IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-1099
Filed: 17 July 2018
Guilford County, Nos. 16 CRS 83453–54, 17 CRS 24408
STATE OF NORTH CAROLINA
v.
MICHAEL SHANE WINCHESTER
Appeal by defendant from judgments entered 3 August 2017 by Judge R.
Stuart Albright in Guilford County Superior Court. Heard in the Court of Appeals
11 April 2018.
Attorney General Joshua H. Stein, by Assistant Attorney General Marie H. Evitt and Special Deputy Attorney General Derrick C. Mertz, for the State.
Law Office of Barry C. Snyder, by Barry C. Snyder and Gabriel Snyder, for defendant.
ELMORE, Judge.
Defendant Michael Shane Winchester appeals from judgments entered after
he pled guilty to two counts of attempted heroin trafficking, one count of possession
with intent to sell and deliver heroin, and one count of keeping or maintaining a
dwelling to keep and sell heroin. He argues the trial court erred by denying his
motions to suppress evidence obtained pursuant to the executions of a warrant to
search his person, vehicle, and residence for drug dealing evidence, and by denying
his motion to suppress certain statements he made in response to police questioning STATE V. WINCHESTER
Opinion of the Court
while he was in custody and before he was read his Miranda rights. Because probable
cause supported the warrant, the searches and seizure were constitutionally
reasonable and, even if defendant’s responses should have been suppressed, any error
in the trial court’s ruling was harmless beyond a reasonable doubt. Accordingly, we
affirm the trial court’s order.
I. Background
The trial court’s unchallenged findings reveal the following facts. On 23
August 2016, after a three-months long police investigation prompted by a tip from a
confidential informant that defendant was dealing heroin, Detective Ryan C. Cole of
the Guilford County Sheriff’s Office obtained a warrant to search defendant’s
residence at 4103 Falconridge Road in Greensboro for drug dealing evidence. The
search warrant also identified a 2013 white-over-red Range Rover bearing the North
Carolina registration number DFD-7872 as one of three vehicles to be searched, and
authorized searches of defendant and Chasity Desiree Jeffries.
During the early morning that next day, Detective Cole held a tactical briefing
with a police taskforce organized to assist in executing the warrant. Detective Cole
discussed prior charges issued against defendant for possessing firearms, convictions
obtained against defendant related to drug activity, and defendant’s history of
keeping large dogs. The officers also discussed the possibility that others, including
Jeffries and possibly children, might be at the Falconridge residence. Due to these
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safety concerns, the officers decided to wait to execute the warrant to search the
Falconridge residence until after defendant left the premises.
Around 9:45 a.m., about two hours after surveilling officers had been stationed
outside the Falconridge residence, they observed defendant leave the residence, enter
the identified Range Rover, and drive away. Detective Cole instructed assisting
officers to stop the vehicle to execute the warrant to search defendant and the Range
Rover. The officers tailed Range Rover in their patrol cars for about two miles until
it pulled into an Advance Auto Parts parking lot and parked. The officers pulled into
the parking lot, informed defendant he was under investigation, and detained him in
handcuffs.
After Detective Cole arrived at the Advance Auto parking lot, he read
defendant the search warrant, and the officers executed the warrant by searching
defendant and the Range Rover. The search of defendant’s person yielded no
incriminating drug evidence. Although a police canine positively alerted for narcotics
at the Range Rover’s driver’s side door, the police search upon executing the warrant
ultimately yielded no drug evidence.
While defendant was still being held in investigative detention at Advance
Auto and before he was read his Miranda rights, Detective Cole informed defendant
about the warrant to search the Falconridge residence and asked him whether there
were any other people including children or aggressive dogs at the residence, or
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whether there were any weapons being stored there. In response to Detective Cole’s
questioning, defendant replied that he had never been to the Falconridge residence
and denied having any knowledge of or involvement with that residence.
Detective Cole then radioed authorization to the officers staking out the
Falconridge address to execute the search warrant on the residence. Those officers
announced “Sheriff’s Office, Search Warrant” three times and, after hearing no
response, broke down the front door using a ramming device. The entering officers
discovered Jeffries inside and detained her incident to the search. Soon after the
officers entered the premises, defendant was returned to the Falconridge residence
while the officers completed their search. That search revealed a large quantity of
heroin stored in the kitchen, as well as several items related to packaging and
distributing illegal drugs.
