State v. Severn

• Decision Date: 21 July 1998
• Docket Number: No. COA97-1122.,COA97-1122.
• Citation: 130 NC App. 319,502 S.E.2d 882
• Parties: STATE of North Carolina v. Michael C. SEVERN, Defendant.
• Court: North Carolina Court of Appeals

502 S.E.2d 882

130 NC App. 319

STATE of North Carolina v. Michael C. SEVERN, Defendant.

No. COA97-1122.

Court of Appeals of North Carolina.

July 21, 1998.

Attorney General Michael F. Easley by Assistant Attorney General Elizabeth F. Parsons, for the State.

McMillan, Smith & Plyler by Duncan A. McMillan, Raleigh, for defendant-appellant.

GREENE, Judge.

Michael C. Severn (defendant) appeals from the denial of his motion to suppress.

The facts are as follows: On 20 August 1996, Detective R.A. McLeod (Detective McLeod) swore to an affidavit in support of an application for a search warrant. In applying for the search warrant, Detective McLeod stated that he had received an anonymous tip from a confidential source that controlled substances were being "stored, sold, and distributed from 4313 Ryegate Drive, Raleigh, North Carolina." He further stated that he had "been able to recover both marijuana and cocaine from inside of [the defendant's] residence, using investigative means." After obtaining the search warrant, Detective McLeod searched the defendant's home and found marijuana and drug paraphernalia. The defendant was then indicted for possession with intent to sell and deliver marijuana, and for maintaining a dwelling for keeping, selling, and using controlled substances.

The defendant made a motion to suppress the evidence seized from his residence on the grounds that there was false information submitted in the affidavit. At the hearing on the motion to suppress, Detective McLeod testified to the following: After receiving an anonymous tip that the defendant was trafficking marijuana he verified some of the information such as the description of the residence and the address and also conducted surveillance on the defendant's residence.

Detective McLeod then contacted the City of Raleigh sanitation service to determine the day and time of the defendant's trash pick-up. He was told that pick-up occurred on Tuesdays and Fridays between 7:30 and 9:30 in the morning. On 20 August 1996, Detective McLeod and another officer, Detective Smith, went to the defendant's residence and picked up the defendant's trash bag from the inside of the trash can. The trash can was located inside of a wooden bin next to the side of the house, approximately four to six feet from the driveway and approximately twenty to twenty-five feet from the road. Detective McLeod took the trash bag to the police station and searched the bag there. He stated that he found a plastic straw with cocaine residue on the inside of the straw and two grams of marijuana consisting of seeds, stems, and leaves.

Detective McLeod further testified that he then went before a magistrate to obtain a warrant to search the inside of the defendant's residence. At the suppression hearing, Detective McLeod admitted that although he stated in the affidavit that he had obtained drugs from "inside the residence," he had not "personally [gone] inside the residence to get anything." He testified he had deduced that the controlled substances had been used inside the residence. Detective McLeod explained that he "just used common sense in saying that it is in a trash bag along with his mail and other articles that [were] normally used inside of the ... house" and therefore "it probably came from inside." Detective McLeod stated that he had no intention of misleading the magistrate.

He further testified that he used the terms "investigative means" because he did not want the defendant to know that a trash pick-up was the actual method used in order to obtain a search warrant to search the residence. According to Detective McLeod, "most of the magistrates know that when ... officers present something in this fashion [that drugs have been recovered from inside of a residence] that it is a trash pickup but is worded in such a way as not to draw attention from the suspect in question."

The trial court denied the defendant's motion to suppress and the defendant entered pleas of guilty; however, he gave notice to the State that he reserved his right to appeal. See State v. Reynolds, 298 N.C. 380, 397, 259 S.E.2d 843, 853 (1979) (before plea negotiations are finalized defendant must give notice to district attorney and trial court that he intends to appeal denial of motion to suppress), cert. denied, 446 U.S. 941, 100 S.Ct. 2164, 64 L.Ed.2d 795 (1980). The trial court sentenced the defendant to a minimum of six months and a maximum of eight months in prison. The trial court then suspended the sentence and placed the defendant on a supervised probation.

The issue is whether an affidavit by a police officer that he obtained controlled substances from "inside" the defendant's residence "using investigative means" is a false statement made in bad faith when the police officer had not been inside of the defendant's residence.

N.C.Gen.Stat. § 15A-978 provides that a defendant can challenge the "validity of a search warrant and the admissibility of evidence obtained thereunder by contesting the truthfulness of the testimony" which showed probable cause for the issuance of the warrant. N.C.G.S. § 15A-978(a) (1997). The section defines truthful testimony as "testimony which reports in good faith the circumstances relied on to establish probable cause." Id.

A factual showing sufficient to support probable cause requires a truthful showing of facts. Franks v....