State v. Allman
| Decision Date | 05 January 2016 |
| Docket Number | No. COA15–40.,COA15–40. |
| Citation | 244 N.C.App. 685,781 S.E.2d 311 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina, v. Brittany ALLMAN, Defendant. |
Attorney General, Roy Cooper, by Assistant Attorney General, Derrick C. Mertz, for the State.
Appellate Defender, Staples Hughes, by Assistant Appellate Defender, Paul M. Green, for defendant-appellee.
The State appeals from an order granting defendant Brittany Allman's motion to suppress evidence of drug-related activity seized following the execution of a search warrant at her residence. On appeal, the State argues that the search warrant application revealed circumstances—including the fact that two other residents of the house were engaged in drug dealing and had lied to officers about where they lived—that gave rise to probable cause to believe evidence of drug-related activity would be found in defendant's residence. However, we conclude that these circumstances, along with others in the search warrant affidavit, amount at most to circumstances that our case law has held to be insufficient to establish probable cause that evidence of illegal activity exists at the location identified in the search warrant application. We, therefore, affirm the trial court's order granting defendant's motion to suppress.
Half-brothers Jeremy Lee Black and Sean Alden Whitehead lived at 4844 Acres Drive ("the Acres Drive residence") in Wilmington, North Carolina together with Logan McDonald and defendant, who was Mr. Black's girlfriend. Officers obtained a search warrant for the Acres Drive residence to search for evidence relating to the sale of controlled substances. Officers conducted the search of the Acres Drive residence while defendant was present and found various controlled substances and paraphernalia. Defendant was then arrested.
On 19 March 2012, defendant was indicted for possession of marijuana, possession of a schedule I controlled substance, manufacturing a schedule I controlled substance, possession with intent to sell or deliver marijuana, maintaining a vehicle or dwelling for the sale or distribution of a controlled substance, and possession of drug paraphernalia. On 2 June 2014, defendant filed a motion to suppress the evidence obtained in the search of the Acres Drive residence, arguing that the search warrant did not allege sufficient facts to support probable cause that evidence of drug-related crimes would be found at the Acres Drive residence and, therefore, violated N.C. Gen.Stat. § 15A–244 (2013). On 2 October 2014, the trial court entered an order granting defendant's motion to suppress.
The application for a search warrant was supported by the affidavit of Detective Anthony Bacon of the Vice and Narcotics Unit of the New Hanover County Sheriff's Office. After Detective Bacon set out in the affidavit his experience and certain "common characteristics" that "people who use illegal controlled substances share," Detective Bacon then made the following factual assertions to support a search of the Acres Drive residence.1 On 21 January 2012, Agent Joe Cherry of the Brunswick County Sheriff's Office called Detective Bacon and told him that he had conducted a vehicle stop on Highway 74/76 eastbound just before the New Hanover County Line. Agent Cherry identified the driver as Mr. Black and the passenger as Mr. Whitehead. According to Agent Cherry, when he asked Mr. Whitehead about his whereabouts prior to the traffic stop, Mr. Whitehead told him that Mr. Black and he were half-brothers, that they left their residence at 30 Twin Oaks Drive in Castle Hayne, N.C., and that they then visited a friend in Brunswick County. Mr. Whitehead told Agent Cherry that they were on their way back to 30 Twin Oaks Drive.
Agent Cherry further told Detective Bacon that, during the roadside interview, he called for a K–9 unit and the dog alerted to the presence of controlled substances during an exterior "sniff." Agent Cherry said he then searched the car and discovered 8.1 ounces of marijuana packaged in a Ziploc bag, which was inside a vacuum-sealed bag, which in turn was inside a manila envelope. Agent Cherry said he also found over $1,600.00 in cash. Agent Cherry reported to Detective Bacon that Mr. Whitehead told Agent Cherry that he kept some marijuana in his vehicle at 30 Twin Oaks Drive–Mr. Whitehead claimed that he kept the marijuana in the vehicle so that his mother would not know about it. Agent Cherry also said that Mr. Whitehead owned two cell phones and one of those phones contained text messages related to the sale of marijuana.
Detective Bacon then described Mr. Whitehead's prior record of being charged with trafficking marijuana and sale and distribution of marijuana and of having been convicted of possession with intent to sell and deliver marijuana. The affidavit noted that Mr. Black had been charged with cocaine distribution and possession of marijuana in the State of Florida, while, in North Carolina, Mr. Black had pled guilty to first degree burglary.
