anonymous callers and CRIs that drugs were being sold at the defendant’s residence. In July 2008, the officer met with a “concerned citizen” who stated that the defendant was supplying drugs to his sister who was addicted to “crack” cocaine. The defendant’s residence had been “synonymous with the constant sale and delivery of illegally [sic] controlled substances” as the defendant had been the subject of past charges and arrests for possession with intent to sell and deliver illegal controlled substances. Id. at 163–64 (quoting warrant application). The defendant’s criminal background check revealed a prior history of possession of narcotics. Given the specific information from multiple sources that there was ongoing drug activity at the defendant’s residence, combined with the defendant’s past criminal involvement with illegal drugs, the court concluded that the affidavit presented sufficient probable cause. The court stated that the informants’ information was properly considered, noting that (1) the CRIs had been “certified” because their information had resulted in arrests and convictions in the past; (2) the CRIs were familiar with the appearance, packaging, and effects of cocaine; (3) the CRIs provided statements against penal interest; (4) the officer had met personally with the concerned citizen; and (5) the CRIs, callers, and the concerned citizen had all given consistent information that during the months of June and July 2008, illegal drugs were being sold at the defendant’s residence.
State v. Hinson, 203 N.C. App. 172, rev’d on other grounds, 364 N.C. 414 (2010). The court ruled that an informant’s observations of methamphetamine production and materials at a location and an officer’s opinion that, based on his experience, there was an ongoing drug production operation at the location supplied probable cause supporting the issuance of a search warrant.
State v. Taylor, 191 N.C. App. 587 (2008). Between August 2, 2006, and September 27, 2006, a reliable, confidential informant made six controlled purchases of cocaine at 3095 Brewer Road in Faison, North Carolina, under the supervision of a law enforcement officer. The search warrant application described two dwellings on the property to be searched: a mobile home and a wood frame house located directly behind the mobile home. The application did not identify the owner or occupant of either dwelling. The affidavit was silent concerning where, specifically, on the property and from whom the informant made the controlled purchases. The affidavit lacked any facts concerning whether the officer saw the informant enter either the mobile home or the wood frame house to make the purchases. Distinguishing State v. Riggs, 328 N.C. 213 (1991), the court ruled that the magistrate did not have a substantial basis for finding probable cause to issue the search warrant.
State v. Ellis, 188 N.C. App. 820 (2008). The court ruled that probable cause existed to issue a search warrant to search a computer in the defendant’s home based on instant messages between the defendant and law enforcement officers posing as a 12-year-old girl. The search warrant affidavit contained many sexually explicit instant message conversations in which the defendant asked to meet the “children” to engage in sexual conduct and stated that he transmitted a video of himself masturbating. Other conversations included the defendant’s statements to a “mother” of young girls involving sexual contact with the girls. In other conversations the defendant admitted that he had penetrated children with his penis.
State v. Dexter, 186 N.C. App. 587 (2007). Officers received an email tip from a person they later verified as the defendant’s housemate. The email reported the defendant’s having child pornography on his home computer. The court noted that although the housemate later recanted her email tip, the officers confirmed the easily verified information from the tip, which increased her credibility. The court reviewed the officers’ additional corroboration of the tip (see the facts set out in its opinion) and ruled that probable cause supported the issuance of a search warrant for the defendant’s home and computer for child pornography.
State v. Edwards, 185 N.C. App. 701 (2007). The trial judge granted the defendant’s pretrial motion to suppress evidence on the ground that probable cause did not exist to issue a search warrant to search the defendant’s home for illegal drugs. The judge then dismissed indictments against the defendant. The State appealed. The court ruled that the magistrate had a substantial basis for concluding that there was probable cause to issue a search warrant to search the defendant’s home for illegal drugs. The officer’s affidavit stated that he had received information from a confidential and reliable informant who had seen hydrocodone (without a prescription) inside the defendant’s home within the past forty-eight hours. He had known the informant for nine years, during which time the informant had provided “confidential and reliable” information that had proven true through independent investigations. The informant was familiar with hydrocodone and its uses. The officer had twenty-four years’ experience with his law enforcement agency, including seven years of street-level drug interdiction. The court stated that even though the officer did not set out in exact detail the connection between the informant and the prior drug investigations, the magistrate could properly infer that the informant had provided reliable information to the officer in these situations.
State v. Reid, 151 N.C. App. 379 (2002). The court ruled that probable cause supported a search warrant to search an apartment for cocaine. A confidential informant told officers that a white female named Thomasina and an unknown black male were in the business of selling cocaine from the apartment and that the informant had seen them possessing cocaine within the past six days. In addition, the informant, at the direction of the officers, had made a controlled buy from the apartment within the past six days. The court rejected as immaterial the search warrant’s failure to specify the person from whom the informant had purchased the cocaine during the controlled buy.
State v. Ledbetter, 120 N.C. App. 117 (1995). The affidavit for a search warrant described an informant’s controlled buy of cocaine under an officer’s supervision from a house on 25 Monmouth Street, Winston-Salem. The controlled buy was made within six days of the application for the search warrant to search the house for cocaine. The court ruled that this information provided a substantial basis for concluding that probable cause existed to search the house for cocaine. The court noted that the reliability of the informant was irrelevant in this case because the focus of the information was the controlled buy made under the officer’s supervision. The court also rejected the defendant’s argument that the passage of six days from the controlled buy made the information too stale to establish probable cause. The court noted that drug selling is ordinarily a continuing activity.
Barnett v. Karpinos, 119 N.C. App. 719 (1995). The court reversed the trial judge’s grant of summary judgment for the civil defendants. (Thus, for purposes of this appeal, the plaintiffs’ allegations are assumed to be true.) A search warrant authorized a search for cocaine, drug paraphernalia, currency, and drug transaction records in buildings at 107 and 115 Graham Street and of people congregating in the block of Graham Street between W. Franklin and W. Rosemary streets in Chapel Hill. The court ruled that, based on the facts in this case, the search warrant was invalid because it was a general warrant that was not supported by probable cause. The court also ruled that the defendants’ decision to detain and frisk all people found within the block was not supported, based on the facts in this case, by individualized justification under the Fourth Amendment.
State v. Waterfield, 117 N.C. App. 295 (1994). On May 13, 1993, officers went to the defendant’s residence without a search warrant. The defendant refused to consent to a search of his residence. One officer told the defendant that he would stay with the defendant while the other officers obtained a search warrant. When the officers insisted that the defendant remain in their view at all times, the defendant shut and locked the door. One officer kicked the door down and forced the defendant to sit in a chair. About one and one-half hours later, officers returned with a search warrant and conducted a search.
No information obtained during the initial entry was used in the affidavit for the search warrant. The affidavit stated that on April 1, 1993, three people gave an officer about 3 grams of marijuana that they said the defendant had given them. They stated that the defendant had shown them marijuana kept in a padlocked cabinet in his bedroom at his residence. On April 2, 1993, a confidential informant told an officer that he had seen marijuana in the defendant’s residence and stated that the defendant kept the marijuana in a padlocked cabinet in his bedroom. On April 5, 1993, officers visited the defendant’s residence and confirmed that he lived there. On May 12, 1993, another confidential informant reported to an officer that within the last twenty-four hours the informant had seen about a half pound of marijuana at the defendant’s residence and had seen the defendant sell marijuana from his home; the informant also stated that the defendant kept marijuana in a padlocked cabinet in his bedroom. The court ruled that the affidavit supplied probable cause to support the search warrant. Although the affidavit did not mention the reliability of the officers’ sources of information, it did provide information about the presence and sale of marijuana at the defendant’s residence within twenty-four hours of the warrant application. It further provided information about the location and manner of the defendant’s storage of the marijuana that matched information supplied by other sources. Relying on Segura v. United States, 468 U.S. 796 (1984), the court also ruled that the search pursuant to the search warrant was valid because the information used to obtain the search warrant was obtained entirely independent of the allegedly illegal initial entry to secure the residence.
State v. Styles, 116 N.C. App. 479 (1994). The court ruled that the following affidavit did not support a search warrant, dated September 11, 1992, to search the defendant’s home:
The court concluded that the affiant did not adequately explain why the double hearsay was credible: “[T]he deputy only states that the informant has given the deputy reliable information in the past. The magistrate had no way of knowing whether the informant was with the two men, if he observed the two men, or if the two men told the informant what happened.” Id. at 484.
State v. Tuggle, 99 N.C. App. 164 (1990). The court ruled that the trial court’s findings of fact, which supported its ruling that probable cause did not exist to issue a search warrant, was characteristic of the two-pronged test rejected by Illinois v. Gates, 462 U.S. 213 (1983), discussed above in this section under “UNITED STATES SUPREME COURT,” and was a de novo review of the affidavit’s sufficiency, which is inconsistent with Gates, Massachusetts v. Upton, 466 U.S. 727 (1984), and State v. Arrington, 311 N.C. 633 (1984). The court then analyzed the information supplied by three confidential informants and found that the magistrate had a substantial basis for concluding that probable cause existed.
State v. Rosario, 93 N.C. App. 627 (1989). Officers in Florida intercepted a package of cocaine that was being carried by a drug courier for delivery to the defendant’s house in Fayetteville. The courier then agreed to cooperate with the officers by carrying a similar-looking substitute package that contained cocaine supplied by the State Bureau of Investigation laboratory in Raleigh. After the courier delivered the package to the house, the officers obtained a search warrant to search the house. The court rejected the defendant’s argument that this law enforcement activity could not support the search warrant because the officers created the probable cause to justify the search. The officers did not materially alter the drug transaction. They simply allowed the original plan to be carried out.
State v. King, 92 N.C. App. 75 (1988). A search warrant was supported by probable cause when (1) the affidavit stated that an informant familiar with cocaine and how it is packaged for street use was in the house to be searched within the past forty-eight hours and saw the defendant with cocaine and (2) the reliability of the informant was shown. See also State v. Marshall, 94 N.C. App. 20 (1989).
State v. Barnhardt, 92 N.C. App. 94 (1988). A search warrant was supported by probable cause when the affidavit stated that a confidential informant, who had not given the officer information before, had seen a large amount of cocaine in the defendant’s house (the house to be searched) in the past twenty-four hours. The informant was familiar with cocaine because he had used and bought it. The officer verified the informant’s description and the location of the house by going there and calling the Division of Motor Vehicles to determine that the defendant owned the vehicle that the officer saw parked there.
State v. Graham, 90 N.C. App. 564 (1988). A search warrant was supported by probable cause when the affidavit revealed that officers received information from an informant who (1) admitted the prior use of cocaine and (2) had previously given information that led to the arrests of six people for drug violations. The affidavit also showed that the informant had been in the home within the past forty-eight hours and had seen cocaine inside the home and being sold.
State v. Leonard, 87 N.C. App. 448 (1987). An officer’s statement that he saw “a green vegetable matter” that appeared to be marijuana in a house was sufficient to establish probable cause that marijuana was in the house.
State v. Newcomb, 84 N.C. App. 92 (1987). A search warrant was not supported by probable cause when the affidavit contained only an informant’s statement that he saw marijuana in the house and did not state when he saw it. Also, the affidavit did not contain a statement that the informant was reliable.
State v. Roark, 83 N.C. App. 425 (1986). A search warrant was not supported by probable cause when the affidavit stated only that a confidential informant told the officer that stolen property was in the house to be searched.
State v. Heath, 73 N.C. App. 391 (1985). Probable cause was not provided by an affidavit stating that the officer-affiant received information from anonymous concerned citizens in the past forty-eight hours who “have seen and know” that drugs were being sold in a particular apartment and who also reported that there was much traffic going to and from that apartment and that visitors stayed only a few minutes each time. The affidavit also stated that officers conducted surveillance of the apartment and that the pattern of traffic was similar to traffic in other areas where drug arrests had been made. The court ruled that the standard set out in Illinois v. Gates, 462 U.S. 213 (1983), was not satisfied by the affidavit’s conclusory statements. It also noted that (1) the officer-affiant testified at the suppression hearing that he had no reason to believe that the “concerned citizens” were reliable and (2) the statement in the affidavit was incorrect when it said that in the past forty-eight hours concerned citizens had seen and known that drugs were being sold in the apartment. Instead, a concerned citizen had merely stated that she knew that the apartment had a lot of drugs and she went there once but “didn’t know it was that kind of place.” The court also ruled that the magistrate who issued the warrant could not consider, in determining probable cause, unsworn statements by others that were attached to the affidavit.
State v. Walker, 70 N.C. App. 403 (1984). There was probable cause to support a warrant to search the defendant’s house when an informant had told the officer who completed the warrant affidavit that he had been in the house within the past forty-eight hours and had seen 3 pounds of marijuana in the defendant’s possession. The officer had known the informant for five months, during which time the informant had made controlled drug buys under his supervision. The informant also had given the officer information about drug dealers that the officer had verified by investigation.
Federal Appellate Courts
United States v. Tuter, 240 F.3d 1292 (10th Cir. 2001). An anonymous tip that the defendant was making pipe bombs in his garage and had weapons in his home, without any significant corroboration by law enforcement, was insufficient to establish probable cause for a search warrant to search the home and garage.
United States v. Berry, 90 F.3d 148 (6th Cir. 1996). An affidavit for a search warrant to search a car stated that a drug-detection dog had alerted to the car, indicating the probable presence of drugs. It also stated that the dog was trained and qualified to conduct drug investigations. The court ruled that these statements sufficiently established the dog’s training and reliability. The court rejected the defendant’s argument that the affidavit had to also describe the details of the dog’s training. See also United States v. Sundby, 186 F.3d 873 (8th Cir. 1999) (similar ruling); United States v. Delaney, 52 F.3d 182 (8th Cir. 1995) (description of drug-detection dog in affidavit for search warrant was sufficient).
United States v. Wilhelm, 80 F.3d 116 (4th Cir. 1996). The court ruled that an anonymous person’s information was insufficient to establish probable cause to support a search warrant to search a residence for illegal drugs. Although the person said that he or she saw residents selling marijuana at the house within the last forty-eight hours, there was no specific information in the search warrant’s affidavit concerning the person’s reliability or truthfulness. In addition, the only corroboration offered by law enforcement was that the person’s directions to the residence were correct. See also United States v. Clark, 31 F.3d 831 (9th Cir. 1994) (similar ruling); United States v. Leake, 998 F.2d 1359 (1993) (similar ruling).
(This topic is discussed in the chapter text under “Timeliness or Staleness of Information.”)
United States Supreme Court
Andresen v. Maryland, 427 U.S. 463 (1976). A three-month delay between the completion of real estate transactions on which the search warrants in this case were based and the searches conducted under those warrants did not preclude a determination that there was probable cause that the business office to be searched contained records that were evidence of the crime. These records were prepared in the ordinary course of business, and it would be reasonable to expect that they would be kept there for a period of time.
United States v. Harris, 403 U.S. 573 (1971). A reliable informant said that he had been purchasing illegal liquor from a certain house for two years, most recently within the past two weeks. The Court stated that the informant’s observations were not too stale to establish probable cause to search the house for illegal liquor. The reported purchase within the last two weeks could well have included purchases up to the date of the affidavit.
Sgro v. United States, 287 U.S. 206 (1932). A warrant was issued on July 6, 1926, to search a hotel for intoxicating liquor based on the affiant’s information that he had purchased beer there. After the search warrant became invalid because it was not executed within ten days (as required by federal law), an official reissued it by changing the date of the search warrant to July 26, 1926, without hearing any new evidence. The Court ruled that the second warrant was invalid because there was no evidence of probable cause to search when it was issued.
North Carolina Supreme Court
State v. McKinnon, 306 N.C. 288 (1982). Stolen items were placed in a car that was used to commit a robbery and other crimes on December 15, 1980. Seeing the car in the yard of a residence on December 28, 1980, officers learned that (1) the car was locked, the keys had apparently been lost, and the motor had blown up and (2) the car had become inoperative sometime before Christmas. The court ruled that the magistrate who issued the warrant was not unreasonable in concluding that there was probable cause to believe that some of the stolen items remained in the car.
State v. Jones, 299 N.C. 298 (1980). A murder was committed on March 30, 1978, with a hatchet and a pipe, and officers knew that the offender had worn welder’s gloves during the murder. An accomplice told officers almost five months later (August 23, 1978) where the defendant had hidden the hatchet and gloves. The court ruled that this information was not stale and supported probable cause to issue a search warrant. The court noted that the items sought—a hatchet and welder’s gloves—were not incriminating by themselves and had a useful value and that a reasonably prudent magistrate could conclude that they were probably located in the places where the accomplice had said they were located. See also United States v. Shomo, 786 F.2d 981 (10th Cir. 1986).
State v. Louchheim, 296 N.C. 314 (1979). A warrant was issued to search business offices for various documents, including invoices, concerning numerous false-pretenses charges. Although it had been fourteen months since anyone had seen the incriminating documents in the office, (1) the alleged crime was complex and took place over a number of years, (2) the affidavit alleged that the invoices were kept in the office in compliance with a state advertising contract, and (3) other documents sought were corporate documents kept in the course of business. The court ruled that the magistrate had a substantial basis for concluding that the business records were probably located at the defendant’s business offices.
North Carolina Court of Appeals
State v. Winchester, 260 N.C. App. 418 (2018). The court upheld the validity of a warrant to search the defendant’s vehicle, person, and residence. Based on recitations in the supporting affidavit of multiple trash pulls at the defendant’s residence revealing drug-dealing evidence, the last occurring one week before the warrant application, the court found that this evidence was not stale. The court relied on statements from State v. McCoy, 100 N.C. App. 574 (1990), that when an affidavit recites facts indicating protracted and continuous activity showing a course of conduct, the passage of time is a less significant factor. Quoting McCoy, the court stated that “[t]he continuity of the offense may be the most important factor in determining whether the probable cause is valid or stale.” Winchester, 260 N.C. App. at 425.
State v. Teague, 259 N.C. App. 904 (2018). The court ruled that an application provided sufficient probable cause to support the issuance of a search warrant for the defendant’s residence. The supporting affidavit indicated that after an officer received an anonymous tip that drugs were being sold at the defendant’s residence, he conducted a “refuse investigation” at the premises, finding evidence of drug activity in the trash. The defendant asserted that this information was stale and could not properly support issuance of the warrant. The court noted that although the affidavit did not state when or over what period of time the tipster observed criminal activity at the residence, when the tipster relayed the information to the police, or the exact date the officer conducted the refuse search, the affidavit was based on more than just this information. Specifically, it included details regarding database searches indicating that the defendant had a waste and water utility account at the residence, that the defendant lived at the residence, that the officer was familiar with the residence and the defendant from his previous assignment as a patrol officer, and that the defendant had prior drug charges. To the extent that the information in the anonymous tip was stale, it was later corroborated by the refuse search in which the officer found evidence consistent with the manufacturing of butane hash oil. The affidavit stated that the officer conducted the refuse investigation on Thursday, “regular refuse day.” A commonsense reading of the affidavit would indicate that this referred to the most recent Thursday, the date the affidavit was completed. Thus, even if the anonymous tip was so stale as to be unreliable, the marijuana-related items obtained from the refuse search, the defendant’s criminal history, and the database searches linking the defendant to the residence provided a substantial basis upon which the magistrate could determine that probable cause existed.
State v. Howard, 259 N.C. App. 848 (2018). The court ruled that a search warrant was supported by probable cause. Special Agent Wiles obtained a search warrant to search the residence and vehicles at 13606 Coram Place in Charlotte, North Carolina. The agent had twenty-six years of law enforcement experience and had investigated thousands of counterfeit-merchandise cases. The warrant application stated that in May 2013, another officer informed the applicant that the defendant was found in possession of possible counterfeit items and was charged with violating the peddlers’ license ordinance. The items seized were later confirmed to be counterfeit. In October 2013, as part of a compliance check/counterfeit-merchandise interdiction operation at a shipping hub in Charlotte, Wiles intercepted two packages from a known counterfeit-merchandise distributor in China that were addressed to the defendant at the residence in question. The boxes contained counterfeit items. Wiles attempted a controlled delivery of the packages at the residence, but no one was home. Two other packages previously delivered by the shipper were on the porch. Wiles contacted the defendant, who agreed to meet with him and bring the two packages. The defendant consented to a search of the packages, and they were found to contain counterfeit merchandise. The defendant said that she did not realize the merchandise was counterfeit and voluntarily surrendered all of the merchandise. She was issued a warning. In November 2013, while Wiles was working as part of a compliance check at a football game, the defendant was found selling counterfeit items. The defendant was charged with felony criminal use of counterfeit trademark and pled guilty to the lesser misdemeanor charge. During another compliance check outside of the Charlotte Convention Center in May 2015, Wiles found a booth with a large display of counterfeit items. The booth was unmanned, but business cards listed the owner as “Tammy.” Wiles verified that the address listed in the search warrant was the residence of the defendant, Tammy Renee Howard. During a search of the premises pursuant to the warrant, hundreds of counterfeit items with an approximate retail value of $2 million were seized. On appeal, the defendant asserted that the affidavit underlying the warrant application contained insufficient evidence to support a reasonable belief that evidence of counterfeit items would be found at the named premises. The affidavit included evidence of the delivery of counterfeit merchandise to the premises, evidence that the defendant continued to conduct her illegal business after warnings and arrests, and evidence that Agent Wiles confirmed that the defendant resided at the premises. The defendant also argued that the evidence in the affidavit was stale, noting that the only evidence linking the premises with criminal activity allegedly took place in October 2013, some twenty months prior to the issuance of the warrant. However, the evidence showed that the defendant was conducting a business involving counterfeit goods over a number of years at numerous locations and involving the need to acquire counterfeit merchandise from China. For all these reasons, the court ruled that the defendant’s motion to suppress evidence obtained in connection with the search was properly denied.
State v. Hinson, 203 N.C. App. 172, rev’d on other grounds, 364 N.C. 414 (2010). The court rejected the defendant’s argument that information relied upon by officers to establish probable cause for a search warrant was stale. Although certain information provided by an informant was three weeks old, other information pertained to the informant’s observations that were made only one day before the application for the warrant was submitted. Also, an officer opined that, based on his experience, an ongoing drug-production operation was present at the location to be searched.
State v. Pickard, 178 N.C. App. 330 (2006). A search warrant for the defendant’s home authorized the seizure of computers, computer equipment and accessories, cassette videos and DVDs, video cameras, digital cameras, film cameras and accessories, and photographs and printed materials that could be consistent with the exploitation of a minor. The affidavit described the defendant’s sexual and other inappropriate activity with four children under 9 years old and with a 14-year-old. The victims described the defendant’s taking photographs and his use of video cameras and computers. The activity with the 14-year-old had taken place about eighteen months before the issuance of the search warrant. [Author’s note: The affidavit apparently did not contain specific dates concerning the defendant’s sexual activity with the younger children, but the affidavit stated that the officer’s interviews with the younger children occurred the day before the officer applied for the search warrant.] The court ruled, relying on State v. Jones, 299 N.C. 298 (1980), and cases from other jurisdictions, that the search warrant’s information was not stale because the affidavit showed the defendant’s commission of ongoing sex crimes with the children and the items to be seized were of continuing utility to the defendant.
State v. Witherspoon, 110 N.C. App. 413 (1993). The court ruled that a search warrant for the defendant’s home was based on probable cause. The search warrant affidavit included the following information. A concerned citizen told officers that he had been in the defendant’s home within the past thirty days and had seen about 100 marijuana plants growing in the home’s crawl space with the use of a lighting system and automatic timers. The concerned citizen had spoken with the defendant often about the defendant’s growing these plants, and the concerned citizen had used marijuana and had seen it growing in the past. Officers corroborated the concerned citizen’s information about the defendant’s car that was parked in the defendant’s driveway, and officers also checked power company records, which showed that the defendant had been paying the power bill for the house in the past six months. The court, relying on several cases, including State v. Beam, 325 N.C. 217 (1989), rejected the defendant’s argument that the information was stale. The court noted that, based on the facts set out in the affidavit, the magistrate who issued the search warrant could reasonably infer that the marijuana would likely remain in the defendant’s home for thirty days.
State v. Goforth, 65 N.C. App. 302 (1983). The court ruled that an affidavit failed to establish probable cause to search premises for drugs when its information consisted of surveillance of movements by persons to and from the premises, a conclusory statement about persons involved in drug smuggling, and a six-year-old drug indictment of one defendant and a four-year-old drug conviction (the court erroneously noted it as only an arrest) of another defendant. However, the court apparently failed to consider as relevant to a determination of probable cause that on the day the search warrant was issued, a confidential informant told the officer-affiant that (1) two named individuals were coming to the town in which the premises were located to purchase marijuana, (2) officers conducting surveillance stopped the car with the named individuals inside after they left the premises and smelled the odor of marijuana in the trunk (although no marijuana was found), and (3) one of the named individuals had $5,000 to $6,000 in cash. This ruling does not appear to be consistent with the totality-of-circumstances analysis of Illinois v. Gates, 462 U.S. 213 (1983) (the court did not discuss Gates).
State v. Lindsey, 58 N.C. App. 564 (1982). A warrant was issued to search the defendant’s home for marijuana. The affidavit stated that a confidential informant told the officer-affiant that he had seen drugs in the defendant’s home about one year ago. An undercover officer told the affiant that three weeks before the search warrant was issued, the defendant and another man sold the officer more than 10 pounds of marijuana and 377 doses of phenobarbital. A month before this sale, the defendant had attempted to sell 2 pounds of marijuana to the undercover officer. This officer had purchased drugs in the defendant’s presence at his service station. He also had seen the defendant at a friend’s apartment several times when drugs were being sold. The court ruled that the year-old information was the only evidence that drugs were in the defendant’s residence and that the undercover officer’s recent information did not provide a reasonable inference that the defendant continued to possess drugs in his home when the search warrant was issued. The dissenting opinion concluded that the facts supplied probable cause that marijuana was in the defendant’s home. [Author’s note: This case was decided before Illinois v. Gates, 462 U.S. 213 (1983), and it is likely that the dissenting opinion would reflect the result under a Gates totality-of-circumstances analysis.]
State v. Windham, 57 N.C. App. 571 (1982). Information about drugs in a home within the past twenty-four hours was not stale when drug sales at the home had been made regularly for months. See also State v. King, 44 N.C. App. 31 (1979) (there was pattern of drug sales at residence and last sale was within two weeks of issuance of warrant; information was not stale); State v. Caldwell, 53 N.C. App. 1 (1981) (large amount of cocaine was seen in house within five days of issuance of search warrant; information was not stale); State v. Singleton, 33 N.C. App. 390 (1977) (informant saw marijuana and LSD in home within last forty-eight hours; information was not stale); State v. Cobb, 21 N.C. App. 66 (1974) (affidavit did not specify or imply when informant saw heroin in home, yet court stated that magistrate could “reasonably and realistically conclude” that informant saw heroin so recently that probable cause existed when the warrant was issued); State v. Williams, 49 N.C. App. 184 (1980) (ruling similar to Cobb).
Federal Appellate Courts
United States v. Rhynes, 196 F.3d 207 (4th Cir. 1999). The information in a search warrant was not stale even though the most recent drug-trafficking or money-laundering activities alleged in the search warrant affidavit were more than two years old. The criminal enterprise had been ongoing for more than twenty years. The drug trafficking and money laundering were supported and aided by the operation of seemingly legitimate businesses through which the defendant laundered proceeds and facilitated the distribution of illegal drugs. Also, the property to be seized included various documents that are not ordinarily destroyed or moved from one place to another.
United States v. Grandstaff, 813 F.2d 1353 (9th Cir. 1987). When a federal bank-robbery fugitive had stolen $3.3 million in cash, less than a third of which had been recovered, it was proper to infer that he might have some part of it with him in a hotel room five months after the robbery; thus, probable cause existed to issue a search warrant for the room.
United States v. Reyes, 798 F.2d 380 (10th Cir. 1986). Although a search warrant for a residence was issued five months after the last drug transaction there of which police had knowledge, probable cause still existed because the search warrant’s affidavit showed an ongoing drug conspiracy. See also United States v. Dozier, 844 F.2d 701 (9th Cir. 1988) (information that was five and one-half months old was sufficient to support probable cause because marijuana cultivation is a long-term crime); United States v. Feliz, 182 F.3d 82 (1st Cir. 1999) (because informant had been purchasing drugs from defendant for about twelve years, the fact that drug transactions described in affidavit took place about three months before issuing search warrant did not render them stale).
(This topic is discussed in the chapter text under “Information from confidential informants.”)
(See other cases under “Probable Cause,” “Generally” at the beginning of this appendix.)
North Carolina Supreme court
State v. Jackson, 370 N.C. 337 (2017). The supreme court, per curiam and without an opinion, affirmed the ruling of the court of appeals, 249 N.C. App. 642 (2016), that a search warrant was supported by probable cause. At issue was the reliability of information provided by a confidential informant. Applying the totality-of-the-circumstances test, and although the informant did not have a “track record” of providing reliable information, the court found that the informant was sufficiently reliable. The court noted that the information provided by the informant was against her penal interest because, in the course of providing information about her drug supplier, she acknowledged purchasing and possessing marijuana. The court further observed that the informant had a face-to-face communication with the officer to whom she provided information, during which he could assess her demeanor; the face-to-face conversation significantly increased the likelihood that the informant would be held accountable for a tip that later proved to be false; the informant had first-hand knowledge of the information she conveyed; the police independently corroborated certain information she provided regarding the name and address of the supplier; and the information was not stale, as the informant was describing transactions from just two days before.
NORTH CAROLINA COURT OF APPEALS
State v. Caddell, 267 N.C. App. 426 (2019). A confidential informant who had provided reliable information in the past told officers that the defendant was selling drugs from his home. The officers had the informant conduct a controlled buy, then obtained a search warrant for the residence. They executed the warrant, found drugs, and charged the defendant with drug trafficking and other offenses. The defendant moved to suppress evidence obtained as a result of the search, a judge denied the motion, and the defendant entered an Alford plea and appealed. On appeal, he argued that the search warrant should have been analyzed under the anonymous-tip standard and was not supported by probable cause. Under that standard “[a]n anonymous tip, standing alone, is rarely sufficient, but the tip combined with corroboration by the police could show indicia of reliability that would be sufficient to pass constitutional muster.” Id. at 434 (citations omitted). The court ruled that the anonymous-tip standard did not apply, as the lead officer “met with [the informant] both before and after the controlled purchase and had worked with [the informant] previously.” Id. at 436. Furthermore, the controlled buy corroborated the informant’s assertions, so the warrant was supported by probable cause.
State v. McPhaul, 256 N.C. App. 303 (2018). The court ruled that a search warrant was supported by probable cause. On appeal, the defendant argued that the warrant lacked probable cause because a statement by a confidential informant provided the only basis to believe that evidence of an assault and robbery might be found at the premises in question and the supporting affidavit, prepared by Detective Schwab, failed to establish the informant’s reliability. The court disagreed. The detective’s affidavit detailed a meeting between an officer and the confidential informant in which the informant stated that he witnessed described individuals running from the crime scene and that one of them entered the premises in question. The informant’s statement corroborated significant matters previously known to the police department, including the general time and location of the offenses, the victim’s physical description of his assailants, and the suspect’s possession of items similar in appearance to those stolen from the victim. The affidavit therefore demonstrated the informant’s reliability.
State v. Brody, 251 N.C. App. 812 (2017). The court ruled that a search warrant application, prepared by Detective Duft and relying principally upon information obtained from a confidential informant, was sufficient to support a magistrate’s finding of probable cause and a subsequent search of the defendant’s home. The court rejected the defendant’s argument that the warrant’s affidavit failed to show that the confidential informant was reliable and that drugs were likely to be found in the home. The affidavit stated that investigators had known the confidential informant for two weeks, that the informant had previously provided them with information regarding other people involved in drug trafficking, and that the detective considered the informant reliable. The confidential informant had demonstrated to the detective that he was familiar with drug pricing and with how controlled substances are packaged and sold for distribution. Moreover, the informant had previously arranged and negotiated the purchase of, and did purchase, cocaine from the defendant under the detective’s direct supervision, though the warrant application did not extensively detail these transactions. Additionally, the confidential informant told the detective that he had visited the defendant’s home approximately thirty times, including within forty-eight hours before the affidavit was prepared, and had seen the defendant possessing and selling cocaine each time. The court noted: “The fact that the affidavit did not describe the precise outcomes of the previous tips from the [informant] did not preclude a determination that the [informant] was reliable.” It added: “[A]lthough a general averment that an informant is ‘reliable’—taken alone—might raise questions as to the basis for such an assertion, the fact that [the detective] also specifically stated that investigators had received information from the [informant] in the past allows for a reasonable inference that such information demonstrated the [confidential informant’s] reliability.” Id. at 819. Moreover, the detective had further opportunity to gauge his reliability when the informant arranged and negotiated the purchase of, and did purchase, cocaine from the defendant under the detective’s supervision.
State v. Kirkman, 251 N.C. App. 274 (2016). The court ruled that a search warrant was properly supported by probable cause. At issue was whether a confidential informant was sufficiently reliable to support a finding of probable cause. The affidavit supporting the warrant noted that the confidential informant was familiar with the appearance of illegal narcotics and that all previous information the informant provided had proven to be truthful and accurate. This information was sufficient to establish the confidential informant’s reliability.
State v. Rosario, 93 N.C. App. 627 (1989). Information in a search warrant’s affidavit from a confidential informant that was provided to the officer-affiant by another officer was properly considered by the officer-affiant when the other officer provided a basis for that informant’s reliability.
State v. Atwell, 62 N.C. App. 643 (1983). The reliability of a confidential informant’s information in a search warrant affidavit was sufficiently established by (1) the officer-affiant’s statement that the informant was “reliable” and (2) the affidavit’s description of the informant’s detailed report about criminal activity. See also State v. Chapman, 24 N.C. App. 462 (1975).
State v. Windham, 57 N.C. App. 571 (1982). An officer-affiant’s statement that an informant had provided information that led to arrests and convictions on at least ten previous occasions sufficiently showed the informant’s credibility. The officer’s statement at the suppression hearing that the informant had been incorrect at least once did not undermine the finding of credibility.
State v. Akel, 21 N.C. App. 415 (1974). The court stated that an informant’s credibility may be established by an officer-affiant’s statement that the informant’s information has led to arrests.
State v. Staley, 7 N.C. App. 345 (1970). An officer-affiant’s statement that he knew the confidential informant well, that the informant had given him and other members of the vice division information that was highly reliable and accurate, and that the informant had been most dependable in all his dealings with the vice division sufficiently established that informant’s credibility.
(See other cases under “Probable Cause,” “Generally” at the beginning of this appendix.)
NORTH CAROLINA SUPREME COURT
State v. Edwards, 286 N.C. 162 (1974). An affidavit stating that “[a] confidential and reliable informant who has given reliable information says that there is non-tax-paid whiskey at above location at this time” was found insufficient to establish probable cause because it did not provide underlying circumstances from which the informant concluded that the non-tax-paid whiskey was where he said it was. Id. at 165 (quoting affidavit).
NORTH CAROLINA COURT OF APPEALS
State v. Weatherford, 60 N.C. App. 196 (1982). An officer-affiant established the basis-of-knowledge prong for determining the reliability of an informant’s information by stating that the confidential informant with whom he was working had seen the stolen item at issue on the premises to be searched.
State v. Windham, 57 N.C. App. 571 (1982). An officer-affiant established the basis-of-knowledge prong by stating that the confidential informant with whom he was working provided the following information: (1) the defendant lived at the address given in the search warrant, (2) the informant purchased marijuana and other drugs from the defendant at that address, and (3) the informant had been in contact with the defendant within twenty-four hours before the search warrant was issued and had learned that the defendant had drugs at that address.
State v. Phillips, 25 N.C. App. 5 (1975). An affidavit failed to provide probable cause that a stolen pistol was in the defendant’s car when it merely alleged that a reliable informant said that the defendant took the pistol during an armed robbery. The affidavit lacked any information that supported the informant’s belief that the pistol was in the defendant’s car.
State v. Graves, 16 N.C. App. 389 (1972). An affidavit did not provide probable cause that LSD was in the defendant’s home because it merely alleged that the affiant received information from a reliable confidential informant that the defendant had LSD in his home. The affidavit lacked any information that supported the informant’s belief that drugs were in the defendant’s home.
State v. Staley, 7 N.C. App. 345 (1970). Although an affidavit failed to state explicitly that a confidential informant personally obtained his information, the informant described the defendant’s sale and use of marijuana in his room with sufficient detail so that the issuing magistrate could know that the informant’s information was based on personal knowledge, rather than on rumor or other unsubstantiated belief.
(This topic is discussed in the chapter text under “Information from victims, witnesses, and other citizen-informants.”)
NORTH CAROLINA SUPREME COURT
State v. Eason, 328 N.C. 409 (1991). The court ruled that the fact that the citizen-informant (who was the mother of the defendant) was named in the search warrant’s affidavit provided the magistrate with sufficient information to determine that the citizen-informant was reliable.
State v. Sanders, 327 N.C. 319 (1990). The court, in analyzing information from a citizen-informant to establish probable cause, stated that the law does not demand of private citizens who voluntarily assist law enforcement the same standards of reliability applicable to paid informants. A citizen-informant may be entitled to a greater degree of credibility than a habitual informant. See also State v. Martin, 315 N.C. 667 (1986).
FEDERAL APPELLATE COURTS
United States v. Fooladi, 703 F.2d 180 (5th Cir. 1983). An officer-affiant stated that an unnamed employee of a named glass manufacturer told him that the firm had shipped some glassware and laboratory equipment to a particular company. Because a nonprofessional informant—a disinterested businessman—gave detailed information that the officer corroborated, the reliability of the information and informant was satisfied.
Probable Cause for Premises to Be Searched
(This topic is discussed in the chapter text under “The Connection between a Crime, the Evidence to Be Seized, and the Place to Be Searched.”)
(See other cases under “Probable Cause,” “Generally” at the beginning of this appendix.)
North Carolina Supreme Court
State v. Bailey, 374 N.C. 332 (2020). A detective observed what he believed to be a drug transaction involving a Jeep and another car occur in a parking lot. He knew the occupants of the Jeep and their address. The detective also knew that they previously had been involved in illegal drug sales. Both vehicles were followed by officers. The car was stopped for traffic violations, and the woman inside the car ultimately admitted to having purchased heroin in the parking lot from one of the people inside the Jeep. The Jeep was separately followed to the occupants’ residence. Officers obtained a warrant to search the house, and the defendant (who lived at the house but was not one of the Jeep’s occupants) was charged with trafficking in cocaine.
The court stated that a search warrant for a residence must demonstrate some nexus between the suspected criminal activity and the home. The connection need not be direct, but it cannot be merely conclusory. The court determined that the search warrant’s supporting affidavit in this case established a sufficient connection to the home. The detective saw a possible drug transaction and was familiar with the people in the Jeep, including their drug histories and address. Coupled with the close-in-time admission from the buyer that she purchased heroin from one of the men in the Jeep and the fact that another officer followed that vehicle from the site of the suspected buy to the residence, the affidavit supported an inference that drugs or evidence of drug dealing would be found in the home. The court stated that it was true that the affidavit did not contain any evidence that drugs were actually being sold at the residence. But case law makes clear that such evidence is unnecessary for probable cause to exist. Rather, the affiant is simply required to demonstrate some nexus between a residence and criminal activity. In upholding the search warrant, the court stated that it was not breaking new ground and instead applying well-established legal principles to the facts.
State v. Lewis, 372 N.C. 576 (2019). A sheriff’s deputy arrested at a certain residence Robert Lewis, the defendant, who had been recognized as the possible perpetrator of a string of bank robberies committed over two months. After arresting the defendant, the deputy observed in plain sight a BB&T money bag on the floor of a Kia Optima that matched the description of a vehicle reportedly used to flee the scene of one of the robberies. The deputy also spoke with the defendant’s stepfather, who confirmed that the defendant lived at the residence at which he was arrested. A detective prepared a search warrant application seeking permission to search the residence where the defendant was arrested, the Kia, and another vehicle reportedly used to flee a different robbery. The affidavit accompanying the search warrant application failed to list several pieces of information. It did not (1) disclose that the defendant lived at the residence; (2) contain any other information linking the defendant to that address; (3) describe the circumstances surrounding the defendant’s arrest at that address, including that a Kia was parked at the residence at the time of arrest; or (4) mention the deputy’s interactions with the defendant or his stepfather, who had confirmed that the defendant lived at the residence. Absent information linking the defendant to the residence, the court ruled that the magistrate lacked probable cause to issue a warrant to search it, and so the court affirmed the court of appeals’ ruling that the defendant’s motion to suppress evidence obtained from the search should have been granted. A magistrate nonetheless issued the warrant, which led to the seizure of more evidence linking the defendant to the robberies.
The defendant filed multiple motions to suppress, arguing (1) that there was an insufficient connection between the items sought and the property to be searched and (2) that the search of the Kia was not permissible under the plain-view doctrine. The trial court denied the motion. The court of appeals ruled that the detective’s search warrant application was sufficient to establish probable cause to search the cars but insufficient to establish probable cause to search the residence because the supporting affidavit failed to state that the defendant resided there.
The state supreme court noted that the warrant to search the residence—though much of the information in the supporting affidavit linked the defendant to the robberies—failed to set forth the circumstances of the defendant’s arrest at this particular address, including how the detective who prepared the warrant initially obtained the address from officers in Johnston County and how the defendant’s stepfather had confirmed where the defendant resided. Absent information linking the defendant to the residence, the court ruled that the magistrate lacked probable cause to issue a warrant to search it, and so the court affirmed the court of appeals’ ruling that the defendant’s motion to suppress should have been granted. Concerning the search of the Kia, the court concluded that the limited information in the affidavit failed to establish probable cause for the search. As a result, the court reversed the portion of the court of appeals’ decision concluding that there was probable cause and remanded the case for consideration of the trial judge’s alternative finding that the vehicle search was valid under the plain-view doctrine.
State v. Frederick, 371 N.C. 547 (2018). The supreme court affirmed per curiam and without an opinion the ruling of the court of appeals, 259 N.C. App. 165 (2018), that probable cause supported a search warrant. A detective sought a search warrant for the defendant’s home. The affidavit in support of the warrant application stated that a “confidential source” had recently given the officer “information . . . regarding a [drug] dealer.” The detective considered the source reliable, as he had previously provided accurate information. The detective and the source attempted to corroborate the information by conducting two controlled buys in the week before the warrant application was submitted. In both cases, the informant met with a “middle man,” who was apparently unknown to the detective, and took him to the suspect’s home. Officers watched the middle man enter the home and exit a few minutes later. The informant dropped the middle man off at his residence and then met with the detective. Each time, the informant had no drugs at the outset and had drugs at the end of the event. A magistrate issued a search warrant based on these transactions, and the court of appeals ruled that probable cause supported the issuance of the search warrant.
State v. Allman, 369 N.C. 292 (2016). Reversing the court of appeals, the supreme court ruled that a magistrate had a substantial basis to find that probable cause existed to issue a search warrant. The affidavit, prepared by Detective Bacon, supporting the warrant stated that Officer Cherry stopped a car driven by Jeremy Black. Black’s half-brother Sean Whitehead was a passenger. After a K-9 alerted on the car, a search found 8.1 ounces of marijuana and $1,600 in cash. Both individuals had previously been charged on several occasions with drug crimes. Whitehead maintained that the two lived at Twin Oaks Drive in Castle Hayne. Detective Bacon went to that address and found that although neither individual lived there, their mother did. The mother informed the detective that the men lived at 4844 Acres Drive in Wilmington and had not lived at Twin Oaks Drive for years. Another detective went to the Acres Drive premises and determined that its description matched that given by the mother and that a truck outside the house was registered to Black. Detective Bacon had experience with drug investigations, and, based on his training and experience, knew that drug dealers typically keep evidence of drug dealing at their homes. Supported by the affidavit, Detective Bacon applied for and received a search warrant to search the Acres Drive home. Drugs and paraphernalia were found. On review, the court found that the warrant was properly issued. Based on the quantity of marijuana and the amount of cash found in the car, the fact that the marijuana appeared to be packaged for sale, and Whitehead’s and Black’s criminal histories, the magistrate reasonably inferred that the brothers were drug dealers. Based on the mother’s statement that the two lived at the Acres Drive premises, the fact that her description of that home matched its actual appearance, and the fact that one of the trucks there was registered to Black, the magistrate reasonably inferred that the two lived there. And based on insights from Detective Bacon’s training and experience that evidence of drug dealing was likely to be found at the brothers’ home and the fact that Whitehead lied about where the two lived, the magistrate reasonably inferred that there could be evidence of drug dealing at the Acres Drive premises. Although nothing in the affidavit directly connected the defendant’s home with evidence of drug dealing, federal circuit courts have held that a suspect drug dealer’s lie about his or her address, in combination with other evidence of drug dealing, can give rise to probable cause to search the suspect’s home. Thus, under the totality of the circumstances, there was probable cause to support the search warrant.
State v. Sinapi, 359 N.C. 394 (2005). Law enforcement officers were investigating a heroin overdose in which the defendant was implicated as the seller of the heroin. A criminal records check revealed that the defendant had been previously arrested twice for drug offenses. Division of Motor Vehicle records showed that the defendant resided at 3300 Pinecrest Drive. Officers went to that address and performed a trash pickup on the normal trash day during the normal time. They recovered a single, white plastic garbage bag from the front yard/curb line beside the driveway. Inside the garbage bag were eight marijuana plants, although there were no items in the bag that specifically connected the contents to the residence at that address (such as documents or mail). The court ruled that this information was sufficient to establish probable cause to issue a search warrant to search the residence. The court stated that the issuing magistrate was entitled to infer that the garbage bag came from the defendant’s residence and that the items inside were probably also associated with that residence. This inference was bolstered by the location of the garbage bag and the officers’ retrieval of it from the defendant’s yard on the regularly scheduled garbage-collection day. The marijuana plants in the garbage bag, taken in conjunction with the defendant’s drug-related criminal history and the information linking the defendant to a heroin sale and overdose, established a fair probability that contraband and evidence of a crime would be found in the residence. The affidavit constituted a substantial basis for the magistrate’s finding probable cause to issue the search warrant.
State v. Riggs, 328 N.C. 213 (1991). On February 26, 1987, and March 25, 1987, officers used different informants to purchase marijuana. On each occasion, the officers gave money to the informant to purchase marijuana from an unwitting middleman trusted by the defendants. After the informant worked out a deal for marijuana with the middleman, the middleman walked to the defendants’ residence and returned to conduct the transaction on the defendants’ driveway. On March 27, 1987, the officer received a search warrant to search the defendants and their home. The court ruled that probable cause existed to search the defendants’ residence even though there was no direct evidence that marijuana was located there. The information in the search warrant’s affidavit indicated that the defendants were operating a marijuana business on their premises, and this information supported an inference that the marijuana was located somewhere on the premises, which included the residence.
