State v. Lowe

IN THE SUPREME COURT OF NORTH CAROLINA
No. 278PA15

Filed 21 December 2016

STATE OF NORTH CAROLINA

v.
DAVID MATTHEW LOWE

On discretionary review upon separate petitions by the State and defendant

pursuant to N.C.G.S. § 7A-31 of a unanimous decision of the Court of Appeals, ___

N.C. App. ___, 774 S.E.2d 893 (2015), reversing judgments entered on 8 July 2014 by

Judge Reuben F. Young in Superior Court, Wake County, and remanding for further

proceedings. Heard in the Supreme Court on 31 August 2016.

Roy Cooper, Attorney General, by Derrick C. Mertz, Special Deputy Attorney
General, for the State-appellant/appellee.

M. Gordon Widenhouse, Jr. for defendant-appellant/appellee.

HUDSON, Justice.

Here we are asked to consider the validity of a search warrant authorizing a

search of the premises on which defendant was arrested, and whether the search of

a vehicle located on those premises was within the scope of the warrant. We conclude

that the warrant was supported by probable cause and therefore affirm that part of

the decision of the Court of Appeals. However, we conclude that the search of the
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Opinion of the Court

subject rental car did not exceed the scope of the warrant and thus reverse that part

of the decision below.

Defendant David Matthew Lowe was indicted on 2 December 2013 in Wake

County for two counts of trafficking in MDMA under N.C.G.S. § 90-95(h)(4) and one

count of possession of LSD with intent to sell or deliver under N.C.G.S. § 90-95(a)(1).

The trial court denied defendant’s pretrial motions to quash the search warrant for a

residence where defendant was a visitor at the time the warrant was executed, and

to suppress evidence seized from the residence and from a rental car used by

defendant and his girlfriend that was parked in the driveway of the target residence

at the time of the search. On 8 July 2014, defendant pleaded guilty to the controlled

substances violations while reserving the right to appeal the trial court’s denial of his

motions. On appeal, the Court of Appeals unanimously affirmed the search of the

residence, holding that the warrant was supported by probable cause, but reversed

the search of the rental car on the basis that the vehicle search exceeded the scope of

the warrant. State v. Lowe, ___ N.C. App. ___, 774 S.E.2d 893 (2015).

Background

On 24 September 2013, Detective K.J. Barber of the Raleigh Police

Department obtained a search warrant from the local magistrate for 529 Ashebrook

Drive in Raleigh. Detective Barber filed an affidavit in support of the search warrant

in which he swore to the following facts:

In September of 2013, I received information that a subject

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Opinion of the Court

that goes by the name “Mike T” was selling, using and
storing narcotics at 529 Ashbrooke [sic] Dr. Through
investigative means, I was able to identify Terrence
Michael Turner as a possible suspect.

Terrence Michael [T]urner, AKA: Michael Cooper Turner
has been charged with PWISD Methylenedioxy-
methamphetamine, Possess Dimethyltryptamine, PWISD
Psylocybin, PWISD Cocaine, Possess Heroin, PWIMSD
Schedule I, Maintain a Vehicle/Dwelling, Trafficking in
MDMA, Conspire to sell Schedule I and other drug
violations dating back to 2001.

On 9/24/2013 I conducted a refuse investigation at 529
Ashebrook Dr. St [sic] Raleigh, NC 27609. The 96 gallon
City of Raleigh refuse container was at the curb line in
front of 529 Ashebrook Dr.

Detective Ladd removed one bag of refuse from the 96
gallon container and we took it to a secured location for
further inspection. Inside the bag of refuse, I located
correspondence to Michael Turner of 529 Ashebrook Dr.
Raleigh, NC 27600 [sic], also in this bag of refuse, I located
a small amount of marijuana residue in a fast food bag,
which tested positive as marijuana utilizing a Sirche # 8
field test kit.

Based on the above stated facts coupled with my training
and experience it is my reasonable belief that illegal
narcotics are being used and/or sold from inside this
location. Based on the above, I respectfully request this
warrant be issued.

The warrant authorized the search of the “premises, vehicle, person and other place

or item described in the application for the property and person in question.” On the

following day, 25 September 2013, Detective Barber and other officers executed a

search of the residence.

