State v. McCoy

• Decision Date: 06 November 1990
• Docket Number: No. 9021SC93,9021SC93
• Citation: 100 N.C.App. 574,397 S.E.2d 355
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Alfred Dixon McCOY.

Page 355

397 S.E.2d 355

100 N.C.App. 574

STATE of North Carolina v. Alfred Dixon McCOY.

No. 9021SC93.

Court of Appeals of North Carolina.

Nov. 6, 1990.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Doris J. Holton, Raleigh, for the State, appellant.

No brief filed for appellee.

ARNOLD, Judge.

The standard for a court reviewing the issuance of a search warrant is "whether there is substantial evidence in the record supporting the magistrate's decision to issue the warrant." Massachusetts v. Upton, 466 U.S. 727, 728, 104 S.Ct. 2085, 2085, 80 L.Ed.2d 721, 724 (1984); see Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). North Carolina adopted the "totality of the circumstances" approach for determining the existence of probable cause in State v. Arrington, 311 N.C. 633, 643, 319 S.E.2d 254, 261 (1984). Thus the task of the issuing judicial officer is to make a common-sense decision based on all the circumstances that "there is a fair probability that contraband or evidence of a crime will be found in a particular place." Gates, 462 U.S. at 238, 103 S.Ct. at 2332, 76 L.Ed.2d at 548. The State contends that the trial judge applied a standard more stringent than "fair probability" in reviewing the application and erred by suppressing the evidence for lack of probable cause to search.

Application for a search warrant must be supported by statements "particularly setting forth the facts and circumstances establishing probable cause to believe that the items are in the places ... to be searched...." N.C.Gen.Stat. § 15A-244(3) (1988). Conclusory statements concerning the location of the items sought are not sufficient to establish probable cause. State v. Campbell, 282 N.C. 125, 191 S.E.2d 752 (1972). The affidavits must establish a nexus between the objects sought and the place to be searched. State v. Goforth, 65 N.C.App. 302, 309 S.E.2d 488 (1983); Campbell, 282 N.C. 125, 191 S.E.2d 752; LaFave, Search and Seizure, § 3.1(b) n. 26 (2d ed. 1987). Usually this connection is made by showing that criminal activity actually occurred at the location to be searched or that the fruits of a crime that occurred elsewhere are observed at a certain place. "Difficult problems can arise, however, where such direct information concerning the location of the objects is not available and it must be determined what reasonable inferences may be entertained concerning the likely location of those items." LaFave, supra § 3.7(d) at 103.

There is no firsthand evidence in the affidavits supporting this search warrant application that cocaine had been observed in room 403 of the Innkeeper Motel on 25 August. No controlled buys occurred at the location nor was any criminal activity observed by the surveillance team stationed outside the room that day. We are left here with deciding whether the circumstances of the two prior sales of cocaine in other motel rooms within a ten-day period reasonably leads to the inference that cocaine could be found in the third room. North Carolina case law supports the premise that firsthand information of contraband seen in one location will sustain a finding to search a second location. Probable cause was found for the search of a party's residence and automobile where drugs had previously been seen only in the party's residence. State v. Mavrogianis, 57 N.C.App. 178, 291 S.E.2d 163 (1982), disc. rev. denied, 306 N.C. 562, 294 S.E.2d 227 (1982).

When evidence of previous criminal activity is advanced to support a finding of probable cause, a further examination must be made to determine if the evidence of the prior activity is stale. In Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932), the Supreme Court held that a second search warrant cannot be issued on the...