State v. Rook, 304 N.C. 201 (1981). An affidavit supplied probable cause to believe that a murder weapon and bloody clothing would be found in the defendant’s trailer because after the murder, the defendant returned a borrowed car to a witness who said that the defendant then went to his trailer.
State v. Silhan, 302 N.C. 223 (1981). An affidavit stated that a light blue van was seen parked at the scene of a murder and rape and that a tire print was visible in the mud there. When the defendant was arrested for these crimes, he was operating a blue 1976 Chevrolet van. The court ruled that probable cause existed to link the van to these crimes.
State v. Campbell, 282 N.C. 125 (1972). An affidavit for a warrant to search the defendant’s house for drugs stated that the officer-affiant had arrest warrants for several persons, including the defendant, who had sold drugs to a State Bureau of Investigation agent as well as to many college students. The court ruled that the affidavit failed to implicate the house in illegal possession or sale of drugs and thus did not establish probable cause to search the house.
North Carolina Court of Appeals
State v. Howard, 259 N.C. App. 848 (2018). The court ruled that a search warrant was supported by probable cause. Special Agent Wiles obtained a search warrant to search the residence and vehicles at 13606 Coram Place in Charlotte, North Carolina. The agent had twenty-six years of law enforcement experience and had investigated thousands of counterfeit-merchandise cases. The warrant application stated that in May 2013, another officer informed the applicant that the defendant was found in possession of possible counterfeit items and was charged with violating the peddlers’ license ordinance. The items seized were later confirmed to be counterfeit. In October 2013, as part of a compliance check/counterfeit-merchandise interdiction operation at a shipping hub in Charlotte, Wiles intercepted two packages from a known counterfeit-merchandise distributor in China that were addressed to the defendant at the residence in question. The boxes contained counterfeit items. Wiles attempted a controlled delivery of the packages at the residence, but no one was home. Two other packages previously delivered by the shipper were on the porch. Wiles contacted the defendant, who agreed to meet with him and bring the two packages. The defendant consented to a search of the packages, and they were found to contain counterfeit merchandise. The defendant said she did not realize the merchandise was counterfeit and voluntarily surrendered all of the merchandise. She was issued a warning. In November 2013, while Wiles was working as part of a compliance check at a football game, the defendant was found selling counterfeit items. The defendant was charged with felony criminal use of counterfeit trademark and pled guilty to the lesser misdemeanor charge. During another compliance check outside of the Charlotte Convention Center in May 2015, Wiles found a booth with a large display of counterfeit items. The booth was unmanned but business cards listed the owner as “Tammy.” Wiles verified that the address listed in the search warrant was the residence of the defendant, Tammy Renee Howard. During a search of the premises pursuant to the warrant, hundreds of counterfeit items with an approximate retail value of $2 million were seized. On appeal, the defendant asserted that the affidavit underlying the warrant application contained insufficient evidence to support a reasonable belief that evidence of counterfeit items would be found at the named premises. The affidavit included evidence of the delivery of counterfeit merchandise to the premises, evidence that the defendant continued to conduct her illegal business after warnings and arrests, and evidence that Agent Wiles confirmed that the defendant resided at the premises. The defendant also argued that the evidence in the affidavit was stale, noting that the only evidence linking the premises with criminal activity allegedly took place in October 2013, some twenty months prior to the issuance of the warrant. However, the evidence showed that the defendant was conducting a business involving counterfeit goods over a number of years at numerous locations and involving the need to acquire counterfeit merchandise from China. For all these reasons, the defendant’s motion to suppress evidence obtained in connection with the search was properly denied.
State v. Worley, 254 N.C. App. 572 (2017). The court ruled that the trial court properly denied the defendant’s motion to suppress evidence seized pursuant to search warrants for his rental cabin and truck. The defendant argued that the search warrant application established no nexus between the cabin and the criminal activity—the theft of goods during a breaking and entering of a horse trailer. The court found, however, “that under the totality of the circumstances, the accumulation of reasonable inferences drawn from information contained within the affidavit sufficiently linked the criminal activity to defendant’s cabin.” Id. at 573. Among other things, the affidavit established that when one of the owners of the horse trailer hired the defendant to work at her farm, several tools and pieces of equipment went missing and were never recovered; immediately before the defendant moved out of state, someone broke into the car of the property owners’ daughter and stole property; the defendant rented a cabin close to the owners’ property around the same time as the reported breaking and entering and larceny; and the defendant had prior convictions for first-degree burglary and felony larceny. Based on this and other evidence discussed in detail in the court’s opinion, the affidavit established a sufficient nexus between the criminal activity and the defendant’s cabin.
State v. Parson, 250 N.C. App. 142 (2016). The court ruled that the trial court erred by denying the defendant’s motion to suppress evidence seized pursuant to a search warrant. The court found that the application for the search warrant insufficiently connected the address in question to the objects sought. It noted that none of the allegations in the affidavit specifically referred to the address in question and none established the required nexus between the objects sought (evidence of manufacturing methamphetamine) and the place to be searched. The court further stated that the defendant’s refusal of an officer’s request to search the property cannot establish probable cause to search.
State v. Rodgers, 161 N.C. App. 345 (2003). The defendant was convicted of trafficking in cocaine. The court ruled that probable cause supported a search warrant to search the defendant’s home for cocaine. The affidavit recited information from a confidential informant, supported by facts setting out the informant’s reliability, that the defendant would be transporting a large quantity of cocaine from his home. The informant described the defendant to an officer, gave the defendant’s home address, and described his car (the car description was substantially but not completely corroborated later by the officer). On the same day that the officer received that information, the officer conducted surveillance at the defendant’s home and eventually stopped the defendant’s car and discovered marijuana and $1,500 in U.S. currency in the possession of another vehicle occupant. The court noted that the officer could reasonably believe that finding marijuana and a large sum of money indicated that the defendant was involved in drug activities. Not finding cocaine in the vehicle, as reported by the informant, provided probable cause to believe that cocaine was still in the defendant’s home.
State v. Hunt, 150 N.C. App. 101 (2002). The court ruled, relying on State v. Crisp, 19 N.C. App. 456 (1973), and State v. Ford, 71 N.C. App. 748 (1985), and distinguishing State v. Barnhardt, 92 N.C. App. 94 (1988), that probable cause did not exist to support a search warrant for a residence when it was based on (1) anonymous citizen complaints asserting suspicions of drug activity based on heavy vehicular traffic with short visits and (2) an officer’s conclusion that there was illegal drug activity based on his observation of heavy vehicular traffic. The court noted that no one ever saw drugs on the premises.
State v. Crawford, 104 N.C. App. 591 (1991). The court ruled that probable cause existed on May 10, 1990, to issue a warrant to search an apartment based on (1) ongoing surveillance by a veteran drug officer (Stanton) in February 1990 of a four-block area, including the apartment that was the object of the search warrant, and Stanton’s observation of people in and around the apartment; (2) the arrest on April 19, 1990, of five people with cocaine in their possession after they left the apartment and Stanton’s observation of other activities that day, consistent with drug activities, including seeing the defendant in that apartment; (3) Stanton’s record as an experienced drug officer who had made sixty drug arrests in the area in the preceding three and one-half months; (4) Stanton’s continuing surveillance of the apartment between April 19 and April 30, 1990, and his observation that people arriving by car at a rate of eight every two or three hours were leaving the apartment after staying there only two or three minutes (defendant answered the door each time); and (5) Stanton’s continued surveillance until May 8, 1990. The court rejected the defendant’s contention that probable cause exists only if facts in the search warrant’s affidavit show that drugs were seen in the premises, stating: “The law does not require absolute certainty, it requires only that probable cause exists to believe there are drugs on the premises.” Id. at 596.
State v. McCoy, 100 N.C. App. 574 (1990). After an informant made a controlled purchase of cocaine from the defendant at room 203 of an Econo Lodge in Winston-Salem on or after August 15, 1988, a search warrant was issued on August 18, 1988, for that room. The defendant had vacated the premises by then. After the same informant made a controlled purchase of cocaine from the defendant at room 209 of the same Econo Lodge on or after August 21, 1988, a search warrant was issued on August 23, 1988, for that room. Again, the defendant had vacated the premises by then. Registrations for room 209 showed that the defendant and a female had given Winston-Salem addresses as their home addresses. On August 25, 1988, officers confirmed information that the defendant was occupying room 406 of the Innkeeper Motel in Winston-Salem and was operating the same female’s car, which was parked in the motel lot.
The court stated that the facts showed that the defendant, previously convicted of selling drugs, had within a ten-day period rented three different motel rooms, each time for several days, in a city in which he had a local address, and that at two of those locations he had sold cocaine. The court ruled that circumstances of the two prior sales of cocaine in other motel rooms within a ten-day period reasonably leads to an inference that cocaine could be found in room 406 of the Innkeeper Motel, despite there being no direct evidence that cocaine was there.
State v. O’Kelly, 98 N.C. App. 265 (1990). Officers executed a search warrant for the defendant’s residence in Kitty Hawk (the court ruled that probable cause supported this search warrant) and found methamphetamine and the remnants of a clandestine laboratory used in the manufacture of that illegal drug. They also found a lease for a storage unit at a self-storage facility in Nags Head. Based on these discoveries and information that was supplied in the search warrant for the residence, the officers obtained a search warrant to search the storage unit.
The court ruled that the search warrant for the storage unit was based on probable cause: discovery of remnants of a clandestine laboratory in the defendant’s premises and information that the defendant had been seen putting part of his laboratory into his car would justify a reasonable belief that a storage unit rented by the defendant would hold other parts of the laboratory, the chemicals used in producing the drugs, or the drugs themselves.
State v. Ford, 71 N.C. App. 748 (1984). Officers’ detection of a strong odor of marijuana emanating from a mobile home, along with unusual traffic there, provided probable cause to issue a warrant to search that home. See also State v. Robinson, 148 N.C. App. 422 (2002) (strong odor of marijuana emanating from house, along with other facts, supplied probable cause to issue search warrant).
State v. Goforth, 65 N.C. App. 302 (1983). The court ruled that an affidavit failed to implicate premises to be searched when the only statements concerning the premises were (1) a conclusory statement that the premises were being used for storing drugs and an illegal drug operation and (2) the fact that at the premises were two persons who a confidential informant said were going to purchase marijuana. However, the court apparently failed to consider as relevant to a determination of probable cause the fact that on the day the search warrant was issued, a confidential informant told the officer-affiant that (1) Roach and Robinson were coming to the town where the premises were located to purchase marijuana, (2) officers conducting surveillance stopped the car with Roach and Robinson inside after they left the premises and smelled an odor of marijuana in the trunk (although no marijuana was found), and (3) Robinson had $5,000 to $6,000 in cash. [Author’s note: This ruling does not appear to be consistent with the totality-of-circumstances analysis of Illinois v. Gates, 462 U.S. 213 (1983), although the court did not discuss Gates.]
State v. Byrd, 60 N.C. App. 740 (1983). An affidavit for a warrant to search a home sufficiently implicated the home as a storage place for drugs when evidence showed that an undercover officer bought cocaine four times over a seven-week period from a person who traveled to the home and then brought drugs to the officer. Although the drug seller was seen only once actually entering the home and returning with drugs, the court stated that common sense supported a reasonable belief that drugs were in the home, particularly when a drug transaction had been only partially completed on the date the search warrant was issued, and it was reasonable to expect that the remainder of the order would be at the home. See also State v. Willis, 58 N.C. App. 617 (1982), aff’d, 307 N.C. 461 (1983) (officer-affiant received information from an informant on the day that he applied for a search warrant of a residence stating (1) that the defendant had heroin in the residence and (2) that the informant had seen heroin in the residence and had seen the defendant sell heroin in the past seventy-two hours; the court ruled that this information provided probable cause that the defendant had heroin in the residence); State v. Armstrong, 33 N.C. App. 52 (1977) (affidavit failed to establish probable cause to search trailer for drugs when information merely showed that on day before, drug seller had gone to trailer, met with defendant, and left with him in defendant’s car; no connection was shown between either person and trailer); State v. Dailey, 33 N.C. App. 600 (1977) (probable cause existed to issue a warrant to search an apartment when (1) officers watched a person deliver a bag to the apartment after stopping at a house; (2) the person went back to the house, came out with a suitcase, and was stopped; (3) a search of the suitcase revealed marijuana; and (4) marijuana was also found in a later search of the house); State v. Crisp, 19 N.C. App. 456 (1973) (probable cause did not exist to search the defendants’ home based on (1) an officer’s stopping a vehicle on a highway and finding 5 grams of marijuana and (2) the officer’s allegation in an affidavit that he had seen “heavy traffic” entering and leaving the defendant’s home); State v. Eutsler, 41 N.C. App. 182 (1979) (probable cause existed to search a house for marijuana when (1) officers found marijuana patch growing across road from house; (2) path went directly from patch to house; (3) footprints went directly from patch to house; (4) plant fertilizer box with military store price tag was found by patch, and house was only one in area where military personnel lived; and (5) there was no other house within quarter-mile of patch).
State v. Whitley, 58 N.C. App. 539 (1982). Although a confidential informant stated only that stolen items were in the defendant’s possession, not specifically that they were in the defendant’s home, his detailed information concerning the recent sale of some of the stolen items after a break-in supported an inference that the stolen goods were in the defendant’s home and not likely to be stored only on the defendant’s person.
State v. Mavroganis, 57 N.C. App. 178 (1982). An affidavit for a warrant to search the defendant’s college dorm room and his car was based on an informant’s information that (1) the defendant possessed marijuana and was selling it, (2) the informant had seen marijuana in the defendant’s room, and (3) the defendant owned and possessed a described Ford Mustang. The court ruled that probable cause supported a search of the car, which was parked about 100 yards from the dorm (not in the dormitory’s parking lot), because there was a reasonable belief that a college student living on campus who possessed and sold drugs would have drugs in both his room and his car, even though the informant saw drugs only in his room. The student’s car would be a convenient instrumentality for receiving, storing, and delivering drugs.
State v. May, 41 N.C. App. 370 (1979). An affidavit established probable cause to search a grocery store when officers saw two persons loading stolen meat into their car from the closed grocery store at night and a quantity of meat with the same distinguishing wrapping (and other items) had been taken in a break-in earlier the same day.
Federal Appellate Courts
United States v. Anderson, 851 F.2d 727 (4th Cir. 1988). An affidavit for a warrant to search the defendant’s home for a weapon and silencer attachment contained no direct evidence that the weapon was there. However, the court ruled that the issuing magistrate could reasonably have believed that the defendant likely would keep these items there. The affidavit revealed that the defendant attempted to sell the items to three different people and that they had been used to kill the victim of a murder under investigation. See also United States v. Thomas, 973 F.2d 1152 (5th Cir. 1992) (because dies that were illegally used to stamp VIN plates were not found at defendant’s business, it was reasonable to believe that they were at his home).
United States v. Fannin, 817 F.2d 1379 (9th Cir. 1987). A warrant was properly issued to search the defendant’s home for evidence of drug trafficking, even though the defendant’s only participation in a drug transaction (which occurred elsewhere) was to supply money for it. The court noted that a magistrate may find probable cause to search a home based on an experienced drug agent’s statement that drug traffickers keep records of transactions in their homes, even though there was no specific evidence in this case that the defendant did so. See also United States v. Feliz, 182 F.3d 82 (1st Cir. 1999) (similar ruling); United States v. Pace, 955 F.2d 270 (5th Cir. 1992) (after discovery of marijuana plants in barn, probable cause existed to search suspects’ residences for drug transaction records based on law enforcement officer’s experience that records would be found there); United States v. Hodge, 246 F.3d 301 (1st Cir. 2001) (evidence of defendant’s sale of drugs in same city in which he lived and fact that he was involved in drug trade supplied probable cause to support search warrant of his home). But see United States v. Lalor, 996 F.2d 1578 (4th Cir. 1993) (no evidence offered to link drugs sold on street to certain house to support probable cause to believe that drugs were located in house).
Probable Cause for Property to Be Seized
NORTH CAROLINA SUPREME COURT
State v. Kornegay, 313 N.C. 1 (1985). An affidavit supplied probable cause to seize a law firm’s savings-account passbook when evidence showed that the defendant had fraudulently converted or embezzled interest on money transferred from a trust account to the savings account, and therefore the seizure of the passbook would aid in convicting the defendant.
NORTH CAROLINA COURT OF APPEALS
State v. Adams, 159 N.C. App. 676 (2003). Officers executed a search warrant for the defendant’s mobile home to search for marijuana. The warrant also authorized the seizure of “articles of personal property tending to establish and document sales of marijuana . . . plus articles of personal property tending to establish the identity of persons in control of the premises . . . .” Id. at 677 (quoting warrant). Four people in addition to the defendant lived in the defendant’s mobile home. Officers found in the defendant’s bedroom marijuana, drug paraphernalia, a concealed video camera positioned to videotape the bed area, and a box of homemade videotapes located in a closet. There were no markings or labels on the videotapes. An officer briefly viewed two of the videotapes while in the bedroom and saw sexual activity between a male and female in the defendant’s bedroom. Another officer arrived later and, not knowing what the other officer had seen on the videotapes, questioned the defendant about them. The defendant admitted that they depicted his having sex with women in his bedroom. The officer seized the videotapes to establish who was in control of the bedroom in which the marijuana had been found. Based on the evidence from the videotapes, the defendant was convicted of first-degree sexual exploitation of a minor and participating in the prostitution of a minor. The court ruled that the videotapes were properly seized under G.S. 15A-242(4) because there was probable cause to believe they constituted evidence of the identity of a person participating in an offense.
Probable Cause for Body-Cavity Search
NORTH CAROLINA COURT OF APPEALS
State v. Fowler, 89 N.C. App. 10 (1988). An officer with a valid search warrant was searching the defendant for drugs when he noticed an excessive amount of a lubricant near his anal cavity. This information, supplied to a magistrate in an additional affidavit and together with the information in the original search warrant, provided probable cause for a doctor to conduct a body-cavity search of the defendant’s rectum.
(This topic is discussed under “Objective Standard” in Chapter 3.)
NORTH CAROLINA SUPREME COURT
State v. Riggs, 328 N.C. 213 (1991). On February 26, 1987, and March 25, 1987, officers used different informants to purchase marijuana. On each occasion, the officers gave money to the informant to purchase marijuana from an unwitting middleman trusted by the defendants. After the informant worked out a deal for marijuana with the middleman, the middleman walked to the defendants’ residence and returned to conduct the transaction on the defendants’ driveway. On March 27, 1987, the officers received a warrant to search the defendants and their home.
During the suppression hearing, an officer testified that the informant he used during one of the marijuana transactions was not reliable, contrary to what the officer had stated in the search warrant’s affidavit. However, the officer incorrectly believed that by law an informant was not reliable until the informant had made at least two prior controlled drug purchases—the informant in this case had made only one such purchase. The court ruled that the officer’s subjective belief of the law’s requirements was irrelevant. The court also ruled that the officer’s statement in the affidavit—that the source was reliable because he knew what marijuana looked like and his information had always been true and exact—was an accurate statement, even if it was based on only one prior controlled purchase, and was sufficient evidence of the informant’s reliability.
Anticipatory Search Warrants
(This topic is discussed in the chapter text under “Future Events: Anticipatory Search Warrants.”)
UNITED STATES SUPREME COURT
United States v. Grubbs, 547 U.S. 90 (2006). Federal postal inspectors planned a controlled delivery of a child pornography videotape purchased by the defendant for delivery at his home. They obtained a search warrant to search the defendant’s home contingent on the delivery of the videotape and its being taken into the residence. The contingency language was contained in the affidavit to the search warrant, but the affidavit was not incorporated into the search warrant. [Author’s note: North Carolina’s search warrant form, AOC-CR-119, incorporates the application for a search warrant, which includes the affidavit. See State v. Carrillo, 164 N.C. App. 204 (2004) (anticipatory search warrant was valid under Fourth Amendment when contingency language for executing search warrant was set out in affidavit and warrant incorporated affidavit by reference).]
(1) The Court ruled that anticipatory search warrants do not categorically violate the Fourth Amendment. Two prerequisites must be satisfied, however. There must be a fair probability (probable cause) that contraband or evidence of a crime will be found in a particular place and there must be probable cause to believe that the triggering condition will occur. (2) The Court also ruled that the Fourth Amendment does not require that the conditions precedent to the execution of an anticipatory search warrant must be set out in the warrant itself. In this case, the conditions precedent to the warrant’s execution were set out in the affidavit to the search warrant.
NORTH CAROLINA COURT OF APPEALS
State v. Stallings, 189 N.C. App. 376 (2008). The court, relying on State v. Falbo, 526 N.W.2d 814 (Wisc. Ct. App. 1994), and State v. Smith, 124 N.C. App. 565 (1996), upheld an anticipatory search warrant the execution of which was contingent on a confidential informant, who was working under officers’ directions, giving a prearranged signal to the officers after the informant entered a residence and purchased marijuana there. During a prior one-year period, the confidential informant had purchased marijuana from the defendant at his residence. Based on the Falbo and Smith rulings, the court set out a test to consider the legality of this anticipatory search warrant and concluded that the warrant satisfied the test.
State v. Carrillo, 164 N.C. App. 204 (2004). The court ruled, relying on Groh v. Ramirez, 540 U.S. 551 (2004), and State v. Flowers, 12 N.C. App. 487 (1971), that an anticipatory search warrant was valid under the Fourth Amendment when the contingency language for executing the search warrant was set out in an affidavit and the warrant incorporated the affidavit by reference.
State v. Baldwin, 161 N.C. App. 382 (2003). A federal postal inspector intercepted a package and found a trafficking amount of cocaine in it; the package was addressed to Sean Smith. Officers obtained an anticipatory search warrant for the house at the address on the package, and the execution of the search warrant was conditioned on the delivery of the package there. The inspector, in an undercover capacity, delivered the package at the address. The defendant (Eddie Baldwin) indicated that he was Sean Smith and took the package inside the house. Within a few minutes, the defendant took the package out of the house and placed it in a Pontiac. About an hour later, the defendant came out of the house, removed the package from the Pontiac, and placed it in a Toyota. Another person (the defendant’s housemate) drove away in the Toyota. Officers then executed the search warrant for the house, where they found guns, 414.5 grams of marijuana, surveillance equipment, and plastic bags containing traces of cocaine. The court ruled that because the search warrant met the requirements for an anticipatory search warrant set out in State v. Smith, 124 N.C. App. 565 (1996), once the package arrived at the residence, the nexus between the package and the residence was established. Even though the package was no longer on the premises, delivery of the package linked the house to the criminal activity inside, establishing probable cause to search the house. In addition, because the warrant specifically allowed officers to search the premises at this address to find and seize cocaine generally and to identify the participants of the crime, the officers’ thorough search of the premises was within the scope of the warrant.
State v. Phillips, 160 N.C. App. 549 (2003). Approximately 1,000 grams of cocaine were found in a package at a Federal Express facility in Greensboro. A detective obtained a search warrant for the residence at the address to which the package was to be delivered and arranged a controlled delivery of the resealed package. The package was addressed to Sonya Moore, 1412 Hamlet Pl., Greensboro, North Carolina. The pertinent part of the search warrant stated:
The controlled delivery took place the same day the search warrant was obtained. Because there was no answer at the residence and the mailing label indicated a signature release, allowing the package to be left if no one was home, the officer attempting delivery left the package on the porch. A few minutes later, the defendant opened the front door from inside the residence and retrieved the package. About twenty minutes later, the detective executed the search warrant and forced entry into the defendant’s residence when no one answered the door. The court ruled that this anticipatory warrant was valid under the standards set out in State v. Smith, 124 N.C. App. 565 (1996), discussed immediately below. First, the warrant set out “explicit, clear, and narrowly drawn triggering events” authorizing the execution of the warrant. Phillips, 160 N.C. App. at 552 (quoting Smith). The triggering event was the successful controlled delivery of the package to the listed address. The court rejected the defendant’s argument that forty-eight hours was too long for law enforcement to be entitled to execute the anticipatory search warrant and that the phrase “shortly thereafter” concerning the timing of the execution after delivery was ambiguous. The court stated that Smith requires only that (1) the execution of the search warrant occur after the triggering event and (2) the triggering event be appropriately articulated, as it was in this case. Second, the search warrant satisfied the Smith requirement that (1) the contraband must be on a sure, irreversible course to the place of the intended search and (2) any future search of the place must be made expressly contingent on the contraband’s arrival there. In this case, the execution of the search warrant was made contingent on the delivery of the package to the listed address after a controlled delivery. Third, the search under the search warrant was contingent upon the arrival of the contraband to the place listed in the search warrant, which happened in this case.
State v. Smith, 124 N.C. App. 565 (1996). Officers planned to use a cooperating informant to sell cocaine to the defendant and his accomplice on February 15, 1993. On February 14, 1993, they obtained a search warrant to search the defendant’s home for cocaine (apparently anticipating that the cocaine would be sold the next day and would be located in the defendant’s home). The affidavit for the search warrant stated, among other things, that on February 15, 1993 (a date that had not yet occurred), the officer-affiant received information from a confidential informant who, within the past seventy-two hours, had seen cocaine in the defendant’s residence. The court ruled that this search warrant was not a valid anticipatory search warrant based on the requirements for such a warrant as set out in its opinion (see below). The court noted that the search warrant’s most glaring deficiency was the absence of any language denoting it as anticipatory.
The court ruled that the Constitution of North Carolina does not require that the object of a search be in the place searched when a search warrant is issued; it only requires probable cause to believe that contraband presently in transit will be at the place to be searched when the search warrant is executed. Thus, an anticipatory search warrant is permitted as long as a judicial official who issues such a warrant carefully eliminates the opportunity for officers to exercise unfettered discretion in executing it. The state constitution requires the following conditions. (1) An anticipatory search warrant must set out explicit, clear, and narrowly drawn triggering events that must occur before execution of the warrant may take place. (2) These triggering events, from which probable cause arises, must be both ascertainable and preordained (that is, the property is on a sure and irreversible course to its destination; for example, an undercover officer will deliver the cocaine to the house to be searched). (3) A search may not occur unless and until the property does, in fact, arrive at that destination. The court stated that these three conditions ensure that the required nexus between the criminal act, the evidence to be seized, and the identity of the place to be searched is achieved.
[Author’s note: Below is an example of what might be contained in an affidavit for an anticipatory search warrant to search premises, in addition to the statement establishing probable cause.
A later North Carolina case, State v. Carrillo, 164 N.C. App. 204 (2004), ruled that an anticipatory search warrant was valid under the Fourth Amendment when the contingency language for executing the search warrant was set out in the affidavit and the warrant incorporated the affidavit by reference.]
FEDERAL APPELLATE COURTS
United States v. Limares, 269 F.3d 794 (7th Cir. 2001). Law enforcement officers obtained an anticipatory search warrant for the search of a residence to which a package of drugs, with a radio transmitter placed inside, was being delivered. The recipient left the residence shortly after the delivery carrying a bag big enough to hold the package, and the radio transmitter told the officers that the package had been opened. The recipient walked a few blocks and entered another residence. Fearing that the occupants of this residence would destroy the package and its contents, officers entered it without a search warrant. The court ruled that exigent circumstances supported the officers’ warrantless entry.
Descriptions in a Search Warrant
(This topic is dicussed in the chapter text under “Description of the Premises, the Person to Be Searched, or the Vehicle.”)
Description of the Premises to Be Searched
UNITED STATES SUPREME COURT
Maryland v. Garrison, 480 U.S. 79 (1987). Officers executed a search warrant that described the place to be searched as the “third floor apartment” of the premises at a certain address when they reasonably believed that there was only one apartment on the third floor. However, there were actually two apartments on the third floor. The officers found drugs in one apartment on that floor, which was not the object of the search, before they realized their mistake. The Court ruled that (1) the search warrant was valid when it was issued, considering the officers’ information then, and (2) the execution of the warrant did not violate the defendant’s Fourth Amendment rights because the officers’ failure to realize the warrant’s overbroad description of the third-floor apartment was objectively reasonable.
NORTH CAROLINA COURT OF APPEALS
State v. Hunter, 208 N.C. App. 506 (2010). The court rejected the defendant’s argument that a search warrant executed at a residence was invalid because the application and warrant referenced an incorrect street address. Although the numerical portion of the street address was incorrect, the warrant was sufficient because it contained a correct description of the residence.
State v. Cloninger, 37 N.C. App. 22 (1978). A search warrant sufficiently described the mobile home to be searched by stating who owned and occupied it and describing its location at the end of a dirt road approximately 100 yards behind a specified truck stop. Furthermore, the executing officer knew the trailer and had seen the defendant there several times. An executing officer’s prior knowledge about the place to be searched is relevant in determining whether the description of the place in a warrant is adequate. See also State v. Woods, 26 N.C. App. 584 (1975) (error in stating who owned mobile home was not fatal).
State v. Walsh, 19 N.C. App. 420 (1973). Any error in the address of premises to be searched was not fatal when the premises were described with reasonable certainty and the executing officer was familiar with the premises.
Description of the Property to Be Seized
UNITED STATES SUPREME COURT
Groh v. Ramirez, 540 U.S. 551 (2004). An officer with the Bureau of Alcohol, Tobacco, and Firearms prepared and signed an application for a search warrant to search a ranch for specified weapons, explosives, and records. The application was accompanied by (1) a detailed affidavit setting out the basis for believing that the items were on the ranch and (2) a warrant form that the officer completed. The magistrate signed the warrant form even though it did not describe the things to be seized; instead, the space on the warrant for listing those items merely described the house on the ranch. The warrant did not incorporate by reference the warrant application’s list of the items to be seized.
(1) The Court ruled that the search warrant was invalid under the Fourth Amendment because it did not describe the things to be seized and did not incorporate by reference the application’s description of the things to be seized. [Author’s note: This ruling does not affect the validity of AOC-CR-119 (Search Warrant) because the warrant language specifically incorporates by reference the items to be seized that are described on the accompanying application.] (2) The Court ruled that the officer was not entitled to qualified immunity because no reasonable officer could believe that the search warrant in this case complied with the Fourth Amendment.
Andresen v. Maryland, 427 U.S. 463 (1976). A search warrant was sufficiently specific under the Fourth Amendment when it described a set of documents and then used the phrase “together with other fruits, instrumentalities and evidence of crime at this (time) unknown,” id. at 479 (quoting warrant); it was clear from the context that the word “crime” referred only to the crime under investigation, a fraudulent real estate transaction. See also United States v. Cantu, 774 F.2d 1305 (9th Cir. 1985) (sufficient description of financial records involving tax fraud); United States v. Holzman, 871 F.2d 1496 (9th Cir. 1989) (sufficient description of credit cards and credit-card drafts); United States v. Bentley, 825 F.2d 1104 (7th Cir. 1987) (when fraud infects entire business, description may properly include seizure of all business documents); United States v. Rude, 88 F.3d 1538 (9th Cir. 1996) (business permeated with fraud justified broad description of documents to be seized); In re Impounded Case (Law Firm), 840 F.2d 196 (3d Cir. 1988) (search warrant to seize law office files that was limited to seizure of a designated group of files, all of which the affidavit alleged contained evidence of fraudulent claims, was sufficiently specific).
NORTH CAROLINA SUPREME COURT
State v. Kornegay, 313 N.C. 1 (1985). The court stated that Article I, Section 20, of the North Carolina Constitution did not require more particularity in search warrants in describing items to be seized than did the Fourth Amendment. A search warrant need not describe each individual paper to be seized, particularly in cases involving complex white-collar crimes. A description of property is sufficient when it is as specific as the circumstances and the nature of the activity being investigated permit. The court ruled as a sufficient description in this case all checkbooks, canceled checks, deposit slips, bank statements, trust-account receipts, check stubs, books and papers, and so forth that would tend to show a fraudulent intent or any elements of the crimes of false pretenses or embezzlement.
NORTH CAROLINA COURT OF APPEALS
State v. Connard, 81 N.C. App. 327 (1986), aff’d, 319 N.C. 392 (1987). A search warrant authorized the seizure of Dilaudid, Valium, and stolen goods—with no description of the goods. The court ruled that the description “stolen goods” was insufficient, although the descriptions “Dilaudid” and “Valium” were sufficient. The warrant’s provisions were severable. Thus, officers constitutionally could search for the named drugs or for those of the same drug class but could not make a general exploratory search of the defendant’s home and van and make an inventory of their contents to discover stolen goods.
State v. Foye, 14 N.C. App. 200 (1972). A description that read “narcotic drugs, the possession of which is a crime” sufficiently described the items to be seized.
FEDERAL APPELLATE COURTS
United States v. Peters, 92 F.3d 768 (8th Cir. 1996). A drug search warrant authorized the seizure of, among other things, “records . . . associated with cocaine distribution. . . .” Id. at 769 (quoting warrant). The court, distinguishing Walter v. United States, 447 U.S. 649 (1980), ruled that the search warrant authorized the seizure of three unmarked audiocassettes that were intermingled with notes and letters from a drug co-conspirator who was incarcerated. Thus, the seizing officer was authorized to listen to the audiotapes before deciding whether to seize them.
United States v. Rey, 923 F.2d 1217 (6th Cir. 1991). Probable cause existed to support a search warrant’s authorization to seize “controlled substances, records of narcotics activities, documents, paraphernalia and other evidence of drug dealing and importation.” Id. at 1221 (quoting warrant). See also United States v. Martin, 920 F.2d 393 (6th Cir. 1990); United States v. Sullivan, 919 F.2d 1403 (10th Cir. 1991); United States v. Wylie, 919 F.2d 969 (5th Cir. 1990); United States v. Smith, 918 F.2d 1501 (11th Cir. 1990); United States v. Riley, 906 F.2d 841 (2d Cir. 1990); United States v. Harris, 903 F.2d 770 (10th Cir. 1990); United States v. Hinds, 856 F.2d 438 (1st Cir. 1988).
United States v. Calisto, 838 F.2d 711 (3d Cir. 1988). A search warrant authorized the seizure of illegal drugs and “items used in the manufacture, sale, use, etc. of controlled substances.” Id. at 716 (quoting warrant). The court ruled that this description authorized the seizure of two firearms in a bedroom where drugs were found, because firearms may be considered items used in connection with illegal drugs.
Description Incorporated by Reference to Affidavit
NORTH CAROLINA COURT OF APPEALS
State v. Fowler, 89 N.C. App. 10 (1988). A search warrant that failed to list specifically the defendant’s body cavity as a place to be searched was not defective when the application for the search warrant specifically referred to the attached affidavit, which requested that the search include the defendant’s body cavity. The language in the warrant and application incorporated the affidavit by reference.
Search Warrants for Computers
(This topic is discussed in the chapter text under “Evidence in Computers and Other Electronic Devices.”)
NORTH CAROLINA SUPREME COURT
State v. Terrell, 372 N.C. 657 (2019). The court ruled that an officer’s warrantless search of a defendant’s thumb drive following a prior search by a private individual violated the defendant’s Fourth Amendment rights. While examining a thumb drive belonging to the defendant, the defendant’s girlfriend saw an image of her 9-year-old granddaughter sleeping, exposed from the waist up. Believing the image was inappropriate, the girlfriend contacted the sheriff’s office and gave them the thumb drive. Later, a detective conducted a warrantless search of the thumb drive to locate the image in question, during which he discovered other images of what he believed to be child pornography before he found the photograph of the granddaughter. At that point the detective applied for and obtained a warrant to search the contents of the thumb drive for “contraband images of child pornography and evidence of additional victims and crimes.” Id. at 659 (quoting warrant application). The initial warrant application relied only on information from the defendant’s girlfriend, but after the State Bureau of Investigation (SBI) requested additional information, the detective included information about the images he found in his initial search of the USB drive. The SBI’s forensic examination turned up twelve images, ten of which had been deleted and archived in a way that would not have been viewable without special forensic capabilities.
The court concluded that the girlfriend opening the thumb drive and viewing some of its contents did not frustrate the defendant’s privacy interest in the entire contents of the device. To the contrary, digital devices can retain massive amounts of information, organized into files that are essentially containers within containers. Because the trial court did not make findings establishing the precise scope of the girlfriend’s search, it likewise could not find that the detective had the level of “virtual certainty” contemplated by United States v. Jacobsen, 466 U.S. 109 (1984), that the device contained nothing else of significance or that a subsequent search would not tell him anything more than he already had been told. The search therefore was not permissible under the private-search doctrine. The court affirmed the decision of the court of appeals, 257 N.C. App. 884 (2018), and remanded the case for consideration of whether the warrant would have been supported by probable cause without the evidence obtained through the unlawful search.
NORTH CAROLINA COURT OF APPEALS
State v. Ellis, 188 N.C. App. 820 (2008). The court ruled that probable cause existed to issue a search warrant to search a computer in the defendant’s home based on instant messages between the defendant and law enforcement officers posing as a 12-year-old girl. The search warrant affidavit contained many sexually explicit instant message conversations in which the defendant asked to meet the “children” to engage in sexual conduct and stated that he transmitted a video of himself masturbating. Other conversations included the defendant’s statements to a “mother” of young girls involving sexual contact with the girls. In other conversations the defendant admitted that he had penetrated children with his penis.
State v. Dexter, 186 N.C. App. 587 (2007). Officers received an email tip from a person they later verified as the defendant’s housemate. The email reported the defendant’s having child pornography on his home computer. The court noted that although the housemate later recanted her email tip, the officers confirmed the easily verified information from the tip, which increased her credibility. The court reviewed the officers’ additional corroboration of the tip (see the facts set out in its opinion) and ruled that probable cause supported the issuance of a search warrant for the defendant’s home and computer for child pornography.
State v. Peterson, 179 N.C. App. 437 (2006), aff’d, 361 N.C. 587 (2007). The court ruled that an affidavit for a search warrant to seize computers at the defendant’s home—where a homicide investigation was ongoing—did not provide probable cause when the affidavit (1) did not include the substance of conversations or discoveries in the thirty-six-hour investigation that might lead one to check computers in the home and (2) did not include any indication, other than the amount of blood at the scene, to suggest that a search of computers would lead to information about the possible homicide.
State v. Pickard, 178 N.C. App. 330 (2006). A search warrant for the defendant’s home authorized the seizure of computers, computer equipment and accessories, cassette videos and DVDs, video cameras, digital cameras, film cameras and accessories, and photographs and printed materials that could be consistent with the exploitation of a minor. The affidavit described the defendant’s sexual and other inappropriate activity with four children under 9 years old and with a 14-year-old. The victims described the defendant’s taking photographs and his use of video cameras and computers. The activity with the 14-year-old had taken place about eighteen months before the issuance of the search warrant. [Author’s note: The affidavit apparently did not contain specific dates concerning the defendant’s sexual activity with the younger children, but the affidavit stated that the officer’s interviews with the younger children occurred the day before the officer applied for the search warrant.] The court ruled, relying on State v. Jones, 299 N.C. 298 (1980), and cases from other jurisdictions, that the search warrant’s information was not stale because the affidavit showed the defendant’s commission of ongoing sex crimes with the children and the items to be seized were of continuing utility to the defendant.
FEDERAL APPELLATE COURTS
United States v. Williams, 592 F.3d 511 (4th Cir. 2010). A search warrant authorized a search of the defendant’s computers and digital media for evidence relating to the designated Virginia crimes of making threats and computer harassment. The court stated that (1) to conduct that search, the warrant impliedly authorized officers to open each file on each computer and view its contents, at least cursorily, to determine whether the file fell within the scope of the warrant’s authorization—that is, whether it related to the designated Virginia crimes of making threats or computer harassment; (2) to be effective, such a search could not be limited to reviewing only the files’ designation or labeling because the designation or labeling of files on a computer can easily be manipulated to hide their substance; and (3) if the owner of a computer is engaged in criminal conduct on that computer, he or she will not label the files to indicate their criminality. The court criticized the ruling in United States v. Carey, 172 F.3d 1268 (10th Cir. 1999), as improperly focusing on the officer’s subjective motivation for continuing to search computer files instead of on whether the warrant’s terms objectively permitted continuing to search. See also United States v. Cobb, 970 F.3d 319 (4th Cir. 2020) (relying on Williams, court ruled that while searching computer with search warrant to seize evidence concerning certain murder, plain-view doctrine allowed seizure of pictures of child pornography).
United States v. Hay, 231 F.3d 630 (9th Cir. 2000). The court ruled that there was probable cause to support a search warrant for the defendant’s computer based on evidence that a computer in Canada had transmitted to the defendant’s computer nineteen files of child pornography and on other facts set out in an officer’s affidavit. The court also ruled that the information was not too stale even though the transmission occurred six months before the application for the search warrant. The court also upheld the seizure and removal offsite of the defendant’s entire computer system because of the time, expertise, and controlled environment required for a proper analysis. See also United States v. Lacy, 119 F.3d 742 (9th Cir. 1997) (similar ruling).
United States v. Carey, 172 F.3d 1268 (10th Cir. 1999). Officers obtained a search warrant to search the files on the defendant’s computers for “names, telephone numbers, ledger receipts, addresses, and other documentary evidence pertaining to the sale and distribution of controlled substances.” Id. at 1270 (quoting warrant). Upon opening a file labeled “JPG,” the officer discovered child pornography. The officer then opened many more files with that label and discovered more child pornography. The court ruled that the child pornography files seized were not authorized by the search warrant. After opening the first child pornography file, the officer was aware what the label meant. When he opened the additional files with that label, he knew that he was not going to find items related to drug activity as specified in the search warrant.
United States v. Upham, 168 F.3d 532 (1st Cir. 1999). The court ruled that in a search warrant to seize child pornography on a computer in a home, the following descriptions of items to be seized were not overly broad: (1) “Any and all computer software and hardware, . . . computer disks, disk drives . . .” and (2) “Any and all visual depictions, in any format or media, of minors engaging in sexually explicit conduct [as defined by the statute].” Id. at 535 (quoting list attached to warrant application). The court also ruled that the search warrant permitted the recovery of deleted material on the computer’s hard disk. See also United States v. Hall, 142 F.3d 988 (7th Cir. 1998) (items to be seized were sufficiently particular because they were qualified by phrases emphasizing that items sought were those related to child pornography); United States v. Campos, 221 F.3d 1143 (10th Cir. 2000) (similar ruling).
Search Warrants for Obscene Materials
(This topic is discussed in the chapter text under “Obscene Materials, Including Child Pornography.” See also the case summaries under “Search Warrants for Computers,” above in this appendix.)
UNITED STATES SUPREME COURT
Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989). Following past precedents, such as Marcus v. Search Warrant, 367 U.S. 717 (1961), the Court ruled that it is unconstitutional to make mass seizures of allegedly obscene materials without a court conducting a prior adversary hearing to determine whether they were obscene.
New York v. P. J. Video, Inc., 475 U.S. 868 (1986). A magistrate need not personally view allegedly obscene materials before issuing a warrant to seize them; a reasonably specific affidavit describing the content of the materials is generally sufficient. The same standard of probable cause (“fair probability”) to issue a search warrant under Illinois v. Gates, 462 U.S. 213 (1983), applied to a search warrant to seize obscene materials. The Court ruled that probable cause existed to issue the search warrant in this case when the affidavits summarized the theme of, and sexual conduct depicted in, each movie to be seized. See also United States v. Espinoza, 641 F.2d 153 (4th Cir. 1981); Sequoia Books, Inc. v. McDonald, 725 F.2d 1091 (7th Cir. 1984).
Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979). A New York officer purchased two allegedly obscene films from an adult bookstore and took them to a town justice, who viewed them and concluded that they were obscene. The justice issued a search warrant to search the bookstore and to seize other copies of the two films. In addition, based on the officer’s affidavit that “similar” films and printed matter were in the bookstore, the justice authorized in the search warrant the seizure of the “following items that the Court independently [on examination] has determined to be possessed in violation of” New York law. Id. at 321–22 (quoting warrant). However, when the justice signed the search warrant, no items were listed or described following this statement. Instead, the justice accompanied the officers to the bookstore and participated in the search and ordered the seizure of various items, which were then described in the warrant after they were seized. The Court ruled that such an open-ended search warrant was unconstitutional because it did not particularly describe the things to be seized. In addition, by becoming a member of the search party, the town justice did not act as a “neutral and detached” magistrate; he acted as an adjunct law enforcement officer. The Court distinguished this case from Heller v. New York, 413 U.S. 483 (1973), discussed below, where a judge viewed a film in a theater as a paying patron and then issued a search warrant to seize the allegedly obscene film.
Roaden v. Kentucky, 413 U.S. 496 (1973). After viewing a movie at a drive-in theater and determining that it was obscene, an officer arrested the theater manager without an arrest warrant and seized a copy of the film without a search warrant. The Court ruled that the seizure of the film without a search warrant was unconstitutional because it was a prior restraint on freedom of expression. It noted that in this case there was no risk that evidence might have been lost if the officer had taken the time to obtain a search warrant; the film was being commercially exhibited to the public at scheduled times.
Heller v. New York, 413 U.S. 483 (1973). A judge viewed a film in a theater as a paying patron and then issued a search warrant to seize the allegedly obscene film. Officers seized a single copy of the film. No pretrial motion was made for return of the film, nor was there a pretrial assertion that seizing the film prevented its exhibition because it was the only copy. The Court ruled that when a single copy of a film is seized pursuant to a search warrant for the bona fide purpose of preserving it as evidence in a criminal proceeding, the seizure is constitutional if a prompt judicial determination (an adversary hearing) of the obscenity issue is available after the seizure at the request of any interested party. If the exhibitor of the seized film has no other available copies, a court must permit the seized film to be copied so that it may be shown pending the judicial determination at the adversary proceeding. Otherwise, the film must be returned. Therefore, with such safeguards, an adversary hearing before a seizure pursuant to a search warrant is not constitutionally required.
The Court distinguished this case from A Quantity of Books v. Kansas, 378 U.S. 205 (1964), and Marcus v. Search Warrant, 367 U.S. 717 (1961), noting that both of those cases involved seizures of large quantities of books for the purpose of destroying them. In those circumstances, a prior judicial determination of obscenity in an adversary proceeding is constitutionally required to avoid a prior restraint of materials presumptively protected under the First Amendment.
Lee Art Theatre v. Virginia, 392 U.S. 636 (1968). A justice of the peace issued a search warrant to seize motion pictures based on an officer’s affidavit that gave only the titles of the motion pictures and stated that the officer had determined that they were obscene from having viewed them personally and having seen the contents of a billboard in front of the theater that was exhibiting them. The Court ruled that the search warrant was constitutionally defective because the determination of obscenity was based solely on the officer’s conclusory assertions without any independent inquiry by a justice of the peace as to whether they were obscene. The Court stated that it need not decide whether the justice of the peace should have viewed the motion pictures before he issued the search warrant.
