State v. Frederick
State v. Frederick
Opinion of the Court
*166On June 8, 2016, a Wake County jury found Kurt Deion Frederick ("Defendant") guilty of trafficking heroin, maintaining a dwelling used for keeping or selling heroin, and possession with intent to sell or deliver a Schedule I controlled substance. Prior to trial, Defendant moved to suppress evidence obtained pursuant to a search of his residence.
*857Defendant appeals from the order denying his motion to suppress, contending that the search warrant was improperly issued because it lacked probable cause. We disagree.
Factual and Procedural Background
On April 8, 2015, Detective J. Ladd with the Raleigh Police Department applied for a warrant to search the premises of 3988 Neeley Street in Raleigh for heroin, firearms, drug transaction records, and cash. The residence belonged to Defendant.
Detective Ladd attached a sworn affidavit to the search warrant which testified to his more than thirteen years of law enforcement experience, his work with Raleigh's drug and vice unit, and his specific drug interdiction training. The affidavit also set forth the following facts:
Over the last sixty days, I received information from a confidential source regarding a mid-level MDMA, heroin[,] and crystal methamphetamine dealer in the Raleigh, NC area. This source has always been trustworthy and truthful with [d]etectives[,] and I consider his/her information reliable. This confidential source is familiar with MDMA, heroin[,] and crystal methamphetamine and the way it is packaged and sold. This confidential source has always provided [d]etectives with information in the past concerning other criminal drug investigations that I have been able to corroborate and determined to be truthful.
Within the last week, this confidential source was used to arrange a controlled purchase of a quantity of "Molly" (MDMA) from 3988 Neeley St[.] Raleigh, NC 27606. The confidential source met with [d]etectives prior to making the controlled purchase of "Molly". The confidential source and his/her vehicle were searched for any illegal contraband. There was none located. The confidential source was provided with a sum of money from the Raleigh Police Department's informant funds. The confidential source arranged to meet a middle man prior to going to 3988 Neeley St[.] Raleigh, NC 27606.
*167Detectives[ ] maintained constant surveillance on the confidential source while traveling to meet the middle man. Once the source met with the middle man, they traveled to 3988 Neeley St[.] Raleigh, NC 27606. The middle man was observed entering 3988 Neeley St[.] Raleigh, NC 27606 and returning to the source approximately two minutes later. Based on my training and experience, this was indicative of drug trafficking activity. The source met with me at a pre-determined meet location after the middle man was returned to his residence. The source provided me with a quantity of "Molly". The source and his/her vehicle were searched again for any illegal contraband. There was none located.
Within the last 72 hours, the confidential source was used to arrange a controlled purchase of heroin [from] 3988 Neeley St[.] Raleigh, NC 27606. The confidential source met with [d]etectives prior to making the controlled purchase of heroin. The confidential source and his/her vehicle were searched for any illegal contraband. There was none located. The confidential source was provided with a sum of money from the Raleigh Police Department's informant funds. The confidential source arranged to meet a middle man prior to going to 3988 Neeley St[.] Raleigh, NC 27606. Detectives[ ] maintained constant surveillance on the confidential source while traveling to meet the middle man. Once the source met with the middle man, they traveled to 3988 Neeley St[.] Raleigh, NC 27606. The middle man was observed entering 3988 Neeley St[.] Raleigh, NC 27606 and returning to the source approximately three minutes later. Based on my training and experience, this was indicative of drug trafficking activity. The source met with me at a pre-determined meet location after the middle man was returned to his residence. The source provided me with a quantity of heroin. The source and his/her vehicle was searched again for any illegal contraband. There was none located. A small sample of the heroin field tested positive for heroin.
While conducting surveillance during the controlled buy of heroin, two males were observed entering 3988 Neeley St[.] Raleigh, NC 27606. The two *168individuals exited 3988 Neeley St[.] Raleigh, NC 27606 *858approximately two minutes later and returned to their vehicle. Based on my training and experience, this was indicative of drug trafficking activity.
(Emphasis added).