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Opinion of the Court

When the officers arrived on scene, they observed a Volkswagen rental car

parked in the driveway. Detective Barber was aware that Mr. Turner had an Infinity

registered in his name, as well as an outdated registration for a Toyota, but neither

of those vehicles was present at the scene. Detective Barber had never seen the

Volkswagen rental car before. Inside the residence officers encountered defendant

and his girlfriend, Margaret Doctors, who were overnight guests of Mr. Turner. A

search of the residence revealed 853 grams of marijuana in the home, as well as 14

grams of crushed MDMA in the room that had been occupied by defendant and Ms.

Doctors. Detective Barber testified, without further elaboration, that “once we

entered the house on the search warrant, we were able to determine that the vehicle

was being operated by [defendant] and Ms. Doctors.” After searching the house,

officers searched the rental car and discovered in the trunk defendant’s book bag and

identifying documents, 360 dosage units of MDMA, 10 strips of LSD, and $6000 in

U.S. currency.

On 11 April 2014, defendant filed pretrial motions to quash the search warrant

and to suppress the evidence seized from the residence and the rental car, as well as

incriminating statements he made afterwards. After hearing the motions on 7 and 8

July 2014, the trial court denied defendant’s motions on 8 July 2014. Defendant

pleaded guilty to all charges but reserved the right to appeal the trial court’s denial

of his motion to suppress evidence. The trial court sentenced defendant to two

concurrent terms of thirty-five to fifty-one months of imprisonment for trafficking in

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Opinion of the Court

MDMA by possession, and a consecutive term of seven to eighteen months for

possession of LSD with intent to sell or deliver. Defendant appealed to the Court of

Appeals.

At the Court of Appeals, defendant first argued that the search warrant was

not supported by probable cause and that any evidence seized from the ensuing

search should have been suppressed. Lowe, ___ N.C. App. at ___, 774 S.E.2d at 896.

The court disagreed, holding that the totality of the circumstances—the marijuana

discovered in the trash, in conjunction with Turner’s history of drug-related arrests

and the anonymous tip that Turner was “selling, using and storing” narcotics in his

home—“formed a substantial basis to conclude that probable cause existed to search

his home for the presence of contraband or other evidence.” Id. at ___, 774 S.E.2d at

898-99.

Defendant next argued that the search of the rental car parked in Turner’s

driveway exceeded the scope of the warrant issued to search Turner’s residence. Id.

at ___, 774 S.E.2d at 899. The Court of Appeals agreed. The court recognized that

“[t]here is long-standing precedent in North Carolina and other jurisdictions that,

‘[a]s a general rule, “if a search warrant validly describes the premises to be searched,

a car on the premises may be searched even though the warrant contains no

description of the car.” ’ ” Id. at ___, 774 S.E.2d at 899 (second alteration in original)

(emphasis added) (quoting State v. Courtright, 60 N.C. App. 247, 249, 298 S.E.2d 740,

742, appeal dismissed and disc. rev. denied, 308 N.C. 192, 302 S.E.2d 245 (1983)).

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Nonetheless, the court stated that “[t]he crucial fact distinguishing this case . . .

relates to law enforcement officers’ knowledge about the ownership and control of the

vehicle.” Id. at ___, 774 S.E.2d at 899. On that basis, and in reliance on the United

States Supreme Court’s decision in Ybarra v. Illinois, the Court of Appeals concluded

that the search of the rental car exceeded the scope of the warrant issued for Turner’s

residence and that the evidence seized from the car should have been suppressed.1

Id. at ___, 774 S.E.2d at 899-901.

Finally, the Court of Appeals noted that that the record did not make clear

which portion of contraband attributable to defendant was found in the home as

opposed to the rental car, and therefore which portion of contraband was subject to

suppression. Id. at ___, 774 S.E.2d at 901. Accordingly, the court reversed the trial

court’s denial of defendant’s motion to suppress evidence obtained from the vehicle

and remanded with instructions to determine which portion of the contraband

attributable to defendant was seized from the home.2 Id. at ___, 774 S.E.2d at 901.

Defendant and the State both filed petitions for discretionary review on 25 August

and 8 September 2015, respectively. We allowed both petitions on 28 January 2016.

1 The Court of Appeals also rejected an argument by the State that the evidence
seized from the rental car should be admissible under the “good faith exception” to the
exclusionary rule. Lowe, ___ N.C. App. at ___, 774 S.E.2d at 901. The court held that the
exception did not apply because the error lay with the police executing the warrant, not
with the warrant itself. Id. at ___, 774 S.E.2d at 901. The State has abandoned this
argument on review here.
2 Because we are reversing the suppression of items from the vehicle, this

determination is no longer necessary.