NORTH CAROLINA COURT OF APPEALS
State v. Gerard, 249 N.C. App. 500 (2016). In this case of sexual exploitation of a minor, the court ruled that the information contained in an officer’s affidavit was sufficient to provide probable cause for the issuance of a search warrant for child pornography. An officer and certified computer forensic examiner identified images possessed by the defendant as child pornography through the use of an SHA1 algorithm or hash value, which the court noted is an “algorithm” that is “like a fingerprint” that may be used to identify digital files. Although less detailed than the officer’s testimony at the suppression hearing, the affidavit described technical details regarding law enforcement methods and software used to identify and track transmissions of child pornography over the Internet. The court rejected the defendant’s argument that the affidavit’s identification of alleged pornographic images as known child pornography based upon computer information was insufficient and that the pictures themselves must be provided with the affidavit.
A Neutral and Detached Magistrate
UNITED STATES SUPREME COURT
Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979). A town justice was not a neutral and detached magistrate when he issued a search warrant to search a bookstore and to seize allegedly obscene films and then accompanied officers to the bookstore as a member of the searching party. He acted as an adjunct law enforcement officer. See also People v. Lowenstein, 325 N.W.2d 462 (Mich. Ct. App. 1982) (magistrate who issued arrest warrant was not neutral and detached when he had previously prosecuted defendant and had been sued by defendant; court indicated that new arrest warrant issued by neutral and detached magistrate would be permissible).
NORTH CAROLINA COURT OF APPEALS
State v. Long, 37 N.C. App. 662 (1978). A military base commanding officer qualified as a neutral and detached magistrate when a search of a home was made pursuant to the authority to search issued by the commanding officer.
State v. Woods, 26 N.C. App. 584 (1975). When an officer brought a person arrested for drug violations before a magistrate, the magistrate heard the arrestee say that another person possessed a large quantity of drugs. The magistrate knew that the arrestee was a police informant and advised the officer to call a police chief who knew him. The officer called the police chief and determined that the arrestee was reliable. The magistrate then issued a search warrant based on an affidavit by the officer. The court ruled that the magistrate’s actions did not violate his role as a neutral and detached magistrate because he properly informed the officer of information that might support a finding of probable cause.
FEDERAL APPELLATE COURTS
United States v. Ramirez, 63 F.3d 937 (10th Cir. 1995). An issuing judge’s commonsense alterations of an affidavit for a search warrant and of the search warrant itself did not violate the judge’s duty to be a neutral and detached magistrate based on the facts in this case. The judge altered the person and items to be seized, but the alteration was based on the narrative portion of the affidavit that provided probable cause to do so.
United States v. McKeever, 906 F.2d 129 (5th Cir. 1990). A magistrate issued a warrant to search certain premises. The magistrate’s former position as a reserve deputy, her husband’s current position as a reserve deputy (he was not involved in obtaining or executing the search warrant at issue in this case), and her visiting the site of the search conducted pursuant to the warrant as a mere observer after the premises were secured and arrests were made did not affect her objectivity such that she was no longer neutral and detached.
Executing a Search Warrant
Notice and Entry
(This topic is discussed in the chapter text under “Notice and Entry.”)
United States Supreme Court
Hudson v. Michigan, 547 U.S. 1096 (2006). Officers with a valid search warrant entered the defendant’s home in violation of the Fourth Amendment’s knock-and-announce requirement. The officers seized drugs and a firearm. The Court ruled that the Fourth Amendment’s exclusionary rule did not apply to bar the admission of the seized evidence even though the officers violated the knock-and-announce requirement. The Court reasoned that because the privacy interests violated in this case had nothing to do with the seizure of the evidence, the exclusionary rule was inapplicable. The Court rejected the defendant’s argument that there would be no deterrence without suppression of the seized evidence. The Court noted that misconduct by law enforcement officers is subject to a civil lawsuit under 42 U.S.C. § 1983 and to discipline by the officers’ law enforcement agencies. [Author’s note: A violation of North Carolina law that requires notice of identity and purpose before executing a search warrant (G.S. 15A-249, with an exception in G.S. 15A-251(2)) may subject the seized evidence to suppression under North Carolina’s statutory exclusionary rule set out in G.S. 15A-974(a)(2).] See also United States v. Hector, 474 F.3d 1150 (9th Cir. 2007) (court ruled under rationale of Hudson that exclusionary rule did not apply to seizure of evidence pursuant to search warrant when copy of search warrant was not served on defendant); United States v. Pelletier, 469 F.3d 194 (1st Cir. 2006) (Hudson ruling applies to execution of arrest warrants).
United States v. Banks, 540 U.S. 31 (2003). Officers with knowledge that the defendant was selling cocaine at his residence obtained a search warrant to search his two-bedroom apartment. As soon as they arrived there in the afternoon, officers at the front door called out “police search warrant” and rapped hard enough on the door to be heard by officers at the back door. There was no indication as to whether anyone was at home, and after waiting fifteen to twenty seconds without receiving an answer, the officers broke open the front door with a battering ram. The Court ruled that the forcible entry into the apartment under these circumstances did not violate the Fourth Amendment. [Author’s note: This ruling did not set fifteen to twenty seconds as a Fourth Amendment required minimum waiting time before using force to enter a residence with a search warrant. The Court in its opinion stressed that each case must be decided on the totality of circumstances presented to the officers as they attempt to execute a search warrant.]
United States v. Ramirez, 523 U.S. 65 (1998). In Richards v. Wisconsin, 520 U.S. 385 (1997), discussed immediately below, the Court ruled that under the Fourth Amendment officers are not required to knock and announce their presence before entering a home if they have reasonable suspicion that doing so would be dangerous or futile or that it would inhibit the effective investigation of crime. The Court in this case rejected the defendant’s argument that a higher standard should apply when officers must destroy property to enter a home—for example, if they must break a window. Instead, the Court ruled that the Richards standard applies in such a case. The Court then examined the facts in this case, in which officers broke a window in a garage where they suspected weapons were located that could be used against them, and determined that the officers’ “no knock” entry was reasonable under the Fourth Amendment.
Richards v. Wisconsin, 520 U.S. 385 (1997). After obtaining a search warrant to search a hotel room for drugs, several officers went to the hotel room to execute the warrant. One officer, dressed as a maintenance man, was the lead officer. Among the other officers was at least one uniformed officer. The lead officer knocked on the hotel room door and, responding to a query from inside the room, stated that he was a maintenance man. The defendant cracked open the door with the chain still attached. The defendant saw a uniformed officer among the officers outside the door and quickly slammed the door shut. After waiting two or three seconds, the officers began kicking and ramming the door to gain entry. The officers identified themselves as officers while they were kicking in the door.
(1) The Court rejected a lower court ruling in this case that officers executing a search warrant involving felony drug crimes are never required to comply with the knock-and-announce rule under the Fourth Amendment. The Court stated that Wilson v. Arkansas, 514 U.S. 927 (1995), did not support the lower court’s ruling. (2) The Court ruled that officers are not required to knock and announce their presence before entering a home if they have reasonable suspicion that doing so would be dangerous or futile or that it would inhibit the effective investigation of crime by, for example, allowing the destruction of evidence. The Court stated that this standard—as opposed to probable cause—strikes the appropriate balance between legitimate law enforcement concerns in executing a search warrant and the individual privacy interests affected by no-knock entries. (3) The Court ruled that in this case, based on the defendant’s apparent recognition of the officers and the easily disposable nature of drugs, the officers were justified in entering the hotel room without first announcing their presence and authority.
[Author’s note: G.S. 15A-251 requires an officer, before executing a search warrant and entering premises without giving notice, to have probable cause to believe that giving notice would endanger the life or safety of any person. Thus, this statute imposes a more-stringent standard on officers than the Fourth Amendment. See also G.S. 15A-401(e)c, which requires an officer, before entering premises to make an arrest without giving notice of the officer’s authority and purpose, to have reasonable cause to believe that the giving of such notice would present a clear danger to human life.]
Wilson v. Arkansas, 514 U.S. 927 (1995). Officers made an unannounced entry into a home to execute a search warrant. The Arkansas Supreme Court ruled that the Fourth Amendment does not require officers to knock and announce before entering a home. The Court, rejecting that ruling, ruled that an officer’s unannounced entry into a home must be reasonable under the Fourth Amendment. Whether an officer announced his or her presence and authority before entering a home is among the factors to be considered in determining whether the entry was reasonable (along with the threat of physical harm to the officer, the pursuit of a recently escaped arrestee, and the likely destruction of evidence if advance notice was given). The Court specifically stated that it will leave to lower courts the task of determining whether an unannounced entry was reasonable and remanded this case to the Arkansas Supreme Court for that purpose. See also United States v. Conley, 92 F.3d 157 (3d Cir. 1996) (execution of search warrant was reasonable when officers entered premises during daylight and business hours, entered through an unlocked door, an occupant witnessed the officers’ approach, the officers announced their presence soon after entry, and the entry occurred at a commercial establishment); United States v. Moore, 91 F.3d 96 (10th Cir. 1996) (mere statement by officers that firearms were present inside dwelling to be searched was insufficient to excuse notice when executing search warrant); United States v. Bates, 84 F.3d 790 (6th Cir. 1996) (mere presence of firearm in apartment and barricaded door were insufficient to excuse notice when executing search warrant).
[Author’s note: G.S. 15A-249 sets standards for entering private premises to execute a search warrant, and G.S. 15A-401(e) sets standards for entering private premises to arrest. See the discussion immediately above in Richards v. Wisconsin, 520 U.S. 385 (1997).]
North Carolina Supreme Court
State v. Lyons, 340 N.C. 646 (1995). Officers executing a search warrant of an apartment to search for drugs announced their identity and purpose while using a battering ram to enter the apartment, even though—based on the facts in this case—they did not need to make such an announcement under G.S. 15A-251(2) (forcible breaking and entering to execute a warrant is authorized if the officer has probable cause to believe that the giving of notice would endanger life). The court ruled that the fact that officers have announced their identity and purpose does not mean that entry by force could not be justified under G.S. 15A-251(2). In this case, the court noted that the following evidence supported a forcible entry under G.S. 15A-251(2): the officers believed that a firearm was inside the defendant’s apartment; the defendant would not cooperate; the area outside the defendant’s door was so small that even though officers felt the situation was dangerous, their weapons were not drawn because of the fear of harming other officers and bystanders; and one officer heard two arguing voices within the apartment.
State v. Knight, 340 N.C. 531 (1995). The murder victim was stabbed twenty-seven times, was castrated, and his penis was inserted in his mouth. Officers went to the defendant’s home to execute arrest and search warrants for this murder. They knocked on the front door several times and announced, “Police! Search warrant!” at least two or three times. After waiting thirty to sixty seconds and hearing no response from inside the residence, the officers used a battering ram to open the door. They entered the residence, conducted a quick sweep for weapons, and arrested the defendant. The defendant was taken to the police station, where he confessed to his participation in the murder and told the officers where one of the knives used in the murder was located in the residence officers had entered. The court ruled that the officers’ forcible entry into the premises was reasonable under the Fourth Amendment (see Wilson v. Arkansas, 514 U.S. 927 (1995)) and that it complied with the provisions of G.S. Chapter 15A. The officers had probable cause to believe that further delay in entering the residence or the giving of more-specific notice would endanger their own safety or that of other occupants of the residence. They knew that the defendant was dangerous, armed with a hunting knife and possibly firearms; there was at least one other suspect who had not been arrested; they were concerned about the safety of a woman and her children inside the residence, who might become hostages; and if the entry was not forced, it would not be safe.
North Carolina Court of Appeals
State v. Winchester, 260 N.C. App. 418 (2018). The court rejected the defendant’s argument that a search of his residence was unreasonable. The defendant argued that because officers deliberately waited until he vacated the premises before breaking open the door without knocking and announcing their presence, they violated the statutory knock-and-announce requirement. Here, before executing the search warrant, a detective loudly announced three times that officers would be entering the residence to execute the search warrant. After waiting a reasonable time and hearing no response, officers made a forced entry into the residence. These facts established that a statutory violation did not occur.
State v. Terry, 207 N.C. App. 311 (2010). In executing a search warrant for marijuana that was issued based on sales in a certain residence, officers entered that residence through an unlocked door shortly after knocking and announcing that they were from the sheriff’s department and had a search warrant. The court ruled that the brief delay between notice and entry was reasonable because the search warrant was based on marijuana being sold there and because marijuana is something that can be easily and quickly disposed of.
State v. Reid, 151 N.C. App. 379 (2002). In executing a search warrant for cocaine, officers knocked three times on the door of a certain apartment, announced, “Sheriff’s Office, search warrant,” then knocked three more times and repeated the announcement. After waiting six to eight seconds, the officers forcibly entered the apartment by breaking down the door with a battering ram. The court ruled that the delay of six to eight seconds before the officers made a forcible entry into the apartment did not violate the defendant’s Fourth Amendment rights or G.S. 15A-251.
State v. Vick, 130 N.C. App. 207 (1998). Officers executing a search warrant for drugs were aware that the defendant was inside his apartment. They also were aware that the defendant had sold large amounts of cocaine to informants on at least two prior occasions, and they believed that he was dangerous. The officers knocked loudly on the door and announced their purpose and identity, waited at least two to three seconds, and then knocked and announced a second time. Approximately ten to fifteen seconds elapsed between the first knock and announcement and the officers’ forcible entry. Before their entry, the officers did not hear any sound from inside the apartment, and they assumed that entry was being denied or unreasonably delayed. The court ruled that the officers’ assumption was reasonable and that the forced entry was proper.
State v. Jones, 97 N.C. App. 189 (1990). Officers acted properly in executing a search warrant when they knocked on the door of a certain premises and announced their identity and purpose loudly and, after waiting approximately one minute and receiving no response, forcibly entered the premises.
State v. Marshall, 94 N.C. App. 20 (1989). Officers acted properly in executing a search warrant for drugs when they gave proper notice, heard the word “police” and the sound of people running inside the house, and then forced their way in. The officers reasonably believed that they were being denied access and that evidence could be destroyed.
State v. Edwards, 70 N.C. App. 317 (1984), rev’d on other grounds, 315 N.C. 304 (1985). A warrant to search an apartment for cocaine was executed at about 10:45 p.m. An officer knocked on a locked storm door and announced in a loud, authoritative voice, “Police have a search warrant, open the door.” After about thirty seconds elapsed without an answer, officers forced open the storm door and the wooden front door and entered the apartment. The court ruled that the announcement and forcible entry complied with G.S. 15A-249 and 15A-251. Because the object of the search was powdery cocaine that could be instantly disposed of, the thirty-second wait between the notice and the forcible entry was reasonable. The court also ruled that the fact that the search was conducted at night did not make the search unreasonable. Traffic in and out of the apartment was heavier at night, and officers needed the cover of darkness to approach the apartment so that the defendant and others could not interfere with the execution of the search warrant.
State v. Willis, 58 N.C. App. 617 (1982), aff’d, 307 N.C. 461 (1983). An officer did not give proper notice as he entered a house to execute a search warrant when he merely shouted “police” but failed to state his purpose for entering. The officer did not have probable cause to believe that giving notice would endanger the life or safety of any person. However, the court ruled that the violation was not so substantial under G.S. 15A-974 as to exclude the evidence seized as a result of the search because (1) the violation was not willful and (2) officers feared that someone inside the house might destroy contraband they were searching for—although this latter fact did not excuse the officers from giving proper notice. [Author’s note: Legislation enacted in 2011 (S.L. 2011-6) added a good-faith exception to the application of G.S. 15A-974.]
State v. Brown, 35 N.C. App. 634 (1978). Officers had a search warrant to search the defendant’s home for marijuana. They devised a plan to enter the home quickly so that the defendant could not destroy any drugs he possessed (the trial judge later found that a confidential informant had told the officers that the drugs might be destroyed). Officers staged a mock chase in front of the defendant’s house. The defendant opened his door and stepped outside the door to investigate the commotion, and one non-uniformed officer, without identifying himself, asked whether he could use the phone. When the defendant refused, the officer pushed his way inside the house, and the search began. The court ruled that the officers violated the notice provisions of G.S. 15A-249. Notice may not be dispensed with even when destruction of contraband is probable. Unannounced, forcible entries are permitted only when a person’s life or safety may be endangered by giving notice. The court also ruled that the violation was substantial under G.S. 15A-974, so that evidence found during the search was inadmissible at trial: the violation was willful, privacy interests were violated, the officers completely failed to follow the provisions of G.S. 15A-249, and the exclusion of evidence would tend to deter future violations. [Author’s note: Legislation enacted in 2011 (S.L. 2011-6) added a good-faith exception to the application of G.S. 15A-974.]
State v. Fruitt, 35 N.C. App. 177 (1978). An officer was executing a search warrant for a dwelling and an outbuilding. He gave notice at the dwelling, and no one responded. His failure to give a second notice before entering the outbuilding was not a substantial violation of G.S. 15A-249.
State v. Gaines, 33 N.C. App. 66 (1977). When approaching a residence to execute a search warrant, officers saw a man run out of the house and speed away in a car. An officer went to the front of the residence, where a screen door was closed but unlocked and the inside door was open about a foot. The officer announced, “Police officer, search warrant.” He then immediately opened the screen door and entered the residence. The court stated that the amount of time required between notice and entry depends on the particular circumstances of a case, and it ruled that notice and entry were proper here.
People Present during the Execution of a Search Warrant
(This topic is discussed in the chapter text under “People on the Premises.”)
Detaining People Present
UNITED STATES SUPREME COURT
Bailey v. United States, 568 U.S. 186 (2013). The United States Supreme Court ruled that Michigan v. Summers, 452 U.S. 692 (1981) (officers executing a search warrant may detain occupants on the premises while the search is conducted), does not justify the detention of occupants beyond the immediate vicinity of the premises covered by a search warrant. In this case, the defendant left the premises before the search began and officers waited to detain him until he had driven about one mile away. The Court reasoned that none of the rationales supporting the Summers decision—officer safety, facilitating the completion of the search, and preventing flight—apply with the same or similar force to the detention of recent occupants beyond the immediate vicinity of the premises. It further concluded that “[a]ny of the individual interests is also insufficient, on its own, to justify an expansion of the rule in Summers to permit the detention of a former occupant, wherever he may be found away from the scene of the search.” Bailey, 568 U.S. at 199. It stated: “The categorical authority to detain incident to the execution of a search warrant must be limited to the immediate vicinity of the premises to be searched.” Id. The Court continued, noting that Summers also relied on the limited intrusion on personal liberty involved with detaining occupants incident to the execution of a search warrant. It concluded that where officers arrest an individual away from his or her home, there is an additional level of intrusiveness. The Court declined to precisely define the term “immediate vicinity,” leaving it to the lower courts to make this determination based on “the lawful limits of the premises, whether the occupant was within the line of sight of his dwelling, the ease of reentry from the occupant’s location, and other relevant factors.” Id. at 201.
Los Angeles County v. Rettele, 550 U.S. 609 (2007). The plaintiffs (a male and a female) sued law enforcement officers and others for allegedly violating their Fourth Amendment rights during the execution of a search warrant authorizing a search of their residence. From September to December 2001, officers investigated a fraud and identity-theft crime ring involving four suspects, all of whom were known to be African Americans. One had registered a 9 millimeter Glock handgun. On December 11, 2001, an officer obtained a search warrant for two houses where he believed he could find the suspects. (The plaintiffs did not challenge the validity of the search warrant or the means by which it was obtained.) Six officers were involved with the execution of the search warrant and were informed that the suspects were African Americans, one of whom owned a registered handgun. The officers, with guns drawn, entered the plaintiffs’ house and then entered a bedroom in which the plaintiffs were in bed under bed sheets. The plaintiffs, who were white, were ordered to get out of bed and show their hands. They protested that they were not wearing clothes. They were held at gunpoint for one to two minutes before being allowed to get dressed. The officers apologized to the plaintiffs, thanked them for not becoming upset, and left within minutes. The Court ruled that the officers did not act unreasonably under the Fourth Amendment in executing the search warrant. Concerning the plaintiffs’ race, the Court noted that when the officers ordered them from their bed, they had no way of knowing whether the African American suspects were elsewhere in the house. The officers, who were searching a house where they believed a suspect was armed, were entitled to secure the premises before deciding whether to continue the search. The Court stated that the Constitution does not require an officer to ignore the possibility that an armed suspect may sleep with a weapon within reach. The officers were not required to turn their backs to allow the plaintiffs to retrieve clothing or to cover themselves with the bed sheets. And there was no allegation that the officers prevented the plaintiffs from dressing longer than necessary to protect their safety.
Muehler v. Mena, 544 U.S. 93 (2005). Officers obtained a search warrant for a house and premises to search for deadly weapons and evidence of gang membership related to an investigation of a gang-related drive-by shooting. A SWAT team and other officers (a total of eighteen officers altogether) executed the warrant. Aware that the gang was composed primarily of illegal immigrants, a federal immigration officer accompanied the officers. One or two officers guarded four occupants detained at the scene, who were handcuffed for about two to three hours while the warrant was executed. In addition, the immigration officer questioned the occupants about their immigration status while the warrant was executed. One of the occupants (the plaintiff in this case) sued the officers for allegedly violating her Fourth Amendment rights during the execution of the search warrant. The Court ruled that the detention of the plaintiff in handcuffs was reasonable under the Fourth Amendment. The two-to-three-hour detention in handcuffs in this case did not outweigh the officers’ continuing safety interests.
Illinois v. McArthur, 531 U.S. 326 (2001). Officers accompanied the defendant’s wife to a trailer, where she lived with the defendant, so that she could peacefully remove her belongings. After collecting her belongings and leaving the trailer, she told the officers that she had seen the defendant slide some marijuana under the couch. An officer knocked on the door of the trailer, told the defendant what his wife had said, and asked for consent to search the trailer. The defendant refused. The officer then told another officer to get a search warrant and told the defendant (who was now outside the trailer) that he could not reenter the trailer without an officer accompanying him. A search warrant was obtained within two hours. The Court ruled that the officers’ action in preventing the defendant from reentering the trailer was reasonable under the Fourth Amendment. First, the officers had probable cause to believe that the trailer contained illegal drugs. Second, they had good reason to fear that the defendant, unless restrained, would destroy the drugs before they could return with a search warrant. Third, the officers imposed a significantly less-restrictive restraint than arresting the defendant or searching the trailer without a warrant. Fourth, they imposed the restraint for a limited period of time, two hours.
Michigan v. Summers, 452 U.S. 692 (1981). As officers were arriving at a house to execute a search warrant for drugs, they saw the defendant go out the front door of the house and walk across the porch and down the steps. They asked for his help in gaining entry and detained him while they searched the house. He later was arrested when officers found drugs in the house and determined that he owned the house. The Court ruled that a search warrant for contraband implicitly authorizes executing officers to detain occupants of premises while a search is conducted. See also State v. Guy, 54 N.C. App. 208 (1981), and G.S. 15A-256, which authorizes the detention of all persons present, not just occupants, during a search of premises not generally open to the public or of a vehicle other than a common carrier; United States v. Pace, 898 F.2d 1218 (7th Cir. 1990) (detaining visitors in condominium being searched with search warrant was proper based on facts in this case); Baker v. Monroe Twp., 50 F.3d 1186 (3d Cir. 1995) (detaining people who were walking up to door of house in which officers were about to execute search warrant for illegal drugs was reasonable; detention is permissible to determine if people live there).
NORTH CAROLINA SUPREME COURT
State v. Wilson, 371 N.C. 920 (2018). The court ruled that Michigan v. Summers, 452 U.S. 692 (1981), justified a seizure of the defendant when he posed a real threat to the safe and efficient completion of a search warrant execution and that the later search of the defendant was supported by individualized suspicion. A SWAT team was sweeping a house so that the police could execute a search warrant. Several officers were positioned around the house to create a perimeter securing the scene. The defendant penetrated the SWAT perimeter, stating that he was going to get his moped. In so doing, he passed Officer Christian, who was stationed at the perimeter near the street. The defendant then kept going, moving up the driveway and toward the house to be searched. Officer Ayers, who was stationed near the house, confronted the defendant. After a brief interaction, Officer Ayers searched the defendant based on his suspicion that the defendant was armed. Officer Ayers found a firearm in the defendant’s pocket. The defendant, who had previously been convicted of a felony, was arrested and charged with being a felon in possession of a firearm. He unsuccessfully moved to suppress evidence of the firearm at trial and was convicted.
The court of appeals ruled that the search was invalid because the trial court’s order did not show that the search was supported by reasonable suspicion. The supreme court reversed. It ruled that “the rule in Michigan v. Summers justified the seizure here because the defendant, who passed one officer, stated he was going to get his moped, and continued toward the premises being searched, posed a real threat to the safe and efficient completion of the search.” Wilson, 371 N.C. at 921. The court interpreted the Summers rule to mean that a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain occupants who are within the immediate vicinity of the premises to be searched and who are present during the execution of a search warrant. Applying this rule, the court determined that “a person is an occupant for the purposes of the Summers rule if he poses a real threat to the safe and efficient execution of a search warrant.” Id. at 925 (internal quotation marks, citation omitted). Here, the defendant posed such a threat. The court reasoned: “He approached the house being swept, announced his intent to retrieve his moped from the premises, and appeared to be armed. It was obvious that defendant posed a threat to the safe completion of the search.” Id.
Because the Summers rule only justifies detentions incident to the execution of search warrants, the court went on to consider whether the later search of the defendant’s person was justified. On this issue the court held that the search of the defendant was supported by individualized suspicion and thus did not violate the Fourth Amendment.
NORTH CAROLINA COURT OF APPEALS
State v. Crabtree, 126 N.C. App. 729 (1997). While executing search warrants of a bingo hall to seize evidence being used to operate illegal gambling, officers asked questions of detained bingo hall employees. The court ruled that the officers acted within their authority under G.S. 15A-256 and that the manner in which they executed the search warrants did not convert them into general search warrants.
State v. Patrick, 88 N.C. App. 582 (1988). An officer approached a private residence to investigate a report that illegal drugs were being used there. He saw the defendant outside the residence using a bong, a device commonly used to smoke an illegal drug. The officer returned thirty minutes later with a search warrant to search the residence. The defendant arrived at the residence while the officer was executing the search warrant. The court ruled that the officer had authority to detain the defendant under G.S. 15A-256.
FEDERAL APPELLATE COURTS
United States v. Edwards, 103 F.3d 90 (10th Cir. 1996). The defendant, a nonresident of a house to be searched with a search warrant, left the house in a car and was stopped three blocks from the house. The court ruled that the detention of the defendant was not supported by Michigan v. Summers, 452 U.S. 692 (1981), because his detention did not play any part in facilitating the execution of the search warrant.
United States v. Fountain, 2 F.3d 656 (6th Cir. 1993). The detention of a nonresident occupant during officers’ execution of a search warrant to search a home for drugs was reasonable and justified by legitimate interests in preventing flight on discovery of any incriminating evidence and in minimizing the risk of harm to the officers. The officers entered a confined, unfamiliar environment that was likely to be dangerous in light of (1) the nature of the drug investigation they were conducting and (2) the fact that weapons had been seized from the home one month before the search.
United States v. Young, 909 F.2d 442 (11th Cir. 1990). An occupant fled from a house as officers were approaching to execute a search warrant there for drugs. The court ruled that the officers had authority to detain the occupant and search her bulging purse based on probable cause and exigent circumstances.
Searching People Present
NORTH CAROLINA COURT OF APPEALS
State v. Cutshall, 136 N.C. App. 756 (2000). Officers executed a search warrant that authorized a search for (1) crack cocaine and other controlled substances at a mobile home and all outbuildings at 5516 Cross Street and (2) a search of a specific person, who was not the defendant. The officers secured the mobile home and several people there, including the defendant. The officers found crack cocaine in an outbuilding but not in the mobile home. An officer searched the defendant and found crack cocaine and crack pipes in his jacket pocket. G.S. 15A-256 did not authorize the search of the defendant. The statute authorizes a search of a person who is not named in a search warrant and who is found on private premises when the search warrant is executed only if a search of the premises does not reveal the items sought in the search warrant. The court rejected the State’s argument that evidence found in outbuildings is not to be considered in applying G.S. 15A-256, stating that the statute does not distinguish between different units on the premises. The court also noted that the record in this case did not support probable cause to search the defendant.
State v. Brooks, 51 N.C. App. 90 (1981). When a search of a certain residence found some hashish but not the specific 100 grams of ready-to-sell hashish being sought (and apparently described in the affidavit for a search warrant), an officer then had authority under G.S. 15A-256 to search the defendant at the residence. The court alternatively ruled that officers had probable cause to believe that the defendant may have had the hashish on his person. See also State v. Watlington, 30 N.C. App. 101 (1976) (search of car with search warrant failed to find heroin; court upheld search of passenger under authority of G.S. 15A-256).
Frisking People Present
UNITED STATES SUPREME COURT
Los Angeles County v. Rettele, 550 U.S. 609 (2007). The plaintiffs (a male and a female) sued law enforcement officers and others for allegedly violating their Fourth Amendment rights during the execution of a search warrant authorizing a search of their residence. From September to December 2001, officers investigated a fraud and identity-theft crime ring involving four suspects, all of whom were known to be African Americans. One had registered a 9 millimeter Glock handgun. On December 11, 2001, an officer obtained a search warrant for two houses where he believed he could find the suspects. (The plaintiffs did not challenge the validity of the search warrant or the means by which it was obtained.) Six officers were involved with the execution of the search warrant and were informed that the suspects were African Americans, one of whom owned a registered handgun. The officers, with guns drawn, entered the plaintiffs’ house and then a bedroom in which the plaintiffs were in bed under bed sheets. The plaintiffs, who were white, were ordered to get out of bed and show their hands. They protested that they were not wearing clothes. They were held at gunpoint for one to two minutes before being allowed to get dressed. The officers apologized to the plaintiffs, thanked them for not becoming upset, and left within minutes. The Court ruled that the officers did not act unreasonably under the Fourth Amendment in executing the search warrant. Concerning the plaintiffs’ race, the Court noted that when the officers ordered them from their bed, they had no way of knowing whether the African American suspects were elsewhere in the house. The officers, who were searching a house where they believed a suspect was armed, were entitled to secure the premises before deciding whether to continue the search. The Court stated that the Constitution does not require an officer to ignore the possibility that an armed suspect may sleep with a weapon within reach. The officers were not required to turn their backs to allow the plaintiffs to retrieve clothing or to cover themselves with the bed sheets. And there was no allegation that the officers prevented the plaintiffs from dressing longer than necessary to protect their safety.
Ybarra v. Illinois, 444 U.S. 85 (1979). When executing a warrant that authorized a search for drugs (1) in a public tavern and (2) on the person of the tavern’s bartender, officers could not frisk the defendant—a bar patron who was present at the time of the search—without reasonable suspicion that he was armed and dangerous.
NORTH CAROLINA COURT OF APPEALS
State v. Richmond, 215 N.C. App. 475 (2011). An officer was present at a location to execute a search warrant in connection with drug offenses. The court of appeals ruled that evidence supported the trial court’s finding that the officer, based on his training and experience, immediately formed the opinion during a pat-down that a bulge in the defendant’s pants contained a controlled substance. Although the officer testified that he felt a “knot” in the defendant’s pants that he could not “describe with any specificity,” id. at 481, the officer also testified that he had discovered similar knots before in his six years of experience and had previously discovered “[b]ags of marijuana, bags of cocaine, bags of crack.” Id. at 482.
State v. Harris, 95 N.C. App. 691 (1989), aff’d per curiam, 326 N.C. 588 (1990). Officers had a warrant to search a motel room to arrest a person for drug charges. The officers were outside the motel room planning to execute the warrant the next time the door to the room opened. When the defendant (who was not the person to be arrested) exited the room into the hallway, some officers went into the room to execute the warrant while other officers frisked the defendant for a weapon. The court upheld the frisk because the officers had a reasonable suspicion that the defendant had a weapon based on their professional experience that weapons are found on people or premises in at least 85 percent of the searches they conduct when drugs are involved (and the activity in the motel room indicated that a drug transaction might have occurred there).
State v. Davis, 94 N.C. App. 358 (1989). Officers entered a lounge with a search warrant to search it and two proprietors of the lounge. The officers knew from prior searches of the lounge that its patrons often carried weapons. An officer told all the people in the lounge to raise their hands above their heads and announced that they all would be frisked for weapons. The defendant raised his hands as instructed but then attempted three times to lower one hand. Each time he lowered his hand, the officer told him to keep his hands up. After the third attempt, the officer frisked the defendant and felt an object in his coat. The officer reached into the coat pocket and found a revolver. The court ruled that the officer had a factual basis for the frisk under G.S. 15A-255.
State v. Long, 37 N.C. App. 662 (1978). In a case decided before Ybarra v. Illinois, 444 U.S. 85 (1979), discussed above, but not necessarily inconsistent with its rationale, the court ruled that an officer properly frisked for weapons the boot of a person who was present in private premises when a search warrant for drugs was being executed. The court stated that a frisk for weapons automatically may be made of all persons present in a private residence when it is being searched under a search warrant, provided there is probable cause to believe that it is a place where drugs are bought and sold.
Strip Search of Person Named in Search Warrant to Be Searched
NORTH CAROLINA COURT OF APPEALS
State v. Johnson, 143 N.C. App. 307 (2001). Officers executed a search warrant authorizing a search of the defendant and his apartment for illegal drugs based on information that the defendant was selling crack cocaine in his apartment. During the search, the officers seized two shotguns and a pair of electronic scales. An initial search of the defendant revealed almost $2,000 in small denominations. The officers then asked the defendant to remove his clothing and to bend over at the waist. When he did, they saw a piece of plastic protruding from his anus. The defendant complied with the officers’ request to remove the package, which contained seventeen individually packaged bags of crack cocaine.
The court ruled that this strip search was reasonable under the totality of the circumstances. The court stated that the strip search was not unreasonable simply because the officer did not articulate specific reasons in the search warrant application as to why a strip search was necessary, citing a case that ruled that reasons were not necessary, see State v. Colin, 809 P.2d 228 (Wash. Ct. App. 1991). Controlled substances could readily be concealed on a person so that they would not be found without a strip search, and an officer testified at the suppression hearing that there is a trend toward hiding controlled substances in body cavities. The court noted the approval of a strip search in State v. Smith, 342 N.C. 407 (1995) (officers pulled down defendant’s pants far enough that they could see the corner of a towel underneath the defendant’s scrotum). The court also ruled that the search was conducted in a reasonable manner. Two male officers searched the defendant in his bedroom, and they did not touch him.
Territorial Jurisdiction to Execute a Search Warrant
(This topic is discussed in the chapter text under “Who May Issue a Search Warrant.”)
NORTH CAROLINA COURT OF APPEALS
State v. Proctor, 62 N.C. App. 233 (1983). A city law enforcement officer in this case had no authority to execute a search warrant more than one mile beyond the city limits.
State v. Treants, 60 N.C. App. 203 (1982). A city law enforcement officer had authority to execute a search warrant outside the city limits when he executed it within one mile of the city limits.
Motive in Executing a Search Warrant
FEDERAL APPELLATE COURTS
United States v. Van Dreel, 155 F.3d 902 (7th Cir. 1998). The court ruled that the ruling in Whren v. United States, 517 U.S. 806 (1996) (officer’s motive for making traffic stop is irrelevant under Fourth Amendment when probable cause existed for traffic violation), foreclosed inquiry into the defendant’s assertion that a drug officer participating in the execution of a valid search warrant for hunting violations subjectively intended to search for illegal drugs rather than hunting violations.
Second Entry under Same Search Warrant
FEDERAL APPELLATE COURTS
United States v. Kaplan, 895 F.2d 618 (9th Cir. 1990). The court ruled that an officer executing a warrant to search the defendant-doctor’s office could properly return to the office two hours later to obtain remaining files listed to be seized in the warrant, which had not been given to the officer earlier. The second entry was a proper continuation of the first entry under the search warrant. Compare with United States v. Keszthelyi, 308 F.3d 557 (6th Cir. 2002) (circumstances did not justify second entry under same search warrant).
Service of a Search Warrant and Completion of an Inventory
(This topic is discussed in the chapter text under “Execution and Return of the Search Warrant” and “Inventory of Seized Property.”)
UNITED STATES SUPREME COURT
City of West Covina v. Perkins, 525 U.S. 234 (1999). The Court ruled that the Due Process Clause does not require law enforcement officers who have seized property to provide the property owner with notice of state law remedies for the return of the property.
NORTH CAROLINA SUPREME COURT
State v. Knight, 340 N.C. 531 (1995). The murder victim was stabbed twenty-seven times, was castrated, and his penis was inserted in his mouth. Officers went to the defendant’s home to execute arrest and search warrants for this murder. They knocked on the front door several times and announced, “Police! Search warrant!” at least two or three times. After waiting thirty to sixty seconds and hearing no response from inside the residence, the officers used a battering ram to open the door. They entered the residence, conducted a quick sweep for weapons, and arrested the defendant. The search warrant was read to the defendant about ten minutes after the entry into the residence and the initial sweep but before any search was undertaken. Execution of the search warrant complied with the provisions of G.S. Chapter 15A.
NORTH CAROLINA COURT OF APPEALS
State v. Downey, 249 N.C. App. 415 (2016). The court rejected the defendant’s argument that the trial court erred by denying his motion to suppress evidence collected from his residence during the execution of a search warrant on the grounds that the inventory list prepared by one of the officers who executed the warrant was unlawfully vague and inaccurate in describing the items seized. The defendant argued that the evidence gathered from his residence was obtained in substantial violation of G.S. 15A-254, which requires an officer executing a search warrant to write and sign a receipt itemizing the items taken. However, in order for suppression to be warranted for a substantial violation of G.S. Chapter 15A, G.S. 15A-974 requires (1) that the evidence be obtained as a result of an officer’s unlawful conduct and (2) that it would not have been obtained but for the unlawful conduct. Here, citing prior case law, the court held, in part, that because the evidence was seized before the inventory required by the statute had to be prepared, the defendant failed to show that the evidence would not have been obtained but for the alleged violations of G.S. 15A-254. The court held that G.S. 15A-254 “applies only after evidence has been obtained and does not implicate the right to be free from unreasonable search and seizure. In turn, because evidence cannot be obtained ‘as a result of’ a violation of [G.S.] 15A-254, G.S.] 15A-974(a)(2) is inapplicable to either alleged or actual [G.S.] 15A-254 violations.” Id. at 426.
State v. Vick, 130 N.C. App. 207 (1998). The court ruled that officers violated G.S. 15A-252 by failing to give the defendant copies of a search warrant and an affidavit before executing the warrant (the officers left copies in the defendant’s apartment at the conclusion of their search) but that the violation was not substantial under G.S. 15A-974 to require exclusion of the seized evidence. [Author’s note: Legislation enacted in 2011 (S.L. 2011-6) added a good-faith exception to the application of G.S. 15A-974.]
In re Beck, 109 N.C. App. 539 (1993). After criminal charges against defendant-parents had been dismissed, a sheriff’s department did not act illegally in transferring sexually explicit materials (which had been seized pursuant to a search warrant) to the county department of social services for their use in a termination of parental rights hearing.
State v. Moose, 101 N.C. App. 59 (1990). An officer received a tip that the defendant was in possession of “a large quantity” of cocaine. As the officer walked into the defendant’s office after obtaining a search warrant, the defendant said to the officer, “You don’t need that,” and told the officer where the cocaine was located. The officer followed the defendant’s direction to locate a metal box and then read the search warrant to him. The defendant prevented immediate compliance with G.S. 15A-252 by volunteering the information.
State v. Jones, 97 N.C. App. 189 (1990). (1) Although G.S. 15A-252 requires that a search warrant must be served before an officer conducts a search or seizure, an officer may locate, detain, and frisk individuals on the premises to be searched before serving the warrant. (2) An officer who executes a search warrant need not be the same officer to whom the warrant was issued. (3) Officers did not violate G.S. 15A-258 by releasing currency seized during the execution of a search warrant to federal law enforcement officers. The statute does not require that a court order must be obtained before the release of seized property, and it expressly authorizes property to be held by any law enforcement agency. See also State v. Hill, 153 N.C. App. 716 (2002) (neither G.S. 15-11.1 nor G.S. 90-112 bars North Carolina state or local law enforcement officers from delivering evidence to federal authorities, including illegal drug-related currency to be forfeited under federal law).
State v. Copeland, 64 N.C. App. 612 (1983). An officer who executed a search warrant gave the defendant illegible copies of the warrant affidavit and application, in violation of law, although the copy of the search warrant the officer gave the defendant was legible. The court noted that there was no evidence that the violation was willful and concluded that it was not a substantial violation under G.S. 15A-974 that required exclusion of evidence seized during the execution of the warrant. [Author’s note: Legislation enacted in 2011 (S.L. 2011-6) added a good-faith exception to the application of G.S. 15A-974.]
State v. Fruitt, 35 N.C. App. 177 (1978). An officer violated G.S. 15A-252 by not leaving a copy of a search warrant affixed to the premises to be searched and G.S. 15A-254 by not leaving an itemized receipt of items taken. However, these were not substantial violations under G.S. 15A-974 because the officer returned to the premises hours later and gave the defendant an itemized receipt (and, apparently, also gave him a copy of the search warrant). In addition, the violations were not willful, and they occurred after the search had been completed. [Author’s note: Legislation enacted in 2011 (S.L. 2011-6) added a good-faith exception to the application of G.S. 15A-974.]
FEDERAL APPELLATE COURTS
Lathon v. City of St. Louis, 242 F.3d 841 (8th Cir. 2001). A police department refused to return weapons and ammunition seized under a search warrant after it was determined that these items were not contraband and were not required as evidence in a court proceeding. The department’s refusal was based on the belief that a court order was necessary to return the items. The court ruled that the owner of the weapons and ammunition properly alleged a due process violation and that the adequacy of a post-deprivation remedy was irrelevant to whether the owner could maintain a due process claim.
United States v. Simons, 206 F.3d 392 (4th Cir. 2000). An officer’s failure to leave a copy of a search warrant or a receipt for items taken does not render a search unreasonable under the Fourth Amendment.
Objectively Reasonable Conduct in Executing a Search Warrant
UNITED STATES SUPREME COURT
Maryland v. Garrison, 480 U.S. 79 (1987). Officers executed a search warrant that described the place to be searched as the “third floor apartment” of the premises at a certain address when they reasonably believed that there was only one apartment on the third floor. However, there were actually two apartments on the third floor. The officers found drugs in one apartment on that floor, which was not the object of the search, before they realized their mistake. The Court ruled that (1) the search warrant was valid when it was issued, considering the officers’ information then, and (2) the execution of the warrant did not violate the defendant’s Fourth Amendment rights because the officers’ failure to realize the warrant’s overbroad description of the third-floor apartment was objectively reasonable. See also United States v. Williams, 917 F.2d 1088 (8th Cir. 1990).
Using a Search Warrant to Take Blood
NORTH CAROLINA COURT OF APPEALS
State v. Chavez, 237 N.C. App. 475 (2014). The court rejected the defendant’s argument that the right to have a witness present for blood-alcohol testing performed under G.S. 20-16.2 applies to blood draws taken pursuant to a search warrant. The court also rejected the defendant’s argument that failure to allow a witness to be present for the blood draw violated his constitutional rights, ruling that the defendant had no constitutional right to have a witness present for the execution of the search warrant.
State v. Davis, 142 N.C. App. 81 (2001). The defendant drove through a red light and struck another vehicle. He was convicted of DWI and running a red light. An officer arrested the defendant and took him to a hospital for a blood test. A chemical analyst advised the defendant of his rights under North Carolina’s implied-consent law, but the defendant refused to take a blood test. When a search warrant was then obtained, the defendant submitted to blood and urine testing. Evidence of the test results was admitted at trial.
(1) The court ruled, relying on State v. Drdak, 330 N.C. 587 (1992), that the test results were admissible at trial under G.S. 20-16.2(c) (refusal under implied-consent law does not preclude testing under “other applicable procedures of law”); see also G.S. 20-139.1(a). The court also rejected the defendant’s due process argument that because he was told he had a right to refuse to be tested, no test could thereafter be given. (2) The court ruled that evidence of the defendant’s refusal to submit to blood testing under the implied-consent law was admissible at trial even though the officer later obtained a search warrant for blood and urine. The officer’s failure to warn the defendant that the officer could seek alternative methods of testing did not render inadmissible the defendant’s refusal under the implied-consent law. [Author’s note: Based on the ruling in Schmerber v. California, 384 U.S. 757 (1966), an officer is not required to obtain a search warrant to take blood when probable cause and exigent circumstances exist; the dissipation of alcohol in the bloodstream constitutes exigent circumstances.]
FEDERAL APPELLATE COURTS
United States v. Bullock, 71 F.3d 171 (5th Cir. 1995). Officers obtained a search warrant to take blood from the defendant. Knowing that the defendant had threatened to resist the execution of the search warrant, the officers sought and received judicial approval to use physical force. A seven-member “control team” was used to subdue him. The defendant was handcuffed and shackled between two cots that were strapped together. He physically resisted by kicking, hitting, and attempting to bite the officers. A towel was placed on the defendant’s face because he was spitting on the officers. A nurse took blood from the defendant’s hand.
The court ruled, based on these facts, that the use of force to execute the search warrant was reasonable under the Fourth Amendment. Citing United States v. Wade, 388 U.S. 218 (1967), the court also rejected the defendant’s argument that his Sixth Amendment right to counsel was violated because his attorney was not present during the procedures. See also Hammer v. Gross, 932 F.2d 842 (9th Cir. 1991) (officers entitled to qualified immunity in civil lawsuit against them that alleged excessive use of force to obtain blood from defendant who had been arrested for impaired driving); State v. Clary, 2 P.3d 1255 (Ariz. Ct. App. 2000) (use of force to obtain blood from DWI defendant pursuant to search warrant was reasonable).
(This topic is discussed in the chapter text under “News Media Presence during Search.”)
UNITED STATES SUPREME COURT
Wilson v. Layne, 526 U.S. 603 (1999). Law enforcement officers invited news media representatives to accompany them during the execution of an arrest warrant in a home. The Court ruled that officers violate the Fourth Amendment when they bring news media or other third parties into a home during the execution of a warrant when the third parties’ presence is not aiding the warrant’s execution. The news media clearly were not aiding the execution of the arrest warrant in this case. The Court noted that third parties may properly aid the execution of a search warrant by, for example, identifying stolen property. The Court also ruled that the officers in this case were entitled to qualified immunity because the Fourth Amendment right set out in this opinion was not clearly established when the violation occurred in 1992. The Court issued a similar ruling in Hanlon v. Berger, 526 U.S. 808 (1999), which involved officers allowing the news media to accompany them during the execution of a search warrant for a ranch and its outbuildings.
