State v. Boyd

• Court: Court of Appeals of North Carolina
• Decided: May 7, 2024
• Docket: 23-984
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA23-984

Filed 7 May 2024

Durham County, No. 19CRS52372

STATE OF NORTH CAROLINA

v.

PHILLIP EUGENE BOYD

Appeal by defendant from order entered 6 March 2023 by Judge Josephine

Kerr Davis in Durham County Superior Court. Heard in the Court of Appeals 2 April

2024.

Attorney General Joshua H. Stein, by Special Deputy Attorney General, Tamara Zmuda, for the state.

Grace, Tisdale & Clifton, P.A., by Michael A. Grace, for the defendant- appellant.

TYSON, Judge.

Phillip Eugene Boyd (“Defendant”) pleaded guilty to two counts of attempted

drug trafficking, one for cocaine and for marijuana, reserving his right to appeal

denial of his motion to suppress from a judgment entered upon a plea of guilty. We

affirm the trial court’s ruling on Defendant’s motion to suppress.

I. Background

Durham Police Investigator C.B. Franklin applied for and received an STATE V. BOYD

Opinion of the Court

anticipatory search warrant on 10 April 2019, authorizing the search of property

located at 3712 Lucknam Lane, Durham, N.C. 27707 (“Lucknam Lane”). Investigator

Franklin’s application and affidavit laid out the following:

In August 2018, Durham Vice and Narcotics Unit Investigators received

information from a confidential informant (“CI”), asserting he had purchased

trafficking-level quantities of cocaine from a man named “Pete” and from “Pete’s”

brother. Investigators later determined “Pete” was a man named Frederick Earl

Smith (“Smith”) and Defendant is his brother. The CI asserted Smith had acted as a

middleman. The CI would contact Smith to request drugs. Smith would obtain the

drugs from Defendant. Smith would schedule a meeting at a predetermined location,

often a gas station, with the CI. Smith would often arrive in either a Ford F-150 pick-

up truck or a Lexus Sedan vehicle, with Defendant driving the vehicle. Smith was

the only individual to exit the vehicle to perform the transaction. While the CI only

interacted with Smith, he claimed to have seen Defendant present on multiple

occasions during the transactions, and asserted he would be able to visually identify

him.

In October 2018, Durham Police Investigators performed a controlled buy,

wherein officers directed the CI to contact Smith and arrange a buy. Smith arrived

at the buy site in a newer model white Ford F-150 with the North Carolina license

plate PCM-****. Smith exited the passenger side of the vehicle, approached the CI,

and conducted the cocaine sale before returning to the vehicle. Investigators

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identified the vehicle as registered to Marietta Poole Boyd, Defendant’s wife, with the

registered address listed as 3712 Lucknam Lane. Investigator Franklin also

confirmed the Ford F-150 pick-up truck was being parked and kept at Lucknam Lane.

On 12 March 2019, investigators applied for and received a tracking tag order

to be installed on the Ford F-150 pick-up registered to Defendant’s wife. The

transmitted information indicated the Ford pick-up made frequent short stops at gas

stations, often located in high crime and high narcotic areas, throughout Durham.

This activity was consistent with the CI’s previous statements regarding the use of

gas stations as drug sales and delivery meeting sites. Additionally, the Ford pickup

would often return to Lucknam Lane for notably short periods of time between stops

before leaving again.

On 5 April 2019, investigators conducted direct surveillance of the Ford pickup

using four two-man teams in unmarked police vehicles. Investigators were able to

identify Defendant as the driver of the Ford F-150 pickup as he left Lucknam Lane.

Investigators followed Defendant while he performed numerous short stops, often at

gas stations, throughout the Durham area. Despite close surveillance, investigators

did not directly witness any drug sales, but they confirmed much of the “short stay

traffic” appeared to be drug related.

Investigators contacted the CI to direct the setup of another controlled buy.

The CI arranged a meeting with Smith to purchase 9 ounces of cocaine for $8,700.

Smith agreed to the sale and told the CI he would call on 10 April 2019 when he was

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ready to deliver and complete the sale.

Based upon the facts above, investigators believed controlled substances were

being stored at Lucknam Lane. Officers applied for an anticipatory search warrant

to search the property located at Lucknam Lane, if either Defendant or Smith

completed the controlled buy expected to occur on 10 April 2019.

The arranged meeting with Smith occurred on 10 April 2019. Investigators

were able to confirm Defendant was present and driving the white Ford F-150 pickup.

Investigators executed the search warrant and law enforcement seized large amounts

of U.S. currency, a currency counter, cocaine, marijuana, and assorted drug

paraphernalia. Defendant was subsequently indicted on trafficking in cocaine and

marijuana.

On 13 November 2019, Defendant moved to suppress evidence deriving from

the anticipatory search warrant issued for the property located at Lucknam Lane.

The trial court informed the parties of its denial of Defendant’s motion to suppress

on 8 December 2022 and filed the order 6 March 2023. Defendant preserved his right

to appeal by objecting to the trial court’s denial of his motion to suppress and entered

a plea of guilty on 5 April 2023. Defendant gave an oral notice of appeal the same

day and filed a written notice of appeal on 14 April 2023.

II. Jurisdiction

“An order finally denying a motion to suppress evidence may be reviewed upon

an appeal from a judgment of conviction, including a judgment entered upon a plea

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of guilty.” N.C. Gen. Stat. § 15A-979(b) (2023). Jurisdiction lies with this Court

pursuant to N.C. Gen. Stat. § 7A-27(b) (2023).

III. Motion to Suppress

Defendant argues the trial court erred by denying his motion to suppress

evidence obtained from an anticipatory search warrant and asserts the search

warrant lacked probable cause to support the warrant to search his residence.