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I. Probable Cause

Here defendant again contends that the search warrant was not supported by

probable cause, and therefore, any evidence seized in the ensuing search should have

been suppressed. We do not agree.

The United States and North Carolina Constitutions both protect against

unreasonable searches and seizures of private property. U.S. Const. amend. IV; N.C.

Const. art. I, § 20. The Fourth Amendment to the United States Constitution

provides that “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. In addressing whether a search warrant

is supported by probable cause, we employ the “totality of the circumstances” test,

under which we must determine “whether the evidence as a whole provides a

substantial basis for concluding that probable cause exists.” State v. Beam, 325 N.C.

217, 221, 381 S.E.2d 327, 329 (1989). “The standard of review in evaluating the denial

of a motion to suppress is whether competent evidence supports the trial court’s

findings of fact and whether the findings of fact support the conclusions of law.” State

v. Biber, 365 N.C. 162, 167-68, 712 S.E.2d 874, 878 (2011) (citing State v. Brooks, 337

N.C. 132, 140-41, 446 S.E.2d 579, 585 (1994)).

Defendant asserts that this case is analogous to State v. Benters, in which we

held that a lack of sufficient independent corroboration precluded a finding of

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probable cause. 367 N.C. 660, 673, 766 S.E.2d 593, 603 (2014). We conclude, as did

the Court of Appeals, that defendant’s reliance upon Benters is misplaced.

In Benters, we addressed the probable cause determination in a case involving

an anonymous tip, as opposed to a case in which a tip is received from a confidential

informant, and we stated, “An anonymous tip, standing alone, is rarely sufficient, but

‘the tip combined with corroboration by the police could show indicia of reliability that

would be sufficient to [pass constitutional muster].’ ” Id. at 666, 766 S.E.2d at 598-

99 (brackets in original) (quoting State v. Hughes, 353 N.C. 200, 205, 539 S.E.2d 625,

629 (2000)). The anonymous tip in Benters was that the defendant was growing

marijuana. Id. at 661-62, 669, 766 S.E.2d at 596, 600. The corroborating evidence

proffered by the police consisted of: (1) utility records of power consumption for the

target residence; (2) gardening equipment observed at the target residence (coupled

with the apparent absence of significant gardening activity); and (3) the investigating

officer’s expertise and knowledge of the defendant. Id. at 661-62, 669, 766 S.E.2d at

596, 600-01. We held that these allegations were not “sufficiently corroborative of

the anonymous tip or otherwise sufficient to establish probable cause.” Id. at 673,

766 S.E.2d at 603.

The distinctions between the two cases are apparent. Here the anonymous tip

was that Michael Turner was “selling, using and storing narcotics at” his house.

Detective Barber’s affidavit in support of the warrant listed his training and

experience, as well as Michael Turner’s history of drug-related arrests, and stated

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that Detective Barber had discovered marijuana residue in trash from Michael

Turner’s residence, along with correspondence addressed to Michael Turner. As the

Court of Appeals stated, “Although there were many reasons the gardening

equipment may have been outside the defendant’s house in Benters, the presence of

marijuana residue in defendant’s trash offers far fewer innocent explanations.” Lowe,

___ N.C. App. at ___, 774 S.E.2d at 898. Furthermore, in the description of crimes for

which evidence was sought, Detective Barber listed possession of controlled

substances in violation of N.C.G.S. § 90-95 in the affidavit. Thus, unlike in Benters,

the affidavit presented the magistrate with “direct evidence of the crime for which

the officers sought to collect evidence.” Id. at ___, 774 S.E.2d at 898; see also State v.

Williams, 149 N.C. App. 795, 798-99, 561 S.E.2d 925, 927 (“[A] residue quantity of a

controlled substance, despite its not being weighed, is sufficient to convict a defendant

of possession of the controlled substance . . . .”), disc. rev. denied, 355 N.C. 757, 566

S.E.2d 481, cert. denied, 537 U.S. 1035, 1235 S. Ct. 553, 154 L. Ed. 2d. 455 (2002).

Accordingly, we agree with the Court of Appeals and hold that under the

totality of the circumstances there was a substantial basis for the issuing magistrate

to conclude that probable cause existed.

II. Search of the Vehicle

The State argues that the Court of Appeals erred in holding that the rental car

parked in the curtilage of the residence could not be searched pursuant to the

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warrant. We conclude that the search of the vehicle here was within the permissible

scope of the search conducted under the valid warrant.

