Opinion
No. COA12–409.
2012-11-20
STATE of North Carolina v. Jamelle Monque BEST.
Attorney General Roy Cooper, by Assistant Attorney General J. Aldean (“Dean”) Webster III, for the State. Ryan McKaig, for Defendant.
Appeal by Defendant from order dated 14 October 2011 by Judge James Gregory Bell, and judgment entered 24 October 2011 by Judge A. Robinson Hassell, in Superior Court, Johnston County. Heard in the Court of Appeals 9 October 2012. Attorney General Roy Cooper, by Assistant Attorney General J. Aldean (“Dean”) Webster III, for the State. Ryan McKaig, for Defendant.
McGEE, Judge.
Jamelle Monque Best (Defendant) pleaded guilty on 24 October 2011 to possession of a firearm by a felon, possession of cocaine, maintaining a dwelling for the sale or use of controlled substances, and attaining the status of an habitual felon. The trial court sentenced Defendant to a term of imprisonment from 77 months to 102 months. Defendant appeals the trial court's judgment, as well as the trial court's order denying Defendant's motion to suppress.
I. Issue on Appeal and Standard of Review
Defendant argues that the trial court erred in denying his “motion to suppress the evidence against him on the ground that the search warrant and affidavit were fatally defective.” This Court's review of a trial court's order denying 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).
II. Analysis
Detective C.W. Kilpatrick (Det.Kilpatrick) of the Clayton Police Department filed an application for a search warrant on 15 June 2010 to search Defendant's residence. Det. Kilpatrick also filed an affidavit in support of a search warrant (the affidavit), based largely on information provided by a fifteen-year-old girl who will be referred to herein as “the juvenile.” The juvenile told Det. Kilpatrick that she “would hang out at [Defendant's] residence” and that Defendant would give her marijuana, cocaine, and alcohol. The juvenile told Det. Kilpatrick that on two occasions she and Defendant had sexual intercourse at Defendant's residence. The juvenile also told Det. Kilpatrick that, while at Defendant's residence, she had observed Defendant with a handgun. Det. Kilpatrick knew that Defendant was a felon and that he was thereby prohibited from possessing a handgun.
Det. Kilpatrick was issued a search warrant that he executed and that eventually led to Defendant's arrest and to the charges in this matter. Defendant filed a motion to suppress the evidence, discovered pursuant to the search warrant, on the grounds that, inter alia, there was no indication that the juvenile was reliable or credible. The trial court denied Defendant's motion to suppress in an order entered 14 October 2011.
Defendant challenges the following findings of fact in the trial court's order denying his motion to suppress:
18. Defendant argues that the standards applicable to determining the reliability of paid police informers should apply to the [juvenile]; however, the United States Supreme Court in Chambers v. Maroney, 399 U.S. 42, 26 L.Ed.2d 419 (1970) declined to apply the same standards used for paid police informants to information obtained from witnesses and victims.
19. That the information that was put in the search warrant in this case was provided by the [juvenile], a fifteen year old who admitted to having sexual intercourse with the thirty-nine year old defendant in May–June 2010.
....
21. That Det. Kilpatrick testified that prior to giving her statement to him on June 14, 2010, that Det. Kilpatrick had not made any promises or concessions to the [juvenile] for any statements that she made.
21. [sic] That the [c]ourt finds that these admissions by the [juvenile] carry their own indicia of credibility and are sufficient at least to support a finding of probable cause to search in this case. See United States v. Harris, 403 U.S. 573, 29 L.Ed 2d 723 (1971).
22. That there was a substantial basis for the trial court's determination that probable cause existed for the search warrant in that the information contained in the search warrant came from the [juvenile] who was named. That the [juvenile] stated that she was fifteen years of age and that she had sex with ... [D]efendant who was thirty-nine years old at the time. That the [juvenile] stated that ... [D]efendant had provided her with marijuana, cocaine and alcohol when she was at ... [D]efendant's home. That the [juvenile] stated that the last time she had marijuana was at ... [D]efendant's house and that it was June 4, 2010 through June 5, 2010. That the [juvenile] stated that ... [D]efendant had possession of a handgun and that he would keep it in the door of his car and then take the gun into the house with him when he got out of the car.
23. That the information contained in the search warrant showed that there was a fair probability that contraband or evidence of a crime would be found at ... [D]efendant's residence located at 600 North O'Neal Street, Apartment 3A.
N.C. Gen.Stat. § 15A–244 provides that an application for a search warrant must contain: “A statement that there is probable cause to believe that items subject to seizure under G.S. 15A–242 may be found in or upon a designated or described place, vehicle, or person; and ... [a]llegations of fact supporting the statement.” N.C. Gen.Stat. § 15A–244 (2011). Defendant argues that the trial court erred in denying his motion to suppress because “[i]n this case, the information supporting the probable cause affidavit came from [the juvenile], a 15–year old girl who claimed to have had sex with [Defendant] and observed other criminal activity during the time she spent with him.” Defendant asserts that “[a]s such, [the juvenile] was both an alleged victim and an informant.”
