1
SUBJECT INDEX
TABLE OF AUTHORITIES...... ii
Question Presented
Statement of the Case
Statement of the Facts
Argument
i.The trial court erred in denying the defendant’s motion to suppress BECAUSE, AT THE TIME OF THE ISSUANCE OF THE SEARCH WARRANT, THERE WAS NO PROBABLE CAUSE TO BELIEVE THAT THERE WAS, OR WOULD BE, EVIDENCE OF A CRIME AT DEFENDANT’S RESIDENCE.
A.Introduction and summary of argument.
B.Factual background.
C.Applicable Legal Principles.
D.Discussion.
Conclusion
CERTIFICATE OF FILING AND SERVICE
TABLE OF AUTHORITIES
Cases
Aguilar v. Texas,
378 U.S. 108, 12 L.Ed.2d 723 (1964)...... 4
Alabama v. White,
496 U.S. 325, 110 L.Ed.2d 301 (1990)...... 5, 9
Mapp v. Ohio,
367 U.S. 643, 6 L.Ed.2d 1081 (1961)...... 8
State v. Beam,
91 N.C. App. 629, 372 S.E.2d 894 (1988)...... 9
State v. Bone,
354 N.C. 1, 550 S.E.2d 482 (2001)...... 4
State v. Carrillo,
164 N.C. App. 204, 595 S.E.2d 219 (2004)...... 13
State v. Garcia,
358 N.C. 382, 597 S.E.2d 724 (2004)...... 8
State v. Holmes,
142 N.C. App. 614, 544 S.E.2d 18 (2001)...... 9
State v. Holmes,
142 N.C. App. 614, 544 S.E.2d 18 (2001)...... 5
State v. Hyleman,
324 N.C. 506, 379 S.E.2d 830 (1989)...... 4, 8
State v. Smith,
124 N.C. App. 565, 478 S.E.2d 237 (1996)...... 7
State v. Vestal,
278 N.C. 561, 180 S.E.2d 755 (1971)...... 4
Taylor v. Alabama,
457 U.S. 687, 73 L.Ed.2d (1982)...... 8
U.S. v. Ricciardelli,
998 F.2d 8, 12 (1st Cir. 1993)...... 8
United States v. Grubbs,
547 U.S. 90, 164 L.Ed.2d 195 (2006)...... 5
United States v. Hendricks,
743 F.2d 653 (9th Cir. 1984)...... 11
Wong Sun v. United States,
371 U.S. 471, 9 L.Ed 2d 441 (1963)...... 8
Constitutional Provisions
N.C. Const Art. I, §20...... 4
U.S. Const. Amend. IV...... 4
1
No. COA07-729EIGHTEENTH DISTRICT
NORTH CAROLINA COURT OF APPEALS
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STATE OF NORTH CAROLINA)
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v.)From Guilford County
)05 CrS 92169
DARRYL STALLINGS)
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DEFENDANT-APPELLANT’S BRIEF
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Question Presented
I.WHETHER The trial court erred in denying the defendant’s motion to suppress BECAUSE, AT THE TIME OF THE ISSUANCE OF THE SEARCH WARRANT, THERE WAS NO PROBABLE CAUSE TO BELIEVE THAT THERE WAS, OR WOULD BE, EVIDENCE OF A CRIME AT DEFENDANT’S RESIDENCE.
Statement of the Case
The defendant pled guilty to trafficking in marijuana on September 12, 2006, in the Superior Court for Guilford County, before the Honorable Catherine C. Eagles. He reserved his right to appeal the denial of his motion to suppress. Judge Eagles entered Judgment and Commitment on September 12, 2006. Defendant appealed in open court. Appeal is taken pursuant to G.S. §7A-28(b).
Statement of the Facts
The defendant filed a pre-trial motion to suppress evidence seized as the result of an “anticipatory search warrant.” (Rpp. 12-14) The parties stipulated that there was no need for an evidentiary hearing on the motion; the question is a purely legal one: whether the search warrant on its face provided the state and federal constitutional protections against unreasonable searches and seizures. The facts pertinent to this issue are set out below.
Argument
i.The trial court erred in denying the defendant’s motion to suppress BECAUSE, AT THE TIME OF THE ISSUANCE OF THE SEARCH WARRANT, THERE WAS NO PROBABLE CAUSE TO BELIEVE THAT THERE WAS, OR WOULD BE, EVIDENCE OF A CRIME AT DEFENDANT’S RESIDENCE.
Assignment of Error No. 1, Rp. 29
A.Introduction and summary of argument.