The authorized scope of a valid warrant can depend upon the nature of the

object of the search because “[a] lawful search of fixed premises generally extends to

the entire area in which the object of the search may be found and is not limited by

the possibility that separate acts of entry or opening may be required to complete the

search.” United States v. Ross, 456 U.S. 798, 820-21, 102 S. Ct. 2157, 2170-71, 72 L.

Ed. 2d 572, 591 (1982). “Thus, a warrant that authorizes an officer to search a home

for illegal weapons also provides authority to open closets, chests, drawers, and

containers in which the weapon might be found. A warrant to open a footlocker to

search for marihuana would also authorize the opening of packages found inside.” Id.

at 821, 102 S. Ct. at 2171, 72 L. Ed. 2d at 591.

We previously addressed the scope of a search warrant with regard to vehicles

in State v. Reid, in which we held:

The authority to search described premises would include
personal property located thereon. Authority to search a
house gives officers the right to search cabinets, bureau
drawers, trunks, and suitcases therein, though they were
not described. “It has been held that if a search warrant
validly describes the premises to be searched, a car on the
premises may be searched even though the warrant contains
no description of the car.”

286 N.C. 323, 326, 210 S.E.2d 422, 424 (1974) (emphasis added) (citations omitted).

In the case of a private residence, “the premises” by necessity encompasses the

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curtilage of the home. This is because “the curtilage is the area to which extends the

intimate activity associated with the ‘sanctity of a man’s home and the privacies of

life,’ and therefore has been considered part of the home itself for Fourth Amendment

purposes.” Oliver v. United States, 466 U.S. 170, 180, 104 S. Ct. 1735, 1742, 80 L. Ed.

2d 214, 225 (1984) (quoting Boyd v. United States, 116 U.S. 616, 630, 6 S. Ct. 524,

532, 29 L. Ed. 746, 751 (1886)); see also Courtright, 60 N.C. App. at 250, 298 S.E.2d

at 742 (explaining that the curtilage “is an area within which the owner or possessor

assumes the responsibilities and pleasures of ownership or possession”).

Here Detective Barber obtained a valid search warrant based on probable

cause for 529 Ashebrook Drive authorizing the search of “premises, vehicle, person

and other place or item described in the application for the property and person in

question.” It is undisputed that when Detective Barber and other officers arrived at

the target residence to execute the warrant, the rental car parked in the driveway

was within the curtilage of the home. The nature of the items to be seized (including,

inter alia, controlled substances, drug paraphernalia, and any evidence relating to

the use or sale of controlled substances) was such that the items could be easily stored

in a vehicle. Because the rental car was within the curtilage of the residence targeted

by the search warrant, and because the rental car was a proper place “in which the

object of the search may be found,” we conclude that the search of the rental car was

authorized by the warrant. Ross, 456 U.S. at 820, 102 S. Ct. at 2170, 72 L. Ed. 2d at

591. Accordingly, we hold that the search of the rental car did not exceed the scope

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of the warrant and that the trial court properly denied defendant’s motion to

suppress.

In departing from the general rule of Reid, the Court of Appeals erred. The

court determined that “law enforcement officers’ knowledge about the ownership and

control of the vehicle” constituted a “crucial fact distinguishing this case” from Reid

and its progeny. Lowe, ___ N.C. App. at ___, 774 S.E.2d at 899. As an initial matter,

it is unclear from the record precisely what knowledge about the ownership and

control of the vehicle the officers acquired, as well as when and how they acquired it.

The trial court entered no written findings of fact or conclusions of law, although the

trial judge did make oral findings at the time of his rulings. The sole witness to

testify, Detective Barber, gave sparing and possibly contradictory testimony on the

subject.3 Nonetheless, regardless of whether the officers knew the car was a rental,

we hold that the search was within the scope of the warrant.

The Court of Appeals, noting that that our appellate courts had not yet

addressed the specific issue here, namely whether “a vehicle rented and operated by

an overnight guest at a residence described in a search warrant may be validly

3 Detective Barber testified that “once we entered the house on the search warrant,
we were able to determine that that vehicle was being operated by [defendant] and Ms.
Doctors.” Yet, he later testified that the vehicle was registered to “Hertz Rental,” and that
the information he obtained from defendant and Ms. Doctors regarding the operation and
rental of the vehicle was obtained during interviews “at the police station,” at which point
“the vehicle in the driveway had already been searched.” As a result, it is unclear if the
officers obtained information about the rental car prior to the search of the car, and if so,
whether it was obtained verbally from the individuals in the residence.

