State v. Lowe

774 S.E.2d 893, 242 N.C. App. 335, 2015 N.C. App. LEXIS 633
CourtCourt of Appeals of North Carolina
DecidedJuly 21, 2015
DocketNo. COA14–1360.
StatusPublished
Cited by2 cases

This text of 774 S.E.2d 893 (State v. Lowe) 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. Lowe, 774 S.E.2d 893, 242 N.C. App. 335, 2015 N.C. App. LEXIS 633 (N.C. Ct. App. 2015).

Opinion

INMAN, Judge.

*335This appeal concerns the validity of a search warrant for a home and the scope of that warrant, as related to a vehicle in the driveway not owned or controlled by the resident of the home.

David Matthew Lowe ("defendant") appeals from judgments entered after he pled guilty to one count each of trafficking in *336methylenedioxymethamphetamine ("MDMA") by possession, trafficking in MDMA by transportation, and possession with intent to sell and deliver lysergic acid diethylamide ("LSD"). On appeal, defendant argues that the trial court erred by denying his motions to suppress because: (1) the search warrant issued for the residence where the vehicle containing defendant's belongings was parked lacked probable cause; and (2) even if the search warrant were validly issued, the search of the vehicle exceeded the scope of the warrant.

Although we conclude that the warrant was supported by probable cause, we agree with defendant that the search of the vehicle exceeded the scope of that warrant. Therefore, we reverse the trial court's denial of defendant's motion to suppress, vacate the underlying judgments, and remand for further proceedings.

Background

On 24 September 2013, Detective K.J. Barber ("Det. Barber") of the Raleigh Police Department filed an affidavit in support of a search warrant with the local magistrate. In the affidavit, Det. Barber swore to the following facts:

In September of 2013, I received information that a subject that goes by the name "Mike T" was selling, using and storing narcotics at 529 Ashbrooke [sic] Dr. Through investigative means, I was able to identify Terrence Michael Turner as a possible suspect.
Terrence Michael [T]urner, AKA: Michael Cooper Turner has been charged with PWISD Methylenedioxymethamphetamine, Possess Dimethyltryptamine, PWISD Psylocybin, PWISD Cocaine, Possess Heroin, PWIMSD Schedule I, Maintain a Vehicle/Dwelling, Trafficking in *896MDMA, Conspire to sell Schedule I and other drug violations dating back to 2001.
On 9/24/2013 I conducted a refuse investigation at 529 Ashebrook Dr. St [sic] Raleigh, NC 27609. The 96 gallon City of Raleigh refuse container was at the curb line in front of 529 Ashebrook Dr.
Detective Ladd removed one bag of refuse from the 96 gallon container and we took it to a secured location for further inspection. Inside the bag of refuse, I located correspondence to Michael Turner of 529 Ashebrook Dr. Raleigh, NC 27600, also in this bag of refuse, I located *337a small amount of marijuana residue in a fast food bag, which tested positive as marijuana utilizing a Sirche # 8 field test kit.

Based on these facts and his experience and training as a narcotics officer, Det. Barber averred to his belief that illegal narcotics, including marijuana, were being stored in and/or sold from Turner's residence. Det. Barber's affidavit described the residence to be searched as 529 Ashebrook Drive, but did not specify any vehicles to search. The magistrate issued a warrant to search 529 Ashebrook Drive.

On 25 September 2013, Det. Barber and other officers executed a search of the residence. Inside the home the officers encountered Turner and two overnight guests-defendant and defendant's girlfriend, Margaret Doctors ("Ms. Doctors"). Parked in the driveway of Turner's home was a Volkswagen rental car, which the officers learned was being leased by Ms. Doctors and operated by both defendant and Ms. Doctors. The officers were aware at that time that Turner had no connection to the vehicle, other than it being parked in his driveway. A search of the Volkswagen revealed a book bag containing documents with defendant's name and controlled substances.1

Defendant was indicted on 2 December 2013. Prior to trial, he moved to suppress all evidence against him on two grounds: (1) the warrant authorizing the search of Turner's residence was not supported by probable cause, and (2) even if the search warrant were validly issued, the search of the Volkswagen exceeded the scope of the warrant. The trial court conducted an evidentiary hearing on these motions on 7 and 8 July 2014. At the hearing, Det. Barber testified that he surveilled Turner's residence multiple times before applying for the search warrant, but never saw the Volkswagen until the day of the search. He also testified that he had never seen defendant at Turner's residence prior to the day of the search. Det. Barber said that it was normal protocol for police to search vehicles located on the premises of a residence for which they had a search warrant.

The trial court denied defendant's motions to suppress. It first concluded that the tip given to Det. Barber, corroborated by the presence of marijuana residue found in Turner's trash, was sufficient to establish probable cause to search his residence for the presence of narcotics. Second, the trial court concluded that the search of the Volkswagen did *338not exceed the scope of the warrant because the vehicle was parked within the curtilage of the home, which was specifically identified by address and physical description in the warrant.

After the trial court denied his motions to suppress, defendant pled guilty to all charges. He was sentenced to 35 to 51 months imprisonment for each count of trafficking in MDMA, which were to run concurrently, as well as 7 to 18 months imprisonment on the charge of possession with intent to sell and deliver LSD, set to run consecutive to the previous sentence. Defendant filed timely notice of appeal from these judgments.

I. Probable Cause

Defendant first argues that the warrant authorizing the search of Turner's residence was not supported by probable cause, and therefore any evidence gained from that search should have been suppressed.2 We disagree.

*897"Our scope of review of an order denying a motion to suppress evidence is '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. Johnson, 98 N.C.App. 290, 294, 390 S.E.2d 707, 709-10 (1990) (quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982) ). We review the trial court's conclusions of law de novo. State v. Edwards,

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Related

State v. Teague
817 S.E.2d 239 (Court of Appeals of North Carolina, 2018)
State v. Lowe
794 S.E.2d 282 (Supreme Court of North Carolina, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
774 S.E.2d 893, 242 N.C. App. 335, 2015 N.C. App. LEXIS 633, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lowe-ncctapp-2015.