831 S.E.2d 37 (N.C. 2019), 140PA18, State v. Lewis

Docket Nº:140PA18
Citation:831 S.E.2d 37
Opinion Judge:DAVIS, Justice.
Party Name:STATE of North Carolina v. Robert Dwayne LEWIS
Attorney:Joshua H. Stein, Attorney General, by Milind Dongre, Assistant Attorney General, for the State-appellant/appellee. Glenn Gerding, Appellate Defender, by Kathryn L. VandenBerg, Assistant Appellate Defender, for defendant-appellant/appellee.
Judge Panel:MORGAN, Justice concurring in part and dissenting in part. NEWBY, Justice joins in this dissenting opinion.
Case Date:August 16, 2019
Court:Supreme Court of North Carolina
 
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831 S.E.2d 37 (N.C. 2019)

STATE of North Carolina

v.

Robert Dwayne LEWIS

No. 140PA18

Supreme Court of North Carolina

August 16, 2019

Heard in the Supreme Court on 13 May 2019 in session in the Halifax County Courthouse in the Town of Halifax pursuant to section 18B.8 of Chapter 57 of the 2017 Session Laws of the State of North Carolina.

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On discretionary review pursuant to N.C.G.S. § 7A-31 of a consolidated appeal from two decisions of the Court of Appeals, one a published opinion reported at __ N.C.App. __, 816 S.E.2d 212 (2018), vacating and remanding judgments entered on 7 February 2017 by Judge Richard T. Brown in Superior Court, Hoke County, and the other an unpublished opinion reported at 812 S.E.2d 730 (N.C. Ct.App. 2018), vacating and remanding judgments entered on 6 April 2017 by Judge Kendra D. Hill in Superior Court, Johnston County.

Joshua H. Stein, Attorney General, by Milind Dongre, Assistant Attorney General, for the State-appellant/appellee.

Glenn Gerding, Appellate Defender, by Kathryn L. VandenBerg, Assistant Appellate Defender, for defendant-appellant/appellee.

OPINION

DAVIS, Justice.

This case presents the unique circumstances of an officer possessing information that would suffice to establish probable cause

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for the issuance of a search warrant but failing to include pertinent portions of this information in his affidavit in support of the warrant. Because we conclude that the omission of key facts in the search warrant application in this case resulted in a lack of probable cause for the issuance of the search warrant for either defendant’s residence or vehicle, we affirm in part and reverse in part the decision of the Court of Appeals.

Factual and Procedural Background

On 21 September 2014, a man armed with a handgun and wearing dark clothing and a blue piece of cloth covering his face entered a Family Dollar store in Hoke County. The man told a store employee to take the money from the store’s safe, place the money in a bag, and give the bag to him. After the employee complied with his demand, the man told her to go into the bathroom and stay there until he had exited the store. A witness outside the store saw the man flee the scene in a dark blue Nissan Titan pickup truck.

A similar robbery occurred at a Dollar General store in Hoke County on 26 September 2014. On that occasion, as two employees were closing the store, a man holding a handgun and wearing dark clothing and a blue face covering approached them. He directed the employees to empty the money from the safe and cash registers into a bag and give it to him. The suspect then ordered the employees to enter the bathroom and remain there until he left the store.

Two days later, on 28 September, a third robbery took place at another Dollar General store in Hoke County. A man armed with a handgun and wearing dark clothing and a blue face covering ordered store employees to give him the money in the store’s safe. Upon obtaining the money, the man ordered the employees to go into the bathroom and then fled the premises. Law enforcement officers did not receive a description of the vehicle driven by the suspect for either the 26 September or 28 September robberies.

A fourth robbery took place during the early morning hours of 19 October 2014 at a Sweepstakes store in Smithfield in nearby Johnston County. A man armed with a handgun wearing dark clothing and a blue face covering forced an employee to retrieve money from the store’s safe. As he exited the store, the man was recognized and identified as defendant Robert Dwayne Lewis by a Smithfield police officer who was familiar with him from a previous encounter. Defendant fled the scene in a dark gray Kia Optima. Law enforcement officers subsequently engaged in a high-speed pursuit but were unable to apprehend defendant during the chase.