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searched under the scope of that warrant,” id. at ___, 774 S.E.2d at 899-900, looked

to cases addressing the somewhat analogous situation of a search of an individual

present at a premises described in a warrant. To that end, the court relied on the

seminal case of Ybarra v. Illinois, in which the Supreme Court held that when officers

obtained a warrant to search a tavern at which the defendant happened to be a

patron, the search of the defendant, in the absence of additional facts, was

unconstitutional. 444 U.S. 85, 88-92, 100 S. Ct. 338, 340-43, 62 L. Ed. 2d 238, 243-

46 (1979). There the Court held that “a person’s mere propinquity to others

independently suspected of criminal activity does not, without more, give rise to

probable cause to search that person. . . . The Fourth and Fourteenth Amendments

protect the ‘legitimate expectations of privacy’ of persons, not places.” Id. at 91, 100

S. Ct. at 342, 62 L. Ed. 2d at 245 (citations omitted). Applying the reasoning of Ybarra

here, the Court of Appeals was persuaded “that a warrant authorizing the search of

a house or business does not automatically cover the search of a vehicle owned,

operated, or controlled by a stranger to the investigation.” Lowe, ___ N.C. App. at

___, 774 S.E.2d at 900 (citations omitted). On that basis, and in light of the knowledge

purportedly acquired by the officers about the vehicle, the court concluded that the

search of the rental car exceeded the scope of the search warrant. Id. at ___, 774

S.E.2d at 899-901.

The reasoning proffered by the Court in Ybarra, sound as it is in the context of

a search of an individual present at a tavern open to the public, is not similarly

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applicable to the search of a vehicle on the premises of a private residence that is the

target of a warrant. The owner or possessor of a premises cannot exercise possession,

control, or dominion over an individual located on the premises in the same manner

that he can do so over items of personal property, such as a vehicle. The two are

inherently different and carry with them separate privacy considerations. See

Zurcher v. Stanford Daily, 436 U.S. 547, 555, 98 S. Ct. 1970, 1976, 56 L. Ed. 2d 525,

535 (1978) (“Search warrants are not directed at persons; they authorize the search

of ‘place[s]’ and the seizure of ‘things,’ . . . .” (brackets in original) (quoting United

States v. Kahn, 415 U.S. 143, 155 n.15, 94 S. Ct. 977, 984 n.15, 39 L. Ed. 2d 225, 237

n.15 (1974))); Ybarra, 444 U.S. at 91, 100 S. Ct. at 342, 62 L. Ed. 2d at 245 (“[A] search

or seizure of a person must be supported by probable cause particularized with

respect to that person. . . . The Fourth and Fourteenth Amendments protect the

‘legitimate expectations of privacy’ of persons, not places.”). Moreover, a commercial

patron at a tavern open to the public can, in the absence of additional facts, be fairly

characterized as being in “mere propinquity” to the suspected criminal activity

targeted by the warrant. Ybarra, 444 U.S. at 91, 100 S. Ct. at 342, 62 L. Ed. 2d at

245. But, the same cannot be said of personal property, like a vehicle located within

a dwelling’s curtilage, over which the “owner or possessor assumes the

responsibilities and pleasures of ownership or possession,” and which has presumably

been permitted, if not invited, onto the premises. Courtright, 60 N.C. App. at 250,

298 S.E.2d at 742. Accordingly, we conclude that Ybarra is inapposite.

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Moreover, the Court of Appeals erred in construing the officers’ purported

knowledge of the rental car as support for a conclusion that the car was unrelated to

the target of the search warrant. To the contrary, defendant was not on the premises

by accident, but rather was an overnight guest at a residence targeted for suspected

drug trafficking. The officers were informed about defendant’s operation of the rental

car only after they entered the home, in which they discovered defendant, along with

853 grams of marijuana, as well as 14 grams of crushed MDMA in the room that

defendant had been occupying. Far from establishing that defendant was “a stranger

to the investigation,” Lowe, ___ N.C. App. at ___, 774 S.E.2d at 900, the officers’

knowledge of the rental car only served to further connect the car to the suspected

criminal activity targeted by the warrant. Accordingly, we reverse the Court of

Appeals’ holding that the search of the rental car exceeded the scope of the warrant.

For the reasons stated herein, we affirm in part and reverse in part the decision

of the Court of Appeals.

AFFIRMED IN PART; REVERSED IN PART.

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