The government relied on what it erroneously termed an “anticipatory search warrant” to search for and seize contraband from the defendant’s home. The search warrant application notified the magistrate that a confidential informant, with unknown reliability and attempting to better his own legal position, would go into the defendant’s house and, if he saw drugs there, would give the police a signal, whereupon the warrant would be executed. Because probable cause only emerged, if at all, long after the magistrate issued the search warrant, and was evaluated only by the police and their agent, the fruits of the resulting search should have been suppressed.
B.Factual background.
Detective H.N. Sampson applied for what he denominated an “anticipatory search warrant.” (Rpp. 2-5) On the application, Det. Sampson averred that a confidential informant charged with drug offenses was interested in helping the detective in exchange for a recommendation of leniency in his/her case. The detective specified the conditions that would be present before he would commence his search:
On 09/22/2005, a confidential source will arrive at [the defendant’s house] for the purpose of purchasing marijuana. The confidential source will be at this residence for the purpose of purchasing several pounds of marijuana from the [defendant]. Once the confidential source sees the marijuana being displayed in the residence, he/she will give a prearranged signal that the marijuana has been seen.
Rp. 4.
In the hearing on defendant’s motion to suppress, the detective testified that the informant/agent went into the house and gave a signal that he/she found marijuana therein. Detective Sampson testified that, as the result of the search of the defendant’s house, contraband was seized.
The trial court treated the warrant in question as an anticipatory search warrant. It found that the “prearranged signal” from the confidential informant constituted “specific, pre-ordained conditions” that rendered the search constitutional. (Rpp. 14-17)
As will be seen, the warrant in question was not an anticipatory search warrant, but rather an ordinary warrant issued without probable cause that there was or would be drugs in the defendant’s home.
C.Applicable Legal Principles.
1.Warrant generally required to search a citizen’s home.
A citizen’s privacy is protected by both state and federal constitutions, which prohibit unreasonable searches and seizures. U.S. Const. Amend. IV; N.C. Const Art. I, §20. Generally, a valid search warrant issued by a neutral and detached magistrate is necessary before police officers or their agents can search a citizen’s property. N.C. Gen. Stat. §15A-241 et seq.
2.Search warrant must be based on probable case.
To be valid, a search warrant must be based on probable cause that “the proposed search for evidence of the commission of the designated criminal offense will reveal the presence upon the described premises of the objects sought.” State v. Vestal, 278 N.C. 561, 575-76, 180 S.E.2d 755, 765 (1971). Probable cause must be established by the search warrant application and attached documents. Aguilar v. Texas, 378 U.S. 108, 12 L.Ed.2d 723 (1964); State v. Hyleman, 324 N.C. 506, 379 S.E.2d 830 (1989); State v. Bone, 354 N.C. 1, 550 S.E.2d 482 (2001).
When a warrant application is based on information from an informant, the search warrant application must give the magistrate information on the reliability of that informant. Alabama v. White, 496 U.S. 325, 110 L.Ed.2d 301 (1990); State v. Holmes, 142 N.C. App. 614544 S.E.2d 18 (2001).
3.“Anticipatory” search warrants and the Fourth Amendment.
In some cases, it is apparent that the evidence of a crime is not presently in the target premises, but will be at some ascertainable time. In such cases, the warrant is denominated an “anticipatory search warrant.” If the magistrate knows the specific time that the evidence will arrive at the premises, she may post-date the warrant to that time. If the exact time is not known, because it depends on a “triggering event” (e.g., the delivery of a package by a carrier), the magistrate may issue the warrant with the provision that it may not be executed until the triggering event occurs.
The leading case on anticipatory search warrants is United States v. Grubbs, 547 U.S. 90, 164 L.Ed.2d 195, 126 S.Ct. 1494 (2006). There the defendant ordered child pornography from a website run by an undercover postal inspector. The inspector put the pornography in a package addressed to the defendant and notified law enforcement officers. The officers sought an anticipatory search warrant for the defendant’s house. Because the officers could not know precisely when the package would be delivered, the search warrant application specified that the search would not be conducted unless and until the package was delivered and taken into the defendant’s house. The receipt of the package was thus the “triggering event” for the execution of the warrant.
The Court defined anticipatory search warrants:
Anticipatory warrants are . . . no different in principle from ordinary warrants. They require the magistrate to determine (1) that it is now probable that (2) contraband, evidence of a crime, or a fugitive will be on the described premises (3) when the warrant is executed.
126 S.Ct. at 1500 (emphasis in original).
The United States Supreme Court first considered whether anticipatory search warrants are unconstitutional per jure. It held that a validly drafted anticipatory search warrant does not offend the federal Constitution. Id.
