State v. Sinapi

596 S.E.2d 822, 164 N.C. App. 56, 2004 N.C. App. LEXIS 691

• Court: Court of Appeals of North Carolina
• Decided: May 4, 2004
• Docket: COA03-821
• Status: Published

Opinions

ELMORE, Judge.

In this appeal, the State contends the trial court erred by allowing defendant Robert Charles Sinapi’s pretrial motion to suppress evidence obtained from a search of defendant’s home pursuant to a search warrant. The sole issue for our determination is whether the affidavit presented to the magistrate as part of the search warrant application provided a sufficient showing of probable cause to support the magistrate’s finding of probable cause and issuance of the warrant. For the reasons stated herein, we conclude that it did not and therefore affirm the trial court’s order allowing defendant’s motion to suppress.

The record reveals that on 30 September 2002, during the course of investigating defendant for possible violations of the North Carolina Controlled Substances Act, Detective J.G. Hobby (Detective Hobby) of the Raleigh Police Department applied to a Wake County magistrate for a warrant to search a residence located at 3300 Pinecrest Drive in Raleigh, North Carolina for controlled substances and other evidence of illegal drug activities. As part of the search warrant application pursuant to N.C. Gen. Stat. § 15A-244(3), Detective Hobby prepared an affidavit setting forth the facts which he contended established probable cause to believe that these items would be found on the premises. Detective Hobby’s affidavit recounted his extensive training and experience in conducting narcotics investigations and further provided as follows:

On 9-05-02, I was assigned to follow-up on a drug case investigated by Raleigh Police Officer V.R. Debonis involving a heroin overdose. The investigation advised that the heroin was purchased from [defendant]. I was able to identify [defendant] through [the] NC Division of Motor Vehicles records and learned that he resides at 3300 Pinecrest Drive, Raleigh, NC 27609. A criminal records check reveals that [defendant] has had prior arrests for possession of marijuana and methaqualone. On 9-26-02 at approximately [8 a.m.], Detective J.D. Cherry and I performed a trash pick-up at 3300 Pinecrest Drive. This trash pick-up was made during the normal trash day and time. A single, white plastic garbage bag was recovered from the front yard/curb line area at 3300 Pinecrest Drive, beside of [sic] the driveway. Inside of [sic] the garbage bag I located eight marijuana plants. The plants appeared to be somewhat dried up and wilted. The marijuana weighed approximately 5% ounces. The marijuana was field tested with a positive result for marijuana. Based on my training and experience, this activity is consistent with a possible marijuana grow [sic] operation and illegal drug sales.

Wake County Real Estate records indicate that [defendant] owns the residence at 3300 Pinecrest Drive. NC DMV records indicate that [defendant] resides at this address.

This investigation has included a recent drug investigation where [defendant] is believed to be involved in the sell/delivery [sic] of an illicit drug, heroin. Criminal records indicate that he has prior arrests for possession of marijuana and methaqualone. An abundance of marijuana was recovered as a result of the trash pick-up at the residence. Based on the facts described above and my training and experience, I believe that there is probable cause to believe that the items to be seized, controlled substances in violation of G.S. 90-95 and other items herein, are in the premises and on the person to be searched, as described herein. I hereby request that a search warrant be issued directing a search for and seizure of the items in question.

The magistrate thereafter issued a search warrant for the premises at 3300 Pinecrest Drive, which was executed by Detective Hobby and other police officers on 1 October 2002. Defendant was present when the officers entered the residence. During the search, controlled substances, including heroin, cocaine, and marijuana, and drug paraphernalia were found in the residence. Defendant was arrested following the search and thereafter indicted on 6 January 2003 on one count each of manufacturing marijuana, trafficking in marijuana by possession, trafficking in heroin by possession, trafficking in cocaine by possession, and maintaining a dwelling for keeping and selling controlled substances.

On or about 27 January 2003, defendant filed a pretrial motion to suppress all evidence seized during the search of the residence. Defendant’s motion was heard on 5 February 2003 by the Honorable Howard E. Manning, Jr. At the suppression hearing, the State introduced the search warrant and application for the warrant, including Detective Hobby’s accompanying affidavit, into evidence. The State also offered additional evidence through the testimony of Detective Hobby. Defendant offered no evidence at the hearing.

