State v. McKinney

NO. COA13-384

NORTH CAROLINA COURT OF APPEALS

Filed: 7 January 2014

STATE OF NORTH CAROLINA

v. Guilford County
Nos. 12 CRS 75464-66
WALTER ERIC McKINNEY

Appeal by defendant from judgment entered 8 October 2012 by

Judge Patrice A. Hinnant and order entered 11 October 2012 by Judge

William Z. Wood, Jr. in Guilford County Superior Court. Heard in

the Court of Appeals 25 September 2013.

Attorney General Roy Cooper, by Special Deputy Attorney
General R. Marcus Lodge, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate
Defender Jon H. Hunt, for defendant-appellant.

CALABRIA, Judge.

Walter Eric McKinney (“defendant”) appeals pursuant to N.C.

Gen. Stat. § 15A-979(b) (2011) from an order denying his motion to

suppress. We reverse.

On 22 April 2012, Officer Christopher Bradshaw (“Officer

Bradshaw”) of the Greensboro Police Department (“GPD”) received a

citizen complaint claiming that there was heavy traffic in and out
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of an apartment located at 302 Edwards Road in Greensboro (“the

apartment”). The tip indicated that people who came to the

apartment only stayed a short time. The complainant believed the

traffic was related to narcotics, in part because the complainant

had witnessed individuals exchanging narcotics in the parking lot

with the person who lived in the apartment.

After receiving the tip, Officer Bradshaw went to the

apartment and conducted surveillance in an unmarked automobile.

Shortly thereafter, he observed an individual arrive in an

automobile, enter the apartment, and then leave after

approximately six minutes. Officer Bradshaw followed the

automobile after it departed. Officer Strader of the GPD, who was

driving a marked police vehicle, conducted a traffic stop on the

automobile on the basis of minor traffic violations.

The individual driving the vehicle was identified as Roy

Foushee (“Foushee”), who had a history of narcotics-related

arrests. Subsequently, the officers searched Foushee and the

automobile and found $4,258 in cash and a gallon-sized plastic bag

containing seven grams of marijuana. Foushee was arrested for

possession of marijuana. Subsequent to the arrest, Officer

Bradshaw also searched Foushee’s cell phone and discovered a series

of recent text messages between Foushee and an individual named
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“Chad.” Officer Bradshaw believed that these texts were related

to a drug transaction.

Based upon the drugs and cash discovered from Foushee and the

information gathered during his investigation, Officer Bradshaw

obtained a search warrant to search the apartment. The subsequent

search revealed that the apartment contained drugs, drug

paraphernalia, and firearms. Officer Bradshaw arrested defendant,

who was the occupant of the apartment.

Defendant was indicted for trafficking in cocaine,

maintaining a dwelling for keeping and selling controlled

substances, possession of both cocaine and marijuana with intent

to sell and distribute, felony possession of marijuana, and

possession of a firearm by a felon. On 7 September 2012, defendant

filed a pretrial motion to suppress the evidence obtained from the

search of the apartment, contending that the warrant obtained by

Officer Bradshaw for that search was not supported by probable

cause. After a hearing, the trial court denied the motion.

Defendant then entered into a plea agreement whereby the State

dismissed the charges of trafficking cocaine and felony possession

of marijuana in exchange for defendant’s guilty plea to the

remaining charges. As part of the plea agreement, defendant

specifically reserved his right to appeal the trial court’s denial
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of his motion to suppress. The trial court consolidated all of

defendant’s charges for judgment and sentenced him to a minimum of

11 months to a maximum of 23 months in the North Carolina Division

of Adult Correction. Defendant appeals.

Defendant’s sole argument on appeal is that the trial court

erred in denying his motion to suppress the evidence obtained

during the search of the apartment. Specifically, defendant

contends that the warrant obtained by Officer Bradshaw to search

the apartment was not supported by probable cause. We agree.