This search warrant was granted by a magistrate, and officers executed it at the residence. More than 4.0 grams of heroin, 3.4 grams of MDMA, drug packaging materials, and $600.00 in cash were discovered in the residence. Officers observed Defendant leaving his residence with a Crown Royal bag, and detained him a short time later in his vehicle. Officers found heroin packaged for sale and more than $2,500.00 in cash in the Crown Royal bag located in the vehicle.
Defendant was arrested and charged with trafficking heroin, maintaining a dwelling for keeping or selling controlled substances, and possession of MDMA. The Wake County Grand Jury indicted Defendant on June 1, 2015 for trafficking in heroin by possession, maintaining a dwelling for keeping or selling controlled substances, and possession with intent to sell or deliver a Schedule I controlled substance.
Defendant filed a motion to suppress evidence obtained from the searches prior to trial in Wake County Superior Court. In his motion, Defendant conceded that during the first transaction, the middleman "entered the residence and approximately three minutes later came out with what appeared to be a Molly." For the second transaction, Defendant conceded that the middleman "entered the residence and returned in approximately three minutes with what appeared to be heroin." Defendant presented no evidence to support his motion, simply arguing the search warrant was facially insufficient. The trial court denied Defendant's motion, finding there was no conflict in the information provided in Detective Ladd's application for the search warrant, and the affidavit was sufficient to establish probable cause and justify issuance of the search warrant by the magistrate.
Defendant was convicted of trafficking in heroin by possession, maintaining a dwelling for keeping or selling controlled substances, and possession with intent to sell or deliver a Schedule I controlled substance. He was sentenced to a term of seventy to ninety-three months in prison. It is from the order denying his motion to suppress that Defendant timely appeals.
*169Standard of Review
"[A] reviewing court is responsible for ensuring that the issuing magistrate had a substantial basis for concluding that probable cause existed." State v. McKinney ,
Analysis
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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. " Article I, Section 20 of the Constitution of North Carolina likewise prohibits unreasonable searches and seizures and requires that warrants be issued only on probable cause." State v. Allman ,
The quantum of proof required to establish probable cause is different than that required to establish guilt. Draper v. United States ,
To determine if probable cause exists, we look at the totality of the circumstances known to the magistrate at the time the search warrant was issued. State v. Arrington ,
As stated above, an affidavit is sufficient to establish probable cause "if it supplies reasonable cause to believe that the proposed search for evidence probably will reveal the presence upon the described premises of the items sought and that those items will aid in the apprehension or conviction of the offender." Id. at 636,
In State v. Riggs , the search warrant application provided that law enforcement officers obtained information from a confidential informant that the defendant was selling marijuana. Riggs ,
Where, as here, information before a magistrate indicates that suspects are operating, in essence, a short-order marijuana drive-through on their premises, the logical inference is that a cache of marijuana is located somewhere on those premises; that inference, in turn, establishes probable cause for a warrant to search the premises, including the residence.
Id. at 221,
The only practical difference between Riggs and the case sub judice was the use of a recording device by the confidential informant. However, *171the Riggs Court focused its discussion of probable cause, not on the communication between the middleman and the confidential source, but rather on the officers' experience, the conduct of the middleman, and the reasonable inferences drawn from the officers' observations. Id. at 219-21,
Here, Detective Ladd received information from a reliable confidential source regarding a mid-level drug dealer who sold MDMA, heroin, and crystal methamphetamine. The confidential source had previously provided truthful information that Detective Ladd could corroborate, and the confidential source was familiar with the packaging and sale of MDMA, heroin, and crystal methamphetamine.
