State v. Gerard

790 S.E.2d 592, 2016 N.C. App. LEXIS 975
CourtCourt of Appeals of North Carolina
DecidedSeptember 20, 2016
Docket15-1014
StatusPublished
Cited by6 cases

This text of 790 S.E.2d 592 (State v. Gerard) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Gerard, 790 S.E.2d 592, 2016 N.C. App. LEXIS 975 (N.C. Ct. App. 2016).

Opinion

STROUD, Judge.

Defendant appeals an order denying his motion to suppress and judgments convicting him of six counts of third degree sexual exploitation of a minor. The trial court erred in basing its determination upon the good faith exception under North Carolina General Statute § 15A-974 but reached the correct result by denying the motion to suppress, since the search warrant application and affidavit provided sufficient information for the magistrate to make an independent and neutral determination that probable cause existed for the issuance of the warrant which led to the search of defendant's computer and discovery of child pornography. Therefore, we affirm.

I. Background

The background of this case was summarized by this Court in State v. Gerard , 233 N.C.App. 599 , 758 S.E.2d 903 (2014) (unpublished) (" Gerard I "). In summary, defendant

was indicted on 7 June 2010 for six counts of third-degree sexual exploitation of a minor. Detective C.E. Perez ("Detective Perez"), of the Charlotte-Mecklenburg Police Department, obtained a search warrant on 14 April 2010 to conduct a search of Defendant's residence. Defendant filed a motion on 3 April 2013 to suppress evidence seized during the 14 April 2010 search of his residence.

Id. Thereafter, the trial court considered defendant's motion to suppress, and "[i]n an order entered on 20 May 2013, the trial court ... concluded that the good faith exception applied and denied Defendant's motion to suppress. Defendant entered a plea of guilty *594 pursuant to Alford decision to six counts of third-degree sexual exploitation of a minor. Defendant appeals." Id. (quotation marks omitted).

This Court dismissed defendant's appeal because defendant had "failed to give notice of his intention to appeal[.]" Id. Thereafter, defendant filed a petition for writ of certiorari which this Court "allowed for the purpose of reviewing the judgments entered 7 May 2013 and the amended order entered 20 May 2013 by Judge Yvonne Mims Evans. Such review shall be limited to issues related to the denial of defendant's motion to suppress."

II. Motion to Suppress

Defendant first contends that "the trial court erred in denying Mr. Gerard's motion to suppress on the ground that probable cause existed to issue a search warrant." (Original in all caps.) Relying primarily on North Carolina General Statutes §§ 15A-244 and 245, defendant argues that the information in the affidavit supporting the search warrant application did not include sufficiently detailed facts and circumstances to support a determination that probable cause existed for issuance of the warrant.

In ruling upon a motion to suppress evidence, the trial court must set forth in the record its findings of fact and conclusions of law. The general rule is that the trial court should make findings of fact to show the bases of its ruling. 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. Conclusions of law are reviewed de novo .

State v. McCrary , 237 N.C.App. 48 , 51-52, 764 S.E.2d 477 , 479-80 (2014) (citations, quotation marks, ellipses, and brackets omitted), aff'd in part and remanded , 368 N.C. 571 , 780 S.E.2d 554 (2015).

Defendant does not challenge the trial court's findings of fact. The State has not presented any proposed issue challenging any of the trial court's findings of fact as an alternative basis under North Carolina Rule of Appellate Procedure 10(c) to affirm the ruling, although the State does note

that the trial court's finding of fact [27] regarding the sufficiency of the information set forth in the warrant ... is more termed a conclusion of law, and appears to conflict with its actual finding of fact regarding a reasonable reading as a whole of the facts set forth in the affidavit.

(Quotation marks and footnote omitted)).

The trial court's first 17 findings of fact set forth in detail Detective Perez's extensive training and experience as a police officer and certified computer forensics examiner; a description of the Operation Peer Precision internet operation to identify child pornography; how SHA1 values are used to identify child pornography files on the internet; how Detective Perez identified the particular IP address as sharing known child pornography files; his download and review of some of the images and comparisons of SHA1 values to confirm that the files were child pornography; his identification of the address to which the IP address was registered; and his preparation of the search warrant application. Many of the details in findings of fact 1-17 were based upon Detective Perez's testimony.

The remaining findings of fact essentially explain where Detective Perez's affidavit was lacking as compared to his testimony:

18. The search warrant application and affidavit of probable cause presented to the magistrate on April 14, 2010, had significantly less detailed information than the foregoing 17 Findings of Fact. The application did name the officer applying for the warrant and the items to be seized. It described the premises to be searched and gave an address for the premises. The application suggests that the search will produce evidence of the crime of third-degree sexual exploitation of a minor as defined in N.C.G.S. 14-190.17A. The basic requirements for applying for the warrant are met.
19. The probable-cause affidavit did not describe Detective Perez's training and experience as a certified computer forensics examiner or even his basic training as a police officer.
*595 20. The affidavit never defines "known child pornography" or use[s] the statutory language set forth in N.C.G.S. 14-190.17A.
21.

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Cite This Page — Counsel Stack

Bluebook (online)
790 S.E.2d 592, 2016 N.C. App. LEXIS 975, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gerard-ncctapp-2016.