On 7 November 2016, a grand jury indicted defendant for maintaining a
dwelling to keep and sell heroin, trafficking heroin by possessing twenty-eight grams
or more of heroin, and possession with intent to sell or deliver heroin. On 10 March
2017, defendant moved to suppress all evidence seized from the searches of his person
and the Range Rover at Advance Auto, and from the search of the Falconridge
residence, as well as all statements he made in response to police questioning before
he was read his Miranda rights.
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After a 9 May 2017 suppression hearing, the trial court entered an order that
in relevant part denied defendant’s motion to suppress the evidence seized pursuant
to the execution of the warrant, as well as his responses to Detective Cole’s
questioning about the Falconridge residence while he was in custody at Advance
Auto.1 The trial court concluded in relevant part the search warrant was supported
by probable cause; defendant’s seizure was reasonable; the execution of the warrant
on the Falconridge residence neither violated our General Statutes nor defendant’s
constitutional rights; and defendant’s responses to Detective Cole’s questioning at
Advance Auto were admissible, despite not having been advised of his Miranda
rights, because the questioning fell under the “public safety” exception to the Miranda
requirement. See New York v. Quarles, 467 U.S. 649, 104 S. Ct. 2626 (1984).
On 3 August 2017, defendant entered a plea agreement in which he pled guilty
to two counts of attempted heroin trafficking by manufacturing twenty-eight grams
or more of heroin and by possessing twenty-eight grams or more of heroin, possession
with intent to sell and deliver heroin, and maintaining a dwelling to keep and sell
heroin, while reserving his right to appeal the trial court’s suppression rulings. The
trial court sentenced defendant to two consecutive terms of sixty to eight-four months
in prison. Defendant appeals.
II. Analysis
1 The trial court granted defendant’s motion to suppress certain other statements he made while in custody and after he was transported from Advance Auto, but those rulings are not at issue on appeal.
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On appeal, defendant contends the trial court erred by denying his suppression
motions on the following grounds: (1) the searches of his person and vehicle were
constitutionally unreasonable because the warrant lacked probable cause; (2) the
seizure of his person was constitutionally unreasonable because he was detained too
far away from the residence to constitute a lawful detention incident to the execution
of a search warrant on the premises, see Bailey v. United States, 568 U.S. 186, 133 S.
Ct. 1031 (2013); (3) the search of the residence was unreasonable because the officers
violated N.C. Gen. Stat. § 15A-251’s knock-and-announce requirement; and (4) his
responses to Detective Cole’s questioning at Advance Auto about the Falconridge
address were obtained in violation of his Miranda rights.
A. Review Standard
Our 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). But where, as
here, a defendant fails to challenge the evidentiary support of any finding, our review
is further “limited to whether the trial court’s findings of fact support its conclusions
of law.” State v. Cheek, 351 N.C. 48, 63, 520 S.E.2d 545, 554 (1999) (citing State v.
Watkins, 337 N.C. 437, 438, 446 S.E.2d 67, 68 (1994)). “The trial court’s conclusions
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of law . . . are fully reviewable on appeal.” State v. Hughes, 353 N.C. 200, 208, 539
S.E.2d 625, 631 (2000).
B. Searches of Defendant and his Vehicle
Defendant first asserts the searches of his person and vehicle were
unreasonable because the warrant lacked probable cause. He concedes Detective
Cole’s “search warrant application may [have] support[ed] probable cause for a search
of the [Falconridge residence] . . . based upon the trash pulls” but argues it failed to
provide probable cause to search him or his vehicle. According to defendant, the
allegations of the warrant application supporting those searches were founded upon
unreliable statements from a confidential informant, and the drug dealing evidence
recovered from the multiple trash pulls at the Falconridge residence was “ ‘stale’ and
lacked any connection to [him].” We disagree.
A search warrant affidavit must contain sufficient information to establish
probable 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. Arrington, 311
N.C. 633, 636, 319 S.E.2d 254, 256 (1984) (citing State v. Riddick, 291 N.C. 399, 406,
230 S.E.2d 506, 511 (1976)). “A magistrate must ‘make a practical, common-sense
decision,’ based on the totality of the circumstances, whether there is a ‘fair
probability’ that contraband will be found in the place to be searched.” State v.
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McKinney, 368 N.C. 161, 164, 775 S.E.2d 821, 824 (2015) (quoting Illinois v. Gates,
462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983)). “We review de novo a trial court’s
conclusion that a magistrate had probable cause to issue a search warrant.” State v.