Defendant also argues:
Although the trial court relied upon Chambers v. Maroney, 399 U.S. 42 (1970) as standing for the proposition that there is no difference between paid informants and witnesses and victims, [Defendant] contends that Chambers is ambiguous on this point and not controlling in this case, given that North Carolina has adopted statutory standards in Chapter 15A of the General Statutes governing search warrants and has a constitution that gives defendants even greater rights with respect to search and seizure than those afforded by the United States Constitution. See generally, State v. Carter, 322 N.C. 709, 370 S.E.2d 553 (1988).
Defendant argues that “reliability is important in search warrant applications.” Defendant contends that “there was no allegation that [the juvenile] was a reliable informant.” Defendant states that, in the present case, “[i]n fact, the warrant application indicated otherwise.” The probable cause affidavit presented by Det. Kilpatrick contained the following statements:
2. On June 14, 2010 Det[.] Kilpatrick interviewed [the juvenile] ... in reference to a report being filed on her behalf involving Statutory Rape. While interviewing [the juvenile], the statement was made that Juan Batiste would meet her with another black male, known only to her as “Mac,” and would take her back to “Mac's” house. [The juvenile] stated “Mac” lived on North O'Neil St [.] and drove a green car. Det[.] Kilpatrick is familiar with “Mac” and knows his true name to be Jamelle Best. Det[.] Kilpatrick showed [the juvenile] a photograph of Best and [the juvenile] confirmed this was the person she knew as “Mac” that had picked her up with Juan Batiste.
3. [The juvenile] stated Batiste and Best would give her marijuana, cocaine and alcoholic beverages. [The juvenile] stated they would hang out at Best's residence until she was ready to go home. [The juvenile] stated she would have sexual intercourse with Batiste while at the residence.
4. [The juvenile] stated she had observed Best in possession of a handgun while she was with him and Batiste. [The juvenile] stated the gun was kept in the door of the green car until Best went into the house and then he would take the gun into the residence with him. [The juvenile] does not know what type of firearm the gun was only that it was a handgun. Best is a convicted felon and is prohibited from having a firearm in his possession.
5. [The juvenile] stated [she] was last at Best's residence on June 4 into the early morning hours of June 5, 2010. [The juvenile] [said] she had snuck out of her home and met Best at the Church down the street from her residence. [The juvenile] stated once at Best's residence she smoke[d] marijuana with Best. [The juvenile] stated she does not remember if she had sexual intercourse with Best on this occasion or not. [The juvenile] stated she had sexual intercourse with Best on two occasions at his residence but does not remember the dates. [The juvenile] stated Juan was never at the residence when she had sexual intercourse with Best.
6. [The juvenile] stated Best knew she lived at her home with her parents. [The juvenile] stated she had told Best she was 16 years old instead of her true age of 15 years old. [The juvenile] stated on the multiple occasions she was at Best's residence, either Best or Juan would provide her with Marijuana, Cocaine and Alcoholic beverages.
7. Based upon Det[.] Kilpatrick's training and experience, applicant believes probable cause exists to search the aforementioned property for listed items, furthermore affiant requests North Carolina SBI be utilized to search all electronic media that is seized in this case for photographs, video, text messages, contacts, phone numbers, email addresses, etc.
We note that the cases on which Defendant relies in his argument involve affidavits based on information provided by confidential informants. See State v. Arrington, 311 N.C. 633, 634, 319 S.E.2d 254, 255 (1984) (“The issue presented is whether an affidavit detailing the tips of confidential informants to police provided a sufficient basis to support the magistrate's finding of probable cause.”); State v. Newcomb, 84 N.C.App. 92, 93, 351 S . E.2d 565, 565–66 (1987) (affidavit describing witness as “ ‘the person who I will refer to as “He,” regardless of the person's sex[.]’ ”).
The present case is immediately distinguishable from those cases upon which Defendant relies in that, in the present case, the juvenile was not a confidential informant. Rather, the juvenile came forward and allowed herself to be identified by name in the affidavit for a search warrant. Our Supreme Court has stated that:
“The task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.”