The same confidential source had assisted Detective Ladd with the purchase of MDMA one week prior to issuance of the search warrant. At the time of that purchase, Detective Ladd provided the confidential source with money to purchase MDMA, and he searched the confidential source and his vehicle prior to any interaction with the middleman. The confidential source met the middleman *860prior to going to Defendant's residence, and "[d]etectives[ ] maintained constant surveillance on the confidential source while traveling to meet the middle man." The confidential source and the middleman then traveled to Defendant's residence. Detectives observed the middleman enter Defendant's residence and return to the confidential source after approximately two minutes in Defendant's house. Detective Ladd swore in his affidavit that this conduct "was indicative of drug trafficking activity" based on his training and experience. The middleman returned to his residence, and the confidential source met Detective Ladd. The confidential source provided him with MDMA, and no other contraband was found on the confidential source or in his vehicle.
A subsequent purchase of heroin took place seventy-two hours prior to issuance of the search warrant. The details of that drug transaction are nearly identical to those set forth above, except the middleman was in Defendant's residence for approximately three minutes. Further, while observing the second transaction, Detective Ladd saw two males enter Defendant's residence and exit approximately two minutes later. Detective Ladd again indicated that the conduct he observed on this occasion was "indicative of drug trafficking activity" based on his training and experience.
On two occasions, Detective Ladd personally observed his confidential source meet the middleman and travel to Defendant's residence, where the middleman entered and exited shortly thereafter. The confidential source, who had been searched and supplied with money *172to purchase controlled substances, provided Detective Ladd with MDMA and heroin after his interaction with the middleman. Detective Ladd also observed other traffic in and out of Defendant's residence. Detective Ladd's experience and personal observations set forth in the affidavit were sufficient to establish probable cause to believe that controlled substances would probably be found in Defendant's residence.
Based on Detective Ladd's training and experience, the conduct of the middleman, and Detective Ladd's personal observations, the magistrate here could reasonably infer that the middleman obtained MDMA and heroin from Defendant's residence. Further, the magistrate could reasonably infer that there would probably be additional controlled substances at that location. Moreover, the magistrate could reasonably infer that the middleman did not have the MDMA or heroin in his possession when he met the confidential source, and his purpose in traveling to Defendant's residence was to obtain the controlled substance the confidential source supplied to Detective Ladd. Based on the totality of the circumstances, the magistrate had a substantial basis for concluding probable cause existed to believe controlled substances were located on the premises of 3988 Neeley Street in Raleigh.
Conclusion
As our Supreme Court has stated, "[t]he resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants." Riggs ,
AFFIRMED.
Judge DAVIS concurs.
Judge ZACHARY dissents with separate opinion.
Dissenting Opinion
The Fourth Amendment functions at its core to prohibit the government from subjecting its citizens to unreasonable searches and seizures. The existence of a warrant supported by probable cause *173protects this right, but only if it is inherently dependable. E.g., Brinegar v. United States ,
I.
The majority quotes State v. Riggs and insists that our inquiry today is limited to determining "whether, given all the circumstances set forth in the affidavit before the magistrate, ... there is a fair probability that contraband ... will be found in a particular place."
II.
In the instant case, the only information contained in the affidavit supporting the application for search warrant that ties this defendant's home to the sale of narcotics was the hearsay information related to the two controlled purchases. An unidentified "middleman" conducted the controlled purchases rather than the confidential informant, and no basis was provided which would justify reliance on the middleman. Nevertheless, in holding that the magistrate had a substantial basis for concluding that probable cause existed, the majority focuses on Detective Ladd's experience and his report that:
*174[o]n two occasions, Detective Ladd personally observed his confidential source meet the middleman and travel to Defendant's residence, where the middleman entered and exited shortly thereafter. The confidential source, who had been searched and supplied with money to purchase controlled substances, provided Detective Ladd with MDMA and heroin after his interaction with the middleman. Detective Ladd also observed other traffic in and out of the residence.
This statement establishes merely that the unknown middleman entered defendant's home, and that the confidential informant provided law enforcement officers with drugs at some time thereafter. Under this analysis, the focus is on the drugs that the confidential informant delivered to the officers, which ostensibly were acquired inside Defendant's home. Without that connection, there can be no probable cause.
III.