Worley, ___ N.C. App. ___, ___, 803 S.E.2d 412, 416 (2017) (citing State v. Allman, 369
N.C. 292, 296–97, 794 S.E.2d 301, 305 (2016)).
Here, the trial court issued the following unchallenged findings:
2. . . . [D]uring the months of April and May 2016, Detective . . . Cole . . . learned that the defendant may be selling heroin and other dangerous drugs from a residence located on Falcon Ridge Court in Greensboro, North Carolina;
3. . . . [A] confidential informant known to Detective Cole advised that the defendant was using a Red and White Land Rover Range Rover to transport heroin and other dangerous drugs to and from the subject premises, and further selling dangerous drugs from the vehicle. The confidential informant was able to provide an accurate description of the [Range Rover], including providing an accurate license tag number;
....
5. . . . [B]ased upon the information provided by the confidential informant, Detective Cole began a criminal investigation of the defendant, the [Range Rover] and ultimately the [Falconridge residence];
6. . . . [A]s part of Detective Cole’s investigation, [he] applied for and received authorization to put an electronic GPS tracking device on the [Range Rover];
7. . . . Detective Cole solicited the assistance of other deputies with the Sheriff’s Office and officers with assisting agencies to conduct visual surveillance of the defendant
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and the defendant’s activities, including locations the defendant frequented while driving the [Range Rover];
8. . . . [B]ased upon the electronic and visual surveillance of the defendant and the [Range Rover], Detective Cole learned that the defendant appeared to reside at the [Falconridge] residence;
9. . . . [A]s a result of the electronic and visual surveillance, Detective Cole learned that the defendant frequented locations known for the sale of illegal drugs, including heroin, including a residence . . . well known to Detective Cole to be a location where dangerous drugs were sold;
10. . . . [O]n August 14, 2016 the defendant was stopped, at the direction of Detective Cole, while operating the [Range Rover]. At that stop the defendant’s vehicle was displaying a fictitious or altered license tag, and the defendant was operating the [Range Rover] at a time when his driving privileges had been suspended or revoked. The defendant was arrested for these offenses on that date;
11. . . . Detective Cole, with assistance of other law enforcement officers working on the criminal investigation of the defendant, performed several “trash pulls” at the [Falconridge] residence;
12. . . . [T]he aforementioned “trash pulls” at the [Falconridge] residence yielded contents including paraphernalia that tested positive for the presence of heroin and cocaine, as well as utility bills and other paper material that demonstrated that the defendant resided at the [Falconridge] residence;
13. . . . [T]he most recent “trash pull” that yielded material testing positive for dangerous drugs had occurred within one week of the subject searches[.]
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These binding findings support the trial court’s conclusion that the magistrate
had probable cause to issue the warrant to search defendant and the Range Rover for
drug dealing evidence. The confidential informant’s statements were corroborated by
the months-long police investigation, the drug dealing evidence recovered from the
multiple trash pulls was not stale, and the allegations sufficiently linked defendant
and the Range Rover to the Falconridge residence and the known drug evidence.
In his warrant affidavit, Detective Cole alleged that police surveilling
defendant observed him driving the identified Range Rover multiple times; visual
and electronic surveillance of the Range Rover revealed it frequented places known
to be involved in drug dealing activity and would “travel to locations, stay a short
amount of time, and then leave the locations,” which Detective Cole opined, in his
experience, was “behavior . . . indicative of narcotics distribution”; and police observed
the Range Rover parked in the Falconridge residence driveway. Additionally, police
at least twice observed defendant leaving the Falconridge residence, that residence
was listed as defendant’s most recent address in a DMV database, utilities to the
Falconridge residence were held in defendant’s name, the report generated after a
911 complaint regarding unleashed animals at the Falconridge residence indicated
defendant was “the owner of two or three pit bulls which were running loose,” and
trash pulls on three occasions revealed drug dealing evidence and letters addressed
to defendant and other documents listing his name.
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Under the totality of the circumstances, Detective Cole’s warrant affidavit
sufficiently linked defendant and the Range Rover to the drug dealing evidence
recovered from the trash pulls at the Falconridge residence. Additionally, based on
the affidavit reciting multiple trash pulls at the Falconridge residence revealing drug
dealing evidence, the last occurring one week prior to the warrant application, this
evidence was not stale under the circumstances. See State v. McCoy, 100 N.C. App.
574, 577, 397 S.E.2d 355, 358 (1990) (“[W]here the affidavit properly recites facts
indicating activity of a protracted and continuous nature, a course of conduct, the
passage of time becomes less significant. The continuity of the offense may be the
most important factor in determining whether the probable cause is valid or stale.”