FEDERAL APPELLATE COURTS
United States v. Hendrixson, 234 F.3d 494 (11th Cir. 2000). The exclusionary rule does not apply to evidence seized by law enforcement officers during the execution of a search warrant when news media are present in violation of Wilson v. Layne, discussed immediately above.
Buonocore v. Harris, 65 F.3d 347 (4th Cir. 1995), later appeal, 134 F.3d 245 (4th Cir. 1998). The Fourth Amendment prohibits government agents from allowing a search warrant to be used to facilitate a private individual’s independent search of another’s home for items unrelated to those specified in the warrant.
Scope of the Search and Seizure with a Search Warrant
Seizing Items in Plain View
(This topic is discussed in the chapter text under “Scope of the Search.”)
United States Supreme Court
Horton v. California, 496 U.S. 128 (1990). A person was robbed of jewelry and cash by two masked men, one armed with a machine gun and the other with a stun gun. An officer developed probable cause to search a home for the weapons and robbery proceeds, but the search warrant issued by the magistrate authorized a search only for the proceeds, not the weapons. While searching for the proceeds, the officer discovered the weapons in plain view and seized them.
The Court overruled that part of the opinion in Coolidge v. New Hampshire, 403 U.S. 443 (1971), that required, under the plain-view doctrine, that the discovery of evidence to be seized must be inadvertent. The Court then ruled that the seizure in this case was authorized by the plain-view doctrine because (1) the weapons were seized during a lawful search for the robbery proceeds that was authorized by a valid search warrant and (2) when the weapons were discovered, it was immediately apparent to the officer that they constituted incriminating evidence (i.e., the officer had probable cause to believe that the weapons had been used in the robbery). The search was authorized by a search warrant, and the seizure was authorized by the plain-view doctrine. [Author’s note: When an officer is executing a search warrant, G.S. 15A-253 permits the seizure of items “inadvertently” discovered. If this statute is considered to have been violated because an officer does not seize items inadvertently, G.S. 15A-974(a)(2) will govern whether the items should be excluded from a trial. See the discussion of G.S. 15A-253 in State v. Mickey, 347 N.C. 508 (1998). Unfortunately, North Carolina appellate courts continue to assert erroneously that the plain-view doctrine requires that the evidence must be discovered inadvertently during a warrantless seizure in which G.S. 15A-253 is inapplicable. See, e.g., State v. Bone, 354 N.C. 1 (2001); State v. Castellon, 151 N.C. App. 675 (2002).]
Arizona v. Hicks, 480 U.S. 321 (1987). The Court ruled that an officer who conducts a search or seizure under the plain-view doctrine must have probable cause to do so; reasonable suspicion is insufficient. In Hicks, officers without a warrant properly entered an apartment where a shooting had occurred to search for the shooter and any victims or weapons. They seized three weapons and a stocking-cap mask. In this squalid apartment, the officers saw two expensive stereo components. An officer read serial numbers from some items without moving them; the Court ruled that this act was neither a search nor a seizure and therefore did not violate the defendant’s Fourth Amendment rights. However, the officer moved a turntable so that he could read its serial number. This act constituted a search that required probable cause—probable cause also was necessary to support the later seizure of the turntable from the apartment. Because the State had conceded (unwisely, it appears) that only reasonable suspicion existed to move the turntable, the Court ruled that the officer’s actions violated the defendant’s Fourth Amendment rights.
North Carolina Supreme Court
State v. White, 322 N.C. 770 (1988). Officers executed a search warrant for stolen property and seized stolen items that were not named in the warrant. The court ruled that “inadvertence” (which no longer is required under the Fourth Amendment—see Horton v. California, 496 U.S. 128 (1990), discussed above in this section under “UNITED STATES SUPREME COURT”)—but applies under G.S. 15A-253) under the plain-view doctrine means that officers do not have probable cause to believe that evidence will be discovered until they actually observe it during an otherwise justified search. Judicial review involves a two-step inquiry: (1) Before the search, did officers have probable cause to secure a search warrant for the later-seized items that were not named in the search warrant? If the answer is yes, the seizure is illegal. If the answer is no, then the review proceeds to the second inquiry. (2) Did the officers have probable cause to believe that the seized items were evidence of a crime when they seized them without a warrant?
The court in White ruled that the officers’ use of break-in incident reports when they were executing a search warrant did not violate the plain-view inadvertence requirement because the officers did not have probable cause to list the items named in these reports in a search warrant. Therefore, the officers properly seized these items. The court also ruled, however, that the officers did not have probable cause to seize other items, not named in the reports, until after they seized them; therefore, the officers illegally seized those items.
State v. Williams, 315 N.C. 310 (1986). When executing a search warrant to seize bloody clothing, an officer acted reasonably when he lifted a telephone book to look for the clothing because it could have been hidden under, behind, or even inside a book. Also, an officer properly seized a missing padlock. The discovery of the padlock was inadvertent (but see Horton v. California, 496 U.S. 128 (1990), discussed above in this section under “UNITED STATES SUPREME COURT,” about the inadvertence requirement) because the officers did not intend to search for and seize it when they were searching for the clothing.
State v. Williams, 299 N.C. 529 (1980). When executing a search warrant for heroin in a trailer, officers properly seized letters and photographs (although they were not listed in the warrant as objects to be seized) as evidence of who owned the trailer under the plain-view doctrine and under G.S. 15A-253 (which sets out the plain-view doctrine when executing a search warrant).
State v. Richards, 294 N.C. 474 (1978). Officers who were executing a search warrant for a .25 caliber pistol involved in a murder discovered and seized a .38 caliber revolver and a .22 caliber sawed-off rifle. The court ruled that these weapons were discovered inadvertently (but see Horton v. California, 496 U.S. 128 (1990), discussed above in this section under “UNITED STATES SUPREME COURT,” about the inadvertence requirement) while the officers were searching for the .25 caliber pistol. Although the officers knew that other weapons might have been involved in the murder, they could not describe them and did not have any information as to where they were located. A nexus existed between criminal activity and these weapons because the officers had information linking a hired killer and the other handguns, and they had taken a weapon from the defendant when he was arrested the day before this search. See also State v. Riddick, 291 N.C. 399 (1976) (proper seizure of tennis shoes worn during murder); State v. Rigsbee, 285 N.C. 708 (1974) (proper seizure of marked money used during drug transaction); State v. Newsom, 284 N.C. 412 (1973) (proper seizure of currency commingled with illegal drugs); State v. Armstrong, 45 N.C. App. 40 (1980) (proper seizure of stolen television set while search warrant for items from a different break-in was being executed); State v. Estep, 61 N.C. App. 495 (1983) (proper seizure of stolen cars while search warrant for illegal drugs was being executed).
North Carolina Court of Appeals
State v. Cummings, 113 N.C. App. 368 (1994). Officers executing a search warrant for drugs, drug records, and the like discovered and seized ninety-four photographs of nude women. The seizure was proper under the plain-view justification because the photographs could have been evidence of an obscenity offense.
State v. Connard, 81 N.C. App. 327 (1986), aff’d, 319 N.C. 392 (1987). A search warrant authorized the seizure of Dilaudid, Valium, and stolen goods—with no description of the goods. The court ruled that the description “stolen goods” was insufficient, although the descriptions “Dilaudid” and “Valium” were sufficient. Because the warrant’s provisions were severable, the officers could search for the named drugs or for those of the same drug class but could not conduct a general exploratory search of the defendant’s home and van and could not inventory their contents to discover stolen goods. The court ruled the officers’ seizure of all but one stolen item unconstitutional because the officers did not determine that these items were stolen until they inventoried the goods in the defendant’s house and van and checked police files. This case was decided before the ruling in Arizona v. Hicks, 480 U.S. 321 (1987), discussed above in this section under “UNITED STATES SUPREME COURT.” Assuming that the officers conducted a search or a seizure of each item, as those terms are defined in Hicks, the court’s ruling is consistent with that decision.
The court upheld under the plain-view theory the seizure of a television set that was missing its outside serial number. The court ruled that a missing serial number, when other suspicious circumstances exist, is sufficient to authorize a seizure under the plain-view theory. Assuming that the officers did not move the television to see that the serial number was missing, the ruling in this case is consistent with Hicks.
State v. Absher, 34 N.C. App. 197 (1977). While executing a warrant to search for marijuana, officers seized a ledger book showing names with dollar signs beside them. The ledger was properly seized under the plain-view doctrine because (1) a nexus existed between the item seized and marijuana possession; (2) the item was in plain view; and (3) discovery of the item was inadvertent (but see Horton v. California, 496 U.S. 128 (1990), discussed above in this section under “UNITED STATES SUPREME COURT,” about the inadvertence requirement) because, before they executed the search warrant, officers had only some information that the ledger might be in a particular place, not probable cause to justify a specific search. See also State v. Zimmerman, 23 N.C. App. 396 (1974); State v. Tate, 58 N.C. App. 494, aff’d, 307 N.C. 464 (1983).
State v. Cumber, 32 N.C. App. 329 (1977). An officer’s seizure of stolen furniture while he was executing a warrant to search for stolen liquor was inadvertent (but see Horton v. California, 496 U.S. 128 (1990), discussed above in this section under “UNITED STATES SUPREME COURT,” about the inadvertence requirement) because, although the officer had some information that stolen furniture was on the premises, he did not have probable cause until he went there to help execute the warrant to search for liquor.
Federal Appellate Courts
United States v. Soussi, 29 F.3d 565 (10th Cir. 1994). Even if part of a search warrant is invalid, law enforcement officers may properly seize evidence in plain view listed in the invalid part of the warrant if the redacted warrant justifies the officers’ presence in the place to be searched.
United States v. Simpson, 10 F.3d 645 (9th Cir. 1993), vacated on other grounds, 513 U.S. 983 (1994). The seizure of a rifle during the execution of a search warrant to search for illegal drugs was proper under the plain-view doctrine because of the close relationship between drugs and firearms in the narcotics business.
United States v. Barnes, 909 F.2d 1059 (7th Cir. 1990). Officers who were executing a search warrant for cocaine had authority to look through a spiral notebook that might conceal cocaine. The fact that the notebook contained calculations of weights and lists of individuals, with notations of “paid” and “owe” and numbers after those notations, gave officers probable cause to seize the notebook.
United States v. Caggiano, 899 F.2d 99 (1st Cir. 1990). While executing a search warrant for illegal drugs, officers seized weapons. The court ruled that weapons, like glassine bags, scales, and cutting equipment, are an expected and usual accessory of the drug trade and therefore have evidentiary use at trial. Therefore, the officers properly seized them under the plain-view doctrine. See also United States v. Smith, 918 F.2d 1501 (11th Cir. 1990) (similar ruling); United States v. Matthews, 942 F.2d 779 (10th Cir. 1991) (similar ruling).
United States v. Meyer, 827 F.2d 943 (3d Cir. 1987). During the execution of a search warrant for stolen items, officers discovered (in a crawl space under a partially concealed trap door in the premises of a known fence) four packages of merchandise. Three of the packages contained stolen goods (jewelry) named in the warrant. Based on these and other facts, the officers had probable cause to believe that the forty-seven wrist watches found in the fourth package were stolen goods. The watches were properly seized under the plain-view doctrine. But see United States v. Rutkowski, 877 F.2d 139 (1st Cir. 1989) (distinguishing Meyer, court ruled that officer executing search warrant did not have probable cause to seize platinum that was not named as object to be seized; fact that metal was stolen was not determined until days after seizure, and there was no evidence at time of seizure that resident of house that was searched had been involved in theft of platinum).
Searching Buildings Not Named in the Warrant
(This topic is discussed in the chapter text under “Scope of the Search.”)
NORTH CAROLINA COURT OF APPEALS
State v. Trapper, 48 N.C. App. 481 (1980). A warrant that authorized a search of a house trailer for marijuana included a storage shed thirty feet away that was connected to the house by a concrete walkway. See also State v. Travatello, 24 N.C. App. 511 (1975).
FEDERAL APPELLATE COURTS
United States v. Griffin, 827 F.2d 1108 (7th Cir. 1987). A search warrant’s description of “premises” at a specific address authorized the search of the tool shed and yard there (including digging in the yard) when the objects of the search—drugs, chemicals and chemical equipment, and notes and formulas—could reasonably be found there.
Searching Vehicles Not Named in the Warrant
(This topic is discussed in the chapter text under “Vehicles on the Premises.”)
NORTH CAROLINA SUPREME COURT
State v. Lowe, 369 N.C. 360 (2016). The state supreme court ruled that a search of a vehicle located within the curtilage of a residence was within the scope of a search warrant for the home even though the vehicle in question was a rental car in the possession of the defendant, an overnight guest at the house. The court stated that if a search warrant validly describes the premises to be searched, a car on the premises may be searched even though the warrant contains no description of the car. In departing from this general rule, the North Carolina Court of Appeals had ruled that the search of the car was invalid because the officers who executed the search warrant knew that the vehicle in question did not belong to the suspect in the drug case they were investigating. Noting that the record was unclear as to what the officers knew about ownership and control of the vehicle, the supreme court concluded: “[R]egardless of whether the officers knew the car was a rental, we hold that the search was within the scope of the warrant.” Id. at 367–68.
State v. Reid, 286 N.C. 323 (1974). A warrant authorized a search of the defendant’s gasoline station to seize alcoholic beverages. Officers searched the defendant’s car, which was parked on the station’s lot, even though the warrant did not name the car as an object to be searched. The court ruled that a search warrant for specifically described premises authorizes a search of the owner’s vehicle parked there if the evidence reasonably could be found in the vehicle. Here, the officers were justified in concluding that alcoholic beverages might be in the car. See also State v. Marshall, 94 N.C. App. 20 (1989) (warrant to search defendant’s house for drugs included car that was registered in name of woman who lived with defendant and parked within house’s curtilage); State v. Logan, 27 N.C. App. 150 (1975) (warrant to search defendant’s house for drugs allowed search of his car in driveway); State v. Bell, 24 N.C. App. 430 (1975) (same; car parked under house built on pilings); State v. Courtright, 60 N.C. App. 247 (1983) (warrant to search defendant’s house for drugs allowed search of defendant’s car parked on street in front of house with its front wheels six to seven inches into his yard; court reached questionable conclusion that car was parked on curtilage of house, and thus search of car was permitted; court could have ruled that search was permitted because car was parked on the premises, even if not on curtilage—see United States v. Asselin, 775 F.2d 445 (1st Cir. 1985)).
NORTH CAROLINA COURT OF APPEALS
State v. McLamb, 70 N.C. App. 712 (1984). A search warrant authorized a search of a residence on a six-acre tract. The court ruled that the warrant affidavit established probable cause to believe that a drug business was taking place on the entire tract. It also ruled that a search of a car across a road fifteen feet beyond the property line was proper because it “appeared to be connected to” the property and no other residences were in the vicinity. The court alternatively ruled that even if the car was not within the curtilage, the car appeared to be abandoned, and therefore the defendant had no reasonable expectation of privacy in it. [Author’s note: It appeared that the car clearly was not within the curtilage because it was not even on the defendant’s property.]
FEDERAL APPELLATE COURTS
United States v. Gottschalk, 915 F.2d 1459 (10th Cir. 1990). The court ruled that a search warrant for certain premises permitted a search of vehicles either actually owned or controlled by the owner or possessor of the premises or, alternatively, of those vehicles that appeared to be so controlled, based on objectively reasonable indicia that existed when the search was conducted.
Challenging the Validity of a Search Warrant
United States Supreme Court
Franks v. Delaware, 438 U.S. 154 (1978). When a defendant makes a substantial preliminary showing that (1) an officer-affiant, when applying for a search warrant, made a false statement and knew it was false or acted in reckless disregard of its falsity and (2) probable cause would not have been found except for the allegedly false statement, the Fourth Amendment requires that a hearing be held. If the defendant proves both points by a preponderance of evidence at the hearing, the false information must be disregarded in determining whether probable cause exists. If the remaining portion of the affidavit is insufficient to establish probable cause, then the search warrant is invalid and evidence seized under it must be suppressed. See also State v. Moore, 275 N.C. App. 302 (2020) (officer’s false information used in search warrant; remaining valid information insufficient to establish probable cause); United States v. Fawole, 785 F.2d 1141 (4th Cir. 1986); United States v. Kirk, 781 F.2d 1498 (11th Cir. 1986); United States v. McNeese, 901 F.2d 585 (7th Cir. 1990) (omission of facts from search warrant affidavit is material and voids warrant only if it involves a deliberate falsehood or reckless disregard for the truth).
North Carolina Supreme Court
State v. Barnes, 333 N.C. 666 (1993). The court examined an officer’s statements in a search warrant affidavit and determined, based on the facts in this case, that they were not deliberately false or made in reckless disregard of the truth under Franks v. Delaware, 438 U.S. 154 (1978).
State v. Creason, 313 N.C. 122 (1985). The court ruled that by the express terms of G.S. 15A-978(b)(1), a defendant is not entitled, on statutory grounds, to the disclosure of an informant’s identity when attacking the information in a search warrant affidavit. The court also ruled that the defendant in this case waived his right to appellate review, on constitutional grounds, of the failure to disclose the informant’s identity when he failed to raise the issue at trial.
State v. Louchheim, 296 N.C. 314 (1979). Probable cause supported the search warrant in this case, even if the allegedly false information was disregarded. See also State v. Montserrate, 125 N.C. App. 22 (1997); State v. Reddick, 55 N.C. App. 646 (1982); United States v. Cummins, 912 F.2d 98 (6th Cir. 1990).
North Carolina Court of Appeals
State v. Severn, 130 N.C. App. 319 (1998). In an affidavit for a search warrant to search a residence for drugs, an officer stated that he had “been able to recover both marijuana and cocaine from inside of [the defendant’s] residence, using investigative means.” Id. at 320 (quoting warrant application). In fact, the officer had obtained the drugs from a trash can next to the side of the house. The officer testified at the suppression hearing that he had deduced that the drugs had been used inside the residence. He explained that he “just used common sense” in believing that items in the trash probably came from inside the house and that he did not intend to mislead the magistrate. He used the term “investigative means” because he did not want the defendant to know that a trash pickup was the method used. The court ruled that the officer’s statement in the affidavit was false and made in bad faith, and therefore it could not be used in establishing probable cause to issue the search warrant. See Franks v. Delaware, 438 U.S. 154 (1978). The court stated that it was undisputed that no one entered the defendant’s residence in obtaining the drugs; the statement to the contrary in the affidavit was false and the officer knew it was false. The officer’s use of the words “investigative means” supported the ruling that the affidavit was prepared in bad faith because the officer admitted that he wanted to conceal from the defendant how the evidence was obtained.
State v. Vick, 130 N.C. App. 207 (1998). Officers saw the defendant leave his apartment in his vehicle and make a sale of $1,500 worth of cocaine to an informant working for the officers and under their surveillance. An officer in an affidavit for a search warrant to search the defendant’s apartment for drugs stated: “After [the defendant] left his residence he drove directly to the location and met the informant therefore the cocaine came out of [the defendant’s apartment].” Id. at 215 (quoting affidavit). The defendant argued that the italicized part of this statement was false and should be excluded from the search warrant in determining probable cause. The court disagreed, finding that the statement made clear that the officer inferred from the surrounding circumstances that the cocaine was in the defendant’s apartment. Therefore, the officer’s statement was not false and did not mislead the magistrate who issued the warrant.
State v. Elliott, 69 N.C. App. 89 (1984). A search warrant cannot be successfully challenged by merely showing that the warrant affidavit contained a false statement. The defendant must also show that the officer-affiant knew that the statement was false or acted in reckless disregard of its falsity; in effect, a defendant must show that the affiant acted in bad faith when including the false statement in the affidavit. See also State v. Winfrey, 40 N.C. App. 266 (1979); State v. Kramer, 45 N.C. App. 291 (1980); United States v. Owens, 882 F.2d 1493 (10th Cir. 1989).
Federal Appellate Courts
Simmons v. Poe, 47 F.3d 1370 (4th Cir. 1995). The court ruled that a defendant is entitled to a hearing under Franks v. Delaware, 438 U.S. 154 (1978), if the defendant shows that omissions from an affidavit to a search warrant were (1) designed to mislead or made with reckless disregard of whether they mislead the issuing judicial official and (2) material to the determination of probable cause. In this case, the defendant failed to meet his burden on either showing.
Use of Unconstitutionally Obtained Evidence
UNITED STATES SUPREME COURT
United States v. Karo, 468 U.S. 705 (1984). The Court analyzed a search warrant affidavit and determined that it was not so tainted by illegal beeper monitoring that it would not support probable cause to issue a search warrant.
NORTH CAROLINA COURT OF APPEALS
State v. Miller, 137 N.C. App. 450 (2000). Officers used statements of a third party in establishing probable cause to issue a search warrant. The defendant argued that the statements were taken in violation of the third party’s Fifth Amendment rights. The court ruled, relying on State v. Greenwood, 301 N.C. 705 (1981), that the defendant had no standing to object to the use of the third party’s statements in establishing probable cause for the search warrant.
United States Supreme Court
McCray v. Illinois, 386 U.S. 300 (1967). At a hearing to determine whether probable cause existed to arrest the defendant, officers testified that a reliable confidential informant gave them information that led to the arrest. The trial judge refused to require the officers to reveal their confidential informant’s name. The Court ruled that the judge’s decision did not violate the defendant’s constitutional rights. Each state may recognize an evidentiary informant’s privilege. The Court noted that it has recognized federal officers’ right to withhold an informant’s identity when they apply for an arrest or search warrant. The Court distinguished this case from Roviaro v. United States, 353 U.S. 53 (1957), discussed immediately below. See also G.S. 15A-978 (defendant is entitled to learn informant’s identity under certain circumstances, but not when evidence sought to be suppressed was seized under authority of search warrant or incident to arrest with arrest warrant).
Roviaro v. United States, 353 U.S. 53 (1957). The Court ruled that when an informant is a material witness to the crime being tried, his or her identity must be disclosed to the defendant under certain circumstances when that knowledge would be helpful in preparing the defendant’s defense.
North Carolina Supreme Court
State v. Creason, 313 N.C. 122 (1985). By the express terms of G.S. 15A-978(b)(1), a defendant is not entitled to the disclosure of an informant’s identity when challenging the information in a search warrant affidavit. The court also ruled that the defendant in this case waived his right to appellate review, on constitutional grounds, of the failure to disclose the informant’s identity when he did not raise the constitutional issue at trial.
North Carolina Court of Appeals
State v. Avent, 222 N.C. App. 147 (2012). The trial court did not err by denying the defendant’s motion to compel disclosure of the identity of a confidential informant who provided the defendant’s cell phone number to police. Applying Roviaro v. United States, 353 U.S. 53 (1957), the court noted that the defendant failed to show or allege that the informant participated in the crime, and the evidence did not contradict material facts that the informant could clarify. Although the State asserted that the defendant was the shooter in the murder being tried and the defendant asserted that he was not at the scene, the defendant failed to show how the informant’s identity would be relevant to this issue. Additionally, evidence independent of the informant’s testimony established the defendant’s guilt, including an eyewitness to the murder.
State v. Mack, 214 N.C. App. 169 (2011). The trial court did not err by denying the defendant’s motion to disclose the identity of a confidential informant in a drug case when the defendant failed to show that the circumstances of his case required disclosure. The informant was not a participant in the crime—he introduced the defendant to the undercover police officer involved in the case and then stood aside while they haggled about the price of the drugs. The defendant did not need the informant’s testimony at trial, despite his argument that (1) the informant could have testified that he (the defendant) was not the person who sold the drugs to the officer because other people were present in the house when the drug sale occurred and (2) the informant also could have testified about the officer’s allegedly mistaken identification of the defendant. The officer had clearly identified the defendant as the person who sold him the drugs.
State v. Ellison, 213 N.C. App. 300 (2011), aff’d on other grounds, 366 N.C. 439 (2013). The trial court did not err by denying the defendant’s motion for disclosure of an informant’s identity when the informant’s existence was sufficiently corroborated under G.S. 15A-978(b). A second officer testified that the principal investigating officer had told her about information that he had gained from a “tipster” concerning an illegal drug transaction, and she confirmed the truth of the information through her own investigation.
State v. Dark, 204 N.C. App. 591 (2010). The defendant was convicted of cocaine offenses involving a sale to an undercover officer set up with the assistance of a confidential informant. The defendant told the informant to come to a specific parking place at an apartment complex. The undercover officer drove there with the informant. The officer paid the defendant for crack cocaine and marijuana. The officer later identified the defendant in a photo lineup. The defendant did not offer evidence at trial. The court ruled that the trial court did not err in denying the defendant’s motion to require the State to disclose the confidential informant’s identity. Although the informant’s presence and role in arranging the purchase was a factor favoring disclosure, the court agreed with the trial court’s finding that the defendant did not show how the informant’s identity could provide useful information for the defendant to clarify any contradiction between the State’s evidence and the defendant’s denial that he committed the offenses. Moreover, the informant’s testimony was not admitted at trial. The testimony of the undercover officer and another officer established the defendant’s guilt.
State v. Moctezuma, 141 N.C. App. 90 (2000). The defendant in a drug prosecution made a motion to disclose the identity of a confidential informant because the informant was a necessary witness in the case. The court of appeals stated that the judge below erred in closing the hearing on this issue to the defendant, the defense counsel, and the public without making findings supporting the need to do so. (The judge apparently closed the hearing to be informed of the identity of the confidential informant.) See the discussion in the court’s opinion on how a judge should handle this issue.
State v. McEachern, 114 N.C. App. 218 (1994). The State’s evidence at a pretrial hearing showed that on March 7, 1991, a confidential informant told an officer that he saw cocaine in the defendant’s trailer home and identified the man selling it as Toney (the defendant’s first name). On March 8, 1991, the informant made a controlled buy, set up by the officer, from the same person at the trailer home. Later that day, the officer obtained a search warrant for the trailer home. The defendant was backing out of his yard when officers arrived. The officers entered the trailer home and found marijuana and cocaine. The defendant testified that he gave permission to his nephew to use his trailer home for a party and was out of town from March 7, 1991, until just before the officers arrived on March 8, 1991. He said that there were no illegal drugs in his home when he left on March 7, 1991, and that he did not know who was in his home during his absence. The defendant argued that the informant, if called as a witness, could testify that the defendant was not in fact the person who was selling drugs; the informant could also testify as to who sold the drugs to him and that the drugs belonged to a third party.
The trial judge found that (1) the informant was a material and necessary witness for the defense to corroborate the defendant’s alibi and (2) the informant’s testimony could point to the guilt of a third party and show that the defendant did not exclusively occupy the premises. The judge granted the defendant’s motion to require the State to disclose the informant’s identity. When the State refused to do so, the judge dismissed the charges against the defendant. The court, relying on Brady v. Maryland, 373 U.S. 83 (1963), Roviaro v. United States, 353 U.S. 53 (1957), and G.S. 15A-910(3b) upheld the trial judge’s rulings that required disclosure of the informant’s identity and the dismissal of all charges when the State failed to disclose.
State v. Jackson, 103 N.C. App. 239 (1991), aff’d, 331 N.C. 113 (1992). An undercover officer, with the assistance of a confidential informant, set up a drug deal with Allison. The informant had two separate conversations with Allison (outside the officer’s presence) to set up the deal. Allison returned later in a car driven by the defendant. Allison walked to the informant’s car and placed drugs inside. The court upheld the trial judge’s denial of the defendant’s motion to disclose the informant’s identity. Although the informant’s presence and role in arranging the drug deal favored disclosure, the following factors outweighed disclosure: (1) the defendant did not offer evidence in his defense at trial, so there was no contradiction between the State’s evidence and the defendant’s evidence that the informant could clarify; (2) the informant’s statements were not admitted at trial; and (3) the State asserted that the disclosure of the informant’s identity would jeopardize pending investigations. See also State v. Cameron, 283 N.C. 191 (1973) (defendant was not entitled to know identity of confidential informant who was not present in room of house where sale of heroin took place).
State v. Locklear, 84 N.C. App. 637 (1987). A defendant’s affidavit, filed with his motion to suppress evidence seized with a search warrant, merely denied the existence of the confidential informant who had supplied information to the affiant-officer. Based on this information, the trial judge properly denied summarily (1) the defendant’s request for an evidentiary hearing on the good faith of the officer’s search warrant affidavit and (2) the defendant’s request that the judge conduct an in camera hearing with the State’s confidential informant.
State v. Johnson, 81 N.C. App. 454 (1986). A defendant had a right to be informed of a confidential informant’s identity because the informant had participated with an undercover officer during the drug sale for which the defendant was being tried and could possibly testify that the defendant was not the person who sold drugs to the undercover officer.
State v. Roseboro, 55 N.C. App. 205 (1981). When an informant’s information only supplied probable cause to issue a search warrant and the informant did not participate in the drug activities for which the defendant was being tried, the defendant was not entitled to know the informant’s identity. For cases involving a defendant’s right to an informant’s identity (1) at a suppression motion involving a warrantless search or (2) in preparation of the defendant’s defense at trial, see State v. Ketchie, 286 N.C. 387 (1975) (informant was not participant or witness; disclosure not required); State v. Moose, 101 N.C. App. 59 (1990) (informant’s information provided probable cause to issue search warrant; defendant failed to offer reason for revealing identity of informant, who was not a participant in offense); State v. Marshall, 94 N.C. App. 20 (1989) (defendant was not entitled to identity of informant who did not participate in offense); State v. Grainger, 60 N.C. App. 188 (1982) (informant merely supplied information that led to defendant’s warrantless arrest and search incident to that arrest; defendant failed to show need for informant’s identity for defense at trial); State v. Hodges, 51 N.C. App. 229 (1981) (informant was present when defendant sold marijuana to undercover agent; disclosure required); State v. Ellis, 50 N.C. App. 181 (1980) (defendant was not entitled to informant’s identity during suppression motion concerning warrantless search when another officer corroborated informant’s existence under G.S. 15A-978(b)(2)); State v. Bunn, 36 N.C. App. 114 (1978) (same); and State v. Collins, 44 N.C. App. 141, aff’d, 300 N.C. 142 (1980) (same, but defendant should be allowed to offer evidence of informant’s nonexistence).
Federal Appellate Courts
United States v. Martinez, 922 F.2d 914 (1st Cir. 1991). A defendant’s assertion that an informant could have provided exculpatory evidence for his defense did not entitle him to disclosure of the informant’s identity when the defendant did not offer facts to support the assertion. The informant was a mere tipster and was not present when the offense for which the defendant was being tried was committed.
Possible Defects in a Search Warrant or in the Procedure for Issuing a Search Warrant
Generally
NORTH CAROLINA SUPREME COURT
State v. Pennington, 327 N.C. 89 (1990). The court ruled that superior court clerks may issue search warrants involving both felonies and misdemeanors, rejecting the defendant’s argument that clerks were limited to issuing search warrants involving misdemeanors because the titles of G.S. 7A-180 and 7A-181 refer to the functions of clerks in district court matters.
State v. Norwood, 303 N.C. 473 (1981). A magistrate’s clerical errors concerning dates on a warrant or affidavit may be corrected. See also State v. Beddard, 35 N.C. App. 212 (1978).
State v. Edwards, 286 N.C. 162 (1974). When the original search warrant was lost, the trial judge properly considered a photocopy of the warrant in ruling on its validity. See also State v. McMilliam, 243 N.C. 771 (1956) (court indicated that if search warrant was lost, State could prove its existence with oral testimony).
State v. Upchurch, 267 N.C. 417 (1966). When evidence at a suppression hearing showed that a clerk who issued a search warrant merely witnessed an officer’s signature on the warrant affidavit, without examining the officer under oath, the search warrant was ruled invalid.
NORTH CAROLINA COURT OF APPEALS
State v. Brown, 248 N.C. App. 72 (2016). The court ruled that because an affidavit for a search warrant failed to specify when an informant witnessed the defendant’s allegedly criminal activities, there was insufficient evidence establishing probable cause to support issuance of the warrant. The applying officer stated in the affidavit that he received a counterfeit $100 bill from an informant who claimed it had been obtained from the defendant’s home. At the suppression hearing, the officer testified that what he meant to state in the affidavit was that the informant had obtained the bill within the last forty-eight hours. It was error under G.S. 15A-245(a) for the trial court to consider this additional testimony from the officer, as it was outside of the facts recited in the affidavit. Considering the content of the affidavit, the court held that without any indication of when the informant received the bill, the affidavit failed on grounds of staleness.
State v. Rayfield, 231 N.C. App. 632 (2014). The court ruled in a child sex case that although a magistrate violated G.S. 15A-245 by considering an officer’s sworn testimony when determining whether probable cause supported a search warrant but failing to record that testimony as required by the statute, this violation was not a sufficient basis upon which to grant the defendant’s suppression motion. The trial court had based its ruling solely on the filed affidavit, not the sworn testimony, and the affidavit was sufficient to establish probable cause.
State v. Hunter, 208 N.C. App. 506 (2010). The court rejected the defendant’s argument that a search warrant executed at a residence was invalid because the application and warrant referenced an incorrect street address. Although the numerical portion of the street address was incorrect, the warrant was sufficient because it contained a correct description of the residence.
State v. Moore, 152 N.C. App. 156 (2002). There were two mobile homes in a driveway with separate addresses, 996 Camp Ground Road and 995 Camp Ground Road. Probable cause existed to search the defendant’s mobile home at 995 Camp Ground Road but not the mobile home at 996 Camp Ground Road, the address listed in the search warrant. However, a map to the defendant’s mobile home was attached to the search warrant, and the defendant’s home was correctly described as being white with brown trim. Based on these and other facts, the court ruled that the error reciting the address did not require the suppression of evidence seized from the defendant’s mobile home. The executing officer’s prior knowledge of the place to be searched was relevant in this case.
State v. McCord, 140 N.C. App. 634 (2000). An application for a search warrant did not state on its face that it was sworn. However, the applicant had attached a sworn affidavit to her application and testified that she signed the application in the issuing judicial official’s presence after being sworn by the judicial official. The court ruled that this evidence was sufficient to show that the application was sworn to in compliance with G.S. 15A-244.
State v. Ledbetter, 120 N.C. App. 117 (1995). An affidavit for a search warrant described an informant’s controlled buy of cocaine under an officer’s supervision. The application for the search warrant referred to the seizure of the “Schedule II controlled substance marijuana” when it should have stated “cocaine.” The court ruled that because the affidavit referred to cocaine, this error was not fatal to the validity of the search warrant.
State v. Marshall, 94 N.C. App. 20 (1989). G.S. 15A-244 does not require that a search warrant be accompanied by a separate sworn writing labeled “affidavit” in addition to the sworn application.
State v. Hyleman, 89 N.C. App. 424 (1988), rev’d on other grounds, 324 N.C. 506 (1989). The notation of the time of issuance of a search warrant was missing in its location above the magistrate’s signature as required by G.S. 15A-246(1). The court ruled that this error was not prejudicial because the time was noted elsewhere on the face of the warrant.
State v. Teasley, 82 N.C. App. 150 (1986). When ruling on the sufficiency of a search warrant, a trial judge could not consider an officer’s oral testimony before a magistrate when he applied for the warrant because the magistrate did not record the oral testimony or contemporaneously summarize it in the record as required by G.S. 15A-245.
State v. Heath, 73 N.C. App. 391 (1985). In determining probable cause, a magistrate may not consider unsworn written statements submitted in addition to an affidavit.
State v. Hicks, 60 N.C. App. 116 (1982). A magistrate made handwritten notes of the information an officer had given her under oath and considered this information, in addition to information in the affidavit, in determining probable cause. The magistrate’s failure to check the box on the warrant application indicating that she had received additional information was not fatal. She kept the notes in a desk drawer and testified at the suppression hearing that they were in the same condition they were in when she issued the search warrant. She did not attach the notes to the search warrant so that an informant’s identity could be protected. The court ruled that under G.S. 15A-245(a), the notes could be considered in determining whether probable cause supported the search warrant.
State v. Caldwell, 53 N.C. App. 1 (1981). After a magistrate refused to issue a search warrant because he believed that the affidavit did not supply probable cause, the officer applying for the warrant applied before a different magistrate. The affidavit supplied with the second application contained additional information concerning the reliability of an informant who provided information to the police. The court ruled that the second magistrate could issue the search warrant based on these facts.
State v. Flynn, 33 N.C. App. 492 (1977). An inadvertent omission of the magistrate’s signature on an affidavit in an application for a search warrant did not make the search warrant invalid when both the magistrate and the applying officer testified at the suppression hearing that the magistrate swore the officer to the information he gave in the affidavit. The search warrant was valid on its face. See also United States v. Smith, 63 F.3d 766 (8th Cir. 1995) (similar ruling).
State v. Sorrell, 26 N.C. App. 325 (1975). An error in naming a father rather than a son as the owner of the premises to be searched was not fatal.
State v. Brannon, 25 N.C. App. 635 (1975). A search warrant was not invalid when a magistrate signed it at the place where the affiant should sign and vice versa.
FEDERAL APPELLATE COURTS
United States v. Pace, 898 F.2d 1218 (7th Cir. 1990). The Fourth Amendment did not prohibit the government from seeking a second magistrate’s approval to issue a search warrant when another magistrate had refused to issue a search warrant, even though the same affidavit that had been presented to the first magistrate was presented to the second magistrate.
An Officer’s Civil Liability
UNITED STATES SUPREME COURT
Hunter v. Bryant, 502 U.S. 224 (1991). The Court ruled that Secret Service agents were entitled to qualified immunity for the arrest of a person because, based on facts in this case, a reasonable officer could have believed that probable cause existed to make the arrest.
Malley v. Briggs, 475 U.S. 335 (1986). An officer may be civilly liable under federal law for violating a person’s constitutional rights if the officer obtains an arrest warrant (and makes an arrest with it) when a reasonably well-trained officer in that position would have known that the information failed to establish probable cause to arrest. The Court clearly indicated that this standard of civil liability also applies to search warrants.
Exclusionary Rules Particularly Applicable to Search Warrants
Exclusionary Rules under the United States Constitution
UNITED STATES SUPREME COURT
Hudson v. Michigan, 547 U.S. 1096 (2006). Officers with a valid search warrant entered the defendant’s home in violation of the Fourth Amendment’s knock-and-announce requirement. The officers seized drugs and a firearm. The Court ruled that the Fourth Amendment’s exclusionary rule did not apply to bar the admission of the seized evidence even though the officers violated the knock-and-announce requirement. The Court reasoned that because the privacy interests violated in this case had nothing to do with the seizure of the evidence, the exclusionary rule was inapplicable. The Court rejected the defendant’s argument that there would be no deterrence without suppression of the seized evidence. The Court noted that misconduct by law enforcement officers is subject to a civil lawsuit under 42 U.S.C. § 1983 and to discipline by the officers’ law enforcement agencies. [Author’s note: A substantial violation of North Carolina law that requires notice of identity and purpose before executing a search warrant (G.S. 15A-249, with an exception in G.S. 15A-251(2)) may subject the seized evidence to suppression under North Carolina’s statutory exclusionary rule set out in G.S. 15A-974(a)(2).] See also United States v. Hector, 474 F.3d 1150 (9th Cir. 2007) (court ruled under rationale of Hudson that exclusionary rule did not apply to seizure of evidence pursuant to search warrant when copy of search warrant was not served on defendant); United States v. Pelletier, 469 F.3d 194 (1st Cir. 2006) (Hudson ruling applies to execution of arrest warrants).
Massachusetts v. Sheppard, 468 U.S. 981 (1984). This was a companion case with United States v. Leon, 468 U.S. 897 (1984), discussed immediately below. The Court determined that the officer here was objectively reasonable in relying on the issuing judge’s assurances to him that the search warrant for which he applied adequately described the evidence to be seized.
United States v. Leon, 468 U.S. 897 (1984). The Fourth Amendment’s exclusionary rule does not apply when a law enforcement officer conducts a search in objectively reasonable reliance on a search warrant that is issued by a detached and neutral magistrate but is later determined to be invalid. “Objectively reasonable reliance” means that a reasonably well-trained officer would not have known that the search was unconstitutional. The Court determined in this case that the officer’s reliance on the magistrate’s determination of probable cause was objectively reasonable (that is, the warrant affidavit contained more than a “bare bones” statement of probable cause).
The Court stated that the exclusionary rule still would apply in the following kinds of cases: (1) when the issuing official is misled by information in the affidavit that the affiant knew was false or would have known was false except for the affiant’s reckless disregard of the truth, (2) when the issuing official totally abandons a neutral and detached role, (3) when the affidavit is so lacking in facts to establish probable cause that an officer’s belief that probable cause exists is entirely unreasonable, and (4) when the search warrant is so facially deficient (in not specifying the place to be searched or the things to be seized) that the officer who executed it could not have reasonably presumed it to be valid (but see Massachusetts v. Sheppard, 468 U.S. 981 (1984), discussed immediately above).
[Author’s note: The five North Carolina appellate cases discussed below in this section may no longer be pertinent to the application of the exclusionary rule in North Carolina courts because State v. Carter, 322 N.C. 709 (1988), discussed below in the next section, strongly indicated that there is no good-faith exception under the North Carolina Constitution (but see the discussion of the post-Carter case of State v. Garner, 331 N.C. 491 (1992), also discussed below in the next section). Even if there is no good-faith exception in North Carolina state courts (but see footnote 1 in the chapter text), the good-faith exception will still be applied to searches by North Carolina law enforcement officers that result in evidence being offered in prosecutions (for example, for drug and firearm violations) in federal courts in North Carolina. See United States v. Pforzheimer, 826 F.2d 200 (2d Cir. 1987) (in federal prosecution involving a search by state officers, federal—instead of state—exclusionary rules apply).]
NORTH CAROLINA SUPREME COURT
State v. Welch, 316 N.C. 578 (1986). The defendant was arrested for murder and armed robbery. While he was in jail, a superior court judge issued, on the prosecutor’s motion, a nontestimonial identification order to compel the defendant to give a blood sample for blood-typing. The court ruled, citing State v. Irick, 291 N.C. 480 (1977), that a judge may issue a nontestimonial identification order on the prosecutor’s motion only when (1) a person has not been arrested and reasonable suspicion exists that the person committed a crime punishable by more than one year’s imprisonment (under current law, a felony or Class A1 or A misdemeanor) or (2) a person has been arrested and released from custody pending trial. Thus, the judge erred in issuing the order.
The court stated that the Fourth Amendment requires an officer to obtain a search warrant to compel a defendant, without his or her consent, to give a blood sample unless probable cause and exigent circumstances exist. The court strongly indicated that a nontestimonial identification order may not constitutionally be issued to compel a blood sample when only reasonable suspicion exists that the defendant committed a crime (see the later case of State v. Carter, 322 N.C. 709 (1988), discussed below in the next section. Because exigent circumstances did not exist in this case—a person’s blood type does not change, unlike the quantity of alcohol in one’s blood—the defendant’s Fourth Amendment rights were violated when his blood was drawn without a search warrant.
The court discussed the good-faith exception to the exclusionary rule of United States v. Leon, 468 U.S. 897 (1984), and Massachusetts v. Sheppard, 468 U.S. 981 (1984), and ruled that the exclusionary rule should not apply. The officer here reasonably relied on the nontestimonial identification order issued by the superior court judge; he took every reasonable step to comply with the Fourth Amendment. But see Carter, cited supra, which strongly indicated that there is no good-faith exception to the exclusionary rule under the North Carolina Constitution, an issue not raised in this case. See also State v. Banner, 207 N.C. App. 729 n.7 (2010) (noting possible conflict between Carter and State v. Garner, 331 N.C. 491 (1992), discussed below in the next section); footnote 1 in the chapter text.
NORTH CAROLINA COURT OF APPEALS
State v. Leonard, 87 N.C. App. 448 (1987). Even if the facts in a search warrant’s affidavit could have been stated with greater precision, the officers here reasonably relied on the warrant in conducting a search under the good-faith exception to the exclusionary rule discussed in United States v. Leon, 468 U.S. 897 (1984).
State v. Newcomb, 84 N.C. App. 92 (1987). Probable cause did not exist to support a search warrant when the affidavit only contained an informant’s statement that he saw marijuana in a certain house and did not state when he saw it. Also, the officer-affiant did not state that the informant was reliable. The court ruled that the good-faith exception to the exclusionary rule could not be applied to this search warrant because the officer here did not take reasonable steps to comply with the Fourth Amendment.
State v. Roark, 83 N.C. App. 425 (1986). Probable cause did not exist to support a search warrant when the affidavit stated only that a confidential informant told the officer-affiant that the stolen property at issue was in the house to be searched. The court ruled that the exception to the exclusionary rule in United States v. Leon, 468 U.S. 897 (1984), did not apply to this “bare bones” statement of probable cause because a reasonably well-trained officer would have known that probable cause did not exist.
State v. Connard, 81 N.C. App. 327 (1986), aff’d, 319 N.C. 392 (1987). The good-faith exception to the exclusionary rule under United States v. Leon, 468 U.S. 897 (1984), did not apply to an unconstitutional seizure of stolen items because the officers who executed the search warrant in this case could not reasonably believe that the warrant’s description, “stolen goods,” was valid.
Exclusionary Rules under the North Carolina Constitution
NORTH CAROLINA SUPREME COURT
State v. Garner, 331 N.C. 491 (1992). The court rejected the defendant’s contention that it should not recognize the inevitable-discovery exception under Article I, Section 20, of the North Carolina Constitution. The court stated: “While this Court has held that Article I, Section 20 of our Constitution, like the Fourth Amendment to the United States Constitution, prohibits unreasonable searches and seizures, e.g., State v. Arrington, 311 N.C. 633 (1984); State v. Ellington, 284 N.C. 198 (1973), and requires the exclusion of evidence obtained by unreasonable search and seizure, e.g., State v. Carter, 322 N.C. 709 (1988), there is nothing to indicate anywhere in the text of Article I, Section 20 any enlargement or expansion of rights beyond those afforded in the Fourth Amendment as applied to the states by the Fourteenth Amendment.” Garner, 331 N.C. at 506. The court later stated: “We therefore hold the defendant’s contention that Article I, Section 20 of our Constitution should be read as an extension of rights beyond those afforded in the Fourth Amendment is misplaced.” Id. at 506–07. [Author’s note: The court’s general statements indicate that in other cases it may not interpret Article I, Section 20 more broadly than the Fourth Amendment. It appears that Garner may undermine State v. Carter, 322 N.C. 709 (1988), discussed immediately below, which had rejected under this constitutional section the good-faith exception to the exclusionary rule under the Fourth Amendment, as set out in United States v. Leon, 468 U.S. 897 (1984), and Massachusetts v. Sheppard, 468 U.S. 981 (1984), both discussed above under “Exclusionary Rules Particularly Applicable to Search Warrants,” “Exclusionary Rules under United States Constitution,” “UNITED STATES SUPREME COURT.” See also State v. Banner, 207 N.C. App. 729 n.7 (2010) (noting possible conflict between Carter and Garner); footnote 1 in the chapter text.