State v. Eason, 328 N.C. 409, 419, 402 S.E.2d 809, 814 (1991) (citation omitted). Our Supreme Court further observed that “ ‘the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for ... conclud[ing]” that probable cause existed.’ “ Id. (citation omitted). “This approach to determining probable cause is known as the totality of the circumstances analysis.” Id. In Eason, the Supreme Court noted that “the informant who provided the information for the search warrant was ... a ‘citizen-informant’ whose name appeared in the search warrant affidavit.” Id. at 419–20, 402 S.E.2d at 814. Our Supreme Court held that:
The fact that [the informant] was named and identified as [the] informant in the search warrant affidavit provided the magistrate with enough information to permit him to determine that [the informant] was reliable. See People v. Simon, 107 A.D.2d 196, 198, 486 N.Y.S.2d 118, 120 (1985) (individual's status as a named and identified private citizen is sufficient to establish his reliability); cf. United States v. Harris, 403 U.S. 573, 599, 29 L.Ed.2d 723, 743 (1971) (Harlan, J., dissenting) (the citizen informant is the most credible type of informant); People v. Glaubman, 175 Colo. 41, 51, 485 P.2d 711, 717 (1971) (when an ordinary citizen comes forward with reports of criminal activity, there is no need to subject the information to the same special scrutiny given information supplied by unidentified or “confidential” informants).
Id. at 420, 402 S.E.2d at 814 (emphasis added).
Reviewing the totality of the circumstances in the present case, including the fact that the juvenile was not an unidentified or confidential informant, we conclude that “ ‘the magistrate had a “substantial basis for ... conclud[ing]” that probable cause existed[,]’ “ and we affirm the trial court's denial of Defendant's motion to suppress on those grounds. Id. at 419, 402 S.E.2d at 814 (citation omitted).
Defendant also contends that the information in the affidavit was stale. Defendant distinguishes the present case from several cases in which this Court has held that the information giving rise to a search warrant was not stale. See State v. Beam, 325 N.C. 217, 381 S.E.2d 327 (1989); State v. Witherspoon, 110 N.C.App. 413, 429 S.E.2d 783 (1993); State v. Windham, 57 N.C.App. 571, 291 S .E.2d 876 (1982); State v. Caldwell and State v. Maddox, 53 N.C.App. 1, 279 S.E.2d 852 (1981); State v. King, 44 N.C.App. 31, 259 S.E.2d 919 (1979); and State v. Singleton, 33 N.C.App. 390, 235 S.E.2d 77 (1977). In Beam, our Supreme Court held that an informant's statement that he had seen one pound of marijuana in a defendant's house one week prior to issuance of a warrant was not stale because the amount of marijuana was too large for personal use within a week's time and there were implications of an ongoing criminal enterprise of drug sales. Beam, 325 N.C. at 221–22, 381 S.E.2d at 330. In Windham, the information concerning the drug activity was approximately twenty-four hours old. Windham, 57 N.C.App. at 574, 291 S.E.2d at 879. In King, the information was “some weeks” old, but there was an indication of a history of drug sales. King, 44 N.C.App. at 34, 259 S.E.2d at 921. In Caldwell, a large amount of cocaine was seen within five days of the warrant application. Caldwell, 53 N.C.App. at 9, 279 S.E.2d at 857. In Singleton, there was evidence of controlled substances in a location within forty-eight hours. Singleton, 33 N.C.App. at 393, 235 S.E.2d at 79. In Witherspoon, there was thirty-day-old information that a large amount of marijuana was being cultivated in a house. Witherspoon, 110 N.C.App. at 419, 429 S.E.2d at 786.
Defendant argues that the present case is distinguishable from the above-discussed cases because the affidavit does not concern a large quantity of drugs, the sale of drugs, nor the growth of drugs. We find Defendant's reliance on controlled substance cases somewhat misleading. “The general rule is that no more than a ‘reasonable’ time may have elapsed.” State v. Lindsey, 58 N.C.App. 564, 565, 293 S.E.2d 833, 834 (1982). “The test for ‘staleness' of information on which a search warrant is based is whether the facts indicate that probable cause exists at the time the warrant is issued.” Id. (citation omitted). “Common sense must be used in determining the degree of evaporation of probable cause.” Id. at 565, 293 S.E.2d at 834. “ ‘The likelihood that the evidence sought is still in place is a function not simply of watch and calendar but of variables that do not punch a clock[.]’ “ Id . (citation omitted)
The description of items to be seized in the search warrant application included: (1) evidence of ownership or possession of the premises; (2) physiological fluids, secretions, and any items containing traces thereof; (3) firearms and ammunition; (4) digital media; and (5) cellular phones, cellular records, and records of ownership. As above, the issue is whether the magistrate would have had grounds to believe that these items would be found in Defendant's residence. The affidavit alleged that the juvenile was present in Defendant's residence on multiple occasions, the latest of which was June 4 and 5 of 2010. The juvenile observed Defendant's being in possession of a handgun, which Defendant carried with him in his car and kept in his residence when he was there. The affidavit in support of a search warrant was filed on 15 June 2010, less than two weeks after the juvenile was last in Defendant's residence. We hold the affidavit was sufficient for a magistrate to find, based on ten-day-old information, that there was probable cause to search Defendant's residence for evidence of ownership of possession, Defendant's physiological fluids, a handgun, digital media and a cell phone.
Affirmed. Judges BRYANT and THIGPEN concur.
Report per Rule 30(e).