Our review of a trial court’s denial of a motion to suppress

is “strictly limited to determining whether the trial judge’s

underlying findings of fact are supported by competent evidence,

in which event they are conclusively binding on appeal, and whether

those factual findings in turn support the judge’s ultimate

conclusions of law.” State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d

618, 619 (1982). “The trial court’s conclusions of law . . . are

fully reviewable on appeal.” State v. Hughes, 353 N.C. 200, 208,

539 S.E.2d 625, 631 (2000).

Pursuant to N.C. Gen. Stat. § 15A-244, an application for a

search warrant must contain “[a]llegations of fact supporting the

statement. The statements must be supported by one or more

affidavits particularly setting forth the facts and circumstances
 -5-
establishing probable cause to believe that the items are in the

places or in the possession of the individuals to be searched[.]”

N.C. Gen. Stat. § 15A-244(3) (2011). “Probable cause need not be

shown by proof beyond a reasonable doubt, but rather [by] whether

it is more probable than not that drugs or other contraband will

be found at a specifically described location.” State v. Edwards,

185 N.C. App. 701, 704, 649 S.E.2d 646, 649 (2007). “In

determining . . . whether probable cause exists for the issuance

of a search warrant, our Supreme Court has provided that the

‘totality of the circumstances’ test . . . is to be applied.” State

v. Witherspoon, 110 N.C. App. 413, 417, 429 S.E.2d 783, 785 (1993)

(citations omitted).

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. [T]he duty of a reviewing court
is simply to ensure that the magistrate had a
substantial basis for . . . conclud[ing] that
probable cause existed.

State v. Torres-Gonzalez, ___ N.C. App. ___, ___, 741 S.E.2d 502,

507 (2013)(internal quotations and citations omitted).

In the instant case, Officer Bradshaw’s application for a

search warrant for defendant’s apartment, which was incorporated

by reference into the trial court’s order denying defendant’s

motion to suppress, was essentially based upon the following
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evidence: (1) an anonymous citizen’s complaint that the

complainant had previously observed suspected drug-related

activity occurring at and around the apartment; (2) a brief

investigation of that complaint in which Officer Bradshaw

witnessed Foushee come to the apartment and then leave after six

minutes; (3) the arrest of Foushee, who had a history of narcotics

arrests, shortly after he had left defendant’s apartment, due to

the discovery of a mostly-empty bag of marijuana and a large amount

of cash; and (4) text messages between Foushee and an individual

named Chad proposing a drug transaction. Defendant contends that

the trial court erred by concluding that this evidence established

the existence of probable cause.

The evidence included in Officer Bradshaw’s search warrant

application clearly establishes probable cause that Foushee had

been involved in a recent drug transaction. However, the

determinative question in this case is whether the application

provided a substantial basis to allow the magistrate to conclude

that there was probable cause of illegal drugs at defendant’s

apartment. See Edwards, 185 N.C. App. at 704, 649 S.E.2d at 649

(Probable cause requires a showing that “it is more probable than

not that drugs or other contraband will be found at a specifically

described location.” (emphasis added)).
 -7-
Our Courts have previously analyzed search warrant

applications based upon information similar to Officer Bradshaw’s

application in the instant case in order to determine if probable

cause to search a specific location had been established. In State

v. Campbell, law enforcement obtained a warrant to search the

defendant’s residence based upon an affidavit stating that that

affiant had probable cause to believe the residence contained

drugs. 282 N.C. 125, 130, 191 S.E.2d 752, 756 (1972). To support

this statement, the affidavit specifically noted that the affiant

possessed narcotics-related arrest warrants for three individuals

who were known to sell drugs and that all three of those

individuals lived in the location to be searched. Id. Our Supreme

Court held that the search warrant did not establish probable cause

to search the subject premises:

The affidavit implicates those premises solely
as a conclusion of the affiant. Nowhere in the
affidavit is there any statement that narcotic
drugs were ever possessed or sold in or about
the dwelling to be searched. Nowhere in the
affidavit are any underlying circumstances
detailed from which the magistrate could
reasonably conclude that the proposed search
would reveal the presence of illegal drugs in
the dwelling. The inference the State seeks to
draw from the contents of this affidavit--that
narcotic drugs are illegally possessed on the
described premises--does not reasonably arise
from the facts alleged.