State v. Carter, 322 N.C. 709 (1988). An officer obtained a blood sample for blood-typing from an in-custody defendant with a nontestimonial identification order. The use of the nontestimonial identification order to obtain evidence from an in-custody defendant was unlawful based on prior court rulings—for example, State v. Welch, 316 N.C. 578 (1986), discussed above under “Exclusionary Rules Particularly Applicable to Search Warrants,” “Exclusionary Rules under United States Constitution,” “NORTH CAROLINA SUPREME COURT.” The court ruled as follows: (1) The taking of the blood sample violated the North Carolina Constitution because probable cause and a search warrant are required to do so unless exigent circumstances exist (there were no exigent circumstances in this case because the blood was needed for blood-typing). Reasonable suspicion is an insufficient evidentiary standard on the basis of which to take a defendant’s blood. (2) Since 1937, the expressed legislative policy of North Carolina has been to exclude evidence obtained in violation of constitutional rights against unreasonable searches and seizures. The dual purposes of deterrence and judicial integrity called for a rejection of a good-faith exception to the exclusionary rule under the North Carolina Constitution in this case, which involved the most intrusive type of search—the invasion of the defendant’s body to draw blood. Although the court appeared to have rejected a good-faith exception in all cases, the court stated later in its opinion that “[w]e are not persuaded on the facts before us that we should engraft a good faith exception to the exclusionary rule under our state constitution.” Carter, 322 N.C. at 724 (emphasis added).
North Carolina’s Statutory Exclusionary Rule
NORTH CAROLINA SUPREME COURT
State v. Hyleman, 324 N.C. 506 (1989). An officer-affiant stated in a search warrant application that he purchased 2 ounces of cocaine from three people, who were arrested when they delivered the cocaine. The officer-affiant also stated that he paid $1,650 in marked currency for the cocaine (the money had been paid a few hours before the actual delivery, but that information was not included in the affidavit). The officer-affiant stated that, based on “the movement of the suspects during, and before the purchase, and information received from two confidential sources of information after the purchase,” he had reason to believe that the marked currency was located in the defendant’s residence. Id. at 509 (quoting affidavit).
Instead of analyzing the search warrant under the United States or North Carolina constitutions, the court determined that the search warrant violated G.S. 15A-244(3), which restates the Fourth Amendment’s command that there must be facts in an affidavit setting forth probable cause to believe that the items to be seized are in the places or in the possession of the people to be searched. The affidavit here failed to disclose facts to link the items to be seized—the marked currency—to the residence to be searched. The affidavit contained mere conclusory statements. The court then ruled that the affidavit’s failure to comply with G.S. 15A-244(3) was a substantial violation that required exclusion under G.S. 15A-974(2) (now, G.S. 15A-974(a)(2)) because (1) the “bare bones” conclusory affidavit was totally inadequate to establish probable cause, (2) the affiant’s statement about the extent of surveillance of the suspects was willfully inaccurate, (3) the defendant had a fundamental constitutional and statutory right in North Carolina to be free from unlawful searches and seizures, and (4) the exclusion of illegally seized evidence is the greatest deterrent to future similar violations. [Author’s note: Legislation enacted in 2011 (S.L. 2011-6) added a good-faith exception to the application of G.S. 15A-974. See also footnote 1 in the chapter text.
State v. Dobbins, 306 N.C. 342 (1982). An officer’s failure to swear to an inventory of items seized under a search warrant was not a sufficient violation so as to require that evidence be excluded under G.S. 15A-974. [Author’s note: Legislation enacted in 2011 (S.L. 2011-6) added a good-faith exception to the application of G.S. 15A-974. See also footnote 1 in the chapter text.
NORTH CAROLINA COURT OF APPEALS
State v. White, 184 N.C. App. 519 (2007). Officers executed a search warrant for illegal drugs. The trial court ruled that (1) the officers’ forcible entry into the defendant’s residence violated the Fourth Amendment and was a substantial violation of G.S. 15A-251 and (2) the substantial violation required suppression of the evidence seized in the residence as a fruit of the poisonous tree. The State on its appeal of the trial court’s ruling did not contest that the officers’ entry into the residence violated the Fourth Amendment and was a substantial violation of G.S. 15A-251. The court ruled, relying on State v. Richardson, 295 N.C. 309 (1978), that the evidence seized in the residence was not subject to suppression because there was no causal relationship between the violation and the seizure of the evidence. The search was conducted sometime after the forced entry and only after the occupants were secured and the defendant was read a copy of the search warrant. The cocaine would likely have been located even in the absence of the forced entry. [Author’s note: The Fourth Amendment’s exclusionary rule was not applicable based on the ruling in Hudson v. Michigan, 547 U.S. 586 (2006).]
State v. Sumpter, 150 N.C. App. 431 (2002). An officer executed a search warrant for illegal drugs at a residence. As the officer pushed open an unlocked exterior door, he announced his identity and purpose (“police officer, search warrant”). The court noted that the officer violated G.S. 15A-249 by not announcing his identity and purpose before opening the door and entering the residence. However, the court ruled that this violation was not substantial enough to require the exclusion of evidence found in the search (G.S. 15A-974(2); now G.S. 15A-974(a)(2)). An immediate entry could prevent the destruction of illegal drugs, the door was unlocked, no one objected to the officer’s entry into the residence, several people had been seen entering the residence without knocking or receiving an invitation to enter, and people who use crack cocaine usually carry weapons. [Author’s note: Legislation enacted in 2011 (S.L. 2011-6) added a good-faith exception to the application of G.S. 15A-974. See also footnote 1 in the chapter text.
State v. Davidson, 131 N.C. App. 276 (1998). A search warrant for bank records was served and returned within the forty-eight-hour statutory period, but because of time spent by the bank in locating the records to be seized, the police’s receipt of the records was delayed beyond the forty-eight-hour period. The court ruled, relying on State v. Dobbins, 306 N.C. 342 (1982), and State v. Fruitt, 35 N.C. App. 177 (1978), that this delay was not a substantial violation within G.S. 15A-974 so as to require that the records be suppressed. [Author’s note: Legislation enacted in 2011 (S.L. 2011-6) added a good-faith exception to the application of G.S. 15A-974. See also footnote 1 in the chapter text.
State v. Vick, 130 N.C. App. 207 (1998). The court ruled that officers violated G.S. 15A-252 by failing to give the defendant copies of a search warrant and an affidavit before executing the warrant (they left copies in the defendant’s apartment at the conclusion of their search) but that the violation was not substantial under G.S. 15A-974 so as to require the exclusion of seized evidence. [Author’s note: Legislation enacted in 2011 (S.L. 2011-6) added a good-faith exception to the application of G.S. 15A-974. See also footnote 1 in the chapter text.
State v. Gwyn, 103 N.C. App. 369 (1991). An officer arrested the defendant for impaired driving just inside the boundary of the state of Virginia after he had seen the defendant driving in North Carolina. However, the officer did not know that he was in Virginia when he arrested the defendant. The court ruled that although the arrest was illegal, it was constitutionally valid because it was supported by probable cause. Evidence seized as a result of the arrest—the officer’s detection of alcohol on the defendant’s breath and the Breathalyzer test reading—was admissible at trial under the balancing test of G.S. 15A-974(2) (now, G.S. 15A-974(a)(2)). The defendant’s interest in not being illegally arrested was outweighed by the defendant’s driving, which was a menace to public safety, and the officer’s violation was neither extensive nor willful because he did not know that the defendant was in Virginia. See generally State v. Eubanks, 283 N.C. 556 (1973) (illegal, although constitutional, arrest for impaired driving did not require suppression of evidence found after arrest). [Author’s note: G.S. 15A-974 did not exist when Eubanks was decided.] [Author’s note: Legislation enacted in 2011 (S.L. 2011-6) added a good-faith exception to the application of G.S. 15A-974. See also footnote 1 in the chapter text.
State v. Marshall, 94 N.C. App. 20 (1989). A failure to file a search warrant and its application promptly with the clerk under G.S. 15A-245(b) did not require suppression under G.S. 15A-974. [Author’s note: Legislation enacted in 2011 (S.L. 2011-6) added a good-faith exception to the application of G.S. 15A-974. See also footnote 1 in the chapter text.
State v. Edwards, 70 N.C. App. 317 (1984), rev’d on other grounds, 315 N.C. 304 (1985). A search warrant to search an apartment for cocaine was executed at about 10:45 p.m. An officer knocked on the locked storm door and announced in a loud, authoritative voice, “Police have a search warrant, open the door.” After about thirty seconds elapsed without an answer, officers forced open the storm door and wooden front door and entered the apartment. The court ruled that the announcement and forcible entry complied with G.S. 15A-249 and 15A-251. Because the object of the search was powdery cocaine that could be instantly disposed of, the thirty-second wait between the notice and the forcible entry was reasonable. The court also ruled that the fact that the search was made at night did not make it unreasonable. Traffic in and out of the apartment was heavier at night, and officers needed the cover of darkness to approach the apartment so that the defendant and others could not interfere with the execution of the search warrant.
State v. Copeland, 64 N.C. App. 612 (1983). The officer who executed a search warrant gave the defendant illegible copies of the warrant affidavit and application, in violation of law, although the copy of the search warrant the officer gave the defendant was legible. The court noted that there was no evidence that the violation was willful and concluded that it was not a substantial violation under G.S. 15A-974 that required exclusion of evidence seized during the execution of the search warrant. [Author’s note: Legislation enacted in 2011 (S.L. 2011-6) added a good-faith exception to the application of G.S. 15A-974. See also footnote 1 in the chapter text.
State v. Willis, 58 N.C. App. 617 (1982), aff’d, 307 N.C. 461 (1983). An officer did not give proper notice as he entered a house to execute a search warrant when he merely shouted “police” but failed to state his purpose for entering. The officer did not have probable cause to believe that giving notice would endanger the life or safety of any person. However, the court ruled that the violation was not sufficiently substantial so as to require the exclusion of evidence under G.S. 15A-974 because it was not willful, and officers had feared that someone inside the house might destroy contraband they were to search for—although this latter fact did not excuse the need to give proper notice. [Author’s note: Legislation enacted in 2011 (S.L. 2011-6) added a good-faith exception to the application of G.S. 15A-974. See also footnote 1 in the chapter text.
State v. Brown, 35 N.C. App. 634 (1978). Officers had a warrant to search the defendant’s home for marijuana. They devised a plan to enter the home quickly so that the defendant could not destroy any drugs (the trial court later determined that a confidential informant had told the officers that the drugs might be destroyed). The officers staged a mock chase in front of the defendant’s house. The defendant opened his door and stepped outside to investigate the commotion, and one non-uniformed officer, without identifying himself, asked whether he could use the phone. When the defendant refused, the officer pushed his way inside the house and began the search. The court ruled that the officers violated the notice provisions of G.S. 15A-249. Notice may not be dispensed with when destruction of contraband is probable. Unannounced, forcible entries are permitted only when a person’s life or safety may be endangered by giving notice. The court also ruled that the violation was substantial under G.S. 15A-974, so that evidence found during the search was inadmissible at trial: the violation was willful, privacy interests were violated, the officers completely failed to follow the provisions of G.S. 15A-249, and the exclusion of evidence would tend to deter future violations. [Author’s note: Legislation enacted in 2011 (S.L. 2011-6) added a good-faith exception to the application of G.S. 15A-974. See also footnote 1 in the chapter text.
State v. Fruitt, 35 N.C. App. 177 (1978). (1) An officer was executing a search warrant for a dwelling and outbuilding. He gave notice at the dwelling and no one responded. His failure to give notice again before entering the outbuilding was not a substantial violation of G.S. 15A-249. (2) The officer violated G.S. 15A-252 by not leaving a copy of the search warrant affixed to the premises, and he violated G.S. 15A-254 by not leaving an itemized inventory receipt of the items taken. However, these were not substantial violations under G.S. 15A-974 because the officer returned to the premises hours later and gave the defendant an itemized receipt and, apparently, also gave him a copy of the search warrant. In addition, the violations were not willful, and they occurred after the search had been completed. [Author’s note: Legislation enacted in 2011 (S.L. 2011-6) added a good-faith exception to the application of G.S. 15A-974. See also footnote 1 in the chapter text.
Fifth Amendment Issues When Personal or Business Records Are Seized
UNITED STATES SUPREME COURT
Doe v. United States, 487 U.S. 201 (1988). A federal district court order required the defendant to execute a consent directive authorizing foreign banks to disclose records of any accounts over which the defendant had a right of withdrawal, without identifying or acknowledging the existence of any account. The Court ruled that the consent directive did not violate the defendant’s Fifth Amendment rights because it was not testimonial. A defendant’s oral or written communication or act is “testimonial” when it explicitly or implicitly relates a factual assertion or discloses information. The consent directive in this case did not involve the defendant’s revealing that an account existed in a particular bank or, if there was an account, that records were in that bank, and the execution of the defendant’s consent directive would reveal only the bank’s implicit declaration, by its act of producing records, that it believed that the account was the defendant’s account.
Braswell v. United States, 487 U.S. 99 (1988). A custodian of corporate records may not resist a subpoena for records on the ground that the act of production will incriminate the custodian. However, the government may not make evidentiary use of the “individual act” of production against the individual.
Andresen v. Maryland, 427 U.S. 463 (1976). An execution of a search warrant to search the defendant’s office for business records did not violate his Fifth Amendment rights because he was not required to aid in the discovery, production, or authentication of the evidence that was seized. See also State v. Downing, 31 N.C. App. 743 (1976). For a discussion of the Fifth Amendment issues involved when the State issues a subpoena for records, see Doe v. United States, 487 U.S. 201 (1988), discussed above, and Fisher v. United States, 425 U.S. 391 (1976). For a related issue involving whether a mother-custodian of a child may assert her Fifth Amendment privilege to resist a court order to produce the child, see Baltimore City Department of Social Services v. Bouknight, 493 U.S. 549 (1990).
Part II. Administrative Inspections
Probable Cause
(This topic is discussed in the chapter text under “Authority for Issuing Administrative Inspection Warrants.”)
UNITED STATES SUPREME COURT
Camara v. Municipal Court of City & County of San Francisco, 387 U.S. 523 (1967). The Court in this case adopted the “probable cause” standard for administrative inspections that is reflected in current G.S. 15-27.2.
NORTH CAROLINA COURT OF APPEALS
South Boulevard Video & News v. Charlotte Zoning Board of Adjustment, 129 N.C. App. 282 (1998). A zoning enforcement officer conducted an inspection of a business with an administrative inspection warrant to determine if it was an adult bookstore or an adult mini motion-picture theater being operated in violation of a city ordinance. The court ruled that probable cause supported the issuance of the warrant. The officer’s affidavit stated that he had seen videotapes and magazines that appeared to be distinguished by their emphasis on depicting or describing sexual activities and human genitals, pubic regions, buttocks, and female breasts. In addition, merchandise such as artificial genitals and other sexual paraphernalia was displayed. There were also booths for viewing adult videotapes and movies. See Durham Video v. Durham Bd. of Adjustment, 144 N.C. App. 236 (2001) (similar ruling).
Brooks v. Butler, 70 N.C. App. 681 (1984). An affidavit in support of an administrative inspection warrant of a business under the Occupational Safety and Health Act sufficiently supported an inspection as part of a legally authorized inspection program that naturally included the property to be inspected.
Gooden v. Brooks, 39 N.C. App. 519 (1979). The court ruled (1) that G.S. 15-27.2(c)(1) was constitutional under Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978), because it required a showing that the property to be inspected was part of a legally authorized program of inspection that naturally included the property, the general administrative plan for enforcement was based on reasonable legislative or administrative standards (as the court interpreted the statute), and the administrative standards were applied neutrally to a particular business and (2) that the administrative inspection warrant in this case was invalid because the affidavit contained no underlying facts to support the warrant.
Warrantless Administrative Inspections
(This topic is discussed in the chapter text under “Emergency Inspection without a Warrant.”)
Generally
UNITED STATES SUPREME COURT
City of Los Angeles v. Patel, 576 U.S. 409 (2015). A group of motel owners and a lodging association (respondents) challenged a provision of the Los Angeles Municipal Code (LAMC) requiring motel owners to turn over to the police hotel registry information. Concerning the relevant LAMC provisions, Section 41.49 required hotel operators to record information about their guests, including the guest’s name and address; the number of people in each guest’s party; the make, model, and license plate number of any guest’s vehicle parked on hotel property; the guest’s date and time of arrival and scheduled departure date; the room number assigned to the guest; the rate charged and amount collected for the room; and the method of payment. Under this provision, guests without reservations, those who intended to pay for their rooms with cash, and those who planned to rent a room for less than twelve hours were required to present photographic identification at the time of check-in, and hotel operators were required to record the number and expiration date of that document. For any guest who checked in using an electronic kiosk, the hotel’s records were required to also contain the guest’s credit card information. Under Section 41.19, this information could be maintained in either electronic or paper form, but it had to be “kept on the hotel premises in the guest reception or guest check-in area or in an office adjacent” thereto for a period of ninety days. LAMC Section 41.49(3)(a) stated, in pertinent part, that hotel guest records “shall be made available to any officer of the Los Angeles Police Department for inspection,” provided that “[w]henever possible, the inspection shall be conducted at a time and in a manner that minimizes any interference with the operation of the business.” A hotel operator’s failure to make his or her guest records available for police inspection was a misdemeanor punishable by up to six months in jail and a $1,000 fine.
The respondents brought a facial challenge to Section 41.49(3)(a) on Fourth Amendment grounds, seeking declaratory and injunctive relief. The United States Supreme Court ruled that facial challenges under the Fourth Amendment were not categorically barred. Turning to the merits of the claim, the Court ruled that the challenged portion of the LAMC was facially unconstitutional because it failed to provide hotel operators with an opportunity for pre-compliance review. The Court reasoned, in part:
Clarifying the scope of its ruling, the Court continued: “As they often do, hotel operators remain free to consent to searches of their registries and police can compel them to turn them over if they have a proper administrative warrant—including one that was issued ex parte—or if some other exception to the warrant requirement applies, including exigent circumstances.” Id. at 423 (footnote omitted). The Court rejected a suggestion that hotels were “closely regulated” and that the ordinance was facially valid under the more-relaxed standard that applies to searches of that category of businesses.
New York v. Burger, 482 U.S. 691 (1987). The court ruled that a New York statute authorizing a warrantless administrative search of an auto junkyard was constitutional (a junkyard fits within the category of a “closely regulated” business). Because the regulatory scheme was administrative, the fact that the statute permitted law enforcement officers to conduct an administrative search was irrelevant in determining the statute’s constitutionality. An administrative inspection statute may serve both administrative and penal goals. See also United States v. Thomas, 973 F.2d 1152 (5th Cir. 1992).
Illinois v. Krull, 480 U.S. 340 (1987). The Fourth Amendment’s exclusionary rule does not apply to exclude evidence obtained by a warrantless administrative search conducted by an officer in the objective reasonable reliance on a statute authorizing such a search—even though the statute is later declared unconstitutional. See the discussion of this case in State v. Carter, 322 N.C. 753 (1988).
NORTH CAROLINA COURT OF APPEALS
State v. Pike, 139 N.C. App. 96 (2000). Wildlife law enforcement officers were patrolling Badin Lake at night and were stopping every vessel for a safety inspection. They saw a pontoon boat on the lake and signaled the operator to stop, which the defendant did immediately. The officers activated their take-down lights, announced their presence, and informed the defendant that they were going to conduct a safety check of the vessel. They did so without boarding the vessel. After the safety inspection, the defendant was arrested for operating a motor vessel while impaired in violation of G.S. 75A-10(b1)(2). Relying on Schenekl v. State, 996 S.W.2d 305 (Tex. Ct. App. 1999), the court ruled that the officers did not violate the Fourth Amendment by stopping the vessel, even though they did not have reasonable suspicion to conduct the stop. The court found that the government’s interest in maintaining, for its citizens, safety on its lakes and rivers substantially outweighed this defendant’s reasonable expectation of privacy in his vessel. [Author’s note: The court did not decide whether the officers could have boarded the motor vessel without reasonable suspicion or probable cause; see Klutz v. Beam, 374 F. Supp. 1129 (W.D.N.C. 1973) (warrantless boarding for inspection in landlocked lake of private boat used as home and without consent or without basis for believing there was law violation was unconstitutional).]
State v. Nobles, 107 N.C. App. 627 (1992), aff’d, 333 N.C. 787 (1993). The court ruled that G.S. 113-136(k), which permits warrantless administrative inspections of licensed fish dealerships, among other places, was not unconstitutional on its face.
Gooden v. Brooks, 39 N.C. App. 519 (1979). The court found that G.S. 95-136(a) was unconstitutional to the extent that it authorized warrantless Occupational Safety and Health Act (OSHA) searches of business establishments. See also Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978) (warrantless OSHA searches of business premises are unconstitutional); Donovan v. Dewey, 452 U.S. 594 (1981) (warrantless inspections of mines under federal law are constitutional); United States v. Biswell, 406 U.S. 311 (1972) (warrantless inspections of gun dealers’ premises under federal law are constitutional); Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970) (warrantless inspections of liquor dealers’ premises under federal law are constitutional, but Congress did not authorize warrantless inspection in this case); Camara v. Mun. Ct., 387 U.S. 523 (1967) (building inspector must obtain inspection warrant to inspect residence when occupant objects; Court adopted “probable cause” standard that is reflected in current G.S. 15-27.2); See v. Seattle, 387 U.S. 541 (1967) (fire inspector must obtain inspection warrant to inspect commercial premises); Rush v. Obledo, 756 F.2d 713 (9th Cir. 1985) (limited warrantless inspection of day care homes was proper); Gallaher v. City of Huntington, 759 F.2d 1155 (4th Cir. 1985) (warrantless inspection of records of precious-metals dealers was proper); Peterman v. Coleman, 764 F.2d 1416 (11th Cir. 1985) (warrantless inspection of registers of dealers in secondhand goods was proper); S & S Pawn Shop, Inc. v. City of Del City, 947 F.2d 432 (10th Cir. 1991) (statute permitting warrantless inspections of pawnshop books, records, and property was not unconstitutionally broad); Tart v. Massachusetts, 949 F.2d 490 (1st Cir. 1991) (warrantless request for fishing license of commercial fishing vessel was valid administrative inspection); United States v. Argent Chem. Labs., Inc., 93 F.3d 572 (9th Cir. 1996) (manufacturer of veterinary drugs is a closely regulated industry under Biswell, cited supra, and therefore is subject to warrantless administrative inspections under the Fourth Amendment); Lesser v. Espy, 34 F.3d 1301 (7th Cir. 1994) (similar ruling involving regulation of rabbitry—selling rabbits for research); United States v. V-1 Oil Co., 63 F.3d 909 (9th Cir. 1995) (warrantless, unannounced inspections—authorized by federal law—of a company involved in transportation and sale of hazardous materials did not violate Fourth Amendment); United States v. Fort, 248 F.3d 475 (5th Cir. 2001) (warrantless and suspicionless stopping of commercial vehicles for regulatory inspection is constitutional); United States v. Vasquez-Castillo, 258 F.3d 1207 (10th Cir. 2001) (warrantless inspection of commercial truck at state’s border with another state was constitutional).
Elks Lodge v. Board of Alcohol Control, 27 N.C. App. 594 (1976). A warrantless entry of Alcoholic Beverage Control permittee’s premises was constitutional.
FEDERAL APPELLATE COURTS
Freeman v. City of Dallas, 242 F.3d 642 (5th Cir. 2001) (en banc). The seizure and demolition of apartment buildings without a warrant, after the buildings were condemned under a city ordinance and state law, were reasonable under the Fourth Amendment. See Hroch v. City of Omaha, 4 F.3d 693 (8th Cir. 1993) (similar ruling); Samuels v. Meriwether, 94 F.3d 1163 (8th Cir. 1996) (same). The court disagreed with the ruling in Conner v. City of Santa Anna, 897 F.2d 1487 (9th Cir. 1990) (after hearings, city council declared several old and inoperable cars on plaintiff’s property a public nuisance and ordered the nuisance abated; city police called a towing company, and city officials broke down a fence surrounding the backyard of the property and removed two of the cars from the property; the court ruled that judicial authorization was necessary to enter the enclosed backyard (and to seize the cars), where the plaintiff had a reasonable expectation of privacy, because there were no exigent circumstances to justify the city’s acting without judicial authorization).
Calabretta v. Floyd, 189 F.3d 808 (9th Cir. 1999). Based on the facts in this case, exigent circumstances did not exist to permit a social worker to enter a house without consent to conduct a child welfare investigation.
Inspection of a Fire Scene
UNITED STATES SUPREME COURT
Michigan v. Clifford, 464 U.S. 287 (1984) (four-Justice opinion announcing the judgment of the Court). A residential fire occurred at about 5 a.m. Fire officers arrived, extinguished the fire, and left the scene about 7 a.m. At 1:30 p.m. that same day, fire officials entered the house without a warrant to investigate the cause of the fire. They found evidence of arson in the basement and then searched the rest of the house, where they found that most valuables apparently had been removed before the fire began. Although the home was uninhabitable after the fire, the Court ruled that because personal belongings remained and the defendant had arranged after the fire to have his house secured, the defendant retained a sufficient Fourth Amendment privacy interest in his home to require that post-fire investigations be conducted with a warrant, absent exigent circumstances. This case differed from Michigan v. Tyler, 436 U.S. 499 (1978), discussed immediately below, because the investigator’s entry at 1:30 p.m. was not a continuation of an earlier entry. An administrative warrant or consent was necessary to reenter the house in this case. (However, five Justices expressed the view that if advance notice of the search had been given to the defendant-owner, or if a reasonable attempt had been made to give advance notice, the search could have been conducted without a warrant.) Once evidence of arson was found in the basement, a warrant was required to search the rest of the house. The Court excluded all evidence found during these unconstitutional searches, but it ruled admissible at trial a fuel can that fire personnel had seen in the basement—when they were fighting the fire—and that they later had placed in the driveway of the residence.
Michigan v. Tyler, 436 U.S. 499 (1978). Fire officers properly entered a burning furniture store without a warrant to fight a fire and properly remained there for a reasonable time after the fire was extinguished so that they could investigate its cause to prevent its recurrence and to preserve property from intentional or accidental destruction. The officers left at 4:00 a.m. after the fire had been extinguished. A warrantless reentry at 8:00 a.m. was found to be justified in this case because the investigation of the fire’s cause had been hindered by smoke and darkness, and the reentry was merely a continuation of a legitimate determination of the fire’s cause. However, warrantless reentries at 9:00 a.m. that same day and weeks later were unconstitutional because there were no longer exigent circumstances to excuse the failure to obtain a warrant. To be lawful, these additional entries to investigate the cause of the fire should have been made with an administrative inspection warrant. If probable cause exists to search for evidence of a crime, such as arson, a search warrant must be obtained. See also United States v. Martin, 781 F.2d 671 (9th Cir. 1985) (second warrantless entry and search was permissible to look for injured persons and for source of fire and explosion in apartment).
NORTH CAROLINA COURT OF APPEALS
State v. Langley, 64 N.C. App. 674 (1983). The court ruled that a fire marshal investigating the cause and origin of a fire properly conducted a warrantless search for accelerants on fire-damaged premises (it is unclear from the opinion when the search was made).
Descriptions in Administrative Inspection Warrants
(This topic is discussed in the chapter text under “Issuing an Administrative Inspection Warrant,” “Completing Warrant Forms.”)
NORTH CAROLINA SUPREME COURT
Brooks v. Enterprises, Inc., 298 N.C. 759 (1979). An administrative inspection warrant was invalid (in violation of G.S. 15-27.2(d)) because the warrant itself did not indicate the conditions, objects, activities, or circumstances that the inspection was intended to check or reveal, and the supporting affidavit was not specifically incorporated into the warrant.
NORTH CAROLINA COURT OF APPEALS
Brooks v. Butler, 70 N.C. App. 681 (1984). An administrative inspection warrant that authorized the inspection of “all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials, and all other things . . .” was not overbroad. Id. at 688 (quoting warrant).
Consent to Authorize Inspections
NORTH CAROLINA COURT OF APPEALS
In re Dwelling of Properties, Inc., 24 N.C. App. 17 (1974). The court ruled that a tenant who was in actual possession and control of premises could consent to a warrantless inspection by the city housing inspector, despite the property owner’s objection before the inspection took place.
Procedure for Issuing or Executing Administrative Inspection Warrants
NORTH CAROLINA COURT OF APPEALS
In re Glavan Industries, Inc., 122 N.C. App. 628 (1996). A superior court judge issued an administrative inspection warrant to conduct an inspection authorized by the Occupational Safety and Health Act of North Carolina. On the same day the warrant was issued, Glavan Industries made a motion to quash the warrant. The motion was denied. Glavan Industries then gave notice of appeal to the North Carolina Court of Appeals. The court dismissed the appeal as interlocutory because no final order had been entered and Glavan did not show that any substantial right was affected.
Brooks v. Butler, 70 N.C. App. 681 (1984). Occupational Safety and Health Act administrative inspection warrants may properly be issued ex parte. The owner or possessor of the place to be inspected in this case was not entitled to be given notice and an opportunity to be heard before the warrant was issued.
Part III. Nontestimonial Identification Procedures and Orders
Constitutional Issues
United States Supreme Court
Ferguson v. City of Charleston, 532 U.S. 67 (2001). A Charleston, South Carolina, prosecutor set up a joint program with a state hospital concerning pregnant patients who were suspected of using cocaine. Selected pregnant patients would be tested for cocaine through a urine screen. A chain of custody would be followed, presumably to make sure that test results could be used in criminal prosecutions against patients for child neglect or drug offenses. The threat of law enforcement involvement and prosecution was set forth in two protocols, the first dealing with the identification of cocaine use during pregnancy and the second dealing with the identification of cocaine use after labor. The plaintiffs—women who were patients and arrested after testing positive for cocaine—sued various public officials for Fourth Amendment and other constitutional violations. The case before the United States Supreme Court was decided under the following assumed facts: (1) that the patients had not consented to the urine screen for cocaine and (2) that there was no reasonable suspicion, probable cause, or a search warrant used to obtain the urine or to conduct the urine screen. The Court ruled, distinguishing Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (1989), and other “special needs” cases upholding suspicionless searches divorced from general law enforcement interests, that a state hospital’s testing, without a search warrant, of patients’ urine for cocaine to obtain evidence for law enforcement purposes violated the Fourth Amendment. Based on the facts in this case, the Court rejected the State’s argument that the searches of the patients’ urine were justified by non–law enforcement purposes. The Court stated that while the program’s ultimate goal may have been to get the patients into substance treatment and off of drugs, the immediate objective of the searches was to generate evidence for law enforcement purposes to reach that goal.
[Author’s note: The Court indicated that its ruling did not adversely affect laws or ethics requiring medical personnel to report to law enforcement agencies child abuse, gunshot wounds, or patients’ threats to themselves or others. This ruling also would not make it unconstitutional when medical personnel take a vial of blood from a patient and give it to law enforcement officers at the officers’ request when there is probable cause and exigent circumstances exist—for example, when a patient was injured in a car accident in which there was evidence of the patient’s impaired driving.]
Chandler v. Miller, 520 U.S. 305 (1997). The Court ruled that a Georgia statute requiring candidates for designated state offices to certify that they had taken a urinalysis drug test and that the test result was negative violated the Fourth Amendment. The urinalysis drug test required by this statute, which was not based on reasonable suspicion or any other standard, was an unreasonable search under the Fourth Amendment.
Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (1989). (1) Subjecting a person to a Breathalyzer test and collecting and testing urine are searches under the Fourth Amendment. (2) The Fourth Amendment was not violated when the urine and blood of railway employees involved in train accidents were tested, even though the testing was conducted without a warrant, probable cause, or reasonable suspicion. See also Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656 (1989) (Court found that urinalysis drug testing of United States Customs Service employees seeking promotion or transfer to jobs involving drug interdiction or requiring the possession of firearms did not violate the Fourth Amendment, even though the testing was conducted without a warrant, probable cause, or reasonable suspicion).
Hayes v. Florida, 470 U.S. 811 (1985). Officers took the defendant without his consent from his home to the police station and took his fingerprints. They had neither probable cause to arrest nor judicial authorization to take fingerprints. The Court ruled that the officers’ action was an illegal seizure under the Fourth Amendment. It noted that the Fourth Amendment may permit a judicial official to authorize the seizure of a person with less than probable cause and to bring the person to the police station for fingerprinting. The Court also noted that the Fourth Amendment may permit officers to briefly detain a person in the field for fingerprinting when they have reasonable suspicion that the person committed a crime and a reasonable belief that fingerprinting will establish or negate the suspect’s connection with the crime.
Winston v. Lee, 470 U.S. 753 (1985). A shopkeeper shot an assailant in the left side during an attempted robbery, and he later identified the defendant at a hospital as the assailant. The State sought a court order to compel surgery on the defendant to remove the bullet from his body for evidence. The Court ruled that surgery in this case would be unreasonable under the Fourth Amendment based on Schmerber v. California, 384 U.S. 757 (1966), discussed below. The State did not show a compelling need for evidence that outweighed the proposed surgical intrusion into the defendant’s body under general anesthesia to retrieve the bullet.
Cupp v. Murphy, 412 U.S. 291 (1973). The defendant appeared voluntarily at a police station for questioning about the strangulation murder of his wife in her home. Abrasions and lacerations were found on the victim’s throat, and there was no sign of a break-in or robbery. Although the defendant was not arrested when he appeared at the station, police had probable cause to arrest him. While the defendant was at the station, officers noticed a dark spot under his fingernail. Suspecting that it might be dried blood and knowing that evidence of strangulation is often found under fingernails, they asked whether they could scrape under his fingernail. The defendant refused and put his hands in his pocket, but the officers took scrapings anyway. The defendant then left the station. The Court ruled that the limited warrantless intrusion by scraping under the fingernails was reasonable under the Fourth Amendment because that evidence could readily have been destroyed. Although a full search incident to arrest could not have been conducted because the defendant was not arrested, the scraping of fingernails was a limited permissible search under the facts in this case.
Davis v. Mississippi, 394 U.S. 721 (1969). Officers took the defendant without his consent to police headquarters and took his fingerprints. The officers had neither probable cause to arrest him nor judicial authorization to take his fingerprints. The Court ruled that the detention for fingerprinting was an illegal seizure under the Fourth Amendment and that the fingerprint evidence was inadmissible at trial. It noted that it need not determine whether the Fourth Amendment would permit—under narrowly circumscribed procedures—the fingerprinting of a person whom an officer does not have probable cause to arrest.
United States v. Wade, 388 U.S. 218 (1967). A defendant has no Fifth Amendment right to refuse to appear in a lineup and speak the words allegedly spoken by the offender during the commission of a crime under investigation. See also Gilbert v. California, 388 U.S. 263 (1967) (no Fifth Amendment right to refuse to give handwriting exemplars); United States v. Dionisio, 410 U.S. 1 (1973) (no Fifth Amendment right to refuse to give voice exemplars).
Schmerber v. California, 384 U.S. 757 (1966). The defendant, while receiving treatment at a hospital for injuries suffered in a car accident, was arrested for driving under the influence of intoxicating liquor. An officer directed a doctor, over the defendant’s objection—which was based on the advice of counsel—to take blood from the defendant to analyze it for its alcohol content. The Court ruled that the taking of blood did not violate the defendant’s Fourth, Fifth, or Sixth Amendment rights. The Court also ruled that exigent circumstances permitted taking the blood without a search warrant because alcohol in the blood begins to diminish shortly after the drinking stops. The Court also noted that the taking of blood was performed in a reasonable manner—by the doctor in the hospital according to accepted medical practices. See also State v. Welch, 316 N.C. 578 (1986); State v. Hollingworth, 77 N.C. App. 36 (1985).
North Carolina Supreme Court
State v. Pearson, 356 N.C. 22 (2002). The defendant was convicted of two counts of second-degree rape. (1) The court ruled that there was reasonable suspicion to support the issuance of a nontestimonial identification order to require the suspect—the defendant—to supply head- and pubic-hair samples and a saliva sample. [Author’s note: The nontestimonial identification order also ordered the defendant to supply a blood sample, but note that probable cause is needed to do so. See State v. Carter, 322 N.C. 709 (1988).] The defendant met the physical description of the perpetrator given by two rape victims. A peeping tom was reported at the location of one of the rapes about eight months before the rape occurred there. An officer saw a man, wearing a light gray or blue windbreaker and blue jeans, squatting near an air-conditioning unit directly behind an apartment building. The man ran when he saw the officer. Shortly thereafter, the defendant—wearing blue jeans and a light blue windbreaker—was stopped by an officer. (2) The court ruled that an officer did not intentionally provide false information in his affidavit for a nontestimonial identification order. The officer had sufficient evidence to conclude in the affidavit that the suspect—the defendant—was caught secretly peeping at the apartment complex. (3) The court ruled that statutory violations by officers did not require suppression of evidence obtained from the nontestimonial identification order. (See the discussion of the violations and the court’s analysis in its opinion.)
State v. Thomas, 329 N.C. 423 (1991). The day after the defendant’s arrest for murder, law enforcement officers obtained (by using the services of a medical examiner) the following evidence from the defendant without a warrant (they had obtained a nontestimonial identification order to obtain this evidence, but it was invalid under State v. Welch, 316 N.C. 578 (1986), because the defendant was in custody): samples of the defendant’s blood; head and pubic hair; saliva; fingernails; and molds of the defendant’s teeth, lips, and fingernails. The defendant moved to suppress all this evidence on grounds that federal and state constitutions required the officers to obtain a search warrant based on probable cause before taking blood and other personal identification samples of a defendant already in custody. The court ruled that blood was improperly taken, based on State v. Carter, 322 N.C. 709 (1988). However, the court ruled admissible at trial evidence of the defendant’s fingerprints, pubic hair, teeth, saliva, and lips because that evidence was properly obtained while the defendant was in police custody.
State v. Carter, 322 N.C. 709 (1988). An officer obtained a blood sample for blood-typing from an in-custody defendant with a nontestimonial identification order. [Author’s note: The use of the nontestimonial identification order to obtain evidence from an in-custody defendant was unlawful based on prior court rulings—for example, State v. Welch, 316 N.C. 578 (1986).] The court ruled as follows: (1) The taking of the blood sample violated the North Carolina Constitution because probable cause and a search warrant are required to do so unless exigent circumstances exist (there were no exigent circumstances in this case because the blood was needed for blood-typing). Reasonable suspicion is an insufficient evidentiary standard on the basis of which to take a defendant’s blood. (2) Since 1937, the expressed legislative policy of North Carolina has been to exclude evidence obtained in violation of constitutional rights against unreasonable searches and seizures. The dual purposes of deterrence and judicial integrity called for a rejection of a good-faith exception to the exclusionary rule under the North Carolina Constitution in this case, which involved the most intrusive type of search—the invasion of the defendant’s body to withdraw blood. [Author’s note: Although the court appears to have rejected a good-faith exception in all cases, it stated later in its opinion that “[w]e are not persuaded on the facts before us that we should engraft a good faith exception to the exclusionary rule under our state constitution.” Carter, 322 N.C. at 724 (emphasis added). But see State v. Garner, 331 N.C. 491 (1992) (court’s general statements may have undermined Carter to the extent that Carter indicated that the good-faith exception does not exist under the state constitution). The possible conflict between Carter and Garner was noted in State v. Banner, 207 N.C. App. 729 n.7 (2010).]
State v. Odom, 303 N.C. 163 (1981). The defendant was arrested for a felonious assault and was given her Miranda warnings. She waived those rights and answered some questions but later told officers that she wanted to consult with her attorney, and the officers then stopped their questioning. They asked the defendant to take a gunshot-residue test, but she refused to do so until she had talked with her lawyer. At trial, evidence of her refusal was admitted.
The court ruled that (1) the defendant did not have a constitutional right to counsel for the gunshot-residue test and (2) her due process rights were not violated by the admission of evidence of her refusal to take the test. [Author’s note: The court commented in a footnote that while the defendant might have had a statutory right to counsel under G.S. 15A-279(d), under these facts she clearly did not because the officer was attempting to conduct the procedure without a nontestimonial identification order, as he had a legal right to do.]
State v. Sharpe, 284 N.C. 157 (1973). The defendant was arrested for murder and was in police custody. A warrantless seizure of arm and head hairs from the defendant was ruled reasonable under the Fourth Amendment when the means used to obtain the hairs were reasonable. In this case, the defendant pulled out his head hair and gave it to the technician; the opinion does not reveal how arm hair was removed. See also State v. Downes, 57 N.C. App. 102 (1982); State v. Reynolds, 298 N.C. 380 (1979); State v. Payne, 328 N.C. 377 (1991).
North Carolina Court of Appeals
State v. Fletcher, 202 N.C. App. 107 (2010). The defendant was arrested at a checkpoint for DWI and taken to a police station for Intoximeter breath testing, which the defendant refused. An officer then transported the defendant to a hospital to compel a blood test. The defendant’s blood was drawn, and the blood test result was 0.10. The court ruled that the officer reasonably believed under G.S. 20-139.1(d1) that the delay necessary to obtain a court order would result in the dissipation of alcohol in the defendant’s blood. The officer testified that the entire process of driving to the magistrate’s office, standing in line, completing the required forms, returning to the hospital, and having the defendant’s blood drawn would have taken from two to three hours. The court also ruled that probable cause and exigent circumstances supported the warrantless compelling of the blood sample and did not violate the Fourth Amendment or various provisions of the Constitution of North Carolina.
State v. Page, 169 N.C. App. 127 (2005). The State introduced at the defendant’s murder trial the results of a gunshot-residue test administered on the defendant shortly after the homicide by shooting had occurred. (1) The court ruled, relying on State v. Coplen, 138 N.C. App. 48 (2000), that probable cause and exigent circumstances supported the administration of the test on the defendant without the necessity of a search warrant or a nontestimonial identification order. The defendant was the last person to have seen the victim before the shooting. Witnesses arriving at the crime scene found the defendant to be the only person present. The defendant offered inconsistent statements to investigating officers concerning his whereabouts during the shooting. A gunshot-residue test must be conducted within three to four hours of suspected firearm use, and evidence of firing a weapon could be destroyed by wiping or washing hands. (2) The court ruled that the trial judge’s finding of facts supported the judge’s ruling that the defendant consented to the gunshot-residue test. (3) The court ruled that there was no error in admitting the results of the gunshot-residue test at trial, even though the defendant was not advised of his right to counsel under G.S. 15A-279(d) when the test was administered. Only statements made by the defendant would be suppressed as the result of a failure to advise the defendant of the right to counsel during testing, not the results of the test. [Author’s note: Statements in State v. Odom, 303 N.C. 163 (1981) (no Sixth Amendment right to counsel at gunshot-residue test), and Coplen, cited supra, that a defendant is statutorily entitled to counsel under G.S. 15A-279(d) during the administration of a gunshot-residue test are highly questionable when an officer is not administering the test under Article 14 of Chapter 15A of the General Statutes. The statutory right to counsel in G.S. 15A-279(d) would appear to be required only when the State is conducting a procedure with the use of a nontestimonial identification order, and not when the State is properly conducting a procedure without such an order because there is probable cause and exigent circumstances exist, there is consent, or there is a search warrant.]
State v. Trull, 153 N.C. App. 630 (2002). Responding to a report that the defendant was involved in a shooting, officers handcuffed the defendant to frisk him for weapons and then removed the handcuffs. They asked him if he would voluntarily accompany them to the police station so that they could continue their investigation, and he agreed to go with them. The officers asked the defendant to submit to a gunshot-residue test, but he refused. The State was permitted to introduce evidence of this refusal at trial. The court ruled, citing State v. Coplen, 138 N.C. App. 48 (2000), that the officers had probable cause and there were exigent circumstances that permitted them to conduct the gunshot residue test without a search warrant. Information from witnesses to the shooting provided probable cause. Testimony by an officer that a gunshot-residue test must be conducted within three or four hours of a shooting provided exigent circumstances. The court noted appellate cases that have ruled that evidence of a defendant’s refusal to submit to a lawful testing or identification procedure is circumstantial evidence of guilt, and it ruled that the admission of the defendant’s refusal to submit to the gunshot-residue test was not error.
The Sixth Amendment Right to Counsel and Statutory Right to Counsel
UNITED STATES SUPREME COURT
Gilbert v. California, 388 U.S. 263 (1967). A defendant does not have a Sixth Amendment right to counsel at the taking of a handwriting sample.
United States v. Wade, 388 U.S. 218 (1967). A defendant does not have a Sixth Amendment right to counsel at the taking of hair, blood, and fingerprints.
Schmerber v. California, 384 U.S. 757 (1966). A defendant does not have a Sixth Amendment right to counsel at the taking of blood. See also United States v. Bullock, 71 F.3d 171 (5th Cir. 1995) (similar ruling).
NORTH CAROLINA SUPREME COURT
State v. Grooms, 353 N.C. 50 (2000). The court ruled that a search warrant to seize the defendant’s blood, saliva, and hair was supported by probable cause and that the State was not required to obtain a nontestimonial identification order so that the defendant would have the statutory right to counsel under G.S. 15A-279(d). The court noted that a constitutional right to counsel does not apply to Fourth Amendment searches and seizures.
State v. Odom, 303 N.C. 163 (1981). A defendant does not have a Sixth Amendment right to counsel at the administration of a gunshot-residue test.
NORTH CAROLINA COURT OF APPEALS
State v. Page, 169 N.C. App. 127 (2005). The State introduced at the defendant’s murder trial the results of a gunshot-residue test administered on the defendant shortly after the homicide by shooting had occurred. (1) The court ruled, relying on State v. Coplen, 138 N.C. App. 48 (2000), that probable cause and exigent circumstances supported the administration of the test on the defendant without the necessity of a search warrant or a nontestimonial identification order. The defendant was the last person to have seen the victim before the shooting. Witnesses arriving at the crime scene found the defendant to be the only person present. The defendant offered inconsistent statements to investigating officers concerning his whereabouts during the shooting. A gunshot-residue test must be conducted within three to four hours of suspected firearm use, and evidence of firing a weapon could be destroyed by wiping or washing hands. (2) The court ruled that the trial judge’s finding of facts supported the judge’s ruling that the defendant consented to the gunshot-residue test. (3) The court ruled that there was no error in admitting the results of the gunshot-residue test at trial, even though the defendant was not advised of his right to counsel under G.S. 15A-279(d) when the test was administered. Only statements made by the defendant would be suppressed as the result of a failure to advise the defendant of the right to counsel during testing, not the results of the test. [Author’s note: Statements in State v. Odom, 303 N.C. 163 (1981) (no Sixth Amendment right to counsel at gunshot-residue test), and Coplen, cited supra, that a defendant is statutorily entitled to counsel under G.S. 15A-279(d) during the administration of a gunshot-residue test are highly questionable when an officer is not administering the test under Article 14 of Chapter 15A of the General Statutes. The statutory right to counsel in G.S. 15A-279(d) would appear to be required only when the State is conducting a procedure with the use of a nontestimonial identification order, and not when the State is properly conducting a procedure without such an order because there is probable cause and exigent circumstances exist, there is consent, or there is a search warrant.]