(citations omitted)). Because Detective Cole’s warrant affidavit supplied the
magistrate probable cause to issue a warrant to search defendant and the Range
Rover for drug evidence, the trial court properly denied defendant’s motion to
suppress the evidence obtained pursuant to the execution of that warrant based upon
its validity.
C. Seizure of Defendant
Defendant next asserts his seizure at Advance Auto was unreasonable under
Bailey v. United States, 568 U.S. 186, 133 S. Ct. 1031 (2013), because it occurred two
miles away from the Falconridge residence. Although Bailey instructs that police
detentions of occupants incident to the execution of a search warrant on a premises
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is spatially contained to the “immediate vicinity of a premises to be searched,” id. at
201, S. Ct. at 1043, defendant’s reliance on Bailey is misguided.
In Bailey, the defendant-occupants were “stopped and detained at some
distance from the premises to be searched” and because the search warrant applied
only to the premises, “the only justification for the detention was to ensure the safety
and efficacy of the [premises] search.” Id. at 189–90, 133 S. Ct. at 1035. Since the
Court concluded the reasonableness of an occupant’s detention incident to the
execution of a search warrant “must be limited to the immediate vicinity of the
premises covered by a search warrant,” id. at 199, 133 S. Ct. at 1041, it held the
lawful warrant issued to search the premises did not justify seizing the former
occupants about one mile away from the premises to be searched. Id. at 202, 133 S.
Ct. at 1043. The Bailey Court therefore remanded the case with instructions for the
lower court to determine whether the officers had an independent justification for
seizing the occupants. Id.; see also id. at 202, 133 S. Ct. at 1042 (“If officers elect to
defer the detention until the suspect or departing occupant leaves the immediate
vicinity, the lawfulness of detention is controlled by other standards, including, of
course, a brief stop for questioning based on reasonable suspicion under Terry or an
arrest based on probable cause.”).
Here, contrarily, the warrant was issued to search both the Falconridge
address and defendant’s person for drug dealing evidence. Further, the warrant
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affidavit, supported by the months-long police investigation, provided an independent
justification for detaining defendant. Because the officers here had independent
probable cause to arrest defendant in connection with the known drug dealing
evidence recovered from the trash pulls at the Falconridge residence or, at a
minimum, reasonable suspicion to believe defendant had been involved in dealing
drugs sufficient to justify briefly detaining and questioning him about that activity,
the justification for seizing him at Advance Auto was not limited to the issuance of
the warrant to search the Falconridge residence. Therefore, the trial court properly
denied defendant’s motion to suppress on the basis that his seizure was unreasonable.
D. Search of the Residence
Defendant next asserts the trial court erred by denying his motion to suppress
because the search of the Falconridge residence was unreasonable. He argues “[t]he
officers deliberately waited until Defendant vacated the premises before breaking
open the door without knocking and announcing their presence,” thereby
substantially violating N.C. Gen. Stat. § 15A-249’s knock-and-announce requirement.
See N.C. Gen. Stat. § 15A-974(a)(2) (2017) (requiring the suppression of evidence if
“obtained as a result of a substantial violation of the provisions of . . . Chapter [15A]”
(emphasis added)). We disagree.
N.C. Gen. Stat. § 15A-249 (2017) provides in pertinent part that an
officer executing a search warrant must, before entering the premises, give appropriate notice of his identity and
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purpose to the person to be searched, or the person in apparent control of the premises to be searched. If it is unclear whether anyone is present at the premises to be searched, he must give the notice in a manner likely to be heard by anyone who is present.
N.C. Gen. Stat. § 15A-251 (2017) authorizes an officer to
break and enter any premises . . . when necessary to the execution of the warrant if:
(1) The officer has previously announced his identity and purpose as required by G.S. 15A-249 and reasonably believes either that admittance is being denied or unreasonably delayed or that the premises or vehicle is unoccupied; or
(2) The officer has probable cause to believe that the giving of notice would endanger the life or safety of any person.
Here, the trial court issued the following unchallenged findings as to the
officers’ execution of the search warrant on the Falconridge residence:
41. . . . [P]rior to executing the Search Warrant upon the residence, Detective Stacy Garrell loudly announced three (3) times that officers would be entering the residence for purposes [of] execution of the search warrant by yelling “Sheriff’s Office, Search Warrant” prior to making entry into the [Falconridge] residence;
42. . . . [A]fter waiting a reasonable time and hearing no response from any occupant that may be in the [Falconridge] residence, Detective Jeff Murphy made forced entry into the residence by use of a ramming device[.]