A. Standard of Review

This Court’s 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).

“[C]onclusions of law are reviewed de novo and must be legally correct.” State

v. Campbell, 188 N.C. App. 701, 704, 656 S.E.2d 721, 724, (2008) (citations omitted).

“We review de novo a trial court’s conclusion that a magistrate had probable cause to

issue a search warrant.” State v. Worley, 254 N.C. App. 572, 576, 803 S.E.2d 412, 416

(2017).

B. Analysis

Defendant argues Investigator Franklin’s affidavit and application failed to

support a finding of probable cause to authorize the search of Defendant’s residence,

located at Lucknam Lane. We disagree.

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Both the State and Federal Constitutions protect against unreasonable

searches and seizures and require that warrants only be issued upon a showing of

probable cause. See U.S. Const. amend. IV; N.C. Const. art. I, § 20. To determine

whether probable cause existed, courts examine the totality of the circumstances

known to the magistrate at the time the search warrant was issued. State v.

Arrington, 311 N.C. 633, 641, 319 S.E.2d 254, 259 (1984).

Under the “totality of the circumstances” test, an affidavit is sufficient to

support probable cause “if it supplies reasonable cause to believe [ ] the proposed

search . . . 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.”

State v. Howard, 259 N.C. App. 848, 851, 817 S.E.2d 232, 235 (2018) (citing Arrington,

311 N.C. at 636, 319 S.E.2d at 256).

Further, “this Court must pay great deference and sustain the magistrate’s

determination [of probable cause] if there exist[s] a substantial basis . . . to conclude

[the] articles searched for were probably present.” State v. Hunt, 150 N.C. App. 101,

105, 562 S.E.2d 597, 600 (2002). Lastly, a finding of probable cause does not require

certainty, but rather only a substantial chance of criminal activity. State v.

McKinney, 368 N.C. 161, 165, 775 S.E.2d 821, 825 (2015).

As is required for when an officer seeks a search warrant of a residence in

connection to illegal activity observed outside the residence, “the facts set out in the

supporting affidavit must show some connection or nexus linking the residence to

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illegal activity. Such a connection need not be direct, but it cannot be purely

conclusory.” State v. Bailey, 374 N.C. 332, 335, 841 S.E.2d 277, 280 (2020).

The Supreme Court of North Carolina recently determined a search warrant

authorizing the search of a residence was supported by probable cause, even though

the officer’s affidavit only alleged an occupant of the residence participated in a sale

of illegal drugs earlier in the day in another location. Id., 374 N.C. at 338, 841 S.E.2d

at 282. In Bailey, a detective witnessed the driver of a Jeep vehicle, the occupants of

which he was familiar with due to previous drug activity, pull into an isolated parking

lot. Id. at 333, 841 S.E.2d at 279. A woman exited another vehicle and entered the

Jeep for roughly 30 seconds before returning to her vehicle. Id. Based upon his

training, the detective believed a narcotics transaction had occurred. Id.

The detective followed the woman’s vehicle and pulled her over after several

traffic violations. Id. The woman admitted she had purchased and possessed heroin.

Id. While this was occurring, another detective followed the Jeep back to, what the

detectives knew to be, the occupant’s residence. Id. Based on the information above,

the detectives obtained a search warrant for the property. Id.

The key factor, which supported the search of the residence in Bailey, was the

detectives’ ability to demonstrate some nexus between the residence and the criminal

activity. Id. at 338-39, 841 S.E.2d at 282. The Court explained it is not necessary for

the officers to show direct criminal activity at the residence, but officers do need to

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demonstrate more than simply asserting the defendant visits or resides at the

property. Id.

Here, Investigator Franklin’s affidavit and application supports the conclusion

of a substantial chance of evidence related to drug trafficking being present at

Defendant’s residence, located at Lucknam Lane. Investigator Franklin’s application

contains several key pieces of information:

1) Investigators identified the white Ford F-150 pickup used in an illegal

drug sale with the CI as being owned by Defendant’s wife and registered

at Lucknam Lane;

2) Investigators confirmed cocaine was being trafficked and sold out of the

Ford F-150 pickup;

3) The Ford F-150 pickup was kept at Lucknam Lane;

4) Both Defendant and Marietta Poole Boyd, Defendant’s wife, resided at

Lucknam Lane;

5) The Ford F-150 pickup made frequent, short stops at gas stations and

convenience stores throughout the Durham area, often located in high

drug trafficking areas, and often left from and returned to Lucknam Lane

in between said stops;

6) Defendant was observed living and operating out of the residence located

at Lucknam Lane and in the manner described above;

7) Defendant had a known history of dealing drugs; and,

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8) The CI’s statements were consistent with the evidence independently

collected by the investigators.

As in Bailey, these facts support a reasonable inference that Defendant was

engaged in drug trafficking and establishes a nexus between the drug trafficking and

Defendant’s residence. Id. Defendant’s frequent and short-in-time returns to

Lucknam Lane in between his other stops throughout Durham, which inspectors

believed were drug related, supplied a connection or nexus between the illegal activity

committed outside of Lucknam Lane by Defendant and at the residence itself. This

reasonable inference and nexus supports the conclusion that a substantial chance

existed of evidence of drug trafficking being present at Defendant’s residence. Id.

Defendant’s arguments are overruled

IV. Conclusion

Under the totality of the circumstances and with deference given to the

magistrate’s determination of probable cause, we hold the trial court properly denied

Defendant’s motion to suppress. Defendant presented no prejudicial errors in his

arguments on appeal. The trial court’s order is affirmed. It is so ordered.

AFFIRMED.

Judges STROUD and GORE concur.

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