State v. Coplen, 138 N.C. App. 48 (2000). The defendant was convicted of murder for the shooting death of a man with whom she lived. Shortly after the shooting, a detective informed the defendant that he was going to perform a gunshot-residue test on her hands. The defendant initially refused and asked, “Don’t I have the right to counsel?” A few minutes later, the defendant submitted to the test. The court stated that although a gunshot-residue test is a nontestimonial identification procedure under G.S. 15A-271, that statute does not set out the exclusive procedures for performing that test. Based on the facts in this case, the court ruled that the detective had probable cause and exigent circumstances existed to perform the test. The court also ruled, citing State v. Odom, 303 N.C. 163 (1981), that there is no Sixth Amendment constitutional right to counsel at the test.
Requiring Defendant to Undergo Nontestimonial Identification Procedure before Jury
NORTH CAROLINA SUPREME COURT
State v. Perry, 291 N.C. 284 (1976). The defendant’s Fifth Amendment rights were not violated when he was required to put on, before the jury, an orange stocking mask found at the scene of the armed robbery for which he was being tried. See also State v. Suddreth, 105 N.C. App. 122 (1992) (similar ruling; mask worn during sexual assault); State v. Summers, 105 N.C. App. 420 (1992) (similar ruling; involved defendant displaying his teeth—victim had described assailant as a man with missing teeth).
NORTH CAROLINA COURT OF APPEALS
State v. Locklear, 117 N.C. App. 255 (1994). During the defendant’s trial for robbery, the trial judge ordered the defendant to speak the exact words uttered by the robber so that a State’s witness could attempt to make a voice identification. The court ruled, relying on State v. Perry, 291 N.C. 284 (1976), and other cases, that the defendant’s Fifth Amendment privilege against compelled self-incrimination was not violated by the judge’s order. See also State v. Thompson, 129 N.C. App. 13 (1998) (similar ruling).
Authority to Conduct Nontestimonial Identification Procedures
(This topic is discussed in the chapter text under “Authority to Conduct Nontestimonial Identification Procedures.”)
Mandatory and Permissive Use by the State
NORTH CAROLINA SUPREME COURT
State v. Carter, 322 N.C. 709 (1988). An officer obtained a blood sample for blood-typing from an in-custody defendant with a nontestimonial identification order. [Author’s note: The use of the nontestimonial identification order to obtain evidence from an in-custody defendant was unlawful based on prior court rulings—for example, State v. Welch, discussed immediately below.] The court ruled as follows: (1) The taking of the blood sample violated the North Carolina Constitution because probable cause and a search warrant are required to do so unless exigent circumstances exist (there were no exigent circumstances in this case because the blood was needed for blood-typing). Reasonable suspicion is an insufficient evidentiary standard on the basis of which to take a defendant’s blood. (2) Since 1937, the expressed legislative policy of North Carolina has been to exclude evidence obtained in violation of constitutional rights against unreasonable searches and seizures. The dual purposes of deterrence and judicial integrity called for a rejection of a good-faith exception to the exclusionary rule under the North Carolina Constitution in this case, which involved the most intrusive type of search—the invasion of the defendant’s body to withdraw blood. Although the court appears to have rejected a good-faith exception in all cases, the court stated later in its opinion that “[w]e are not persuaded on the facts before us that we should engraft a good faith exception to the exclusionary rule under our state constitution.” Carter, 322 N.C. at 724 (emphasis added). But see State v. Garner, 331 N.C. 491 (1992) (court’s general statements may have undermined Carter to the extent that Carter indicated that the good-faith exception does not exist under the state constitution); State v. Banner, 207 N.C. App. 729 n.7 (2010) (noting possible conflict between Carter and Garner).
State v. Welch, 316 N.C. 578 (1986). The defendant was arrested for murder and armed robbery. While he was in jail, a superior court judge issued (on the State’s motion) a nontestimonial identification order to compel the defendant to give a blood sample for blood-typing. The court ruled, citing State v. Irick, 291 N.C. 480 (1977), that a judge may issue a nontestimonial identification order on the State’s motion only when (1) a person has not been arrested (but when reasonable suspicion exists that the person committed a crime punishable by more than one year’s imprisonment) or (2) a person has been arrested and released from custody pending trial. Thus, the judge erred in issuing the order. The court stated that the Fourth Amendment requires an officer to obtain a search warrant to compel a defendant (without the defendant’s consent) to give a blood sample—unless probable cause and exigent circumstances exist; see the later case of State v. Carter, 322 N.C. 709 (1988), discussed immediately above. Because exigent circumstances did not exist in this case (because a person’s blood type does not change, unlike the quantity of alcohol in one’s blood), the defendant’s Fourth Amendment rights were violated when his blood was withdrawn without a search warrant.
The court discussed the good-faith exception to the exclusionary rule of United States v. Leon, 468 U.S. 897 (1984), and Massachusetts v. Sheppard, 468 U.S. 981 (1984), and ruled that the exclusionary rule should not apply. The officer reasonably relied on the nontestimonial identification order issued by the superior court judge; he took every reasonable step to comply with the Fourth Amendment. But see Carter, cited supra, concerning whether the good-faith exception exists under the state constitution.
NORTH CAROLINA COURT OF APPEALS
State v. Page, 169 N.C. App. 127 (2005). The State introduced at the defendant’s murder trial the results of a gunshot-residue test administered on the defendant shortly after the homicide by shooting had occurred. (1) The court ruled, relying on State v. Coplen, 138 N.C. App. 48 (2000), that probable cause and exigent circumstances supported the administration of the test on the defendant without the necessity of a search warrant or a nontestimonial identification order. The defendant was the last person to have seen the victim before the shooting. Witnesses arriving at the crime scene found the defendant to be the only person present. The defendant offered inconsistent statements to investigating officers concerning his whereabouts during the shooting. A gunshot-residue test must be conducted within three to four hours of suspected firearm use, and evidence of firing a weapon could be destroyed by wiping or washing hands. (2) The court ruled that the trial judge’s finding of facts supported the judge’s ruling that the defendant consented to the gunshot-residue test. (3) The court ruled that there was no error in admitting the results of the gunshot-residue test even though the defendant was not advised of his right to counsel under G.S. 15A-279(d) when the test was administered. Only statements made by the defendant would be suppressed as the result of a failure to advise the defendant of the right to counsel during testing, not the results of the test. [Author’s note: Statements in State v. Odom, 303 N.C. 163 (1981) (no Sixth Amendment right to counsel at gunshot-residue test), and Coplen, cited supra, that a defendant is statutorily entitled to counsel under G.S. 15A-279(d) during the administration of a gunshot-residue test are highly questionable when an officer is not administering the test under Article 14 of Chapter 15A of the General Statutes. The statutory right to counsel in G.S. 15A-279(d) would appear to be required only when the State is conducting a procedure with the use of a nontestimonial identification order, and not when the State is properly conducting a procedure without such an order because there is probable cause and exigent circumstances exist, there is consent, or there is a search warrant.]
State v. Whaley, 58 N.C. App. 233 (1982). The defendant was charged with involuntary manslaughter in connection with an auto accident. The court ruled that the judge erred in issuing a nontestimonial identification order that the defendant be examined by a doctor to determine his “visual acuity.” It ruled that a nontestimonial identification order may be used to determine whether the suspect committed the charged offense, not whether the offense had been committed. While the visual acuity test may have helped to determine whether the defendant was grossly negligent in operating his vehicle, it did not materially aid in identifying him as the driver of the motor vehicle that caused the victim’s death.
State v. McDonald, 32 N.C. App. 457 (1977). The State need not obtain a nontestimonial identification order to conduct a lineup after a defendant has been arrested.
Using Force to Take Blood
NORTH CAROLINA COURT OF APPEALS
State v. Hoque, 269 N.C. App. 347 (2020). When the defendant refused to take an Intoxilyzer test, an officer obtained a search warrant to take a blood sample from him. When the defendant resisted a hospital nurse’s attempts to take a blood sample, officers pinned the defendant to a bed. The court ruled that the force used was reasonable under the Fourth Amendment.
FEDERAL APPELLATE COURTS
United States v. Bullock, 71 F.3d 171 (5th Cir. 1995). Officers obtained a search warrant to take blood from the defendant. Knowing that the defendant had threatened to resist the execution of the search warrant, the officers sought and received judicial approval to use physical force. A seven-member “control team” was used to subdue the defendant. He was handcuffed and shackled between two cots that were strapped together. He physically resisted by kicking, hitting, and attempting to bite the officers. A towel was placed on the defendant’s face because he was spitting on the officers. A nurse took blood from the defendant’s hand.
The court ruled, based on these facts, that the use of force to execute the search warrant was reasonable under the Fourth Amendment. The court, citing United States v. Wade, 388 U.S. 218 (1967), also rejected the defendant’s argument that his Sixth Amendment right to counsel was violated because his attorney was not present during the procedures. See also Hammer v. Gross, 932 F.2d 842 (9th Cir. 1991); State v. Clary, 2 P.3d 1255 (Ariz. Ct. App. 2000) (use of force to obtain blood from DWI defendant pursuant to search warrant was reasonable).
Juveniles
(This topic is discussed in the chapter text under “Juveniles and Nontestimonial Identification Procedures.”)
NORTH CAROLINA SUPREME COURT
In re Stallings, 318 N.C. 565 (1986). A one-on-one showup between a victim and a juvenile suspect may be conducted without a juvenile nontestimonial identification order (G.S. 7A-596; now, G.S. 7B-2103) when the showup does not violate due process. In this case, the showup was conducted within about an hour after the crime at issue occurred and, based on the totality of circumstances, was constitutionally permissible. The court’s ruling reversed the opinion of the North Carolina Court of Appeals, 77 N.C. App. 592 (1985). [Author’s note: The Stallings ruling effectively reversed the ruling in State v. Norris, 77 N.C. App. 525 (1985) (one-on-one showup cannot be conducted with a juvenile without a nontestimonial identification order).]
NORTH CAROLINA COURT OF APPEALS
State v. Green, 124 N.C. App. 269 (1996). A law enforcement officer took a photograph of a 13-year-old juvenile suspect with his consent but without a nontestimonial identification order. The court noted that the detective’s action violated G.S. 7A-596 because a nontestimonial identification order had not been obtained (that is, the juvenile’s consent did not alleviate the obligation to obtain the order).
Alternative of Using a Search Warrant
NORTH CAROLINA COURT OF APPEALS
State v. McLean, 47 N.C. App. 672 (1980). An officer may elect to obtain a search warrant, rather than a nontestimonial identification order, to obtain blood samples and pubic hairs from a defendant. [Author’s note: The later case of State v. Carter, 322 N.C. 709 (1988), discussed above under “Mandatory and Permissive Use by the State,” “NORTH CAROLINA SUPREME COURT,” requires a search warrant to obtain a blood sample.] A magistrate properly issued a search warrant when the warrant affidavit showed probable cause to believe that a rape was committed and evidence of that crime might be obtained by taking blood samples and pubic hairs from the defendant and comparing them with semen and pubic hair found on the bed linen at the crime scene.
Defendant’s Request for a Nontestimonial Identification Order
(This topic is discussed in the chapter text under “Defendant’s Request for a Nontestimonial Identification Order.”)
NORTH CAROLINA SUPREME COURT
State v. Tucker, 329 N.C. 709 (1991). The defendant sought a nontestimonial identification order to require a State’s witness to provide a hair sample for analysis. The court ruled that there is no statutory or other authorization for such an order.
State v. Jackson, 306 N.C. 642 (1982). A district court judge ordered a lineup to be held at the defendant’s request under G.S. 15A-281. The judge rescinded his order when the State voluntarily dismissed the case before the lineup was held. The State later recharged the defendant with the same crime, and a lineup was held thereafter at the defendant’s request. The court ruled that the defendant had no statutory right to demand a lineup when the first charges were no longer pending against him.
NORTH CAROLINA COURT OF APPEALS
State v. Ryals, 179 N.C. App. 733 (2006). The defendant was convicted of second-degree murder. State’s witness Lee testified that she saw the defendant beat the victim with his fists and kick and stomp him. State’s witness Winstead also testified about the defendant’s beating of the victim. A police department crime technician recovered a black knit cap and other items from the crime scene. Negroid hair was found on the cap, but a State’s witness testified that it was not suitable for further analysis. A defense expert witness compared a DNA sample from the hair on the cap with the defendant’s DNA sample and concluded that it could not have originated from the defendant. Before trial, a judge denied the defendant’s motion for a nontestimonial identification order to collect a DNA sample from Winstead to compare it with DNA from the hair on the cap; the defendant contended that Winstead had a motive to commit the murder, was present at the scene, and could have committed the murder. The court ruled, relying on State v. Tucker, 329 N.C. 709 (1991), that the trial judge lacked the authority to issue a defense-requested nontestimonial identification order to require the State to obtain a DNA sample from State’s witness Winstead to conduct comparison testing with DNA from the hair on the cap.
State v. Abdullah, 66 N.C. App. 173 (1984). The defendant filed a motion just before his armed robbery trial (about nine months after his arrest) for a pretrial lineup procedure under G.S. 15A-281. The trial judge denied the motion, concluding that the defendant had not shown that a lineup would materially aid the jury in determining whether he committed the robbery. The court upheld the trial judge’s ruling because there was substantial identification evidence (that is, there were many other witnesses) in addition to the victim’s identification of the defendant. See also State v. Yancey, 58 N.C. App. 52 (1982).
The Nontestimonial Identification Procedure
NORTH CAROLINA SUPREME COURT
State v. Temple, 302 N.C. 1 (1981). Although G.S. 15A-279(d) requires that a defendant be informed of the right to counsel (as well as of the right of appointment of counsel for an indigent defendant) at a nontestimonial identification procedure, it does not require an express waiver of that right.
Suppression Motions
See other pertinent cases below under “Part IV. Suppression Motions and Hearings; Exclusionary Rules.”
NORTH CAROLINA SUPREME COURT
State v. Pearson, 356 N.C. 22 (2002). The court ruled that violations of nontestimonial-identification-procedure statutes did not require the suppression of evidence obtained from a nontestimonial identification order. (See the discussion of the violations and the court’s analysis in its opinion.)
State v. Maccia, 311 N.C. 222 (1984). The defendant waived his right to contest on constitutional grounds the admissibility of evidence obtained by a nontestimonial identification order when he failed to make his suppression motion before trial as required by G.S. 15A-975 and there was no exception to permit his making the motion during trial. See also State v. Satterfield, 300 N.C. 621 (1980).
Part IV. Suppression Motions and Hearings; Exclusionary Rules
[Author’s note: Suppression motions and hearings are discussed in the text under “Part I. Search Warrants, Consequences of an Unlawful Search or Seizure, Procedure for Excluding Evidence: Suppression Motions and Hearings.” Exclusionary rules are discussed in the text under “Part I. Search Warrants, Consequences of an Unlawful Search or Seizure, Exclusionary Rules.” Due to the volume and variety of the case law on these topics, a separate appendix section has been created to address and present this case law.]
Contents of Suppression Motion
NORTH CAROLINA COURT OF APPEALS
State v. Pearson, 131 N.C. App. 315 (1998). An officer arrested the defendant for DWI. When an Intoxilyzer malfunctioned, the officer took the defendant outside the officer’s territorial jurisdiction to take the Intoxilyzer test there. The court ruled, relying on State v. Satterfield, 300 N.C. 621 (1980), that the defendant’s failure to file an affidavit with his motion to suppress the chemical-test result, based on an allegation of a substantial statutory violation, was a ground to deny the motion.
State v. Chance, 130 N.C. App. 107 (1998). The court ruled that an affidavit submitted with a suppression motion under G.S. 15A-977 may be attested to by the defendant’s attorney on information and belief. The defendant is not required to sign the affidavit.
State v. Williams, 98 N.C. App. 405 (1990). The trial judge properly summarily denied the defendant’s suppression motion when the affidavit submitted with the motion did not support the ground alleged in the motion. The motion challenged the warrantless search of an area outside the defendant’s house, but the affidavit stated that the defendant did not exercise dominion over the area where a matchbox containing crack cocaine was found; thus, the defendant did not have a reasonable expectation of privacy there.
State v. Langdon, 94 N.C. App. 354 (1989). (1) The defendant’s first suppression motion asserted that the “warrant was illegally issued because it does not show probable cause” and that “the information contained in the warrant was stale at the time the warrant was issued.” Id. at 356 (quoting motion). The motion was unverified and was not accompanied by an affidavit. Under G.S. 15A-977, the trial judge did not abuse his discretion in summarily denying the motion. (2) The defendant’s second suppression motion was filed on the day the defendant’s case was calendared for trial but before jury selection. This motion was timely under G.S. 15A-976 based on the facts in this case. It was accompanied by an affidavit and contained an additional allegation for suppression. The trial judge erred in denying the motion on the ground that one trial judge cannot overrule another. However, the trial judge could have summarily denied the motion because the affidavit accompanying the motion failed to support the ground alleged. It alleged only factual errors in officers’ application for a search warrant and did not contain any facts to support the motion’s allegations that the officers acted in bad faith in supplying information establishing probable cause.
State v. Hall, 73 N.C. App. 101 (1985). The trial court could have summarily denied the defendant’s suppression motion because its stated grounds were so vague that they were essentially no grounds at all.
State v. Harris, 71 N.C. App. 141 (1984). The trial judge properly summarily dismissed the defendant’s pretrial motion to suppress identification testimony because it was not accompanied by an affidavit containing facts supporting the motion. The trial judge properly refused to hear the suppression motion during trial because an exception did not exist in G.S. 15A-975 to excuse the failure to make a pretrial motion.
State v. Blackwood, 60 N.C. App. 150 (1982). The trial judge properly summarily denied the defendant’s suppression motion when the affidavit submitted with the motion did not contain facts supporting the ground alleged in the motion.
Timing of Suppression Motion
NORTH CAROLINA SUPREME COURT
State v. Fisher, 321 N.C. 19 (1987). The defendant did not waive his right under G.S. 15A-975(b)(2) to make a suppression motion during trial when the State provided laboratory reports to the defendant before trial but failed to notify him that it intended to use the evidence that was the subject of the reports.
State v. Maccia, 311 N.C. 222 (1984). The defendant waived his right to contest on constitutional grounds the admissibility of evidence obtained by a nontestimonial identification order when he failed to make his suppression motion before trial as required by G.S. 15A-975 and an exception did not exist to permit the motion to be made during trial. See also State v. Satterfield, 300 N.C. 621 (1980).
State v. Hill, 294 N.C. 320 (1978). When the State gave proper pretrial notice under G.S. 15A-975(b) of its intention to introduce evidence of a warrantless search, and the defendant failed to file a motion to suppress within the required ten working days, the trial judge properly summarily denied the tardy suppression motion.
NORTH CAROLINA COURT OF APPEALS
State v. Speight, 166 N.C. App. 106 (2004). The defendant filed a motion to suppress during trial, alleging that evidence was improperly seized as a result of a consent search. The court ruled, relying on State v. Fisher, 321 N.C. 19 (1987), that the motion was timely filed during trial because the State failed to give proper notice under G.S. 15A-975(b) (State must notify defense counsel twenty working days before trial of intention to use certain evidence) that would have otherwise required the motion to be made before trial.
State v. Davis, 97 N.C. App. 259, aff’d per curiam, 327 N.C. 467 (1990). The defendant filed a motion to suppress within the required ten working days under G.S. 15A-976(b), but the trial judge dismissed the motion without prejudice and granted the defendant the opportunity to refile the motion in a form that satisfied procedural requirements under Article 53 of G.S. Chapter 15A. The defendant filed the second motion more than two months later. The court ruled that the second motion had to be filed within ten days of the date of the dismissal of the first motion and that, therefore, the second motion was not timely filed.
State v. Langdon, 94 N.C. App. 354 (1989). (1) The defendant’s first suppression motion asserted that the “warrant was illegally issued because it does not show probable cause” and that “the information contained in the warrant was stale at the time the warrant was issued.” Id. at 356 (quoting motion). The motion was unverified and was not accompanied by an affidavit. Under G.S. 15A-977, the trial judge did not abuse his discretion in summarily denying the motion. (2) The defendant’s second suppression motion was filed on the day the defendant’s case was calendared for trial but before jury selection. This motion was timely under G.S. 15A-976 based on the facts in this case. It was accompanied by an affidavit and contained an additional allegation for suppression. The trial judge erred in denying the motion on the ground that one trial judge cannot overrule another. However, the trial judge could have summarily denied the motion when the affidavit accompanying the motion failed to support the ground alleged. It alleged only factual errors in the officers’ application for a search warrant and did not contain any facts to support the motion’s allegations that the officers acted in bad faith in supplying information establishing probable cause.
State v. Marshall, 92 N.C. App. 398 (1988). (1) The defendant’s motion during trial to suppress certain statements he made was timely under G.S. 15A-975 when he established that the State had not notified him within twenty working days of the trial of its intention to introduce the statements at trial. (2) Although the trial judge could have summarily denied the defendant’s suppression motion on the ground that it did not state the legal grounds for the motion, the judge did not deny the motion but instead conducted a hearing on the motion and made a ruling on the merits. [Author’s note: This ruling—as well as the ruling in State v. Harvey, 78 N.C. App. 235 (1985)—appears to be inconsistent with the ruling in State v. Holloway, 311 N.C. 573 (1984).]
State v. Simmons, 59 N.C. App. 287 (1982). The trial judge properly summarily denied a suppression motion at a trial de novo in superior court when the defendant failed to make a motion before trial in superior court, as required by G.S. 15A-975. See also State v. Golden, 96 N.C. App. 249 (1989).
Suppression Motion Made during Trial
NORTH CAROLINA SUPREME COURT
State v. Jaynes, 342 N.C. 249 (1995). Before trial, a suppression hearing was held on the defendant’s motion to suppress two letters he had written. The trial court denied the motion. During trial, the defendant moved to suppress a third letter written by him based on the same legal grounds asserted in the pretrial motion. The trial court refused to conduct another suppression hearing. The court ruled that the trial court did not err because there was no reason for another hearing.
State v. Roper, 328 N.C. 337 (1991). When a defendant is permitted to make a suppression motion during trial, the defendant must make the motion orally or in writing, and an affidavit is not required to be filed with the motion (the court disapproved contrary language about an affidavit being required in State v. Satterfield, 300 N.C. 621 (1980), and State v. Simmons, 59 N.C. App. 287 (1982)). However, a defendant must during trial make a motion to suppress (a general objection is insufficient), request a voir dire, and state the legal grounds for the motion.
State v. Fisher, 321 N.C. 19 (1987). The defendant did not waive his right under G.S. 15A-975(b)(2) to make a suppression motion during trial when the State provided laboratory reports to the defendant before trial but failed to notify him that it intended to use the evidence that was the subject of the reports.
NORTH CAROLINA COURT OF APPEALS
State v. Harris, 71 N.C. App. 141 (1984). The trial court properly summarily dismissed the defendant’s pretrial motion to suppress identification testimony because it was not accompanied by an affidavit containing facts supporting the motion. The trial court properly refused to hear the suppression motion during trial because an exception did not exist in G.S. 15A-975 to excuse the failure to make a pretrial motion.
Suppression Motion Based on Newly Discovered Evidence
NORTH CAROLINA COURT OF APPEALS
State v. Watkins, 120 N.C. App. 804 (1995). An officer stopped a vehicle for impaired driving. A prior appeal of this case determined that anonymous information and the officer’s observations provided reasonable suspicion for the stop; see State v. Watkins, 337 N.C. 437 (1994). The defendant then filed a supplemental suppression motion based on newly discovered evidence that the anonymous information had been supplied to the stopping officer by another officer and the other officer had fabricated the information (there was no evidence that the stopping officer knew that the information was fabricated). The court ruled that the defendant had the authority to file a supplemental suppression motion based on newly discovered evidence; see G.S. 15A-975(c).
Trial Court’s Ruling on Suppression Motion
When Trial Court’s Ruling Must Be Made
NORTH CAROLINA SUPREME COURT
State v. Bartlett, 368 N.C. 309 (2015). The state supreme court, reversing the court of appeals, 231 N.C. App. 417 (2013), ruled that a new suppression hearing was required. At the close of the original suppression hearing, the superior court judge orally granted the defendant’s motion and asked counsel to prepare a written order. However, that judge did not sign the proposed order before his term ended. The defendant presented the proposed order to a second superior court judge, who signed it, over the State’s objection and without conducting a hearing. The order specifically found that the defendant’s expert was credible, gave weight to the expert’s testimony, and used the expert’s testimony to conclude that no probable cause existed to support the defendant’s arrest. The State appealed, contending that the second judge was without authority to sign the order. The court of appeals found it unnecessary to reach the State’s contention because that court considered the first judge’s oral ruling to be sufficient. Reviewing the law, the supreme court clarified, “our cases require findings of fact only when there is a material conflict in the evidence and allow the trial court to make these findings either orally or in writing.” Id. at 312. It added that to the extent that cases such as State v. Williams, 195 N.C. App. 554 (2009), “suggest otherwise, they are disavowed.” Bartlett, 368 N.C. at 312. Turning to the case before it, the supreme court concluded that at the suppression hearing in this case, disagreement between the parties’ expert witnesses created a material conflict in the evidence. Thus, a finding of fact, whether written or oral, was required. Here, however, the first judge made no such finding. The court noted that while he did attempt to explain his rationale for granting the motion, “we cannot construe any of his statements as a definitive finding of fact that resolved the material conflict in the evidence.” Id. Having found that the oral ruling was inadequate, the supreme court considered whether the second judge had authority to resolve the evidentiary conflict in his written order even though he did not conduct the suppression hearing. It held that he did not, reasoning that G.S. 15A-977 contemplates that the same trial judge who hears the evidence must also find the facts. The court rejected the defendant’s argument that G.S. 15A-1224(b) authorized the second judge to sign the order, concluding that the provision applies only to criminal trials, not suppression hearings.
State v. Trent, 359 N.C. 583 (2005). The defendant filed motions to suppress evidence. After hearing evidence and arguments of counsel on January 17, 2002, the trial court stated that it would announce a ruling later. On August 26, 2002, the trial court announced its ruling that the motions to suppress were denied. The supreme court ruled that (1) the trial court’s ruling on the suppression motions was void because it was not announced in open court or entered during the session in which motions were heard and (2) the trial court did not have the explicit consent of both parties to enter the ruling after the session had ended. The defendant was entitled to a new trial without consideration as to whether the defendant was prejudiced by the admission of evidence that was subject to the suppression motions. See also State v. Branch, 177 N.C. App. 104 (2006) (entry of ruling on suppression motion made out of term was nullity; defendant had consented to trial court’s request to take motion under advisement and issue later order, but defendant did not explicitly consent to order’s entry out of term). See generally Michael Crowell, Out-of-Term, Out-of-Session, Out-of-County, Admin. of Just. Bull. No. 2008/05 (Nov. 2008), www.sog.unc.edu/sites/www.sog.unc.edu/files/reports/aojb0805.pdf.
State v. Palmer, 334 N.C. 104 (1993). An order denying a motion to suppress was valid, even though the written order was filed after the superior court term had concluded and fifty-seven days after the notice of appeal had been entered, when the trial court had verbally denied the motion in open court after the suppression hearing was held. See also State v. Smith, 320 N.C. 404 (1987).
State v. Boone, 310 N.C. 284 (1984). An order denying a pretrial motion to suppress was a nullity because it was entered and signed after the end of the session at which the motion was heard. A trial court must announce a ruling on a motion in open court during the session, or the order containing the ruling must be signed and filed with the clerk during the session. See also State v. Horner, 310 N.C. 274 (1984) (no error when trial court ruled on motion to suppress during trial but filed written order with clerk out of session and out of county; Boone distinguished).
NORTH CAROLINA COURT OF APPEALS
State v. Swain, 276 N.C. App. 394 (2021). In a prior decision, State v. Swain, 259 N.C. App. 253 (2018) (“Swain I”), the defendant appealed the trial court’s denial of his motion to suppress. The defendant argued that the cocaine discovered in this drug-trafficking case was based on a search warrant affidavit that contained false statements in violation of Franks v. Delaware, 438 U.S. 154 (1978). The appellate court in Swain I concluded that it could not adequately review the defendant’s arguments because the trial court had not entered a written order resolving factual disputes in the evidence presented at the suppression hearing, so the matter was remanded to the trial court for entry of a written order clarifying the court’s findings. However, since the judge who conducted the hearing had retired, another superior court judge reviewed the hearing transcript and prepared a written order denying the defendant’s motion.
The appellate court found that this procedure was improper and that a new hearing should have been held for two reasons. First, pursuant to G.S. 15A-977 and State v. Bartlett, 368 N.C. 309 (2015), only the judge who presided over the hearing could make findings of fact concerning the evidence presented. Second, the appellate court noted that when it remanded this matter in Swain I, it had already concluded that the transcript alone provided an insufficient basis to resolve the conflicts in the evidence, and those disputes remained unresolved by the new order. Therefore, the court once again vacated the trial court’s order and remanded with instructions to hold a new evidentiary hearing and enter a written order resolving any factual disputes and ruling on the motion.
Trial Court’s Findings of Fact and Conclusions of Law
NORTH CAROLINA COURT OF APPEALS
State v. Morgan, 225 N.C. App. 784 (2013). The trial court erred by failing to issue a written order denying the defendant’s motion to suppress. A written order is necessary unless the court announces its rationale from the bench and there are no material conflicts in the evidence. Although the trial court announced its ruling from the bench, there was a material conflict in the evidence. The court remanded for the entry of a written order.
State v. O’Connor, 222 N.C. App. 235 (2012). In granting the defendant’s motion to suppress, the trial court erred by failing to make findings of fact resolving material conflicts in the evidence. The court of appeals rejected the defendant’s argument that the trial court “indirectly provided a rationale from the bench” by stating that the motion was granted for the reasons in the defendant’s memorandum. Id. at 243.
State v. Salinas, 366 N.C. 119 (2012). Modifying and affirming an opinion from the court of appeals, 214 N.C. App. 408 (2011) (trial court incorrectly applied a probable cause standard instead of a reasonable suspicion standard to a vehicle stop), the state supreme court ruled that a trial court could not rely on allegations contained in a defendant’s G.S. 15A-977(a) affidavit when making findings of fact in connection with a motion to suppress.
State v. Baker, 208 N.C. App. 376 (2010). The court stated that when a trial court’s failure to make findings of fact and conclusions of law is assigned as error on appeal, the trial court’s ruling on a motion to suppress is fully reviewable to determine (1) whether the trial court provided the rationale for its ruling from the bench and (2) whether there was a material conflict in the evidence presented at the suppression hearing. If a reviewing court concludes that both criteria are met (that is, the trial court provided the ruling’s rationale from the bench and there was no material conflict in the evidence presented at the suppression hearing), then the findings of fact are implied by the trial court’s denial of the motion to suppress and will be binding on appeal if supported by competent evidence. If a reviewing court concludes that either of the criteria is not met, then a trial court’s failure to make findings of fact and conclusions of law is reversible error. A material conflict in the evidence exists when evidence presented by one party controverts evidence presented by an opposing party such that the outcome of the matter is likely to be affected. The court ruled in this case that the defendant had presented evidence that controverted the State’s evidence as to whether a seizure occurred. Because there was a material conflict in the evidence, the trial court’s failure to make findings of fact and conclusions of law was fatal to its ruling’s validity. The court reversed and remanded for findings of fact and conclusions of law. The court noted that even when there is no material conflict in the evidence, the better practice is for the trial court to make findings of fact.
Whether Another Jurisdiction’s Ruling Is Binding on North Carolina Courts
NORTH CAROLINA SUPREME COURT
State v. Brooks, 337 N.C. 132 (1994). The defendant had previously been prosecuted in federal court on federal drug charges arising from the same search that led to his trial in North Carolina on state charges. A federal judge had ruled that the search violated the Fourth Amendment and suppressed the cocaine that had been seized. The North Carolina Supreme Court ruled that the federal court’s ruling did not collaterally estop the State from introducing the same evidence in state court. Collateral estoppel does not apply, under either federal or state constitutions, to criminal cases in which separate sovereigns are involved in separate proceedings and there is no privity between the two sovereigns in the first proceeding. The State was not in privity with the federal government concerning federal charges simply because it may have deferred to having federal prosecution begin first.
State v. Myers, 266 N.C. 581 (1966). A Virginia state court’s ruling that a search warrant was invalid is not binding on North Carolina courts.
NORTH CAROLINA COURT OF APPEALS
State v. Hernandez, 208 N.C. App. 591 (2010). Any alleged violation of the New Jersey Constitution in connection with a stop in that state leading to charges in North Carolina provided no basis for the suppression of evidence in a North Carolina court.
Law of the Case
NORTH CAROLINA SUPREME COURT
State v. Lewis, 365 N.C. 488 (2012). Affirming the court of appeals, the state supreme court ruled that on a retrial, the trial court erred by applying the law of the case and denying the defendant’s motion to suppress. At the defendant’s first trial, he unsuccessfully moved to suppress the victim’s identification as unduly suggestive. That issue was affirmed on appeal. At the retrial, the defense filed new motions to suppress on the same grounds. However, at the pretrial hearings on these motions, the defense introduced new evidence relevant to the reliability of the identification. The State successfully argued that the law of the case governed and that the defendant’s motions must be denied. After the defendant was again convicted, he appealed, and the court of appeals reversed on this issue. Affirming that ruling, the supreme court noted that “the law of the case doctrine does not apply when the evidence presented at a subsequent proceeding is different from that presented on a former appeal.” Id. at 505. It then affirmed the court of appeals’ ruling that the trial court erred in applying the doctrine of the law of the case to the defendant’s motion to suppress at the retrial.
Trial Court Modifying Its Own Suppression Ruling
NORTH CAROLINA COURT OF APPEALS
State v. McNeill, 170 N.C. App. 574 (2005). The trial court granted the defendant’s pretrial motion to suppress evidence. However, the trial court during trial changed its ruling and allowed the evidence to be admitted. The court of appeals ruled that the trial court did not err in admitting the evidence. The court noted that a pretrial motion to suppress is a type of motion in limine, and such a motion is a preliminary or interlocutory decision that the trial court can change. The court noted that the State has two options when a defendant’s pretrial suppression motion is granted: (1) it can appeal the ruling to the appellate courts or (2) it can proceed to trial, attempt to introduce the evidence subject to suppression, and allow the trial court to either change the pretrial ruling or make the defendant object to the admission of the evidence.
Trial Court Modifying Another Trial Court’s Suppression Ruling
NORTH CAROLINA SUPREME COURT
State v. Woolridge, 357 N.C. 544 (2003). The court ruled, citing State v. Hilliard, 120 N.C. 479 (1997), and other cases, that a trial judge had no authority to rule on the State’s motion to reconsider another trial judge’s order granting the defendant’s motion to suppress when the State did not make a sufficient showing of a substantial change of circumstances since the first judge’s order. The court stated that superior court judges must remain mindful that the power of one judge of the superior court is equal and coordinate with that of another. See generally Michael Crowell, One Trial Judge Overruling Another, Admin. of Just. Bull. 2015/06 (December 2015), https://www.sog.unc.edu/publications/bulletins/one-trial-judge-overruling-another-1.
Suppression Hearings
UNITED STATES SUPREME COURT
Simmons v. United States, 390 U.S. 377 (1968). The government may not use a defendant’s testimony at a suppression hearing as evidence of guilt at the subsequent prosecution. [Author’s note: Although the Court has not decided whether a defendant’s testimony may be used for impeachment, see United States v. Salvucci, 448 U.S. 83 (1980), it probably would permit the testimony for that limited purpose. For a North Carolina appellate court ruling on this issue, see State v. Bracey, 303 N.C. 112 (1981), immediately below.]
NORTH CAROLINA SUPREME COURT
State v. Bracey, 303 N.C. 112 (1981). The State properly impeached the defendant at trial during cross-examination with testimony he had given during a hearing to suppress his confession.
State v. Edwards, 286 N.C. 162 (1974). A photocopy of a search warrant is admissible at a suppression hearing when the original has been lost.
NORTH CAROLINA COURT OF APPEALS
State v. Williams, 225 N.C. App. 636 (2013). The court of appeals ruled that the trial court did not impermissibly place the burden of proof on the defendant at a suppression hearing. Initially, the burden is on the defendant to show that a suppression motion is timely and in proper form. The burden then is on the State to demonstrate the admissibility of the challenged evidence. The party that bears the burden of proof typically presents evidence first. In this case, the fact that the defendant presented evidence first at the suppression hearing does not by itself establish that the burden of proof was shifted to the defendant.
State v. Cohen, 117 N.C. App. 265 (1994). Officers obtained the consent of the defendant’s wife to search her car. The officers searched its contents, including an unlocked briefcase. The defendant made a motion to suppress evidence discovered during the search of the briefcase on the ground that his wife did not have the authority to consent to its search. The trial judge refused to accept the wife’s affidavit at the suppression hearing because she was available as a witness; the defendant declined the judge’s offer of additional time to produce his wife as a witness. The court ruled that the judge properly refused to admit the affidavit based on these facts. The court also ruled that the defendant’s suppression motion was properly denied because the defendant failed to present evidence that he had an ownership or possessory interest in the briefcase.
State v. Piland, 58 N.C. App. 95 (1982). A defendant’s counsel may waive the defendant’s right to appear at the pretrial suppression hearing. No prejudice to the defendant was shown in this case by his absence.
State v. Lay, 56 N.C. App. 796 (1982). The State was not collaterally estopped from asserting the validity of a search warrant in a felony case when a district court judge had previously ruled that the warrant was invalid in a related misdemeanor case.
State v. Williams, 42 N.C. App. 662 (1979), rev’d on other grounds, 299 N.C. 529 (1980). The State has the burden of proving the legality under the Fourth Amendment of an officer’s conduct when the officer acted without a warrant. See also State v. Breeden, 306 N.C. 533 (1982) (defendant has burden of going forward by filing motion to suppress out-of-court identification, but State had burden of proving by preponderance of evidence that evidence was admissible).
State v. Gibson, 32 N.C. App. 584 (1977). A defendant has the burden of going forward by filing a motion to suppress evidence seized under a search warrant, but the State has the burden of proof to show that the evidence was lawfully obtained. [Author’s note: The defendant has the burden of proving standing to contest a Fourth Amendment violation. See Rakas v. Illinois, 439 U.S. 128 (1978).]
State v. Brown, 20 N.C. App. 413 (1974). There is no constitutional or statutory prohibition that prevents a judge from ruling on the validity of a search warrant issued by that judge (although it is better not to do so). See also State v. Montserrate, 125 N.C. App. 22 (1997) (similar ruling).
Admissibility of Hearsay at Suppression Hearing
NORTH CAROLINA COURT OF APPEALS
State v. Ezzell, 277 N.C. App. 276 (2021). The court ruled that under Rules 104(a) and 1101(b)(1) of the North Carolina Rules of Evidence in G.S. 8C-1, the rules of evidence do not apply in a hearing that determines the admissibility of evidence, with the exception of rules concerning privileges.
State v. Ingram, 242 N.C. App. 173 (2015). The court rejected the State’s argument that the trial court erred by considering hearsay evidence in the defendant’s suppression hearing and by relying on the evidence in making its findings of fact. The court noted that the trial court has “great discretion” to admit any evidence relevant to the suppression hearing.
State v. Villeda, 165 N.C. App. 431 (2004). An officer stopped a vehicle driven by a Hispanic male for a seat belt violation. He was later arrested for DWI and convicted in district court, and he appealed for trial de novo in superior court. The defendant moved to suppress evidence seized as a result of the traffic stop. A suppression hearing was conducted, and the trial judge granted the defendant’s motion to suppress evidence related to the traffic stop and dismissed the DWI charge. At the suppression hearing, the defendant presented testimony of three attorneys who had represented defendants in other cases involving the officer who stopped the defendant to show that the officer had stopped Hispanic males based on impermissible ethnic bias. The trial judge admitted the attorneys’ out-of-court conversations with the officer. The State argued on appeal that the attorneys’ testimony concerning the officer’s statements was inadmissible hearsay. The court ruled, relying on cases from other jurisdictions, that the officer’s statements were admissible at trial under Rule 801(d)(D) of the North Carolina Rules of Evidence in G.S. 8C-1 (a statement offered against a party and made by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, is admissible at trial). [Author’s note: Rule 104(a) of the Rules of Evidence provides, in pertinent part, that preliminary questions concerning the admissibility of evidence shall be determined by the court, and in making its determination the court is not bound by the rules of evidence except those with respect to privileges. Thus, hearsay is admissible at suppression hearings.] Cf. Gibson v. Faulkner, 132 N.C. App. 728 (1999) (court ruled, relying on Melton v. Hodges, 114 N.C. App. 795 (1994), that trial judge properly could rely on hearsay evidence (information an officer gave to arresting officer) in concluding that arresting officer had reasonable grounds to believe that person had committed implied-consent offense (in this case, DWI)).
State v. Melvin, 32 N.C. App. 772 (1977). Hearsay statements by an officer about what a joint occupant said in consenting to a premises search is admissible at a voir dire hearing to determine the validity of consent; the court cited United States v. Matlock, 415 U.S. 164 (1974). See also G.S. 8C-1, Rule 104 (court is not bound by rules of evidence in determining admissibility of evidence, except with respect to privileges).
Appellate Review of Suppression Motions and Rulings
NORTH CAROLINA SUPREME COURT
State v. Oates, 366 N.C. 264 (2012). The state supreme court reversed the decision below, 215 N.C. App. 491 (2011), and ruled that the State’s notice of appeal of a trial court ruling on a suppression motion was timely. The State’s notice was filed seven days after the trial judge in open court orally granted the defendant’s pretrial motion to suppress, but three months before the trial judge issued his corresponding written order of suppression. The supreme court ruled that the window for filing a written notice of appeal in a criminal case opens on the date of rendition of the judgment or order and closes fourteen days after entry of the judgment or order. The court clarified that rendering a judgment or an order means pronouncing, stating, declaring, or announcing the judgment or order and is “the judicial act of the court in pronouncing the sentence of the law upon the facts in controversy.” 366 N.C. at 266. Entering a judgment or an order is “a ministerial act which consists in spreading it upon the record.” Id. The court continued:
State v. Golphin, 352 N.C. 364 (2000). The court ruled that because a pretrial motion to suppress is a type of motion in limine, a pretrial motion to suppress is insufficient to preserve for appeal the admissibility of evidence if a defendant did not object when the evidence was offered at trial.
State v. Bunnell, 340 N.C. 74 (1995). The defendant’s motion to suppress at trial challenged the voluntariness of his statement to a law enforcement officer. The court ruled that the defendant could not assert for the first time on appeal a challenge to his statement on the ground that it was obtained in violation of his Sixth Amendment right to counsel, because he did not assert this ground in his suppression motion at trial.
State v. Benson, 323 N.C. 318 (1988). The defendant argued on appeal that his confession should have been suppressed because it was obtained as the result of an unlawful arrest. However, the defendant’s pretrial written suppression motion did not rely on that ground (neither did he argue that ground during the suppression hearing). The court ruled that the defendant could not argue that ground on appeal. See also State v. Hunter, 305 N.C. 106 (1982) (similar ruling).
State v. Zuniga, 320 N.C. 233 (1987). A prior appellate ruling in this case upheld the trial judge’s denial of the defendant’s suppression motion. The court ruled on the second appeal that unless additional evidence was offered after the first appeal or a new theory of exclusion was raised, courts were bound by the “law of the case” on the issue in the suppression motion.
State v. Holloway, 311 N.C. 573 (1984). The defendant waived his right to appeal on constitutional and statutory grounds the issue of a deputy clerk’s neutrality in issuing a search warrant when he failed to file an affidavit with his motion to suppress as required by G.S. 15A-977(a) and when his unverified motion failed to specify his source of information or the basis of his belief that the deputy clerk was not neutral and detached. It was irrelevant (concerning the defendant’s waiver of appellate review) that the State failed to object to the sufficiency of the motion to suppress at trial or at the evidentiary hearing that was held on the motion. But see Holloway v. Woodard, 655 F. Supp. 1245 (W.D.N.C. 1987) (court ruled that the North Carolina Supreme Court’s procedural ruling in Holloway effectively barred the defendant from a full and fair opportunity to litigate his Fourth Amendment claim in state court under Stone v. Powell, 428 U.S. 465 (1976); court remanded the case to state court for a hearing to determine the defendant’s Fourth Amendment claim).
State v. Cooke, 306 N.C. 132 (1982). The State may not assert on appeal a ground for upholding a search that it did not raise at the suppression hearing at the trial division. See also State v. Green, 103 N.C. App. 38 (1991).
State v. Turner, 305 N.C. 356 (1982). (1) A prosecutor’s certificate under G.S. 15A-979(c) (when the State is appealing the granting of a defendant’s pretrial motion to suppress) is timely when it is filed before certification of the record on appeal to the appellate division. (2) A defendant may not appeal the denial of a pretrial motion to suppress until after the defendant is convicted.
State v. Reynolds, 298 N.C. 380 (1979). A defendant who intends to appeal from a trial judge’s denial of a suppression motion under G.S. 15A-979(b) must give notice of that intention to the prosecutor and the judge before plea negotiations are completed or else waive the right to appellate review of the motion. See also State v. McBride, 120 N.C. App. 623 (1995), aff’d, 344 N.C. 623 (1996).
State v. Silhan, 295 N.C. 636 (1980). The State’s appeal of a ruling at a pretrial suppression motion goes directly to the North Carolina Supreme Court if the punishment for the charge is death or life imprisonment. [Author’s note: G.S. 7A-27 was amended after the Silhan ruling to permit direct appellate review by the supreme court only when a sentence of death is imposed for a conviction of first-degree murder; therefore, a State’s appeal of a pretrial suppression motion would go directly to the supreme court only when the death penalty may be imposed for a first-degree murder conviction.]