To be sure, the facts provided in an application for a search warrant need not always have been personally observed or obtained by a law enforcement officer in order to support a finding of probable cause. Information gleaned from a third-party may support a finding of probable cause. Jones v. United States ,
There are various factors relevant to the determination of whether there is a substantial basis for crediting third-party information. A *175recurrent consideration is whether the tip is accompanied by statements in the affidavit establishing that the informant is a reliable source. See e.g. , Riggs ,
In contrast, probable cause is more difficult to satisfy under the totality of the circumstances test where the information supporting an officer's application for search warrant was provided by an unverified or an anonymous source. In such a case, additional indicia of reliability must be present. See Gates ,
Likewise, where law enforcement officers apply for a search warrant based upon information gleaned from a controlled purchase that was executed by a third-party informant, the reliability of the controlled purchase itself must be analyzed in order to determine whether it was sufficient to support a finding of probable cause. Relevant indicia of reliability often include statements in the affidavit that either: (1) the source was reliable; (2) the source was searched for drugs immediately before and after the controlled purchase; (3) the source wore a hidden video or audio surveillance device during the controlled purchase; or (4) law enforcement officers observed the source engaging in the hand-to-hand sale with the defendant. See e.g., Riggs ,
The reliability of a controlled purchase must be particularly scrutinized by magistrates where the reliability of the source of the operation cannot be shown. In such a case, a greater level of detail or independent corroboration must be present in order for the operation to support a finding of probable cause. See *863State v. Brody , --- N.C. App. ----, ----,
IV.
While controlled purchases are often employed as a means to independently corroborate an anonymous tip, in the instant case, the operations are themselves the subject of the anonymity. Thus, the pertinent question is whether the controlled purchases offer sufficient indicia of reliability to support a finding of probable cause under the totality of the circumstances.
As the majority notes, the reliability of a narcotics operation that was conducted by an anonymous or unknown source has been addressed by this Court on only one prior occasion, in State v. Riggs . A comprehensive analysis of Riggs is necessary in order to understand its application to the instant case.
In Riggs , the application for search warrant provided that law enforcement officers had obtained information from a confidential informant that the defendant Bobby Riggs was selling narcotics. Riggs ,
On appeal from the trial court's denial of the defendants' motions to suppress, this Court concluded, in part, that a controlled purchase conducted outside of the defendants' home was insufficient to establish probable cause that narcotics would be found inside the home. Riggs ,
The majority maintains that "[t]he only practical difference between Riggs and the case sub judice was the use of a recording device by the confidential informant[.]" This distinction is, by itself, significant. However, it is also not the "only practical difference" involved. While the existence of the audio recordings alone certainly could have been sufficiently corroborative to support a finding of probable cause from the operation, the officers in Riggs were provided with reliable information tying the defendants to drug trafficking from the start. Id. at 215,
The same cannot be said here. Although the confidential informant's veracity was established by his history of reliability with law enforcement, the confidential informant did not accompany the middleman into defendant's home. The confidential informant did *864not observe the alleged drug transactions taking place, nor is this a case in which any hand-to-hand transactions were observed by law enforcement officers. Cf. Stokley ,
The existence of any one of these safeguards would have helped to establish the reliability of the operations. However, no further details concerning the events inside defendant's home are provided. Rather, the only corroboration provided in the affidavit is the fact that the middleman and two other individuals were observed entering defendant's residence. This alone is wholly insufficient to establish probable cause in the instant case. E.g. , State v. Ford ,
While probable cause may indeed be established where the reliability of the source of an operation is wanting, such is the case only where the operation itself furnishes highly detailed information, or where the presumptions gathered from the operation have been independently corroborated. Gates ,
* * *
I am reluctant to allow an affidavit describing the anonymous purveyance of narcotics, and otherwise lacking in detail or corroboration, to serve as the primary justification for an intrusion into a private residence, "the most highly protected of all places under the Fourth Amendment[.]" Riggs ,
Reference
- Full Case Name
- STATE of North Carolina v. Kurt Deion FREDERICK, Defendant.
- Cited By
- 8 cases
- Status
- Published
- Syllabus
- Motion to suppress Search warrant Probable cause