Detective Hobby’s testimony was consistent with the affidavit he prepared as part of the search warrant application for 3300 Pinecrest Drive, although his hearing testimony contained additional details regarding the trash bag pick-up he and Detective Cherry executed in front of the residence. Detective Hobby testified that the trash bag was situated in the yard at 3300 Pinecrest Drive near the curb, “approximately three to four feet from the driveway at the corner of the lot,... approximately four to five feet off the roadway.” Detective Hobby testified that at the time he picked up the trash bag, the garbage collection truck was in the neighborhood but had not yet reached Pinecrest Drive. On cross examination, Detective Hobby acknowledged that Raleigh has backyard garbage pick-up and that neither he nor Detective Cherry spoke to any of the sanitation workers who were then in the area or otherwise determined how the trash bag came to be situated where it was found. Detective Hobby testified that in addition to the marijuana, the trash bag contained “normal kitchen garbage” and that no documents connecting the trash bag to any person or address were found therein.

After hearing argument from the assistant district attorney and from defendant’s counsel, Judge Manning orally granted defendant’s motion to suppress all evidence obtained as a result of the search of the residence at 3300 Pinecrest Drive. On 13 March 2003, Judge Manning entered a written order allowing the motion to suppress, which contained extensive findings of fact and the following conclusions of law:

1. The discovery of marijuana in a garbage bag located near the curb of the street and adjacent to the driveway at 3300 Pinecrest Drive on a normal garbage pick up day without any documentation linking the bag to the residence or the defendant and without any showing as to how, when and by whom it was placed along the curb, does not implicate the residence located at 3300 Pinecrest Drive and provides no reasonable basis to believe that controlled substances would be found therein or on the defendant.

2. The affidavit portion of the search warrant herein did not provide sufficient facts and circumstances to establish probable cause to believe that the items sought were located upon the premises of 3300 Pinecrest Drive.

3. The resulting search violated the rights of the defendant afforded him under Chapter 15A of the North Carolina General Statutes, the Constitution of North Carolina and the Constitution of the United States.

4. The evidence obtained as a result of the search conducted on September 30, 2002 at 3300 Pinecrest Drive, together with the fruits of that search, are inadmissible in the trial of the defendant.

From this order granting defendant’s motion to suppress, the State appeals, asserting that the trial court erred by concluding that Detective Hobby’s affidavit supporting his search warrant application failed to establish probable causé.

“Our review of a ruling on a motion to suppress is limited to whether the trial court’s findings are supported by competent evidence and whether those findings support its ultimate conclusions.” State v. McHone, 158 N.C. App. 117, 120, 580 S.E.2d 80, 83 (2003). In the present case, the State has not challenged any of the trial court’s findings of fact; as such, they are binding on appeal. State v. Pendleton, 339 N.C. 379, 389, 451 S.E.2d 274, 280 (1994), cert. denied, 515 U.S. 1121, 132 L. Ed. 2d 280 (1995). Accordingly, the sole issue for our determination is whether the trial court’s conclusions of law are supported by these findings.

In McHone, this Court discussed the requirement that a search warrant application be supported by an affidavit establishing probable cause, stating in pertinent part as follows:

A valid search warrant application must contain “[a]negations of fact supporting the statement. The statements must be supported by one or more affidavits particularly setting forth the facts and circumstances establishing probable cause to believe that the items are in the places or in the possession of the individuals to be searched.” N.C. Gen. Stat. § 15A-244(2) (2001) (emphasis added). Although the affidavit is not required to contain all evi-dentiary details, it should contain those facts material and essential to the case to support the finding of probable cause. State v. Flowers, 12 N.C. App. 487, 183 S.E.2d 820, cert. denied, 279 N.C. 728, 184 S.E.2d 885 (1971).... The clear purpose of these requirements for affidavits supporting search warrants is to allow a magistrate or other judicial official to make an independent determination as to whether probable cause exists for the issuance of the warrant under N.C. Gen. Stat. § 15A-245(b) (2001). N.C. Gen. Stat. § 15A-245(a) requires that a judicial official may consider only information contained in the affidavit, unless such information appears in the record or upon the face of the warrant.