The Court emphasized, however, that the magistrate must find probable cause at the time of the issuance of the warrant both 1) that a triggering event will take place, and 2) that, if the triggering event takes place, contraband will be present. It is not enough for the police to wait until they believe probable cause exists to execute the warrant:
In other words, for a conditioned anticipatory warrant to comply with the Fourth Amendment's requirement of probable cause, two prerequisites of probability must be satisfied. It must be true not only that if the triggering condition occurs "there is a fair probability that contraband or evidence of a crime will be found in a particular place," . . . but also that there is probable cause to believe the triggering condition will occur. The supporting affidavit must provide the magistrate with sufficient information to evaluate both aspects of the probable-cause determination.
Id. (internal citations omitted)(emphasis in original).
The Court concluded that, at the time of the application for the search warrant, there was probable cause for the magistrate to believe both that the package containing the contraband would be received by the defendant and that the contraband would still be in the house when the officers executed the warrant.
4.Anticipatory search warrants in North Carolina.
In State v. Smith, 124 N.C. App. 565, 478 S.E.2d 237 (1996), this Court held that anticipatory search warrants are not necessarily in violation of our N.C. Const. Art. I § 20. However, the Court noted that such a warrant tends to minimize the crucial role of the neutral and detached magistrate in determining probable cause, and “presents an acute possibility of abuse [by the police] because it is conditioned on the occurrence of a future event.” 124 N.C. App. at 577. This is especially problematic when it is the police who control the triggering event. Id. at 576. The Court therefore formulated several requirements for anticipatory search warrants:
An anticipatory warrant must set out, on its face, conditions that are `explicit, clear, and narrowly drawn so as to avoid misunderstanding or manipulation by government agents.' The magistrate must ensure that the `triggering events' - those events which form the basis for probable cause - are `both ascertainable and preordained.'
Smith, 124 N.C. App. at 572, 478 S.E.2d at 242 (quoting U.S. v. Ricciardelli, 998 F.2d 8, 12 (1st Cir. 1993)).
The Court held that, probable cause exists only if the contraband is on a “sure course” to the named premises. Id.
5.Suppression of illegally obtained evidence.
Evidence seized as the result of an unconstitutional search must be suppressed. Mapp v. Ohio, 367 U.S. 643, 6 L.Ed.2d 1081 (1961). Evidence derived from unconstitutionally seized evidence must also be suppressed as “fruit of the poisoned tree.” Taylor v. Alabama, 457 U.S. 687, 73 L.Ed.2d (1982). A search unconstitutional at its inception cannot be justified by the subsequent finding of contraband in the searched premises. Wong Sun v. United States, 371 U.S. 471, 9 L.Ed 2d 441 (1963).
D.Discussion.
1.Standard of Review.
The trial court’s conclusions of law regarding the existence of probable cause to search are reviewable de novo. See, e.g., State v. Hyleman, 324 N.C. 506, 379 S.E.2d 830 (1989). Whether the trial court applied the correct legal standard is a question of law, reviewable de novo. State v. Garcia, 358 N.C. 382, 597 S.E.2d 724 (2004). Whether the putative triggering event was a “specific, pre-ordained condition[]” within the meaning of the constitutions is a mixed question of law and fact. Smith, supra. It is reviewable de novo to determine if the law was properly applied to the facts. Garcia.
2.The first search of the defendant’s home was conducted by a police agent without a warrant.
The initial search was conducted prior to the “triggering event.” That is, the search was conducted by the informant acting as a police agent. After this first search, the sworn law enforcement officers conducted a second search of the premises.
The state may argue that the magistrate had probable cause to believe that the informant would find drugs in the defendant’s house when he or she got there. Were that so, the police would not have needed to rely on an “anticipatory” warrant; they could have gotten an ordinary warrant based on such alleged probable cause. Their obvious problem was that they could not show the magistrate probable cause. They did not, apparently could not, show that the confidential informant was reliable, which is required for a valid search arrant based on an informant. See, e.g., Alabama v. White, 496 U.S. 325, 110 L.Ed.2d 301 (1990); State v. Holmes, 142 N.C. App. 614, 544 S.E.2d 18 (2001). Nor apparently did they have any information about when the last alleged purchase was made in order to show that the information was not “stale.” See, e.g., State v. Beam, 91 N.C. App. 629, 372 S.E.2d 894 (1988).
3.The warrant in question was not an anticipatory search warrant.