Id. at 131, 191 S.E.2d at 757.
 -8-
In State v. Crisp, law enforcement also obtained a search

warrant to search the defendants’ residence based upon an affidavit

stating that the affiant had probable cause to believe the

defendants had drugs on the property. 19 N.C. App. 456, 457, 199

S.E.2d 155, 155 (1973). To support this statement, the affiant

stated that: (1) he had conducted a traffic stop of an individual

who lived at the residence and discovered marijuana, both on his

person and in his vehicle; and (2) he had conducted surveillance

on the residence for a period of three to four months, during which

time he observed heavy traffic entering and leaving at all times

of the day and night. Id. at 457-58, 199 S.E.2d at 156. Relying

upon the previously-quoted language in Campbell, this Court held

that the warrant did not establish probable cause to search the

defendants’ residence. Id. at 458, 199 S.E.2d at 156.

Finally, in State v. Hunt, law enforcement obtained a warrant

to search the defendant’s residence based upon the following facts:

(1) law enforcement had received “constant complaints” from

citizens regarding narcotics sales at the residence; (2) the

complaints specifically noted that there was consistent traffic at

the residence whereby incoming vehicles would conduct a short drug

transaction, either inside or in front of the residence, and then

leave; and (3) the affiant conducted surveillance for one day based
 -9-
upon the complaints and observed numerous vehicles come to the

residence, stay about five to eight minutes, and then leave. 150

N.C. App. 101, 102-03, 562 S.E.2d 597, 599 (2002). This Court

once again held that the application for the warrant failed to

establish probable cause to search the defendant’s residence:

All that the affidavit offers are complaints
from citizens suspicious of drug activity in
a nearby house. There is no mention of anyone
ever seeing drugs on the premises. The
citizens only reported heavy vehicular traffic
to the house. The officer verified the
traffic. His verification, as the trial court
found, was not a conclusion. What was a
conclusion was the determination of the
officer, based on his experience and the
vehicular traffic, that drug trafficking was
taking place. “The inference the State seeks
to draw from the contents of this affidavit
does not reasonably arise from the facts
alleged.” Crisp, 19 N.C. App. at 458, 199
S.E.2d at 156.

Id. at 107, 562 S.E.2d at 601.

Officer Bradshaw’s application in the instant case cannot be

materially distinguished from the defective search warrant

applications in Campbell, Crisp, and Hunt. His affidavit stated,

in relevant part:

Around 4-22-2012 I received a citizen
complaint for 302 Edwards Rd Apt C, Greensboro
NC. The citizen advised that there was heavy
traffic in and out of this apartment. They
advised the traffic made short stays and
believed it was narcotic related. They stated
that they had actually seen narcotics changing
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hands in the parking lot with the resident of
that apartment.

On 4-22-2012 I established surveillance on the
apartment. At 1241 hours I observed a red
Pontiac, NC tag ALW-2397 arrive at the
apartment. The driver exited the vehicle and
entered the apartment. At 1247 hours the
driver returned to the vehicle and left the
area. A traffic stop was conducted on the
vehicle for a violation of a chapter 20 law.
During the investigation the driver was
arrested for marijuana. He was also in
possession of $4258 US currency. The driver,
Roy Foushee, had a history of narcotics
arrests. The marijuana was found in a large
bag and was almost empty.

I searched the driver’s cell phone incident to
arrest. Looking through his text messages I
read several open messages. Most of the
messages were related to the sale of
narcotics. The last messages that were sent
before the traffic stop were from Chad, 910-
571-8959..

Chad- Bra when you come out to get the
money can you bring a fat 25. I got the
bread-

1212pm

-can you bring me one more bra

ME- about 45

Chad- ight

Through my training and experience I believe
that Mr. Foushee delivered marijuana to the
residents at 302 Edwards Rd Apt C.

