State v. Rashidi

• Decision Date: 16 August 2005
• Docket Number: No. COA04-311.,COA04-311.
• Citation: 617 S.E.2d 68
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Masoud RASHIDI.

617 S.E.2d 68

STATE of North Carolina v. Masoud RASHIDI.

No. COA04-311.

Court of Appeals of North Carolina.

August 16, 2005.

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Appeal by defendant from judgments entered 15 August 2003 by Judge Yvonne Mims Evans in Mecklenburg County Superior Court. Heard in the Court of Appeals 16 February 2005.

Attorney General Roy Cooper, by Assistant Attorney General Alexandra M. Hightower, for the State.

Appellate Defender Staples Hughes, by Assistant Attorney General Barbara S. Blackman, for defendant-appellant.

TYSON, Judge.

Masoud Rashidi ("defendant") appeals from judgments entered after a jury found him guilty of trafficking in opium and possessing drug paraphernalia. We find no prejudicial error.

I. Background

The State's evidence tended to show that on 8 November 1999, United States Customs Special Agent Patrick McDavid ("Agent McDavid") was working in the Charlotte office. He was contacted by customs agents working in New York's JFK International Airport, who stated they had intercepted a package sent from Iran addressed to "M. Rashidi" at 2408 Margaret Wallace Road, Matthews, North Carolina. The New York customs agents had determined that the package contained two pictures or plaques with unusually thick frames. A probe inserted into one of the frames revealed that the frames contained opium estimated to weigh approximately 412 grams.

The New York customs agents sent the package to Agent McDavid in Charlotte for a controlled delivery. After receiving the package, Agent McDavid confirmed through Division of Motor Vehicles' records that defendant lived at the address indicated on the package. Agent McDavid drafted an affidavit in support of an application for an anticipatory search warrant for defendant's address. The United States District Court for the Western District of North Carolina issued the search warrant.

On 17 November 1999, United States customs agents and Charlotte police officers attempted to deliver the package by a postal inspector posing as a postal carrier. When the inspector first attempted to deliver the package at 11:21 a.m., no one was home to receive it. The officers set up a surveillance of the house. At approximately 2:30 p.m., a red Mustang vehicle pulled up to the residence. The driver got out of the car and went inside. The postal inspector delivered the package to a male located inside the residence. After delivery, the inspector radioed the surveillance team and stated the man who received the package matched defendant's drivers' license photo.

The officers waited a few minutes to allow defendant an opportunity to open the package. At that point, Agent McDavid knocked on the door and yelled loudly, "Police with a search warrant." Thirty to forty-five seconds later after having received no response, the officers forced the door open and found defendant talking on a cell phone. Officers asked defendant to get on the floor, frisked him, seized a film cannister, and handcuffed him. They found the package just delivered opened on the kitchen stove, surrounded by broken pieces of the picture frames.

Defendant was advised of his Miranda rights and verbally waived them. In response to an officer's question whether the package had contained opium, defendant told the officers that he had been expecting a package of pictures from his brother-in-law, Ramin Sarmist ("Sarmist"), who lived in Iran. Defendant explained that he had previously received packages from Sarmist containing pictures and rugs for resale in the Charlotte area. Defendant stated he had not expected Sarmist to send opium, although he acknowledged having used opium before. Defendant admitted that when he opened the package this time from Sarmist, he realized from its odor that it contained opium. Defendant claimed that when he heard a knock on the door, he thought his wife and child were coming home, and he hid the opium in the bedroom so that his child would not see it. Defendant then directed the officers to a trash bag of clothes under a desk in a bedroom. After searching the trash bag, the officers found an United States Customs' evidence bag, containing 381.93 grams of opium.

Defendant suggested to the officers that a telephone call to Sarmist could exonerate him. The officers allowed defendant to make the call, believing defendant would incriminate himself. After the telephone conversation, defendant reported to the officers that Sarmist did not admit to sending the opium.

The conversation, which was conducted in Farsi, was taped and subsequently translated. In the call, Sarmist told defendant that he had taken two rugs and one picture to the Teheran Post Office to be boxed and mailed. Defendant told Sarmist that the package had instead contained two pictures and "something unreal." Sarmist suggested that someone was trying to frame defendant and said he would find out who prepared and sent the package.

