State v. Frederick
| Decision Date | 17 April 2018 |
| Docket Number | No. COA17-370,COA17-370 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Kurt Deion FREDERICK, Defendant. |
Attorney General Joshua H. Stein, by Assistant Attorney General J. Aldean Webster III, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Amanda S. Hitchcock, for defendant-appellant.
On June 8, 2016, a Wake County jury found Kurt Deion Frederick ("Defendant") guilty of trafficking heroin, maintaining a dwelling used for keeping or selling heroin, and possession with intent to sell or deliver a Schedule I controlled substance. Prior to trial, Defendant moved to suppress evidence obtained pursuant to a search of his residence.
Defendant appeals from the order denying his motion to suppress, contending that the search warrant was improperly issued because it lacked probable cause. We disagree.
On April 8, 2015, Detective J. Ladd with the Raleigh Police Department applied for a warrant to search the premises of 3988 Neeley Street in Raleigh for heroin, firearms, drug transaction records, and cash. The residence belonged to Defendant.
Detective Ladd attached a sworn affidavit to the search warrant which testified to his more than thirteen years of law enforcement experience, his work with Raleigh's drug and vice unit, and his specific drug interdiction training. The affidavit also set forth the following facts:
(Emphasis added).
This search warrant was granted by a magistrate, and officers executed it at the residence. More than 4.0 grams of heroin, 3.4 grams of MDMA, drug packaging materials, and $600.00 in cash were discovered in the residence. Officers observed Defendant leaving his residence with a Crown Royal bag, and detained him a short time later in his vehicle. Officers found heroin packaged for sale and more than $2,500.00 in cash in the Crown Royal bag located in the vehicle.
Defendant was arrested and charged with trafficking heroin, maintaining a dwelling for keeping or selling controlled substances, and possession of MDMA. The Wake County Grand Jury indicted Defendant on June 1, 2015 for trafficking in heroin by possession, maintaining a dwelling for keeping or selling controlled substances, and possession with intent to sell or deliver a Schedule I controlled substance.
Defendant filed a motion to suppress evidence obtained from the searches prior to trial in Wake County Superior Court. In his motion, Defendant conceded that during the first transaction, the middleman "entered the residence and approximately three minutes later came out with what appeared to be a Molly." For the second transaction, Defendant conceded that the middleman "entered the residence and returned in approximately three minutes with what appeared to be heroin." Defendant presented no evidence to support his motion, simply arguing the search warrant was facially insufficient. The trial court denied Defendant's motion, finding there was no conflict in the information provided in Detective Ladd's application for the search warrant, and the affidavit was sufficient to establish probable cause and justify issuance of the search warrant by the magistrate.
Defendant was convicted of trafficking in heroin by possession, maintaining a dwelling for keeping or selling controlled substances, and possession with intent to sell or deliver a Schedule I controlled substance. He was sentenced to a term of seventy to ninety-three months in prison. It is from the order denying his motion to suppress that Defendant timely appeals.
"[A] reviewing court is responsible for ensuring that the issuing magistrate had a substantial basis for concluding that probable cause existed." State v. McKinney , 368 N.C. 161, 165, 775 S.E.2d 821, 825 (2015) (). Our Supreme Court has stated, "[t]he applicable test is whether, given all the circumstances set forth in the affidavit before the magistrate, ... there is a fair probability that contraband ... will be found in a particular place." State v. Riggs , 328 N.C. 213, 218, 400 S.E.2d 429, 432 (1991) (citation and brackets omitted).
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized.
U.S. Const. amend. IV. " Article I, Section 20 of the Constitution of North Carolina likewise prohibits unreasonable searches and seizures and requires that warrants be issued only on probable cause." State v. Allman , 369 N.C. 292, 293, 794 S.E.2d 301, 303 (2016). "Probable cause ... means a reasonable ground to believe that the proposed search will reveal the presence upon the premises to be searched of the objects sought and that those objects will aid in the apprehension or conviction of the offender." State v. Campbell , 282 N.C. 125, 128-29, 191 S.E.2d 752, 755 (1972) (citation omitted).
The quantum of proof required to establish probable cause is different than that required to establish guilt. Draper v. United States , 358 U.S. 307, 311-12, 79 S.Ct. 329, 331–33, 3 L.Ed. 2d 327, 331 (1959). "Probable cause requires not certainty, but only a probability or substantial chance of criminal activity." McKinney, 368 N.C. at 165, 775 S.E.2d at 825 (emphasis in original) (citation and quotation marks omitted). "[The] standard for determining probable cause is flexible, permitting the magistrate to draw ‘reasonable inferences’ from the evidence ...." Id. at 164, 775 S.E.2d at 824-25 (citation omitted).
To determine if probable cause exists, we look at the totality of the circumstances known to the magistrate at the time the search warrant was issued. State v. Arrington , 311 N.C. 633, 638, 643, 319 S.E.2d 254, 257, 261 (1984) ; see Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed. 2d 527, reh'g denied, 463 U.S. 1237, 104 S.Ct. 33, 77 L.Ed. 2d 1453 (1983). This test asks "whether the evidence as a whole provides a substantial basis for concluding that probable cause exists." State v. Williams, 319 N.C. 73, 81, 352 S.E.2d 428, 434 (1987). In applying this test, "great deference should be paid a magistrate's determination of...
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