McHone, at 120, 580 S.E.2d at 83. The supporting affidavit is sufficient “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.” State v. Ledbetter, 120 , 461 S.E.2d 341, 344 (1996) (quoting State v. Arrington, 311 N.C. 633, 636, 319 S.E.2d 254, 256 (1984)).

Our Supreme Court has adopted the “totality-of-the-circumstances” test established by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 238-39, 76 L. Ed. 2d 527, 548, reh’g denied, 463 U.S. 1237, 77 L. Ed. 2d 1453 (1983), for determining whether information properly before the magistrate as part of a search warrant application provides a sufficient basis for finding probable cause. State v. Arrington, 311 N.C. 633, 641, 319 S.E.2d 254, 259 (1984). On review, this Court must pay great deference to and sustain the magistrate’s determination of probable cause “if there existed a substantial basis for the magistrate to conclude that articles searched for were probably present.” State v. Hunt, 150 N.C. App. 101, 105, 562 S.E.2d 597, 600 (2002).

In the present case, we first note and reject the State’s assertion that the trial court’s review of the magistrate’s decision to issue the search warrant was not properly limited to a determination of whether the magistrate had a substantial basis to find probable cause, but instead constituted a de novo review of the evidence. Because we conclude that Detective Hobby’s affidavit fails to set forth a sufficient connection between the trash bag at issue and either the residence at 3300 Pinecrest Drive or defendant such that the magistrate could properly find the “substantial basis” necessary for probable cause, we fail to discern any error in the standard of review employed by the trial court.

Our review of the transcript indicates that the bulk of the argument at the suppression hearing focused on whether the facts set forth in Detective Hobby’s affidavit sufficiently linked the trash bag to defendant or his residence, such that a substantial basis existed under North Carolina law for the magistrate to find probable cause and issue the search warrant. It was undisputed that defendant had drug convictions which were several years old, that defendant was the subject of a current drug investigation, and that defendant was the record owner of the residence located at 3300 Pinecrest Drive. The State essentially argued that these facts, combined with the presence of a single trash bag containing eight marijuana plants in the front yard of 3300 Pinecrest Drive near the curb on a normal garbage collection day, provided the requisite “substantial basis” upon which the magistrate could properly find probable cause and issue the search warrant. Defendant, however, maintained that because Detective Hobby’s affidavit failed to allege (1) that any documents were found inside the trash bag linking it with either 3300 Pinecrest Drive or defendant, or (2) that Detective Hobby observed defendant, sanitation workers, or anyone else place the trash bag where it was ultimately found, or otherwise determined how it came to be there, the affidavit was insufficient to connect the trash bag to defendant or his residence in a manner which would allow the magistrate to properly find probable cause under existing North Carolina law.¹

At the conclusion of the suppression hearing, Judge Manning framed the issue as follows:

The test is very simple. The test is, is that having a garbage bag out in somebody’s yard, in your yard on the day in question without... asking the garbage men to go get it, or even seeing the garbage man come out or seeing the Defendant or seeing somebody in that house put that garbage bag out there, is the garbage bag standing alone enough?

Judge Manning then ruled as follows from the bench:

.... I’ve thought about it. And I do not believe that that is enough.

So the motion to suppress is allowed. ... I don’t believe that it is enough, standing alone, without any — anything else, that the garbage bag in the yard on garbage day without the officers seeing some contact between somebody in the house and the garbage come out, or the garbage man going and getting it and giving it to him. If that was there, there would be probable cause, but without that link, I don’t think you have probable cause ....

On appeal, the State asserts that despite this lack of any evidence directly linking the trash bag to either 3300 Pinecrest Drive or defendant, the totality of the circumstances as set forth in Detective Hobby’s affidavit allowed the magistrate to reasonably infer that the marijuana found therein came from inside the residence, and this inference in turn provided a substantial basis for the magistrate to find probable cause that further contraband would be found on the premises. We disagree.