NORTH CAROLINA COURT OF APPEALS
State v. Brown, 217 N.C. App. 566 (2011). The court of appeals ruled that the defendant gave sufficient notice of his intent to appeal the denial of his motion to suppress to preserve his right to appeal. The State had argued that defense counsel’s language was not specific enough to place the trial court and prosecution on notice of his intention to appeal the adverse ruling. Immediately following an attempt to make a renewed motion to suppress at the end of the State’s evidence, defense counsel stated “that [the defendant] would like to preserve any appellate issues that may stem from the motions in this trial.” Id. at 568. The court of appeals noted that the defendant had only made five motions during trial, two of which were motions to suppress, and that following defense counsel’s request, the trial court reentered substantially similar facts to the ones it entered when initially denying the pretrial motion to suppress. Clearly, the court concluded, the trial court understood which motion the defendant intended to appeal and decided to make its findings of fact as clear as possible for the record.
State v. Hudson, 206 N.C. App. 482 (2010). When the defendant’s motion to suppress in the trial court raised only a lack of reasonable suspicion for a stop of his vehicle by officers, the defendant failed to preserve other grounds for suppression raised on appeal.
State v. Phillips, 151 N.C. App. 185 (2002). The State at a suppression hearing raised the argument that the defendant did not have standing to contest a Fourth Amendment issue, but later the State explicitly abandoned the argument. As a result, the trial judge made no findings of fact or conclusions of law on the issue. The court ruled, citing State v. Cooke, 54 N.C. App. 33 (1981), that the State waived appellate review of this issue.
State v. Seagle, 96 N.C. App. 318 (1989). The court ruled that the State’s failure to object to a defendant’s oral motion to suppress precluded the State from raising on appeal that the defendant’s motion was not timely or properly filed.
State v. Russell, 92 N.C. App. 639 (1989). The defendant pled guilty and properly appealed to the appellate court the trial court’s denial of his motion to suppress. Although the appellate court ruled that the trial court erred in denying the defendant’s suppression motion, the court also ruled that the error was harmless beyond a reasonable doubt. The failure to suppress the evidence could not have affected the defendant’s decision to plead guilty, based on the overwhelming evidence of his guilt.
Standing to Contest Fourth Amendment Violations
United States Supreme Court
Brendlin v. California, 551 U.S. 249 (2007). Officers stopped a car in which the defendant was a passenger. The defendant remained in the vehicle and was eventually arrested. The Court ruled, reviewing its prior cases defining the seizure of a person under the Fourth Amendment, that the defendant was seized and therefore could contest the validity of the stop of the vehicle. The Court stated that any reasonable passenger in the defendant’s position would have understood the officers to be exercising control to the extent that no one in the car was free to depart without their permission.
Minnesota v. Carter, 525 U.S. 83 (1998). The defendants came to an apartment, with the lessee’s consent, for the sole purpose of packaging cocaine. They had never been to the apartment before and were only in the apartment for about two and one-half hours. While the defendants were packaging the drugs, an officer looked through a gap in the apartment’s closed blinds and observed their conduct. The defendants made a motion to suppress evidence based on the officer’s allegedly illegal search of the apartment.
The Court ruled, distinguishing Minnesota v. Olson, 495 U.S. 91 (1990) (overnight guest in house had reasonable expectation of privacy there), that the defendants did not have a reasonable expectation of privacy in the apartment to challenge the officer’s alleged illegal search of it. The Court stated that the defendants were obviously not overnight guests but were in the home essentially for a business transaction that lasted a few hours. They did not have a prior relationship with the lessee or any other purpose for their visit. There was nothing similar to the overnight guest relationship in Olson to suggest a degree of acceptance into the household. While the apartment was a dwelling place for the lessee, it was simply a place to do business for the defendants. [Author’s note: The Court did not decide whether the officer’s observation was a search under the Fourth Amendment.]
United States v. Padilla, 508 U.S. 77 (1993). An Arizona law enforcement officer stopped a vehicle driven by Arciniega, the sole occupant. Arciniega consented to a search of the vehicle, and the officer found cocaine. A federal appellate court ruled that various drug co-defendants had standing to contest the search of the vehicle because a co-conspirator has a legitimate expectation of privacy under the Fourth Amendment if a co-conspirator’s participation in an operation or arrangement indicates joint control and supervision of the place searched. The Court rejected the federal appellate court ruling and remanded the case for consideration of standing under principles set out in Alderman v. United States, 394 U.S. 165 (1969); Rakas v. Illinois, 439 U.S. 128 (1978); Rawlings v. Kentucky, 448 U.S. 98 (1980); and Soldal v. Cook County, 506 U.S. 56 (1992).
Minnesota v. Olson, 495 U.S. 91 (1990). An overnight guest in a home has a reasonable expectation of privacy there. Thus, in this case, officers’ warrantless entry into a home to arrest a guest violated the Fourth Amendment when the officers did not have consent to enter and exigent circumstances did not exist. See also United States v. Osorio, 949 F.2d 38 (2d Cir. 1991) (overnight guest had reasonable expectation of privacy to contest search of areas within apartment that were not off limits to guest); United States v. Gamez-Orduno, 235 F.3d 453 (9th Cir. 2000) (marijuana smugglers, overnight guests of person living in trailer and staying there for food and rest, had reasonable expectation of privacy in trailer under Minnesota v. Olson; court distinguished Minnesota v. Carter, 525 U.S. 83 (1998)); United States v. Fields, 113 F.3d 313 (2d Cir. 1997) (defendant A, who had key from tenant, paid $125 per week for privilege of using apartment, made use of it on forty to fifty occasions to cook and cut crack cocaine, could bring guests there, and could go and come as he pleased was found to have had reasonable expectation of privacy in apartment; defendant B, who visited apartment solely as A’s guest, although he did not spend time overnight, was also found to have had reasonable expectation of privacy in apartment).
Rawlings v. Kentucky, 448 U.S. 98 (1980). The defendant failed to show a reasonable expectation of privacy in a female companion’s purse. He knew that others had access to the purse. His precipitous action in putting his illegal drugs in the purse did not support a careful effort to maintain privacy, and he testified at the suppression hearing that he had no subjective expectation that the purse would be free from government intrusion. His assertion of ownership of the drugs did not by itself allow him to challenge a search of the purse; it was only a factor to be considered. See United States v. Salvucci, 448 U.S. 83 (1980) (defendant charged with a possession offense—possession of stolen mail—did not have “automatic standing” to challenge the legality of a search that produced evidence against him; the issue, instead, was whether the defendant had a reasonable expectation of privacy in the place searched). See also United States v. Karo, 468 U.S. 705 (1984) (analysis of standing of various defendants in a beeper case).
Rakas v. Illinois, 439 U.S. 128 (1978). A defendant who makes a motion to suppress has the burden of proving that his or her own Fourth Amendment rights were violated by the challenged search or seizure. A violation of a third party’s Fourth Amendment rights does not result in the suppression of evidence at the defendant’s trial. In this case, an officer stopped the apparent getaway car used in a robbery. The four occupants—the two male defendants and two females—were ordered out of the car. Officers discovered a box of rifle shells in the locked glove compartment and a sawed-off rifle under the front passenger seat. When the two defendants made a motion to suppress the evidence, they both conceded that they did not own the car (one of the women was the owner and driver) and were simply passengers. They did not assert that they owned the rifle or shells that were seized.
The Court ruled that presence in the car was not by itself sufficient to show a reasonable expectation of privacy in the car under the Fourth Amendment. And the defendants failed to show that they had a reasonable expectation of privacy in the places searched—the glove compartment and the area under the seat, which are places in which a mere passenger normally does not have a privacy interest. The Court clarified that “standing” is not a separate concept apart from the legality of a search; the two issues merge when determining whether the government violated a person’s reasonable expectation of privacy. See also State v. Jordan, 40 N.C. App. 412 (1979) (defendant had no reasonable expectation of privacy in the contents of his female passenger’s pocketbook).
United States v. Miller, 425 U.S. 435 (1976). A depositor has no reasonable expectation of privacy in copies of checks and other bank records that are in a bank’s possession. See also State v. Whitted, 99 N.C. App. 502 (1990), and In re Super. Ct. Order, 315 N.C. 378 (1986) (superior court judge has the inherent power to order a bank to disclose a customer’s bank account records on a showing that reasonable suspicion exists that a crime was committed and that the records likely will relate to the investigation of that crime). [Author’s note: After the decision in In re Superior Court Order, the legislature enacted legislation (see G.S. 53B-1 through 53B-10) that governs an officer’s authority to obtain bank records. See the discussion of this authority in Chapter 3.]
North Carolina Supreme Court
State v. Howell, 343 N.C. 229 (1996). The defendant lived in a converted school bus located in a used car junkyard. Before leaving North Carolina, the defendant told an employee that he could have the bus and its contents. The employee sold the bus to the junkyard owner. The court ruled, based on these facts, that the defendant did not have standing under the Fourth Amendment to contest a search of the bus.
State v. Mlo, 335 N.C. 353 (1994). The defendant was on trial for first-degree murder. He sought to suppress evidence obtained from a search of the murder victim’s car. The court ruled that the defendant’s unsubstantiated and self-serving statements that the victim had loaned his car to him were insufficient to satisfy his burden of showing a legitimate possessory interest in the car; thus, the defendant did not have standing to contest the search of the car. The victim’s best friend provided evidence that he had never known the victim to loan his car to anyone.
State v. Austin, 320 N.C. 276 (1987). The male defendant, who lived for five or six years in premises with a female adult (to whom he was not married) and her children, had a reasonable expectation of privacy in the premises to contest a search there.
State v. Greenwood, 301 N.C. 705 (1981). The defendant had no standing to contest a search of a stolen pocketbook found in the rear seat of his car. See also State v. Crews, 296 N.C. 607 (1979) (no standing to contest search of stolen vehicle); State v. White, 311 N.C. 238 (1984) (same). The issue of standing to contest a seizure of stolen goods was noted, but not decided, in State v. Sturkie, 325 N.C. 225 (1989).
State v. Jones, 299 N.C. 298 (1980). The defendant had no standing to contest a search of his parents’ garage. He did not assert any property or possessory interest or any other basis to have a reasonable expectation of privacy there. See also State v. Alford, 298 N.C. 465 (1979) (defendant had no standing to contest search of metal outbuilding behind his rented house; owner used it to store materials, it was not part of lease agreement, and defendant never sought permission to use it); State v. Taylor, 298 N.C. 405 (1979) (defendant had no standing to contest search of room in a “shot house” when evidence showed he was only a customer and hid weapon and ammunition there); State v. Eppley, 282 N.C. 249 (1972) (defendants had no standing to contest search of house they occupied as trespassers); State v. Ford, 71 N.C. App. 748 (1984) (defendant had no standing to contest search of mobile home when he did not assert property or possessory interest there and was not on premises when it was searched; at most, the evidence showed that he was there at some time before search).
North Carolina Court of Appeals
State v. Clyburn, 240 N.C. App. 428 (2015). The court of appeals reversed and remanded for further findings of fact a trial court decision concerning the defendant’s motion to suppress evidence obtained as a result of a search of the digital contents of a GPS device found on the defendant’s person which, as a result of the search, was determined to have been stolen. The court ruled that under Riley v. California, 573 U.S. 373 (2014), the search was not justified as a search incident to arrest. As to whether the defendant had a reasonable expectation of privacy in the GPS device, the court ruled that a defendant may have a legitimate expectation of privacy in a stolen item if he or she acquired it innocently and does not know that the item was stolen. Here, the defendant offered evidence at the suppression hearing that, were it to be found believable, would allow the trial court to conclude that he had a legitimate possessory interest in the GPS device. However, because the trial court failed to make a factual determination regarding whether the defendant innocently purchased that device, the court reversed and remanded for further findings of fact, providing additional guidance for the trial court in its decision.
State v. Mackey, 207 N.C. App. 116 (2011). The defendant had no standing to challenge a search of a vehicle when he was a passenger, did not own the vehicle, and asserted no possessory interest in either the vehicle or its contents.
State v. Hernandez, 208 N.C. App. 591 (2010). As a passenger in a vehicle that was stopped, the defendant had standing to challenge the stop.
State v. Boyd, 169 N.C. App. 204 (2005). The court ruled that the defendant did not have a reasonable expectation of privacy in a vehicle to contest its search when the defendant did not own, rent, or lease the vehicle and fled from law enforcement officers after leaving the vehicle open at the scene of an assault. The court stated that even if the defendant had permission to use the vehicle, he relinquished possession and control when he fled from the officers.
State v. VanCamp, 150 N.C. App. 347 (2002). The defendant was a passenger in a vehicle that failed to stop at a driver’s license checkpoint but eventually stopped sixty feet beyond the checkpoint in response to an officer’s command to stop. The officer looked inside the vehicle with his flashlight and saw the corner of a plastic bag sticking out from the passenger seat occupied by the defendant. The officer knew that plastic bags are often used to transport illegal drugs. When the defendant rolled down the window, the officer smelled the odor of alcohol coming from the vehicle. The officer asked the defendant to get out of the vehicle, frisked him for weapons, felt what he recognized to be a pair of brass knuckles in the defendant’s front pants pocket, and arrested him for carrying a concealed weapon. The officer then searched the vehicle and found crack cocaine in the center console. The court ruled that the defendant did not assert an ownership or possessory interest in the vehicle and therefore did not have a reasonable expectation of privacy to challenge the search of the center console.
State v. McMillian, 147 N.C. App. 707 (2001). The court ruled, relying on United States v. Grandstaff, 813 F.2d 1353 (9th Cir. 1987), and United States v. Maddox, 944 F.2d 1223 (6th Cir. 1991), that a visitor to a motel room did not have a reasonable expectation of privacy to challenge a search there. The evidence showed that the room was rented to another person, the defendant did not have any luggage there, and the defendant had neither spent the night there nor planned to do so.
State v. Sanchez, 147 N.C. App. 619 (2001). The defendant was temporarily residing in a living area of another person’s house. The living area was located in the house’s basement, which was connected to its garage and laundry room. A door separated the laundry room from the basement and garage area. Cocaine was found under the stairwell located in the laundry room. The court ruled, distinguishing Minnesota v. Olson, 495 U.S. 91 (1990), that the defendant did not prove that he had a reasonable expectation of privacy concerning the search and discovery of cocaine under the stairwell, which was a common area of the house.
State v. Phillips, 132 N.C. App. 765 (1999). While the defendant was driving his van and was being pursued by law enforcement officers, he threw a package of crack cocaine on a passenger’s lap and told her to put it in his apartment. She got out of the van and went to the defendant’s apartment. She put the package in his mailbox because his apartment door was locked. After the passenger told an officer where she had put the package, an officer went to the mailbox, lifted the lid, and looked inside. He seized the package, which appeared to have crack cocaine inside. The court ruled, relying on State v. Jordan, 40 N.C. App. 412 (1979), and other cases, that the defendant relinquished his reasonable expectation of privacy in the drugs when he gave them to the passenger, because he no longer had control over them.
State v. Smith, 117 N.C. App. 671 (1995). Officers stopped a cab in which the defendant and Campbell were passengers. The defendant consented to a search of his luggage and Campbell consented to a search of his luggage; cocaine was found in both. The defendant was charged with a trafficking offense. A judge granted the defendant’s motion to suppress evidence seized from the defendant’s luggage because the stop of the cab was unconstitutional. The defendant was charged with a drug-trafficking conspiracy offense. The defendant then moved to suppress the cocaine found in Campbell’s luggage and to suppress proposed testimony by Campbell. The court ruled that a judge (who was a different judge than the one who had ruled on the first motion) properly denied that motion because the defendant did not have a reasonable expectation of privacy in Campbell’s luggage and did not have standing to object to the proposed testimony of Campbell, even if it was the fruit of the illegal stop of the cab.
State v. Cohen, 117 N.C. App. 265 (1994). Officers obtained the consent of the defendant’s wife to search her car. The officers searched the car’s contents, including an unlocked briefcase. The defendant made a motion to suppress the search of the briefcase on the ground that his wife did not have the authority to consent to its search by the officers. The trial judge refused to accept the wife’s affidavit at the suppression hearing because she was available as a witness; the defendant declined the judge’s offer of additional time to produce his wife as a witness. The court ruled that the judge properly refused to admit the affidavit based on these facts. The court also ruled that the defendant’s suppression motion was properly denied because the defendant failed to present evidence that he had an ownership or possessory interest in the briefcase.
State v. Swift, 105 N.C. App. 550 (1992). The defendant’s friend picked up the defendant in the friend’s car, and they drove to a convenience store. The friend went into the store, leaving the defendant to guard the car. The defendant later fled from law enforcement officers and was arrested. The officers searched the car. The court ruled, based on these facts, that the defendant did not have a reasonable expectation of privacy in the vehicle to contest the officers’ search.
State v. Hudson, 103 N.C. App. 708 (1991). The defendant-driver of a vehicle failed to show any ownership or possessory interest in a briefcase in the possession of the vehicle’s passenger to contest an officer’s search of the briefcase. The passenger had told the officer that the briefcase was hers.
State v. Johnson, 98 N.C. App. 290 (1990). After officers, during a bus boarding, had spoken with all the bus passengers about which bags belonged to whom, one bag located in the front of the bus had not been claimed. The officers asked each passenger (including the defendant) whether the bag belonged to him or her. No one claimed it. The officers then removed the bag from the bus, searched it, and found cocaine and a traffic citation issued in Tampa, Florida. The officers reboarded the bus and asked the passengers for identification. The defendant was the only passenger with a Tampa address on his driver’s license. The officers requested that the defendant leave the bus, and he did. The officers again asked him if the luggage belonged to him; he denied ownership of the bag. The court ruled that the defendant lost his reasonable expectation of privacy in the bag when he denied that he owned or controlled the bag. The court also rejected the defendant’s argument that the officers needed a search warrant to search the bag. The defendant did not have standing to contest the bag he had abandoned.
State v. Banks, 88 N.C. App. 737 (1988). Distinguishing State v. Austin, 320 N.C. 276 (1987), the court ruled that the defendant did not have standing to contest the search of a rented house, except for his bedroom. The defendant’s name was not listed on the lease agreement or utility bills. Although he had a key to the entire house, he disclaimed any property or possessory interest there when he was arrested. The evidence at the suppression hearing failed to make clear the arrangements by which the defendant resided in the house and by what authority he remained there. The defendant’s use of the bedroom did not automatically confer standing to contest a search of other parts of the house based on the evidence in this case.
State v. Washington, 86 N.C. App. 235 (1987). (1) The defendant-son, who had lived with his wife and child in his mother’s house for four months before the search at issue in this case, had a possessory interest in the premises (house and curtilage) to contest the search, even though he did not own or lease the house or contribute to its maintenance. (2) The defendant failed to show a possessory interest in the outbuildings located outside the curtilage. Even assuming that he had a possessory interest, he had no reasonable expectation of privacy in outbuildings that were essentially open (a hog shelter was open and a packhouse had boards missing). (3) Even assuming that the defendant had a privacy interest in the outbuildings, his mother’s consent to a search was proper because she retained common authority over the outbuildings: the defendant did not have exclusive control.
State v. Thompson, 73 N.C. App. 60 (1985). The defendant failed to demonstrate a reasonable expectation of privacy sufficient to give him standing to contest a search of a van when he denied ownership of the van and any items inside of it and did not know what items were there. The mere fact that the search warrant listed him as the van’s owner did not convey standing. See also State v. Warren, 309 N.C. 224 (1983) (defendant failed to show reasonable expectation of privacy in car when he specifically declined to present evidence of ownership or possession of car).
State v. Joe’l, 67 N.C. App. 177 (1984). Although the defendants possessed a cylindrical container, they had no reasonable expectation of privacy in it to provide standing to contest a search of the container when they placed it in a hole on the grounds of a building and there was no evidence that they had any possessory or ownership interest in the building. See also State v. Telster, 61 N.C. App. 290 (1983) (defendant had no reasonable expectation of privacy in luggage that he buried in the woods; he had no ownership or possessory interest in the woods).
State v. Casey, 59 N.C. App. 99 (1982). The defendant had a reasonable expectation of privacy in a bag he was holding, even though he told officers that it belonged to someone else. He had lawful possession of the bag, and he had the right to exclude all others from the bag during his encounter with the officers. See also United States v. Benitz-Arreguin, 973 F.2d 823 (10th Cir. 1992).
State v. Melvin, 53 N.C. App. 421 (1981). The defendant was a passenger in a car in which incriminating evidence was found. He denied any ownership or possessory interest in the evidence seized. He had no standing under Rakas v. Illinois, 439 U.S. 128 (1978), discussed above in this section under “UNITED STATES SUPREME COURT,” to contest a search of the items seized. See also State v. Hunter, 107 N.C. App. 402 (1992) (defendant denied any possessory or proprietary interest in a radio found in a car and therefore did not have standing to contest a search of the radio).
State v. Jordan, 40 N.C. App. 412 (1979). The defendant had no reasonable expectation of privacy in the contents of his female passenger’s pocketbook.
Federal Appellate Courts
United States v. Angevine, 281 F.3d 1130 (10th Cir. 2001). The defendant, a university professor, did not have a reasonable expectation of privacy in the university computer he used at work. The university’s policies and procedures reserved the right to audit and to monitor Internet use and warned that information flowing through the university network was not confidential. See also United States v. Simons, 206 F.3d 392 (4th Cir. 2000) (government employee did not have legitimate expectation of privacy in Internet use when employer’s known policy allowed monitoring of “all file transfers, all websites visited, and all e-mail messages”).
Leventhal v. Knapek, 266 F.3d 64 (2d Cir. 2001). A state agency employee had a reasonable expectation of privacy in the contents of his office computer because the employee occupied a private office with a door and had exclusive use of the computer. The agency did not routinely conduct searches of office computers, nor had it adopted a policy against mere storage of personal files, although the agency had a policy prohibiting the use of agency time for personal business.
United States v. Henderson, 241 F.3d 638 (9th Cir. 2000). The defendant had a reasonable expectation of privacy in a rental car even though the lease had expired because the rental company had not attempted to repossess the car. A representative of the rental car company stated that it was not unusual for customers to keep rental cars beyond the terms of their rental agreements; in such cases, the company simply charged the customer for a late return.
United States v. Walker, 237 F.3d 845 (7th Cir. 2001). The court ruled that a person listed on a car rental agreement as an authorized driver has a reasonable expectation of privacy in the car to challenge a search of the car.
Doe v. Broderick, 225 F.3d 440 (4th Cir. 2000). This case involved a civil lawsuit for Fourth Amendment and other violations. A detective entered the file room of a substance-abuse-treatment clinic and searched many patients’ confidential treatment records, including the plaintiff’s. The court ruled, distinguishing United States v. Miller, 425 U.S. 435 (1976), that the patient had a reasonable expectation of privacy in his records. [Author’s note: Federal law also protects a patient’s drug-treatment records: 42 U.S.C.A. § 290dd-2.]
United States v. Sarkisian, 197 F.3d 966 (9th Cir. 1999). Defendants who merely possessed the authority to access a rental storage room but did not use it did not have a reasonable expectation of privacy to challenge a search of that area. In this case, neither defendant claimed any interest in any of the items seized during a search of the storage room.
United States v. McRae, 156 F.3d 708 (6th Cir. 1998). The defendant did not have a reasonable expectation of privacy in a vacant house in which he had stayed a week when he did not own or rent the house.
United States v. Kitchens, 114 F.3d 29 (4th Cir. 1997). Absent a pattern or practice of allowing guests to stay in their hotel rooms past checkout time, a guest does not have a reasonable expectation of privacy in his or her hotel room after checkout time.
United States v. Riazco, 91 F.3d 752 (5th Cir. 1996). The court ruled that the driver of a rental car did not have standing to contest a search of the car (in this case, the speaker cavities where drugs were found) when he was not authorized by the rental agreement to drive it and did not have permission from the renter of the car to drive the car. It also was irrelevant that the driver had the permission of the passenger to drive the car, because the passenger was not authorized to drive the car either. See also United States v. Muhammad, 58 F.3d 353 (8th Cir. 1995) (similar ruling).
Bonner v. Anderson, 81 F.3d 472 (4th Cir. 1996). Officers executed a search warrant at a residence while the plaintiff was inside. The plaintiff asserted in a civil lawsuit against the officers that they violated the Fourth Amendment in failing to appropriately knock and announce before entering the residence. The plaintiff did not live in the residence. However, the court, noting Minnesota v. Olson, 495 U.S. 91 (1990), ruled that the plaintiff had a reasonable expectation of privacy in the residence because she frequently visited there and often ran errands for an elderly person who lived there.
Bond v. United States, 77 F.3d 1009 (7th Cir. 1996). The defendant told an officer that he did not own a suitcase that was in a hotel room (even though the officer noticed that the suitcase had the defendant’s name on it). The officer searched the suitcase and found $128,000 inside. The defendant then admitted that the suitcase was his but denied owning the money inside. The court ruled that the defendant’s denial of ownership of the suitcase and his leaving the suitcase in another person’s hotel room (the defendant did not have a key to the room and was not registered there) was an abandonment of the suitcase. The defendant therefore did not have a reasonable expectation of privacy in the suitcase to contest its search.
United States v. Austin, 66 F.3d 1115 (10th Cir. 1995). A person (the defendant) at an airport who entrusted his bag to a stranger by asking him if he would watch the bag while he was gone for “a few minutes” did not retain a reasonable expectation of privacy in the bag. By leaving the bag in the stranger’s possession and control, the defendant assumed the risk that the stranger would allow airport authorities access to the bag.
United States v. King, 55 F.3d 1193 (6th Cir. 1995). The defendant mailed some letters to his wife, who later gave them to another person. Law enforcement officers later seized the letters from the other person. The court ruled that the defendant had no standing to contest the seizure of the letters. If a letter is sent to another person, the sender’s expectation of privacy ordinarily terminates on delivery, even if the sender instructs the recipient to keep the letters private.
United States v. Kopp, 45 F.3d 1450 (10th Cir. 1995). The defendant was driving a pickup truck that was pulling a U-Haul trailer. The court noted that it must consider separately the defendant’s reasonable expectation of privacy in the pickup truck and in the trailer. Although the defendant owned the pickup truck, he neither owned nor rented the trailer. Rather, a passenger in his pickup truck rented the trailer and carried the key to it. Based on these facts, the court ruled that the defendant did not have a reasonable expectation of privacy in the trailer and could not contest the legality of an officer’s search of the trailer.
United States v. Poulsen, 41 F.3d 1330 (9th Cir. 1994). A person did not have a reasonable expectation of privacy in the contents of his storage locker when the manager of the self-service storage locker had seized the contents pursuant to a valid state law lien after the person failed to pay overdue rent.
United States v. Wellons, 32 F.3d 117 (4th Cir. 1994). The defendant did not have a reasonable expectation of privacy to contest the search of a rental car and of the defendant’s luggage inside the car when the rental agreement did not authorize the defendant to drive the car, even though the authorized driver gave the defendant permission to drive the car. Compare with United States v. Edwards, 242 F.3d 928 (2001) (although defendant did not have reasonable expectation of privacy to contest search of rental car because he did not rent car and was not authorized driver, he did have reasonable expectation of privacy in his luggage in car’s trunk to contest search of luggage).
United States v. Stallings, 28 F.3d 58 (8th Cir. 1994). The defendant did not have a reasonable expectation of privacy in a tote bag he left in an open field owned by another person. There was no indication of ownership on the bag.
United States v. Perea, 986 F.2d 633 (2d Cir. 1993). The bailee of a duffel bag had a reasonable expectation of privacy in the bag to contest its search by law enforcement officers.
United States v. Mohney, 949 F.2d 1397 (6th Cir. 1991). Documents seized during a search were regular corporate records, not records personally prepared by the defendant, and the records were not taken from the defendant’s personal office, desk, or files. The defendant did not have a reasonable expectation of privacy to challenge the search when it was not directed at him personally. See also United States v. Williams, 976 F.2d 1148 (8th Cir. 1992) (defendant did not have reasonable expectation of privacy in company records). But see Mancusi v. DeForte, 392 U.S. 364 (1968) (defendant had reasonable expectation of privacy to contest search of union office he shared with others).
United States v. Sweeting, 933 F.2d 962 (11th Cir. 1991). The defendants denied to officers that they owned or resided at a particular house and maintained that they lived elsewhere. The fact that they had temporary access to the house (as did several family members) and had some personal effects there did not establish a reasonable expectation of privacy there when considered with their explicit disclaimer of ownership or other interest. See also United States v. Ibarra, 948 F.2d 903 (5th Cir. 1991) (defendants who denied any knowledge of a house and did not own, lease, or live in the house did not have reasonable expectation of privacy there).
United States v. Davis, 932 F.2d 752 (9th Cir. 1991). The defendant had a reasonable expectation of privacy in an apartment to contest the search of a safe in the apartment when he had previously lived there, paid a part of the rent, had a key to the apartment and was free to come and go, stored things there, and took the precaution of storing items in a locked safe to ensure privacy.
United States v. Rascon, 922 F.2d 584 (10th Cir. 1990). The defendant failed to satisfy his burden of showing that he had a reasonable expectation of privacy in the car he was driving when he said that a friend loaned the car to him, the car was registered in another person’s name, and there was no evidence offered as to how the friend came to possess the car.
United States v. Arango, 912 F.2d 441 (10th Cir. 1990). The defendant’s mere physical possession of the truck he was driving did not confer standing to contest a search of it. In this case, the defendant failed to show that he lawfully possessed the truck, and the court therefore ruled that he did not have a reasonable expectation of privacy in the truck.
United States v. Dunkley, 911 F.2d 522 (11th Cir. 1990). The driver of a car had authority to consent to a search of at least the passenger compartment when the spouse of the lessee of the car, who was a passenger, heard the driver give consent and did not object.
United States v. Reyes, 908 F.2d 281 (8th Cir. 1990). The defendant did not have a reasonable expectation of privacy in a rental locker at a bus terminal when he had rented it for twenty-four hours and an officer conducted a warrantless search of the locker several days later. Because the rent was overdue, the bus company had already plugged the lock, so the defendant would not have had access to it. It was irrelevant that the defendant was unable to renew the rental of the locker because he was confined as the result of a lawful arrest when his own illegal conduct caused his arrest.
United States v. Monie, 907 F.2d 793 (8th Cir. 1990). The defendant was hired to drive a rented car across the country, knowing that the trunk contained two locked suitcases to which he did not have the keys. When officers stopped the car and asked about the suitcases, the defendant stated that they were not his, the contents belonged to someone else, and he had no access to the contents. He did not attempt to protect the suitcases when the officers forced the zippers. The court ruled that the defendant did not have a reasonable expectation of privacy in the suitcases.
United States v. Kye Soo Lee, 898 F.2d 1034 (5th Cir. 1990). The driver and passenger of a rental truck, to whom the renter had given the keys and had entrusted the truck and its contents, had standing to contest the search of the truck’s cargo hold. The renter of the truck, who was not present when the cargo hold was searched, had standing to contest the search of the cargo hold because the renter had placed a padlock on it and had given the keys to the driver and passenger. See also United States v. Rusher, 966 F.2d 868 (4th Cir. 1992) (defendant-passenger had no standing to contest a search of the bed of a pickup truck based on the facts in this case).
United States v. Clark, 891 F.2d 501 (4th Cir. 1989). The defendant denied three times that the suitcase officers retrieved from an airport carousel belonged to him, even though it matched the claim stub found in his shoulder bag. Under these circumstances, the defendant did not have a reasonable expectation of privacy in the suitcase.
United States v. Rush, 890 F.2d 45 (7th Cir. 1989). The defendant did not have a reasonable expectation of privacy in a suitcase he was carrying when he told officers, referring to an accomplice, “It’s his. It’s not mine.” The accomplice consented to a search of the luggage and gave an officer the key to open it.
United States v. Judd, 889 F.2d 1410 (5th Cir. 1989). The defendants had no standing to contest a search of corporate records from a corporate bookkeeping office (they did not work in that office).
United States v. McBean, 861 F.2d 1570 (11th Cir. 1988). The defendant told an officer that two pieces of luggage in his car trunk were not his and that he did not know what they contained. The court ruled that the defendant had no reasonable expectation of privacy in the luggage to challenge the officer’s search of the luggage.
United States v. Paulino, 850 F.2d 93 (2d Cir. 1988). After an officer approached the car in which the defendant was a backseat passenger, the defendant hurriedly placed counterfeit money under the rubber floor mat at his feet. The officer lifted the mat and seized the money. The defendant asserted at the suppression hearing that the money was his. The court ruled that the defendant did not have a reasonable expectation of privacy in the area searched: the defendant had known the car owner for one week, did not have the right to exclude others from the car, and secreted the money in a hurried and furtive manner while the officer questioned the driver.
United States v. Roman, 849 F.2d 920 (5th Cir. 1988). Officers saw the defendant check two suitcases at an airport ticket counter in preparing to board a flight. When officers later approached the defendant, he told them that he had not checked any luggage and denied that he had any luggage on the plane. The court ruled that the defendant abandoned the suitcases and lacked standing to contest the officers’ later search of the luggage and seizure of marijuana inside. See also United States v. Karman, 849 F.2d 928 (5th Cir. 1988); United States v. Gutierrez, 849 F.2d 940 (5th Cir. 1988).
United States v. One 1986 Mercedes Benz, 846 F.2d 2 (2d Cir. 1988). The defendant, who owned a car, often loaned the car to a friend without any restrictions on its use. Officers stopped the car when the friend was driving it and searched the ashtray in the rear of the car on the driver’s side. The defendant did not have a reasonable expectation of privacy to contest the search because the officers intruded into an area where the defendant’s friend could have invited any stranger.
United States v. Blanco, 844 F.2d 344 (6th Cir. 1988). Co-defendant Spinola had no reasonable expectation of privacy in his rented car when he did not retain possession of it—having given his only set of car keys to co-defendant Fresnada—and had no access to the car thereafter. Co-defendant Fresnada had a reasonable expectation of privacy in the rented car, including its door panels in which he stored cocaine. See also United States v. Boruff, 909 F.2d 111 (5th Cir. 1990) (defendant had no standing to contest a search of the rental car he was driving when his girlfriend had rented it and the rental agreement’s express terms provided that only she could operate it).
United States v. Miller, 821 F.2d 546 (11th Cir. 1987). The defendant, who had permission from a friend to use his car, had a legitimate expectation of privacy in the friend’s car to challenge a search of the car.
United States v. Dotson, 817 F.2d 1127, opinion revised, 821 F.2d 1034 (5th Cir. 1987). The defendant, a lawful possessor of a car even though not its owner, loaned the car to a friend so that he could wash and clean it. In doing so, the defendant did not lose his reasonable expectation of privacy in the car and thus had standing to challenge a search of the car’s trunk.
United States v. McKennon, 814 F.2d 1539 (11th Cir. 1987). The defendant had no reasonable expectation of privacy in a carry-on bag in which he placed some personal items and cocaine. He had transferred possession of the bag to an accomplice, refused to publicly associate with her on her journey, and instructed her that he would go to Kansas City without her if she was detained.
Standing to Contest Fifth Amendment Violations
NORTH CAROLINA COURT OF APPEALS
State v. Weakley, 176 N.C. App. 642 (2006). The defendant argued on appeal that the State was improperly permitted to cross-examine a defense witness concerning her failure to give a statement to a law enforcement officer, because the cross-examination violated the witness’s Fifth Amendment rights. The court ruled, relying on State v. Lipford, 81 N.C. App. 464 (1986), and other cases, that the defendant had no standing to assert the witness’s constitutional right against self-incrimination.
State v. Lipford, 81 N.C. App. 464 (1986). The defendant had no standing to contest the admission of her co-defendant’s statement on the ground that it had been obtained in violation of the co-defendant’s Fifth Amendment rights.
General Exclusionary Rules
Scope of Fourth Amendment Exclusionary Rule
UNITED STATES SUPREME COURT
Davis v. United States, 564 U.S. 229 (2011). The Court ruled that the exclusionary rule does not apply when officers conduct a search in compliance with binding precedent that is later overruled. Officers here conducted a routine traffic stop that eventually resulted in the arrests of the driver for driving while intoxicated and the passenger (Davis) for giving a false name to the officers. The officers handcuffed both the driver and Davis and placed them in the back of separate patrol cars. The officers then searched the vehicle’s interior and found a revolver inside Davis’s jacket pocket. The search was conducted in reliance on then-existing case law in the officers’ jurisdiction that had interpreted New York v. Belton, 453 U.S. 454 (1981), to authorize vehicle searches incident to arrests of recent occupants, regardless of whether the arrestee was within reaching distance of the vehicle at the time of the search. Davis was indicted on a weapons charge and unsuccessfully moved to suppress the revolver from being admitted at his trial. He was convicted, and while his case was on appeal, the United States Supreme Court in Arizona v. Gant, 556 U.S. 332 (2009), adopted a new, two-part rule under which a vehicle search incident to a recent occupant’s arrest is constitutional (1) if the arrestee is within reaching distance of the vehicle during the search or (2) if officers have reason to believe that the vehicle contains evidence relevant to the crime of arrest. Under the Gant ruling, which was retroactively applicable to the vehicle search resulting in the discovery of Davis’s revolver, the search violated the Fourth Amendment. Analyzing whether to apply the exclusionary rule to the search at issue, the Court determined that the “acknowledged absence of police culpability dooms Davis’s claim.” Id. at 240. The Court stated: “Because suppression would do nothing to deter police misconduct in these circumstances, and because it would come at a high cost to both the truth and the public safety, we hold that searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.” Id. at 232. The Court relied on its prior exclusionary rule cases, including Herring v. United States, 555 U.S. 135 (2009), discussed immediately below.
Herring v. United States, 555 U.S. 135 (2009). An officer arrested the defendant based on an outstanding arrest warrant listed in a sheriff’s computer database in a neighboring county. A search incident to arrest discovered drugs and a gun, which formed the basis for criminal charges. However, there was a mistake about the arrest warrant. A court had recalled the arrest warrant, but a law enforcement official had negligently failed to record that fact, although the official did not act recklessly or deliberately in doing so. For the purpose of deciding this case, the Court accepted the parties’ assumption that a Fourth Amendment violation had occurred. The Court reviewed its prior case law on the Fourth Amendment’s exclusionary rule and recast it in the context of this case as follows: (1) The exclusionary rule is not an individual right and applies only when it results in appreciable deterrence. The benefits of deterrence must outweigh the costs. (2) The extent to which the exclusionary rule is justified by deterrence principles varies with the culpability of law enforcement conduct. The abuses that gave rise to the exclusionary rule featured intentional conduct that was patently unconstitutional. An error that arises from nonrecurring and attenuated negligence is thus far removed from the core concerns that led the Court to initially adopt the rule. And since United States v. Leon, 468 U.S. 897 (1984), the Court has never applied the rule to exclude evidence obtained in violation of the Fourth Amendment when law enforcement conduct was no more intentional or culpable than involved in this case. (3) To trigger the exclusionary rule, law enforcement conduct must be sufficiently deliberate that exclusion can meaningfully deter it and sufficiently culpable that such deterrence is worth the price paid by the criminal justice system. The rule serves to deter deliberate, reckless, or grossly negligent conduct or, in some circumstances, recurring or systemic negligence. The error in this case did not rise to that level. The pertinent analysis of deterrence and culpability is an objective analysis, not an inquiry into the subjective awareness of law enforcement officers. (4) The Court stated that it did not suggest that all recordkeeping errors by law enforcement were immune from the exclusionary rule. If law enforcement has been reckless in maintaining a warrant system or has knowingly made false entries to lay the groundwork for future false arrests, exclusion would certainly be justified should such misconduct cause a Fourth Amendment violation. But there was no evidence in this case that errors in the computer database were routine or widespread. (5) The Court, in light of its repeated prior rulings that the deterrent effect of suppression must be substantial and must outweigh any harm to the justice system, concluded that when law enforcement mistakes are the result of negligence (rather than systemic error or reckless disregard of constitutional requirements), as occurred in this case, any marginal deterrence does not require application of the exclusionary rule.
Direct Evidence
UNITED STATES SUPREME COURT
Mapp v. Ohio, 367 U.S. 643 (1961). The Court ruled that evidence obtained in violation of the Fourth Amendment is inadmissible in state court, as it is in federal court. Thus, evidence obtained directly as a result of an officer’s unconstitutional search of a home is inadmissible.
Derivative Evidence: Fruit of the Poisonous Tree
UNITED STATES SUPREME COURT
United States v. Ceccolini, 435 U.S. 268 (1978). The connection between the illegal search in this case and the discovery of a witness who testified at trial against the defendant was so attenuated as to dissipate the taint of the illegal search. Therefore, the testimony of the witness was admissible at trial. See also United States v. Terzado-Madruga, 897 F.2d 1099 (11th Cir. 1990) (no causal connection shown between illegal interrogation of defendant and witness’s willingness to testify); United States v. McKinnon, 92 F.3d 244 (4th Cir. 1996) (sufficient attenuation of defendant’s mention of his brother after defendant was illegally arrested so that brother’s testimony for government at defendant’s trial was admissible).
Utah v. Strieff, 579 U.S. 232 (2016). An anonymous tip to the police department reported “narcotics activity” at a particular residence. An officer investigated and saw visitors who left a few minutes after arriving at the house. These visits were sufficiently frequent to raise the officer’s suspicion that the occupants were dealing drugs. One visitor was the defendant. After observing the defendant leave the house and walk toward a nearby store, the officer detained the defendant and asked for his identification. The defendant complied, and the officer relayed the defendant’s information to a police dispatcher, who reported that the defendant had an outstanding arrest warrant for a traffic violation. The officer then arrested the defendant pursuant to the warrant. When a search incident to arrest revealed methamphetamine and drug paraphernalia, the defendant was charged.
The defendant unsuccessfully moved to suppress the evidence seized as a result of the search, arguing that the evidence was inadmissible at trial because it was derived from an unlawful investigatory stop, which the State had conceded lacked reasonable suspicion. He was convicted and appealed. The Utah Supreme Court ruled that the evidence was inadmissible.
The United States Supreme Court reversed. The Court noted that it has recognized several exceptions to the exclusionary rule, three of which involve the causal relationship between the unconstitutional act and the discovery of evidence: the independent-source doctrine, the inevitable-discovery doctrine, and—at issue here—the attenuation doctrine. Under the latter doctrine, “Evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained.” Id. at 238. Turning to the application of the attenuation doctrine, the Court first held that the doctrine applies where—as here—the intervening circumstance that the State relies on is the discovery of a valid, preexisting, and untainted arrest warrant. It then concluded that the discovery of a valid arrest warrant was a sufficient intervening event to break the causal chain between the unlawful stop and the discovery of drug-related evidence on the defendant’s person. In this respect, the Court applied the three factors articulated in Brown v. Illinois, 422 U.S. 590 (1975): the temporal proximity between the unconstitutional conduct and the discovery of evidence to determine how closely the discovery of evidence followed the unconstitutional search, the presence of intervening circumstances, and the purpose and flagrancy of the official misconduct. The Court stated:
Wong Sun v. United States, 371 U.S. 471 (1963). (1) Defendant Toy’s statement made immediately after his unconstitutional arrest was inadmissible at trial; his statement was not an act of free will so as to purge the primary taint of the arrest. (2) Defendant Toy’s statement gave officers knowledge of heroin in defendant Yee’s house; they went there and seized the heroin. The Court stated that the question was whether, considering the illegality in obtaining Toy’s statement, the heroin was obtained by exploiting that illegality or by means sufficiently distinguishable to purge its taint. The Court noted that officers did not learn of the heroin from an independent source (that is, other than from Toy), nor was their discovery of the heroin so attenuated from the illegality as to dissipate its taint (because the officers went directly to Yee’s house after hearing Toy’s statement). Therefore, the exclusionary rule barred the use of the discovery of heroin at Toy’s trial. (3) Defendant Wong Sun was arrested without probable cause, was released after a lawful arraignment, and returned several days later to make a voluntary statement. The Court ruled that the connection between the illegal arrest and the statement had become so attenuated that the taint of the illegal arrest had been dissipated. Therefore, Wong Sun’s statement was admissible against him.
Many applications of the derivative-evidence rule are set out in this case. For a further discussion of Wong Sun in later Supreme Court cases, see Segura v. United States, 468 U.S. 796 (1984), and Nix v. Williams, 467 U.S. 431 (1984).
NORTH CAROLINA SUPREME COURT
State v. Guevara, 349 N.C. 243 (1998). The defendant was convicted of the first-degree murder of Officer A and the felonious assault of Officer B. Officers A and B went to the defendant’s home with information that there were outstanding felony arrest warrants for him. They saw the defendant, accompanied by a young boy, standing outside his mobile home’s back door. Although he denied being the person who was the subject of the arrest warrants, the officers believed otherwise. After confirmation from a dispatcher that the defendant was still wanted, Officer B stated that they would arrest him. The defendant, having heard Officer B’s words, retreated into his home and slammed the door. Officer A pushed the door open and entered the home, where he was shot and killed by the defendant. Officer B was shot and seriously injured by the defendant while outside the mobile home. The court, relying on State v. Miller, 282 N.C. 633 (1973), ruled that even if Officer A violated the Fourth Amendment in entering the defendant’s home to arrest him, the exclusionary rule did not bar the testimony of Officer B about the killing of Officer A.
NORTH CAROLINA COURT OF APPEALS
State v. Duncan, 272 N.C. App. 341 (2020). After applying the attenuation doctrine set out in Utah v. Strieff, 579 U.S. 232 (2016), the court ruled that a flagrantly unconstitutional frisk of the defendant, the discovery of cocaine within minutes of the frisk, and the defendant’s flight from the frisking officer that was not a crime did not justify admitting the cocaine at trial.
State v. Thomas, 268 N.C. App. 121 (2019). The defendant was convicted of four counts of first-degree murder and other charges. He argued that the trial court erred in denying his motion to suppress all evidence obtained as a result of a device placed on his cell phone, but the court of appeals affirmed.
The offenses alleged occurred in 2005, although the defendant was not tried until 2017. As a part of the investigation into the homicides and other crimes with which the defendant was charged, law enforcement officers obtained an order authorizing the use of a pen register to obtain sixty days of cell-site location information (CSLI) on a phone connected to the defendant in 2005. The officers acted under G.S. 15A-262, which requires a showing only of “relevance” to an investigation, and did not obtain a search warrant. The defendant alleged that this violated Carpenter v. United States, 585 U.S. ___, 138 S. Ct. 2206 (2018). Rejecting this argument, the court first noted Carpenter’s scope: “Carpenter only established the government must obtain a warrant before it can access a phone company’s historical CSLI; it did not extend its holding to the issue of government acquisition of real-time or prospective CSLI.” Thomas, 268 N.C. App. at 126–27. Here, the State sought both types of data, and it was unclear which category of information was used to actually locate the defendant. Carpenter would only control as to the historical data (but the case did, indeed, apply to that category of data, despite having been decided thirteen years after the events in question, because Carpenter was decided while this matter was on direct appeal).