Detective Bacon asserted that according to Division of Motor Vehicles records, both Mr. Black and Mr. Whitehead listed their home address at 30 Twin Oaks Drive. The car Mr. Black was driving when stopped by Agent Cherry was registered to 30 Twin Oaks Drive. Detective Bacon obtained a search warrant for 30 Twin Oaks Drive, but discovered, when executing the warrant, that Mr. Black and Mr. Whitehead did not live there. Detective Bacon found no evidence of Mr. Black's or Mr. Whitehead's belongings at 30 Twin Oaks Drive. Instead, Mr. Black's and Mr. Whitehead's mother, Elsie Black, and their stepfather lived there. Ms. Black said that her sons lived at "4814 Acres Drive" and described the residence to Detective Bacon. She also said that there should be an old red truck and an old white truck at the house. According to Ms. Black, her sons had a roommate named Logan McDonald. She said that her sons used her address as a mailing address, but had been living on Acres Drive for approximately three years.
Another detective went to 4814 Acres Drive and found the property matched the description given by Ms. Black. The detective checked the registration of the old red truck and the old white truck, and one was registered to Mr. Black and the other was registered to Mr. McDonald.
Finally, Detective Bacon asserted that he "knows through training and experience, subjects who deal in illegal controlled substances often use different mailing addresses and lie to law enforcement about their home address to conceal their illegal activities."
The trial court found that when Detective Bacon served the search warrant on the Acres Drive house, the door was opened by defendant and Mr. McDonald. Once inside, the detectives found various amounts of marijuana in the living room, and a search of defendant's room yielded a shotgun. The detectives also located a wall safe behind a tapestry in defendant's room, although defendant did not know the safe was there and could not provide the combination. The detectives eventually opened the safe and found syringes filled with a liquid substance believed to be psilocybin mushrooms.
The trial court further found that prior to applying for the search warrant, Detective Bacon had not conducted surveillance or an investigation of the Acres Drive residence to determine whether probable cause existed to believe that evidence of violations of the North Carolina Controlled Substances Act had occurred or were occurring there. Also, prior to submitting the search warrant application, Detective Bacon "had not received any information that there would be controlled substances found, kept, sold, manufactured or otherwise located at the residence of 4844 College Acres Drive [in] Wilmington, NC." Further, Detective Bacon's supporting affidavit attached to the warrant application contained no information that the Acres Drive residence would contain evidence constituting a violation of the North Carolina Controlled Substances Act, and, consequently, "did not contain any nexus between the controlled substances sought to be found and the residence located at 4844 Acres Drive[,] Wilmington, NC."
Based on these findings, the trial court made the following conclusions of law. Because, at the time he applied for the search warrant, Detective Bacon "did not have any information that controlled substances were likely to be found on the premises[,]" and he "did not allege in his affidavit ... that anyone had seen controlled substances at the residence or that any controlled substances were being sold, kept or manufactured" at the Acres Drive residence, the facts alleged in Detective Bacon's affidavit were insufficient, under the totality of the circumstances, to support a finding of probable cause. Therefore, the trial court concluded, the evidence taken from defendant
Based on these conclusions of law, the trial court ordered the evidence obtained against defendant from the Acres Drive residence to be suppressed. On 14 October 2014, the State gave notice of appeal from the order granting defendant's motion to suppress, certifying that the appeal was not taken for the purpose of delay pursuant to N.C. Gen.Stat. § 15A–979(c) (2013).
In arguing that the trial court should have denied the motion to suppress, the State argues that Detective Bacon's affidavit alleged sufficient facts to support the existence of probable cause to search the Acres Drive residence.
Our standard of review of an order granting or denying a motion to suppress is strictly limited to determining whether the trial judge's underlying findings of fact are supported by competent evidence,...
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...[ ] discovered some specific and material connection between drug activity and the place to be searched." State v. Allman , ––– N.C.App. ––––, ––––, 781 S.E.2d 311, 317 (2016). Examples of this include: pulling a suspect's trash that is placed at the curb and uncovering several marijuana pl......
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State v. Allman
...and the State appealed. The Court of Appeals affirmed the trial court's ruling, with one judge dissenting. State v. Allman , ––– N.C. App. ––––, ––––, 781 S.E.2d 311, 318 (2016) ; id. at ––––, 781 S.E.2d at 318–20 (Dillon, J., dissenting). The State then filed a notice of appeal with this C......