That same day, officers from the Smithfield Police Department notified the Hoke County Sheriff’s Office of the Sweepstakes store robbery and asked that deputies be on the lookout for a dark gray Kia Optima being driven by defendant. The officers also provided the license plate number of the Kia Optima and informed the Sheriff’s Office that the address associated with the Kia Optima’s registration was 7085 Laurinburg Road in Raeford, North Carolina.

Shortly after beginning his shift at 7:00 a.m. on 19 October 2014, Deputy Tim Kavanaugh of the Hoke County Sheriff’s Office drove past the residence located at 7085 Laurinburg Road. He observed a blue Nissan Titan truck parked in the yard in front of the home. Deputy Kavanaugh did not, however, see a Kia Optima matching the description of the vehicle observed in connection with the Smithfield robbery earlier that morning.

Deputy Kavanaugh then continued with his normal patrol duties. He drove back by the home at 7085 Laurinburg Road at approximately 1:00 p.m. on that same day. At that time, Deputy Kavanaugh saw a dark gray Kia Optima parked in the yard in front of the house in addition to the Nissan Titan that he had previously observed. He then parked across the street from the home "[t]o see if [he] could possibly identify anybody coming from the residence ... or ... one of the vehicles leaving from the residence."

Shortly thereafter, a man matching the suspect’s description exited the house and walked to the residence’s mailbox across the street. Deputy Kavanaugh approached the man and asked him for his name. The man identified himself as Robert Lewis, after which Deputy Kavanaugh immediately placed him under arrest.

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After arresting defendant, Deputy Kavanaugh approached the residence and spoke to Waddell McCollum, defendant’s stepfather, on the front doorstep of the home. McCollum informed Deputy Kavanaugh that defendant lived at the residence. He further stated that defendant owned the Kia Optima and that, although McCollum owned the Nissan Titan, defendant also drove that vehicle on occasion.

When he finished speaking to McCollum, Deputy Kavanaugh walked over to the Kia Optima parked in the front yard "and looked inside of the passenger area, the rear of the vehicle, and observ[ed] in plain sight a BB&T money bag on the passenger floor of the vehicle." Deputy Kavanaugh also saw dark clothing in the back seat of the Kia.

Following defendant’s arrest, Detective William Tart of the Hoke County Sheriff’s Office— who had been investigating the three Hoke County robberies— prepared a search warrant application seeking permission to search the residence at 7085 Laurinburg Road as well as the Nissan Titan and Kia Optima parked in front of the home. The sworn affidavit accompanying Detective Tart’s search warrant application described in detail the 21 September, 26 September, and 28 September 2014 Hoke County robberies as well as the 19 October 2014 Johnston County robbery. The affidavit noted the similarities between the four robberies as to both the clothing worn by the robber and the manner in which the crimes were carried out. The affidavit also stated that Smithfield police officers had identified defendant as the perpetrator of the 19 October 2014 robbery and that he had been arrested at the 7085 Laurinburg Road residence. The affidavit, however, failed to (1) disclose that defendant lived at 7085 Laurinburg Road, (2) contain any other information linking defendant to that address, (3) describe the circumstances surrounding his arrest at that address, or (4) mention Deputy Kavanaugh’s interactions with defendant or his stepfather.

With regard to the vehicles, the affidavit stated that defendant had driven away from the 21 September Hoke County robbery in a dark blue Nissan Titan and that he had fled the scene of the 19 October Johnston County robbery in a Kia Optima. The affidavit further related that a dark blue Nissan Titan "was observed at the residence of 7085 Laurinburg Road ... on October 19, 2014 by Hoke County Patrol Deputies when serving a felony arrest warrant on [defendant]." The affidavit did not mention the fact that Deputy Kavanaugh had also seen a Kia Optima parked in front of the residence. Nor did it relate that the deputy had seen potentially incriminating evidence upon looking into the window of the Kia Optima.

An unsworn attachment to the search warrant application listed a "dark blue Nissan Titan pick-up truck" and a "gray 2013 Kia Optima EX four door car" among the property to be searched by law enforcement officers if the warrant was issued. This attachment also contained registration information and a VIN number for each vehicle. Based upon the information provided in Detective Tart’s affidavit, a magistrate issued a search warrant for the 7085 Laurinburg Road residence, the Nissan Titan, and the Kia Optima.

Detective Tart executed the search warrant on 19...

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