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These binding findings establish the officers announced their presence
concordant with section 15A-249’s knock-and-announce requirement and “after
waiting a reasonable time and hearing no response” were authorized under section
15A-251 to break and enter into the residence. Defendant has failed to demonstrate
the officers’ execution of the warrant violated the challenged provision of Chapter
15A—much less amounted to a “substantial” violation necessary to justify
suppressing evidence under section 15A-974(a)(2). Therefore, the trial court properly
denied defendant’s motion to suppress on this basis.
E. Responses to Police Questioning
Defendant next asserts the trial court erred by denying his motion to suppress
his responses to Detective Cole’s questioning at Advance Auto because they were
made while he was in custody and before he was advised of his Miranda rights. The
State first responds that Detective Cole’s questioning was permissible, and thus
defendant’s responses were admissible, under the “public safety” exception the
Miranda requirement. See Quarles, 467 U.S. at 655–56, 104 S. Ct. at 2631
(recognizing a “narrow exception to the Miranda rule” when police questioning is
limited solely to obtaining information necessary to secure public safety). The State
next argues that, even if the questioning exceeded Quarles’ narrow public safety
exception and therefore defendant’s responses should have been suppressed,
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defendant cannot establish prejudicial error. We agree any alleged error in the trial
court’s ruling was harmless beyond a reasonable doubt.
Here, the trial court issued the following unchallenged findings:
32. . . . [W]hile the defendant was still in investigative detention [at Advance Auto], including his being handcuffed and seated in the back seat of Deputy Phillips’ patrol vehicle, Detective Cole asked the defendant several questions relative to the residence that was a subject of the Search Warrant;
33. . . . [N]either Detective Cole or any other law enforcement officer informed the defendant of his rights pursuant to Miranda v. Arizona before questioning the defendant;
34. . . . [T]he purpose for Detective Cole’s asking the defendant about the residence was to ascertain whether other subjects may be within the [Falconridge] residence, including children, and whether there may be firearms, aggressive dogs or other circumstances that may pose a danger to officers or other persons, consistent with the defendant’s history;
35. . . . Detective Cole did not ask questions of the defendant for investigative purposes or for the purpose of eliciting inculpatory statements from the defendant;
36. . . . [I]n response to Detective Cole’s questions, the defendant stated he had never been in the [Falconridge] residence, did not know anything about the [Falconridge] residence and disavowed any control over the residence. Detective Cole confronted the defendant about officers having observed the defendant leaving the [Falconridge] residence, which the defendant likewise denied[.]
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Although defendant has not identified on appeal any particular incriminating
statement he made in response to Detective Cole’s questioning about the potential
safety concerns of executing the warrant to search the Falconridge residence,
defendant’s responses merely denied his knowledge of or involvement with that
residence. In light of the non-inculpatory nature of defendant’s responses, and the
State’s overwhelming evidence linking defendant to the Falconridge residence, even
if Detective Cole’s questioning exceeded Quarles’s narrow public safety exception to
the Miranda requirement, we conclude any error in the trial court’s ruling was
harmless beyond a reasonable doubt. Accordingly, we overrule this argument.
III. Conclusion
Because the warrant issued to search defendant and the Range Rover was
supported by probable cause, the trial court properly denied defendant’s motion to
suppress based on the validity of the warrant. Because the warrant and months-long
police investigation justified defendant’s detention independent from his status as an
occupant of a premises subject to a search warrant, the trial court properly denied
defendant’s motion to suppress on the basis that his seizure was unreasonable.
Because the trial court’s findings established that the officers’ execution of the search
warrant on the Falconridge residence complied with section 15A-249’s knock-and-
announce requirement, the trial court properly determined there was no
“substantial” Chapter 15A violation that would require the suppression of evidence
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under section 15A-974(a)(2). Finally, even if Detective Cole’s questioning fell outside
Quarles’ narrow public safety exception to the Miranda requirement, we conclude any
alleged error in the trial court’s ruling defendant’s responses were admissible was
harmless beyond a reasonable doubt in light of the non-incriminating nature of those
statements and the overwhelming evidence linking defendant to the Falconridge
residence. Accordingly, we affirm the trial court’s suppression order.
AFFIRMED.
Judges HUNTER, JR. and DAVIS concur.
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