North Carolina appellate courts have previously upheld the validity of search warrants issued where, as here, part of the totality of the circumstances implicating the premises to be searched included illegal drug residue found in garbage collected from on or near the premises. See State v. Hauser, 342 N.C. 382, 464 S.E.2d 443 (1995); State v. Washington, 134 N.C. App. 479, 518 S.E.2d 14 (1999). We recognize that in both Hauser and Washington, the only issue decided on the merits was whether the warrantless search of the garbage itself violated the Fourth Amendment; in each case, the appellate court held that it did not, and declined for technical reasons to address the specific issue of whether the drug residue found therein provided the substantial basis for probable cause necessary to support the search warrants subsequently issued for each premises. However, given the fact-intensive nature of the issue presented by the instant appeal, we find the circumstances under which the police retrieved the garbage in Hauser and Washington instructive in our analysis of the present case.

We find it significant that in both Hauser and Washington, the circumstances surrounding each garbage retrieval provided a much more substantial link between the garbage collected and the premises for which a search warrant was sought than is present in the case sub judice. For example, in Hauser, the police obtained a search warrant for the defendant’s residence based on the presence of cocaine residue in garbage which, by pre-arrangement between the police and the local sanitation department, was collected from the defendant’s back yard in the usual fashion by a sanitation worker who regularly serviced the neighborhood, separated from other garbage, and turned over to police. Hauser, 342 N.C. at 384, 464 S.E.2d at 445. In Washington, where the police obtained a search warrant for the defendant’s apartment based on drug residue found inside two garbage bags removed from the apartment community dumpster, the garbage bags were retrieved from the dumpster by a police officer conducting surveillance on the defendant’s apartment immediately after he observed a man matching the defendant’s description emerge from the defendant’s apartment carrying two white plastic garbage bags tied closed with yellow strips, deposit them in the dumpster, and return to the defendant’s apartment. Washington, 134 N.C. App. at 481, 518 S.E.2d at 15.

In contrast to the scenarios described in Hauser and Washington, we hold in the present case that because Detective Hobby’s affidavit in support of his search warrant application does not contain sufficient facts and circumstances linking the trash bag retrieved by Detective Hobby to 3300 Pinecrest Drive, it fails to establish a “substantial basis for the magistrate to conclude that articles searched for were probably present.” Hunt, 150 N.C. App. at 105, 562 S.E.2d at 600. The only circumstances stated in the affidavit connecting the trash bag to the premises are that the trash bag was retrieved “during the normal trash day and time[]” and “from the front yard/curb line area at 3300 Pinecrest Drive, beside of [sic] the driveway.” The affidavit does not state that any written documents were found in the trash bag connecting it with either defendant or his residence. The affidavit contains no assertions that Detective Hobby observed defendant or anyone else connected to the residence at 3300 Pinecrest Drive place the bag where it was found. The affidavit likewise fails to assert that Detective Hobby spoke with any of the sanitation workers he observed in the area on the morning of the trash pick-up to determine whether any of them had removed the trash bag from the back yard of 3300 Pinecrest Drive, or any of the surrounding residences, and placed it near the curb for later retrieval by the garbage truck, in keeping with the City of Raleigh’s back-yard garbage pick-up service. In fact, Detective Hobby testified at the suppression hearing that none of these circumstances existed.

It is clear, both from our review of the suppression hearing transcript and from the findings of fact contained in the order allowing defendant’s motion to suppress, that Judge Manning noted each of these circumstances in carefully considering the totality of the circumstances presented on these facts. Given the dearth of facts and circumstances connecting the trash bag containing contraband to the premises for which the search warrant was sought, we agree with the trial court’s conclusion that Detective Hobby’s search warrant application failed to provide the requisite “substantial basis” upon which the magistrate could properly find probable cause and issue the search warrant. Accordingly, we affirm the trial court’s order allowing defendant’s motion to suppress.

Affirmed.

Judge BRYANT concurs. Judge McCULLOUGH dissents by separate opinion.

1 . The order allowing defendant’s motion to suppress contained extensive findings of fact which were consistent with the facts as argued by the parties at the suppression hearing and set forth herein. As noted above, the State has not excepted to any of the trial court’s findings of fact.