In addition to the opium in the United States Customs bag, the officers determined that the film canister seized from defendant contained trace amounts of opium. While searching defendant's vehicle, the officers also found a safety pin or "wire stem" coated in opium, $1,160.00 in cash, and scales normally used to weigh drugs in the vehicle's console. Officers discovered empty mailing boxes in the carport of defendant's house that were addressed similarly to the one containing the opium.

Defendant was indicted with trafficking in drugs, possession of drug paraphernalia, and maintaining a dwelling for the purpose of keeping controlled substances. At trial, defendant did not offer any evidence. On 15 August 2003, a jury found defendant guilty of trafficking in opium by possessing twenty-eight grams or more and possessing drug paraphernalia, but acquitted defendant on the maintaining a dwelling charge. Defendant was sentenced to a term of 225 to 279 months for the trafficking conviction and forty-five days for the possession of paraphernalia conviction.

II. Issues

Defendant argues that the trial court erred by: (1) denying his motion to suppress due to false statements contained in an affidavit supporting an application for a search warrant; (2) denying defendant's motion to dismiss; (3) allowing a witness to testify regarding defendant's request for an attorney; and (4) denying his motion for a mistrial or, in the alternative, his request for a curative instruction when the State displayed information outside the record during closing arguments.

III. Denial of Motion to Suppress

Defendant assigns error to the trial court's denial of his motion to suppress. Defendant argues that Agent McDavid's affidavit submitted in support of the application for an anticipatory search warrant was fatally flawed because it contained material falsehoods and was made in bad faith in violation of Franks v. Delaware, 438 U.S. 154, 165, 98 S.Ct. 2674, 57 L.Ed.2d 667, 678 (1978). We disagree.

In applying Franks, our Supreme Court held, "[i]t is elementary that the Fourth Amendment's requirement of a factual showing sufficient to constitute `probable cause' anticipates a truthful showing of facts." State v. Fernandez, 346 N.C. 1, 13, 484 S.E.2d 350, 358 (1997). If the defendant shows in support of an application for a search warrant that: (1) the affiant knowingly or with reckless disregard for the truth made false statements; and (2) the false statements are necessary to the finding of probable cause, then "the warrant is rendered void, and evidence obtained thereby is inadmissible. . . ." Id.

Defendant argues that his motion to suppress should have been granted under Franks and Fernandez because Agent McDavid's testimony at trial established that statements in his affidavit supporting the application for the search warrant were false. Agent McDavid's affidavit stated in pertinent part:

Customs Inspector Gattulli opened the parcel and found it to contain two large decorative plaques. Inspector Gattulli observed that the pictures were unusually thick and coated with fiberglass. The Inspector probed through tape on the picture, the probe revealed a black substance contained within. The substance was field tested . . . to be opium. The opium was estimated to be 412 grams. The opium was kept within the picture to maintain the integrity of the parcel.

At trial, Agent McDavid testified that the customs inspectors in New York, told him the box being sent to him in Charlotte contained pictures and approximately 412 grams of opium. He denied the inspectors told him what they did with the pictures and the opium before they sent the package to him.

Defendant's showing that an affidavit contains false statements standing alone is not sufficient to meet the showing required by Franks, 438 U.S. at 165, 98 S.Ct. at 2681, 57 L.Ed.2d at 678. We need not decide whether defendant sufficiently established knowing or reckless falsehoods because defendant has failed to demonstrate that any false statements were material. If a defendant meets his burden under Franks and Fernandez, the "false information must be then set aside." State v. Severn, 130 N.C.App. 319, 322-23, 502 S.E.2d 882, 884 (1998). At that point, the court must determine whether the affidavit's remaining content is sufficient to establish probable cause. Id. at 323, 502 S.E.2d at 884. If probable cause does not exist without the false statements, then "`the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.'" Id. (quoting Franks, 438 U.S. at 156, 98 S.Ct. at 2676, 57 L.Ed.2d at 672).

This case involves an anticipatory search warrant and our analysis of the affidavit is slightly different. We recently explained, "[a]n anticipatory search warrant, by definition, is `not based on present probable cause, but on the expectancy that, at some point in the future[,] probable cause will exist.'" State v. Baldwin, 161 N.C.App. 382, 387, 588...