Based upon the facts described above and my
training and experience, I believe that there
 -11-
is probable cause that items to be seized,
particularly controlled substances in
violation of GS 90-95, and other items listed
herein, are in the premises to be searched, as
described herein.

This information is insufficient to establish probable cause to

search defendant’s apartment. Just as in the previous cases,

Officer Bradshaw’s affidavit “implicates [defendant’s] premises

solely as a conclusion of the affiant.” Campbell, 282 N.C. at

131, 191 S.E.2d at 757. Neither Officer Bradshaw nor the anonymous

citizen ever witnessed any narcotics in or about the apartment.

While Officer Bradshaw specifically saw Foushee enter and exit the

apartment prior to his arrest, there is nothing in his affidavit

which suggests that he saw Foushee carry marijuana or anything

else inside or that he brought anything back out upon his exit,

despite Officer Bradshaw’s conclusion that Foushee was making a

delivery at that time. Moreover, while the text messages recovered

from Foushee’s phone suggest that he recently engaged in a

narcotics transaction with an individual named Chad, Chad is never

identified or connected with defendant’s apartment in any way.

Ultimately, “[t]he inference the State seeks to draw from the

contents of this affidavit--that narcotic drugs are illegally

possessed on the described premises--does not reasonably arise

from the facts alleged.” Id. Thus, the search warrant used to
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search defendant’s apartment was defective because it was not

supported by probable cause.

Nonetheless, the State contends that Officer Bradshaw’s

affidavit was sufficient to provide probable cause under this

Court’s decision in State v. McCoy, 100 N.C. App. 574, 397 S.E.2d

355 (1990). In McCoy, law enforcement officers conducted two

controlled drug buys between an informant and the defendant in two

different hotel rooms, but the defendant vacated the premises

before search warrants could be obtained and executed. 100 N.C.

App. at 576-77, 397 S.E.2d at 357. Noting that “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,” this Court held that there was probable cause

to search a third hotel room which was registered to the defendant:

The facts here show that a suspect, previously
convicted of selling drugs, had within a ten-
day period rented three different motel rooms,
each time for several days, in a city in which
he had a local address, and that at two of
those locations he had sold cocaine. Based on
these facts, it was reasonable to infer that
when the suspect occupied the third room, he
still possessed the cocaine.

Id. at 578, 397 S.E.2d at 357-58. While the State correctly cites

the McCoy Court’s holding that contraband in one location can

create probable cause to search a second location, it misrepresents
 -13-
the breadth of this holding. As both Campbell and Crisp

demonstrate, the mere discovery of contraband on an individual

does not provide carte blanche probable cause to search any

location that may be remotely connected to that individual for

additional contraband. See Campbell, 282 N.C. at 130-31, 191

S.E.2d at 756-57 (discovery of contraband during traffic stop of

the defendant insufficient to provide probable cause to search the

defendant’s residence) and Crisp, 19 N.C. App. at 457-58, 199

S.E.2d at 156 (same). Instead, the State must still establish a

reasonable nexus between the discovered contraband and the new

location sought to be searched. While in McCoy, the State was

able to adequately connect the defendant’s very recent possession

of cocaine in two nearby hotel rooms to the potential contraband

in a third room at the same hotel, the mostly empty marijuana bag

found on Foushee in the instant case has a much more tenuous

connection to defendant’s apartment which is insufficient to

establish probable cause to search that location. Thus, we find

the McCoy Court’s holding inapplicable to this case.

Pursuant to Campbell, Crisp, and Hunt, we hold that the search

warrant for defendant’s apartment was not supported by probable

cause. Accordingly, the trial court erroneously denied

defendant’s motion to suppress the evidence uncovered as a result
 -14-
of that search. The trial court’s denial of that motion is

reversed.

Reversed.

Judges ELMORE and STEPHENS concur.