In the search warrant application, the officer stated that the confidential informant would be sent into the defendant’s house to see if there were drugs inside. If he/she saw drugs, he/she would give a “prearranged signal,” to the police, whereupon they would search the house.[1] This was not a showing of present probable cause that there would be drugs in the house in the future.
Because the police had no probable cause that there would be drugs in the defendant’s house, they devised this alternative: ask the magistrate to allow them to enter the house if and when the informant said he/she found drugs. Although denominated an “anticipatory search warrant,” this was nothing more than a general warrant, allowing the police to search whenever they believed they had probable cause to do so.
In Grubbs, the Supreme Court emphasized that an anticipatory warrant may not validly issue in hopes that, at some future time, there will be probable cause that contraband is present. The Court noted that, if all an anticipatory search warrant had to show was that a search would not be conducted unless and until probable cause arose (in the mind of the police),
an anticipatory warrant could be issued for every house in the country, authorizing search and seizure if contraband should be delivered.
Grubbs, 126 S.Ct. at 1500.
As this Court put it in Smith,
If the party seeking the search may create the circumstances which create the probable cause, which then justify the warrant itself, the magistrate is removed (by this logic) from his constitutionally mandated role.
478 S.E.2d at 241-42 (citing United States v. Hendricks, 743 F.2d 653, 654 n. 1 (9th Cir. 1984).
The warrant in question was not an anticipatory search warrant. Rather it was merely a warrant issued without probable cause, in hopes that the police would find probable cause when they got to the house.
4.The warrant was not based on probable cause that a “triggering event” would occur or that, if a triggering event occurred, drugs would be in the house.
At the time the magistrate issued the warrant, he did not have probable cause to believe that the triggering event (the giving of the signal) would occur. If he did, he would not have needed to issue an anticipatory warrant, but could have issued a regular one.
Nor did the magistrate have probable cause to believe that, if the signal were given, drugs would be found in the house. The informant was admittedly anxious to help himself out. There was nothing to keep the informant from making a false signal in hopes that the police would find drugs in the defendant’s house.
Whether the warrant be considered anticipatory or not, it was not based on probable cause and should have been suppressed.
5.The trial court’s finding that the informant’s giving a signal was a “specific, pre-ordained condition[]” was a mixed question of law and fact, and erroneous.
In Finding of Fact number 5, the trial court opines that the “prearranged signal” from the confidential informant constituted a “specific, pre-ordained condition” equivalent to the ”triggering condition” discussed in Smith and Grubbs. This is a mixed question of law and fact. That is, the finding of what the signal was, when it was to be given, and when it was given are findings of fact. Whether the giving of the signal was “specific and pre-ordained” within the meaning of the constitutions, is a question of law.
The circumstances under which the signal was to be given by the informant may have been specific (although nowhere in the application or the order is the nature of the signal mentioned). However, the conditions that must have been present before the signal were not preordained. Rather, it was to be given if and only if the informant wanted to tell the police that he/she saw drugs. There was no assurance at the time of the issuance of the warrant that drugs would be in the house, or that the informant would be truthful about what he/she did or did not see.
6.The trial court applied an incorrect standard for evaluating the probable cause requirement for an anticipatory search warrant.
In Conclusion of Law 3, the court described the “triggering events” for the search: the informant would go into the house, and if he/she wanted to claim that there were drugs there he/she would give a signal. The court went on to conclude:
Those triggering events, from which probable cause arises, were ascertainable and preordained.
Rp. 16.
The trial court was evaluating probable cause at the point when the informant gave the signal. However, the appropriate point for the probable cause determination is the point at which the warrant issues. Grubbs. The trial court thus applied an incorrect standard in evaluating probable cause.
The reason that probable cause is to be evaluated by the magistrate before issuing the warrant is the same as requiring that the triggering events for the search be specific and preordained (as in a box being delivered to an address by the post office): “to avoid misunderstanding or manipulation by government agents.” State v. Carrillo, 164 N.C. App. 204, 207, 595 S.E.2d 219, 221 (2004). Deferring the question of probable cause until the time the search is to begin leaves it to the police and their agents to decide whether and when probable cause arises.
In this case, the decision whether there was probable cause to search was not made by a magistrate, nor even by a police officer. It was made by a criminal hoping to ingratiate him or herself with the police by incriminating the defendant.
Conclusion
Viewed under the appropriate standard, there was no probable cause -- at the time of the issuance of the warrant-- to believe the informant would find drugs in the defendant’s house. There was no information on the reliability of the informant in the application, nothing but the informant’s claim to believe that there were drugs in the defendant’s house, no assurance at all that he/she would be truthful in reporting what was or was not in the defendant’s house.