Here, it was unnecessary to decide the extent of protections for real-time or prospective CSLI, given that the evidence was sufficiently attenuated from any illegality (an alternative ground found by the trial court to justify the search). “Evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that ‘the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained,’ ” the court found. Id. at 130 (citations omitted). It continued:
Here, three days had passed between the court order authorizing the CSLI and law enforcement locating the defendant. That amount of time was not substantial and weighed in favor of suppression. However, the intervening circumstances here weighed heavily in favor of attenuation—the defendant was found with guns and ammo, threatened to shoot at officers when they attempted to apprehend him, and actually fired a gun at officers during the course of his arrest. The court stated that “this constituted an intervening circumstance sufficient to attenuate the connection between any unconstitutional police conduct and the discovery of evidence.” Id. at 131. Finally, the court found that the purpose of the exclusionary rule would not be served by suppression here because the misconduct was “neither purposeful nor flagrant.” Id. Officers acted according to the law and common understanding of pen registers in 2005, and no reasons existed then to believe that those procedures were unconstitutional. The court ruled that the trial court therefore did not err in denying the defendant’s motion to suppress.
State v. Burwell, 256 N.C. App. 722 (2017). The appellate court ruled that the trial court did not err by denying the defendant’s motion to suppress evidence of his attack on a law enforcement officer, which the defendant alleged was proper resistance to an unlawful arrest. The court concluded that “[e]ven if a police officer’s conduct violates a defendant’s Fourth Amendment rights, evidence of an attack on an officer is not fruit of a poisonous tree subject to suppression.” Id. at 728. It elaborated:
Here, the defendant sought suppression of evidence of an attack on a police officer. The court concluded: “Defendant seeks the suppression of evidence of an attack on a police officer. Since evidence of an attack on a police officer cannot be suppressed as a fruit of the poisonous tree, the evidence Defendant sought to suppress cannot be suppressed as a matter of law.” Id. at 730.
State v. Hester, 254 N.C. App. 506 (2017). The court held that even if the initial stop of the defendant by Deputy Cranford was not supported by reasonable suspicion, the trial court properly denied the defendant’s motion to suppress when the evidence sought to be suppressed—a stolen handgun—was obtained after the defendant committed a separate crime: pointing a loaded gun at the deputy and pulling the trigger. The evidence at issue was admissible at trial under the attenuation doctrine, which holds that evidence is admissible when the connection between the unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that the interest protected by the constitutional guarantee that has been violated would not be served by suppression. Here, the defendant’s commission of a crime broke any causal chain between the presumably unlawful stop and the discovery of the stolen handgun.
State v. Friend, 237 N.C. App. 490 (2014). In an assault on an officer case, the court rejected the defendant’s argument that evidence of his two assaults on law enforcement officers should be excluded as fruits of the poisonous tree because his initial arrest for resisting an officer was unlawful. The doctrine does not exclude evidence of attacks on police officers when those attacks occur while the officers are engaging in conduct that violates a defendant’s Fourth Amendment rights; “[a]pplication of the exclusionary rule in such fashion would in effect give the victims of illegal searches a license to assault and murder the officers involved[.]” Id. at 496. Thus, the court held that even if the initial stop and arrest of the defendant violated his Fourth Amendment rights, evidence of his subsequent assaults on officers were not “fruits” under the relevant doctrine.
State v. Barron, 202 N.C. App. 686 (2010). The defendant was convicted of identity theft. Upon arrest, the defendant falsely gave his brother’s name and birth date as his and falsely confirmed in response to an officer’s question the last four digits of the defendant’s Social Security number (which were his brother’s). The court ruled that the defendant’s false confirmation of the last four digits of his Social Security number was sufficient evidence to convict him of identity theft. It was “identifying information” under G.S. 14-113.20(b)(1). The court rejected the defendant’s argument that the trial court erred in denying his motion to suppress his post-arrest statements concerning his false name, date of birth, and Social Security number. The court ruled that, even assuming that the defendant was arrested without probable cause under the Fourth Amendment, the exclusionary rule did not bar evidence of the defendant’s false statements that supported his identity-theft conviction. Relying on State v. Miller, 282 N.C. 633 (1973), and In re J.L.B.M., 176 N.C. App. 613 (2006), the court stated that the exclusionary rule does not exclude evidence of crimes committed after an illegal search or seizure. The false statements were not fruits of the poisonous tree.
State v. Graves, 135 N.C. App. 216 (1999). The court noted that statements obtained as a result of an illegal search must be suppressed. However, the officer in this case obtained certain statements from the defendant about a drug deal that “had gone bad” without mentioning his discovery of illegal drugs and drug paraphernalia (discovered pursuant to an illegal search). Thus, the only statements of the defendant that had to be suppressed were those obtained after the officer told the defendant about what he had found (because only statements made after the unlawful search could be considered to have been obtained as a result of that search).
The Independent-Source Exception
United States Supreme Court
Murray v. United States, 487 U.S. 533 (1988). (This was a four-Justice opinion, but it clearly states existing constitutional law.) After surveilling a warehouse, officers lawfully seized vehicles as they left the warehouse and discovered marijuana in them. The officers then unlawfully entered the warehouse without a warrant, saw in plain view numerous burlap-wrapped bales, and left—without handling the bales—to obtain a search warrant. In applying for the search warrant, the officers did not mention their unlawful entry. After the search warrant was issued, the officers returned to the warehouse and seized the bales, which contained marijuana, and other evidence.
The Court ruled that the bales properly could be admitted at trial under the independent-source exception to the Fourth Amendment exclusionary rule (but the Court remanded for additional fact-finding by the trial court). This exception permits the introduction of evidence that was initially discovered during or as a result of an unlawful search but was later obtained independently by lawful conduct that was untainted by the initial illegality. The exception applies to both intangible evidence (in this case, knowledge of the bales of marijuana) and tangible evidence (in this case, the bales of marijuana) discovered during the initial unlawful search. If the later acquisition of evidence is not the result of the earlier entry, the independent-source exception allows the admission of both tangible and intangible evidence. The Court remanded this case to the trial court so that it could determine (1) whether the officers’ decision to obtain a search warrant was prompted by what they had seen during the initial unlawful entry and (2) whether information obtained during the unlawful entry was presented to the magistrate or affected his decision to issue the warrant. If the answer to both inquiries is no, then the evidence found pursuant to the search warrant would be admissible at trial under the independent-source exception. See also United States v. Salas, 879 F.2d 530 (9th Cir. 1989) (officers had probable cause for search warrant for motel room before their illegal entry; although tainted information from their illegal entry was presented to magistrate, magistrate’s decision to issue search warrant was not affected by that information); United States v. Herrold, 962 F.2d 1131 (3d Cir. 1992) (similar ruling); United States v. Terzado-Madruga, 897 F.2d 1099 (11th Cir. 1990) (identity of witness was known before illegal interrogation of defendant by officer and thus was derived from lawful source independent of officer’s misconduct); United States v. Mithun, 933 F.2d 631 (8th Cir. 1991) (officer’s decision to seek search warrant was not prompted by alleged illegal search, and information obtained during alleged illegal search was not presented to magistrate who issued search warrant); United States v. Restrepo, 966 F.2d 964 (5th Cir. 1992) (Murray did not require inquiry in this case as to whether tainted information affected magistrate’s decision to issue search warrant).
Segura v. United States, 468 U.S. 796 (1984). Drug agents entered an apartment and secured it pending the issuance of a search warrant. The warrant was eventually issued, and evidence was seized. Assuming without deciding that the drug agents illegally entered the apartment, the Court ruled that the evidence later seized pursuant to the search warrant was admissible at trial: the evidence was not a fruit of the illegal entry because all of the information that supported the issuance of the search warrant was known by the officers before they entered the apartment. That is, justification for the search with the search warrant came from a source independent of the illegal entry. See the other independent-source cases cited and discussed in this opinion.
North Carolina Supreme Court
In re Stedman, 305 N.C. 92 (1982). Fingerprints were taken unlawfully from a juvenile because he had been indicted and arrested instead of first being tried in juvenile court (he was under 16 years old when the offense was committed). After juvenile petitions were then brought, a judge issued a nontestimonial identification order under G.S. 7A-598 (now, G.S. 7B-2105) to take the juvenile’s fingerprints. The court ruled that the fingerprint evidence obtained under G.S. 7A-598 was admissible at trial under the independent-source exception because the order was issued based on information obtained independently of, and not tainted by, the evidence of the unlawful fingerprinting. See also State v. Phifer, 297 N.C. 216 (1979) (evidence from glove compartment was obtained lawfully because officers had probable cause to search vehicle, and thus evidence was not obtained through illegal inventory search); State v. Maness, 321 N.C. 454 (1988) (testimony of witnesses was properly admitted because it was not related to illegal seizure of property); State v. Sanders, 327 N.C. 319 (1990) (evidence that was obtained independently of invalid search supported probable cause to arrest).
North Carolina Court of Appeals
State v. Lemonds, 160 N.C. App. 172 (2003). During the course of an investigation into the defendant’s drug activities, law enforcement officers conducted two thermal-imaging scans of the defendant’s residence that revealed a heat signature consistent with a marijuana growing operation. This information was included in the affidavit for a search warrant to search the residence. After the execution of the search warrant, the United States Supreme Court in Kyllo v. United States, 533 U.S. 27 (2001), ruled that the warrantless use of a thermal imager to detect heat emanating from a private home violated the Fourth Amendment. The court here ruled that even without the thermal imaging results, there was sufficient information in the search warrant’s affidavit to support a finding of probable cause to search the residence, including police surveillance, an anonymous tip, and electric bills showing a dramatic increase in electricity usage. (See the fourteen factors recited by the court in its opinion.)
State v. Robinson, 148 N.C. App. 422 (2002). A law enforcement officer received anonymous information that the defendant was growing marijuana in his house. About fifteen months earlier, a drug task force officer had searched the defendant’s residence and found marijuana. The first officer relayed the information to the task force officer, who then spoke with the defendant’s probation officer, who said that the defendant was on probation from the earlier drug offense and that probation included a condition that he consent to warrantless searches of his person and residence. The probation officer went to the defendant’s house, where he attempted to enforce the warrantless search condition. The defendant refused to allow the search, and the probation officer arrested him. Law enforcement officers were informed of the defendant’s arrest and went to the house. No one answered the door, although the officers had learned from the probation officer that the defendant’s girlfriend was there. While other officers were knocking on the door, one of the officers, who was on the driveway, smelled a strong odor of marijuana emanating from the house and saw movement in the house. All of the officers left. They then telephoned the defendant’s girlfriend, who refused to consent to a search of the house. The officers returned to the house, knocked on the door, received no answer, and then broke into the house. They conducted a security sweep and restrained the girlfriend. One officer obtained a search warrant, and they then searched the house, finding marijuana.
The court ruled that (1) the independent-source doctrine (Segura v. United States, 468 U.S. 796 (1984); State v. Wallace, 111 N.C. App. 581 (1993)) supported the seizure of the marijuana with a search warrant even if it were to be assumed that the officers had previously made an illegal warrantless entry of the house—no evidence from the assumed illegal entry was used in the search warrant and (2) all the information described above supplied probable cause to support the search warrant.
State v. Treece, 129 N.C. App. 93 (1998). An officer entered a house without a warrant to secure it while a search warrant was obtained. Illegal drugs were later seized with a search warrant. The court noted that the affidavit for the search warrant did not contain any information gained from the officer’s entry. Relying on Segura v. United States, 468 U.S. 796 (1984), the court ruled that the information supplying probable cause for the search warrant was obtained independently from any possible illegal entry, and thus the illegal drugs were properly seized.
State v. McLean, 120 N.C. App. 838 (1995). Exterminators and apartment managers discovered marijuana in an apartment as a result of the exterminating work performed there. The apartment managers then contacted a local law enforcement agency. An officer entered the apartment with the managers and saw the marijuana. The officer, without seizing any evidence, left the apartment to await a detective. The detective gathered information from the exterminators, the apartment managers, and the law enforcement officer. The detective provided this information in an affidavit for a search warrant, obtained a search warrant, searched the apartment, and seized the marijuana. The court ruled, assuming without deciding that the officer’s entry with the managers was unconstitutional, that the seizure of the marijuana should not be suppressed based on the independent-source exception to the exclusionary rule; see Murray v. United States, 487 U.S. 533 (1988). [Author’s note: The entry, apparently without the tenant’s consent or exigent circumstances, would have been unconstitutional.] There was sufficient probable cause, independent of the illegal entry by the officer and his corroborative observations of the marijuana, to support the search warrant. The finding of probable cause was unconnected with the illegal entry. The court also noted that the detective who applied for the search warrant did not participate in the illegal entry.
State v. Waterfield, 117 N.C. App. 295 (1994). On May 13, 1993, officers went to the defendant’s residence without a search warrant. The defendant refused to consent to a search of his residence. One officer told the defendant that he would stay with the defendant while the other officers obtained a search warrant. When the officers insisted that the defendant remain in their view at all times, the defendant shut and locked the door. One officer kicked the door down and forced the defendant to sit in a chair. About one and one-half hours later, officers returned with a search warrant and conducted a search.
No information obtained during the initial entry was used in the affidavit for the search warrant. The affidavit stated that on April 1, 1993, three people gave an officer about 3 grams of marijuana that they said the defendant had given them. They stated that the defendant had shown them marijuana kept in a padlocked cabinet in his bedroom at his residence. On April 2, 1993, a confidential informant told an officer that he had seen marijuana in the defendant’s residence and stated that the defendant kept the marijuana in a padlocked cabinet in his bedroom. On April 5, 1993, officers visited the defendant’s residence and confirmed that he lived there. On May 12, 1993, another confidential informant reported to an officer that within the last twenty-four hours, the informant had seen about a half pound of marijuana at the defendant’s residence and had seen the defendant sell marijuana from his home; the informant also stated that the defendant kept marijuana in a padlocked cabinet in his bedroom.
The court ruled that the affidavit supplied probable cause to support the search warrant. Although the affidavit did not mention the reliability of the officers’ sources of information, it did provide information about the presence and sale of marijuana at the defendant’s residence within twenty-four hours of the warrant application. It also provided information about the location and manner of the defendant’s storage of the marijuana that matched information supplied by other sources. Relying on Segura v. United States, 468 U.S. 796 (1984), the court also ruled that the search pursuant to the search warrant was valid because the information used to obtain the search warrant was obtained entirely independent of the allegedly illegal initial entry to secure the residence.
State v. Wallace, 111 N.C. App. 581 (1993). Officers received information from an informant that marijuana was being grown in the basement of a residence. However, the officers were unable to corroborate the informant’s information. Therefore, they went to the residence to investigate. After the officers knocked on the door, Jolly came out and closed the door behind him. The officers told him why they were there and asked him if there were others in the residence. Jolly told the officers that one of his roommates was asleep inside. The officers then asked for consent to search the residence. Before Jolly could answer, Wallace came out of the residence. The officers then asked for consent to search, which Wallace and Jolly denied. The court’s opinion stated that “Jolly then stated that ‘there might be some drug paraphernalia and marijuana seeds in the house,’ and that he would not consent to a search until he had time to get rid of the contraband.” Id. at 583. After the officers were denied consent to search, they heard footsteps in the residence and a door shut on the inside. The officers asked Wallace and Jolly who was in the residence, and they said they did not know because they had just arrived. The officers then went inside to execute a protective sweep before leaving the residence to obtain a search warrant. The officers saw what appeared to be marijuana plants while inside. The defendants were detained in the residence while the officers obtained a search warrant, which included information about their observation of marijuana in the house.
The court ruled as follows: (1) Uncorroborated information initially given to the officers was insufficient to establish probable cause to search the residence. (2) The officers did not violate the defendants’ rights by going to the residence to investigate the information they had received. (3) Probable cause existed to search the residence when Jolly made the statement quoted above. (4) The officers did not have exigent circumstances to enter the residence without a search warrant. The court stated that the “record is devoid of any evidence that the officers entered the residence with a reasonably objective belief that evidence was about to be removed or destroyed.” Id. at 587. The court noted that the only purpose of the officers’ entry into the residence was to conduct a protective sweep until a search warrant could be obtained and that the officers did not believe they were in danger at any time. (5) The State could not justify the search of the residence under the independent-source exception to the exclusionary rule, Murray v. United States, 487 U.S. 533 (1988), and Segura v. United States, 468 U.S. 796 (1984). In this case, the search warrant was prompted by what the officers saw in their unlawful entry, and the information obtained during the illegal entry was presented to the magistrate and affected the decision to issue the search warrant.
Federal Appellate Courts
United States v. Grosenheider, 200 F.3d 321 (8th Cir. 2000). Even if an officer conducted an illegal search in viewing child pornography on the defendant’s computer, the child pornography evidence was nonetheless admissible at trial under both independent-source and inevitable-discovery exceptions to the Fourth Amendment’s exclusionary rule. A customs agent, who was contacted by the officer, obtained a search warrant based solely on statements made by a computer repairman who had seen the child pornography before the officer’s allegedly illegal search. The seizure of the computer by the customs agent was thus properly based on a valid search warrant. See also United States v. Stabile, 633 F.3d 219 (3d Cir. 2011) (similar ruling involving child pornography).
United States v. Johnson, 994 F.2d 980 (2d Cir. 1993). Officers arrested the defendant for felonious assaults and properly seized audiocassette tapes in his pockets. Six months later, the officers listened to the tapes without obtaining a search warrant. The defendant filed a motion to suppress the contents of the tapes, and a judge expressed concern that the officers’ warrantless listening to the tapes could not be justified as a search incident to arrest. The government then applied for a search warrant to listen to the tapes again. The court ruled that the affidavit for the search warrant revealed probable cause independent of the information learned from listening to the tapes. Two tapes were labeled with the names of witnesses who had heard that the defendant had taped conversations due to his problems with one of the assault victims. The court also ruled that the officers would have applied for a search warrant had they not listened to the tapes beforehand. Thus, the evidence from the tapes was properly admitted under the independent-source exception.
United States v. Miller, 822 F.2d 828 (9th Cir. 1987). A search warrant was supported by probable cause based on independently obtained information separate from the information that had been obtained by an illegal search. See also United States v. Curtis, 931 F.2d 1011 (4th Cir. 1991) (search warrant was based solely on information known by officers before they allegedly made improper warrantless entry).
The Inevitable-Discovery Exception
United States Supreme Court
Nix v. Williams, 467 U.S. 431 (1984). Although a defendant’s statements are inadmissible at trial when they are obtained in violation of the defendant’s Sixth Amendment rights, other evidence is admissible if the State proves by a preponderance of evidence that the other evidence would have been inevitably discovered by lawful means without using the defendant’s illegally obtained statements. The Court ruled in this case that the State satisfied its burden of proving that the victim’s body would have been discovered by a searching party even if the defendant’s illegally obtained statements had not been used to find it. The Court rejected the proposed requirement that, as part of the inevitable-discovery rule, the State must prove that the officer committed the Sixth Amendment violation in a good-faith belief that he was acting lawfully. [Author’s note: The inevitable-discovery rule also may apply—under appropriate circumstances—to other constitutional violations, including Fourth Amendment violations. See United States v. Souza, 223 F.3d 1197 (10th Cir. 2000); United States v. Merriweather, 777 F.2d 503 (9th Cir. 1985); United States v. Andrade, 784 F.2d 1431 (9th Cir. 1986); United States v. McConnell, 903 F.2d 566 (8th Cir. 1990) (although search of briefcase was not justified as search incident to arrest, contents would have been inevitably discovered by inventory search).]
North Carolina Supreme Court
State v. Garner, 331 N.C. 491 (1992). After the arrest of the defendant for murder and the recovery of a .25 caliber Beretta pistol (the alleged murder weapon), officers obtained a search warrant to search the defendant’s residence and seized (1) a Beretta box showing model 950BS, serial number BR88945V from Jim’s Pawn Shop; (2) a receipt from Jim’s Pawn Shop showing a purchase on December 20, 1986, of a Beretta PPGGG Model 950BS with the same serial number; and (3) five .25 caliber bullets. As a result of the seizure of this evidence, officers went to Jim’s Pawn Shop and obtained (1) a copy of the Beretta pistol purchase receipt that they had seized under the search warrant and (2) the defendant’s ATF (federal Alcohol, Tobacco, and Firearms Bureau) application to purchase the Beretta weapon.
The trial judge ruled that the search warrant was invalid because probable cause did not exist to search the residence; therefore, the evidence found at the residence was inadmissible at trial. However, the judge ruled that the evidence obtained from Jim’s Pawn Shop was admissible under the inevitable-discovery exception to the Fourth Amendment’s exclusionary rule: the judge found by a preponderance of evidence that (1) it is routine procedure in firearms cases to check PIN (Police Information Network) and ATF documents and (2) “but for” the fact that the information was readily ascertainable by the pawn receipt officers found in the illegal search of the defendant’s home with the invalid search warrant, the officers would have conducted a routine check and discovered at Jim’s Pawn Shop by lawful means the duplicate Beretta pistol purchase receipt and the defendant’s ATF application to purchase the weapon.
The court adopted under the state constitution the inevitable-discovery exception to the Fourth Amendment’s exclusionary rule, which was recognized in Nix v. Williams, 467 U.S. 431 (1984). The court rejected the defendant’s contention that the State always must show that an independent investigation (that would have inevitably discovered the evidence by lawful means) must have been ongoing when the illegality occurred that resulted in the discovery of the evidence. Instead, the court adopted a case-by-case approach, “recognizing that the particular facts of any given case will determine whether, absent other means, proof of an ongoing, independent investigation is necessary to show inevitability.” Garner, 331 N.C. at 503. The court also ruled that (1) the State’s standard of proof in proving the inevitable discovery is preponderance of evidence, rejecting the clear and convincing evidence standard; (2) the officer’s bad faith in conducting the illegal search was irrelevant in applying the inevitable-discovery exception; and (3) the court’s suppression of the primary evidence (evidence seized under the invalid search warrant) was not necessary in applying the inevitable-discovery exception. The court reviewed the evidence in this case and affirmed the trial judge’s ruling that the inevitable-discovery exception applied to admit the evidence found at Jim’s Pawn Shop.
The court rejected the defendant’s contention that the court should not recognize the inevitable-discovery exception under Article I, Section 20 of the North Carolina Constitution. The court stated: “While this Court has held that Article I, Section 20 of our Constitution, like the Fourth Amendment to the United States Constitution, prohibits unreasonable searches and seizures, e.g., State v. Arrington, 311 N.C. 633, 319 S.E.2d 254; State v. Ellington, 284 N.C. 198, 200 S.E.2d 177 (1973), and requires the exclusion of evidence obtained by unreasonable search and seizure, e.g., State v. Carter, 322 N.C. 709, 370 S.E.2d 553, there is nothing to indicate anywhere in the text of Article I, Section 20 any enlargement or expansion of rights beyond those afforded in the Fourth Amendment as applied to the states by the Fourteenth Amendment.” Garner, 331 N.C. at 506. The court later stated: “We therefore hold the defendant’s contention that Article I, Section 20 of our Constitution should be read as an extension of rights beyond those afforded in the Fourth Amendment is misplaced.” Id. at 506–07. [Author’s note: The court’s general statements indicate that in other cases it may not interpret this constitutional section more broadly than the Fourth Amendment in favor of a defendant’s rights. It appears that Garner may undermine the court’s ruling in State v. Carter, 322 N.C. 709 (1988), which had rejected under this constitutional section the good-faith exception to the exclusionary rule under the Fourth Amendment, as set out in United States v. Leon, 468 U.S. 897 (1984), and Massachusetts v. Sheppard, 468 U.S. 981 (1984). See also State v. Banner, 207 N.C. App. 729 n.7 (2010) (noting possible conflict between Carter and Garner). Concerning a different issue, the court in State v. Womble 277 N.C. App. 164 (2021), stated that there is not a temporal component barring the admission of evidence subject to the inevitable-discovery exception, only a requirement that the evidence would have been inevitably discovered by law enforcement.]
State v. Pope, 333 N.C. 106 (1992). Although the defendant’s admissions, obtained in violation of Arizona v. Roberson, 486 U.S. 675 (1988), led to the discovery of a handgun used in the murder with which the defendant was charged, the court ruled that the handgun and the tests performed on it were admissible at trial under the inevitable-discovery exception; see State v. Garner, 331 N.C. 491 (1992). Although the handgun was found as a result of unlawful interrogation, the following facts showed that the handgun would have been inevitably discovered by lawful means. The handgun was found under the seat of a 1953 model Ford truck owned by Alan Eastridge. Eastridge later sold the truck, and he testified at the suppression hearing that when he sells something, he looks in “every crack and crevice of the truck—car or anything—to make sure there’s nothing valuable in there or anything left, or even change.” Pope, 333 N.C. at 115 (quoting testimony). He also testified that if he had found a handgun, he would have delivered it to detectives.
North Carolina Court of Appeals
State v. Jackson, 262 N.C. App. 329 (2018). This case involved a traffic stop, a search of the defendant’s pockets, and later drug charges and a charge of driving without an operator’s license. The court ruled that evidence of the discovery of cocaine on the defendant’s person, even if the search of the defendant were to be found to have violated the Fourth Amendment, would have been admissible at trial under the inevitable-discovery exception. Under this exception, “evidence which is illegally obtained can still be admitted into evidence as an exception to the exclusionary rule when the information ultimately or inevitably would have been discovered by lawful means.” Id. at 338 (internal quotation marks, citations omitted). The officer who stopped the defendant testified that he would not have allowed the defendant to drive away from the traffic stop because he was not licensed to operate a motor vehicle. Instead, he would have searched the defendant before giving him a ride or transporting him to jail because of his practice of searching everyone being transported in his patrol car. Also, the defendant repeatedly asked the officer if he would give him a ride back to a hotel. Thus, the State established that the cocaine would have been inevitably discovered because the officer would have searched the defendant for weapons or contraband before transporting him to another location or to jail.
State v. Wells, 225 N.C. App. 487 (2013). In a case in which the defendant was convicted of soliciting a child by computer and attempted indecent liberties on a child, the court of appeals ruled that the trial court erred by concluding that the defendant’s laptop would have been inevitably discovered. The trial court ordered suppressed statements that the defendant made to officers during questioning. In those statements, the defendant told officers that he owned a laptop that was located on his bed at a fire station. The trial court denied the defendant’s motion to suppress evidence retrieved from his laptop, concluding that it would have been inevitably discovered. The court of appeals found that the State had not presented any evidence—from the investigating officers or anyone else—supporting this conclusion.
State v. Harris, 157 N.C. App. 647 (2003). An officer was executing a search warrant for drugs, which named to be searched a dwelling and the person of the defendant. The officer obtained keys to a truck after the officer asked the defendant if he had any keys and the defendant acknowledged that he had keys in his pocket. The keys were then used to open a locked toolbox on the side of the truck that contained cocaine. The court ruled that the inevitable-discovery doctrine supported the officer’s seizure of the keys from the defendant’s pocket and cocaine from the truck even if the officer’s knowledge of the keys resulted from a statement obtained through a Miranda violation. Because the search warrant authorized the search of the person of the defendant, the officer would have inevitably located the keys even without the defendant’s acknowledgment that the keys were in his pocket.
State v. Vick, 130 N.C. App. 207 (1998). Officers entered an apartment to execute a search warrant to seize cocaine. The court ruled that the defendant’s statement to the officers during the execution of the search warrant that cocaine was located in a refrigerator in the apartment was obtained in violation of his Miranda rights and thus was inadmissible at trial. However, the cocaine seized in the refrigerator was admissible under the inevitable-discovery doctrine (see State v. Garner, 331 N.C. 491 (1992)) because the officers would have inevitably found it during the execution of the search warrant. The court affirmed the trial judge’s ruling. [Author’s note: Physical evidence seized as a result of a Miranda violation is admissible at trial, State v. May, 334 N.C. 609 (1993), so the court’s analysis of the inevitable-discovery rule here was unnecessary.]
Federal Appellate Courts
United States v. Grosenheider, 200 F.3d 321 (8th Cir. 2000). Even if an officer conducted an illegal search in viewing child pornography on the defendant’s computer, evidence was nonetheless admissible at trial under both independent-source and inevitable-discovery exceptions to the Fourth Amendment’s exclusionary rule. A customs agent, who was contacted by the officer, obtained a search warrant based solely on statements made by the computer repairman who had seen child pornography before the officer’s allegedly illegal search. The seizure of the computer by the customs agent was thus properly based on a valid search warrant. See also United States v. Stabile, 633 F.3d 219 (3d Cir. 2011) (similar ruling involving child pornography).
United States v. Allen, 159 F.3d 832 (4th Cir. 1998). The inevitable-discovery exception did not apply in this case because there was no evidence that the officer here would have used a drug dog to sniff a bag if the bag had not been illegally searched. In addition, there was no evidence that the officer would have obtained a search warrant absent the illegal search.
United States v. Hammons, 152 F.3d 1025 (8th Cir. 1998). Cocaine inside an envelope found during a valid search of the defendant’s garment bag was admissible at trial despite the officer’s illegally opening the bag after obtaining the defendant’s involuntary consent to do so. The officer would have summoned a drug canine unit if the defendant had not consented to the search of the garment bag, as he had informed the defendant he would do. The dog would have alerted to the presence of drugs, and the drugs would have been inevitably discovered through lawful means.
United States v. Procopio, 88 F.3d 21 (1st Cir. 1996). A local police department’s search of a briefcase exceeded the scope of its inventory-search policy and was unconstitutional under the Fourth Amendment. However, the court ruled that, based on the facts in this case, the contents of the briefcase would have been inevitably discovered by federal law enforcement officers. Local officers would have alerted federal officers to the briefcase because the local officers knew of a pending federal robbery investigation of the defendant, and the federal officers would have obtained a search warrant to search the briefcase.
United States v. Eylicio-Montoya, 70 F.3d 1158 (10th Cir. 1993). An officer lawfully stopped a vehicle to investigate marijuana trafficking but then unlawfully arrested the defendant-passenger. The officer then saw burlap bags in the vehicle, which gave him probable cause to search the vehicle for marijuana. The court ruled that the marijuana was admissible at trial because the officer would have inevitably discovered it during the lawful investigative stop, despite the unlawful arrest of the defendant.
United States v. Cabassa, 62 F.3d 470 (2d Cir. 1995). The government failed to prove by a preponderance of evidence that drugs would have inevitably been discovered by means of a search warrant after officers entered an apartment illegally. Officers had prepared a search warrant but never presented it to a judicial official for its issuance.
United States v. Kennedy, 61 F.3d 494 (6th Cir. 1995). Officers discovered illegal drugs after unlawfully searching lost luggage at an airport without a search warrant. However, the court ruled that the drugs would inevitably have been discovered by lawful means because the airline company, following its policy of opening lost luggage to determine its owner, would have opened it, found the cocaine, and then turned it over to the officers.
United States v. Ibarra, 955 F.2d 1405 (10th Cir. 1992). The inevitable-discovery exception did not apply in this case because an inventory of the defendant’s vehicle could not have been conducted but for the officers’ unlawful impoundment of the vehicle.
United States v. Buchanan, 904 F.2d 349 (6th Cir. 1990). Officers made an unlawful warrantless entry into a home, and exigent circumstances did not exist. The inevitable-discovery exception did not apply in this case because the officers simply planned to get a search warrant after their unlawful entry.
United States v. Arango, 879 F.2d 1501 (7th Cir. 1989). Even if the search of a vehicle after the arrest of the defendant, who was a passenger in the vehicle, could not have been justified as a search incident to arrest, the evidence seized would have been admissible at trial under the inevitable-discovery doctrine because a later search at the Drug Enforcement Agency garage was permissible as an inventory search as the vehicle had been lawfully impounded.
United States v. Gorski, 852 F.2d 692 (11th Cir. 1988). The court found that the warrantless search of the defendant’s bag when he was arrested violated the Fourth Amendment but that the cocaine found in the bag would be admissible at trial under the inevitable-discovery doctrine if it was inevitable that an inventory search would have been conducted and cocaine would have been discovered in the bag.
United States v. Namer, 835 F.2d 1084 (5th Cir. 1988). The inevitable-discovery exception requires that the government offer a theory about the manner in which officers “would” (not “might” or “could”) have made their discovery of the evidence.
United States v. Boatwright, 822 F.2d 862 (9th Cir. 1987). The court ruled that the existence of two independent investigations, one of which was lawful and would have uncovered the information admissible against a defendant at trial, was not a necessary predicate to the inevitable-discovery exception. Generally, however, the exception requires that the fact or likelihood that makes the discovery inevitable must evolve from circumstances other than those disclosed by the illegal search itself. In this case, an independent search was not under way, as in Nix v. Williams, 467 U.S. 431 (1984). Neither would a search have occurred as a routine procedure, as in United States v. Andrade, 784 F.2d 1431 (9th Cir. 1986), or United States v. Martinez-Gallegos, 807 F.2d 868 (9th Cir. 1987). There was nothing other than the unlawful search itself that supported the inevitable discovery of the weapons. See also United States v. Thomas, 955 F.2d 207 (4th Cir. 1992) (similar ruling).
United States v. Drosten, 819 F.2d 1067 (11th Cir. 1987). The court ruled that two witnesses would have been inevitably discovered (and thus their testimony was properly admitted at trial) despite an illegal, warrantless entry into an apartment. Another witness would not have been inevitably discovered, and thus his testimony was improperly admitted. See also United States v. Terzado-Madruga, 897 F.2d 1099 (11th Cir. 1990) (identity of witness would have been inevitably discovered, despite discovery of identity through illegal interrogation in violation of defendant’s Sixth Amendment right to counsel).
United States v. Whitehorn, 813 F.2d 646 (4th Cir. 1987). Officers lawfully entered an apartment to execute an arrest warrant for a person who was not the defendant. After removing the defendant from the apartment, officers closed the door and undertook to obtain a warrant to search the apartment. Meanwhile, a warrantless unconstitutional search of the apartment was conducted to perform a bomb sweep, and an officer saw many items, including a submachine gun, that were later named in the search warrant’s affidavit. The search warrant was then executed and many items seized, including those seen during the unconstitutional search. The court ruled that the inevitable-discovery exception authorized the admission into evidence of the items seen during the unconstitutional search because the items inevitably would have been discovered with a lawful search warrant. See also United States v. Whitehorn, 829 F.2d 1225 (2d Cir. 1987).
United States v. Pimentel, 810 F.2d 366 (2d Cir. 1987). The inevitable-discovery exception applies to direct as well as indirect fruits of an illegal seizure. In this case, illegally seized letters would have been inevitably discovered in the course of an audit.
United States v. Hernandez-Cano, 808 F.2d 779 (11th Cir. 1987). The inevitable-discovery exception allows the admission into evidence of drugs found in luggage through an officer’s illegal search because a private person (in this case, an airline employee) would have inevitably discovered the drugs when examining the luggage had the officer not interrupted the examination and conducted an illegal search.
United States v. Martinez-Gallegos, 807 F.2d 868 (9th Cir. 1987). The inevitable-discovery exception applies to Fifth Amendment violations (immigration officials would have consulted the defendant’s immigration file even if they had not unlawfully obtained statements from the defendant in violation of the Miranda rule).
Impeachment with Unconstitutionally Obtained Evidence
UNITED STATES SUPREME COURT
James v. Illinois, 493 U.S. 307 (1990). Officers unconstitutionally obtained statements from the defendant because they obtained them as a result of an arrest without probable cause. At trial, a prosecutor used these statements to cross-examine a defense witness to impeach her credibility. The Court noted that its prior cases have permitted the government to impeach a defendant with illegally obtained evidence; see United States v. Havens, discussed immediately below. However, the Court ruled that it is not permissible to impeach a defense witness with such evidence. The Court stated that a contrary ruling would significantly weaken the deterrent impact of the exclusionary rule on law enforcement officers. But see Wilkes v. United States, 631 A.2d 880 (D.C. App. 1993) (distinguishing James, court ruled that when defendant offered testimony of expert on insanity defense and expert’s opinion was based largely on statements made to expert by defendant, government could offer evidence of defendant’s Miranda-tainted statements during impeachment of expert and on rebuttal); State v. DeGraw, 470 S.E.2d 215 (W. Va. 1996) (similar ruling).
United States v. Havens, 446 U.S. 620 (1980). Unconstitutionally seized evidence may be used to impeach a defendant’s allegedly false testimony given on direct examination or initially given on the government’s cross-examination when the cross-examination is reasonably suggested by the defendant’s direct examination. See the Court’s discussion of Agnello v. United States, 269 U.S. 205 (1925), and Walder v. United States, 347 U.S. 623 (1954). For related cases, see “Use of Evidence Obtained as the Result of a Miranda Violation” in the case summaries in Chapter 5.
Other Exclusionary Rule Exceptions
(See also the case summaries under “Exclusionary Rules Particularly Applicable to Search Warrants” above in this appendix.)
United States Supreme Court
Pennsylvania Board of Probation & Parole v. Scott, 524 U.S. 357 (1998). The Court ruled that the Fourth Amendment’s exclusionary rule does not bar the introduction at parole-revocation hearings of evidence seized in violation of a parolee’s Fourth Amendment rights, even when the searching officer knows that the person is a parolee.
Arizona v. Evans, 514 U.S. 1 (1995). An officer stopped the defendant for a traffic violation. The officer was informed by a computer message that there was an outstanding arrest warrant for the defendant, which—unknown to the officer—was incorrect because the warrant had already been dismissed. The officer arrested the defendant based on the information about the warrant, discovered marijuana, and charged the defendant with possession of marijuana. The defendant moved to suppress the marijuana evidence. The Arizona Supreme Court ruled that the evidence should be suppressed regardless of whether the error about the arrest warrant was the fault of court employees or law enforcement personnel.
The United States Supreme Court ruled that if the error was the fault of court employees, then the exclusionary rule should not bar the admission of the marijuana evidence. Relying on its rulings in United States v. Leon, 468 U.S. 897 (1984), Massachusetts v. Sheppard, 468 U.S. 981 (1984), and Illinois v. Krull, 480 U.S. 340 (1987), the Court noted that the exclusionary rule was historically designed to deter law enforcement misconduct, not errors by court employees. There was no evidence that court employees are inclined to violate the Fourth Amendment so as to require that the exclusionary rule be invoked. Most importantly, there was no basis for believing that the application of the exclusionary rule would have a significant deterrent effect on court employees who are responsible for informing law enforcement when a warrant has been dismissed.
[Author’s note: Because the North Carolina Supreme Court strongly indicated in State v. Carter, 322 N.C. 709 (1988), that a good-faith exception to the exclusionary rule did not exist under the North Carolina Constitution, thereby not adopting the Leon and Sheppard rulings that were decided under the United States Constitution, it is unclear whether this ruling would apply in North Carolina state courts. However, for a later case that appeared to express reasoning that differs from Carter, see State v. Garner, 331 N.C. 491 (1992). See also State v. Banner, 207 N.C. App. 729 n.7 (2010) (noting possible conflict between Carter and Garner).]
Withrow v. Williams, 507 U.S. 680 (1993). The Court ruled that Miranda violations must be considered in federal habeas corpus review of state convictions. The Court rejected an extension to Miranda violations of the ruling in Stone v. Powell, 428 U.S. 465 (1976) (if state provided full and fair review of Fourth Amendment claim, federal habeas review of that claim is unavailable).
United States v. Verdugo-Urguidez, 494 U.S. 259 (1990). The Fourth Amendment does not apply to a search of a nonresident alien’s property in a foreign country.
Illinois v. Krull, 480 U.S. 340 (1987). The Fourth Amendment’s exclusionary rule does not apply to exclude evidence obtained by a warrantless administrative search conducted by an officer in the objectively reasonable reliance on a statute authorizing such a search, even if the statute is later declared unconstitutional. See the discussion of this case in State v. Carter, 322 N.C. 753 (1988).
Kimmelman v. Morrison, 477 U.S. 365 (1986). The ruling in Stone v. Powell, 428 U.S. 465 (1976), discussed below, does not apply to a Sixth Amendment ineffective assistance of counsel claim that is based on incompetent representation of a Fourth Amendment issue. The Court ruled that a defense lawyer’s complete failure to seek pretrial discovery, which resulted in the failure to file a timely motion to suppress evidence, did not meet the minimum standard of effectiveness of counsel under the Sixth Amendment.
Immigration & Naturalization Service v. Lopez-Mendoza, 468 U.S. 1032 (1984). The exclusionary rule does not apply to bar the use of evidence in a deportation proceeding when the evidence was obtained as a result of an unconstitutional arrest.
Michigan v. DeFillippo, 443 U.S. 31 (1979). The exclusionary rule does not apply to bar the use of evidence seized after an officer made an arrest with probable cause and with a good-faith reliance on an ordinance that a court later declared to be unconstitutional.
Stone v. Powell, 428 U.S. 465 (1976). When state courts have provided a defendant with a full and fair opportunity to litigate a Fourth Amendment issue, the defendant cannot raise the issue in a federal habeas corpus proceeding.
United States v. Janis, 428 U.S. 433 (1976). The exclusionary rule does not apply to bar the use of evidence in a federal civil tax proceeding when the evidence was seized unconstitutionally by a state law enforcement officer.
United States v. Calandra, 414 U.S. 338 (1974). The Fourth Amendment’s exclusionary rule does not apply to evidence used in grand jury proceedings.
One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693 (1965). The exclusionary rule applies to bar evidence (in this case, a car) in a proceeding to forfeit the evidence when that evidence was seized unconstitutionally. However, the exclusionary rule does not apply if the seized evidence is contraband per se (for example, illegal drugs). And, if the government can prove by lawfully obtained evidence the contraband character of the object to be forfeited, it is irrelevant that the government obtained the object as the result of an illegal search or seizure.
North Carolina Supreme Court
State v. Lombardo, 306 N.C. 594 (1982), later appeal, 74 N.C. App. 460 (1985). The Fourth Amendment’s exclusionary rule does not apply to evidence used in a probation hearing.
State v. Sanders, 303 N.C. 608 (1981). The exclusionary rule does not apply to evidence obtained in violation of the Posse Comitatus Act, 18 U.S.C.A. § 1385 (prohibiting the use of the federal military in executing civilian laws).
North Carolina Court of Appeals
Combs v. Robertson, 202 N.C. App. 296 (2015). The court ruled that the Fourth Amendment’s exclusionary rule does not apply in civil driver’s license–revocation proceedings. The evidence used in the proceeding here was obtained as a result of an unconstitutional stop; after the same evidence previously had been used to support criminal charges, it was suppressed and the criminal charges were dismissed. The court ruled that while the evidence was subject to the exclusionary rule in a criminal proceeding, that rule did not apply in this civil proceeding, even if it could be viewed as “quasi-criminal in nature.”
Hartman v. Robertson, 208 N.C. App. 692 (2010). The exclusionary rule does not apply in a Division of Motor Vehicles civil license-revocation proceeding.
State v. Banner, 207 N.C. App. 729 (2010). On February 22, 2007, the defendant was cited to appear in Wilkes County Court for various motor vehicle offenses (hereafter, Wilkes County charges). On June 7, 2007, he was convicted in Caldwell County of unrelated charges (hereafter, unrelated charges) and sent to prison. When a court date was set on the Wilkes County charges, the defendant failed to appear because he was still in prison on the unrelated charges and no writ was issued to secure his presence. The court issued an order for arrest (OFA) for the failure to appear. When the defendant was scheduled to be released from prison on the unrelated charges, Department of Correction employees asked the Wilkes County clerk’s office to recall the OFA, explaining that the defendant had been incarcerated when it was issued. However, the OFA was not recalled, and on October 1, 2007, the defendant was arrested pursuant to that order, having previously been released from prison. When he was searched incident to arrest, officers found marijuana and cocaine on his person. The court rejected the defendant’s argument that the OFA was invalid because the Wilkes County clerk failed to recall it as requested, concluding that because the underlying charges had not been resolved at the time of arrest, no automatic recall occurred. The court further noted that even if good cause to recall existed, recall was not mandatory, and therefore the failure to recall did not nullify the OFA. Thus, the officers were entitled to rely on the OFA, and no independent probable cause was required to arrest the defendant. The court declined to resolve the issue of whether there is a good-faith exception to Article I, Section 20 of the North Carolina Constitution.
Federal Appellate Courts
United States v. Kington, 801 F.2d 733 (5th Cir. 1986). Congress did not intend that evidence obtained in violation of the federal Right to Financial Privacy Act must be suppressed, when the act did not authorize that remedy. Therefore, suppression is inappropriate. [Author’s note: The rationale of this ruling would apply to a violation of North Carolina’s Financial Privacy Act (G.S. 53B-1 through -10, discussed in Chapter 3.]
North Carolina’s Statutory Exclusionary Rule
NORTH CAROLINA SUPREME COURT
State v. Simpson, 320 N.C. 313 (1987). A magistrate’s failure to set bail, assuming it was an error under G.S. 15A-511(e), did not render a later-obtained voluntary confession inadmissible at trial. The assumed violation of G.S. Chapter 15A was not a “substantial violation” under G.S. 15A-974(2) (now, G.S. 15A-974(a)(2)). [Author’s note: Legislation enacted in 2011 (S.L. 2011-6) added a good-faith exception to the application of G.S. 15A-974.]
State v. Richardson, 295 N.C. 309 (1978). Assuming without deciding that the four-and-one-half-hour delay between the defendant’s arrest and his being taken before a magistrate was a violation of G.S. 15A-501(2), and assuming without deciding that officers’ failure to comply with this statute was a “substantial violation,” the court ruled that the defendant’s confession (obtained during the interval between arrest and appearance before a magistrate) was not obtained “as a result of” the alleged substantial violation, as required to suppress evidence under G.S. 15A-974(2) (now, G.S. 15A-974(a)(2)). The statutory exclusionary rule requires, at a minimum, a causal connection between the violation and the resulting evidence. After reviewing the evidence, the court concluded that the defendant’s confession here was not causally related to the delay in bringing him before a magistrate. [Author’s note: Legislation enacted in 2011 (S.L. 2011-6) added a good-faith exception to the application of G.S. 15A-974.] See also State v. Hunter, 305 N.C. 106 (1982); State v. Jones, 112 N.C. App. 337 (1993).
See other cases on the application of the statutory exclusionary rule under “Arrests, Investigative Stops, and Related Issues” in Chapter 2 and under “Defendant’s Statements after a North Carolina Statutory Violation” in Chapter 5.
Illinois v. Gates