State v. Logan

IN THE COURT OF APPEALS OF NORTH CAROLINA

2021-NCCOA-311

No. COA20-650

Filed 6 July 2021

Cleveland County, Nos. 17 CRS 56572, 19 CRS 1728

STATE OF NORTH CAROLINA,

v.

WILLIAM MAURICE LOGAN, Defendant.

Appeal by defendant from judgment entered 30 October 2019 by Judge Gregory

R. Hayes in Cleveland County Superior Court. Heard in the Court of Appeals 26 May

2021.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Joseph

E. Elder, for the State.

W. Michael Spivey for Defendant-Appellant.

CARPENTER, Judge.

¶1 William Maurice Logan (“Defendant”) appeals from judgment entered upon a

jury’s verdict finding him guilty of possession of a firearm by a felon pursuant to N.C.

Gen. Stat. § 14-415.1 and attaining habitual felon status pursuant to N.C. Gen. Stat.

§ 14-7.1. On appeal, Defendant argues the trial court erred by denying his motion to

suppress evidence obtained by a search warrant that was based on stale information,

unsupported by probable cause, and overbroad. For the following reasons, we reverse

the trial court’s ruling on Defendant’s motion to suppress, vacate the judgment, and

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grant Defendant a new trial.

I. Factual & Procedural Background

¶2 The evidence at trial tended to show the following: at approximately 2:48 a.m.

on 17 December 2017, officers from the Shelby Police Department were dispatched to

the business address of 801 South Lafayette Street in Shelby, North Carolina, in

response to a citizen’s service call regarding a “loud noise” complaint.

¶3 At about 2:53 a.m., Detective Brandon Smith (“Detective Smith”), the lead

officer on the case, and Officer Brent Walker (“Officer Walker”) arrived at the address

in response to the call. The officers parked across the street “[b]ecause the parking

lot of the building was packed with other vehicles.” As the officers reached the

parking lot, they heard loud music and detected “a strong odor of burnt marijuana”

coming from the building. Detective Smith testified that there were approximately

one hundred people in the building before the officers were able to enter and secure

it. Defendant corroborated this estimate in his affidavit in support of the motion to

suppress by stating that on the evening in question, he “opened [his] place of business

to be used as a venue for a party and had over one hundred guests . . . come.”

¶4 Defendant approached the officers as they walked into the parking lot of 801

South Lafayette Street; he told them several times it was “his building,” and he was

throwing a party. In his affidavit, Defendant declared he was “the lawful

occupant/tenant of the premises” located at that address, and he used the building as

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an “auto detail shop.” The officers informed Defendant that their “reason for being

there was the noise ordinance.” Defendant responded that he would “try to get the

music turned down.” The officers advised Defendant that they would have to further

investigate the issue of the marijuana odor. Defendant did not consent to the officers

searching the building. Detective Smith then called Sergeant Gabe McKinney

(“Sergeant McKinney”) on the dispatch radio and requested that he come to the

location and “assist with the application of a search warrant.” As they prepared to

apply for the warrant, Defendant ran to the door of the building and told the

attendees, “[l]ock the door, don’t let anybody in.” An attendee locked the door from

the inside.

¶5 Defendant remained outside with Officer Smith and the other officers while

the warrant was obtained. Detective Smith and Officer Walker testified that while

they were waiting, the officers heard a “metallic bang” come from inside the building.

According to Detective Smith, they then saw through a crack in the curtains “flashing

lights[,] someone erecting a ladder,” and then someone climbing up the ladder.

¶6 Approximately twenty to thirty minutes after the officers arrived, they made

entry as individuals exited from the door, and secured the building to ensure officer

safety. The officers attempted to search consenting individuals as they exited the

building; however, because those consenting outnumbered officers, not everyone

could be searched. Of the individuals who were searched, no “guns, ammunition,

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contraband, or narcotics” were found on their persons.

¶7 Sergeant McKinney arrived at the location and spoke with Detective Smith

regarding the odor of marijuana. Sergeant McKinney then left the scene to apply for

the search warrant with the magistrate’s office between 3:30 a.m. and 4:00 a.m. At

4:05 a.m. the same morning, Magistrate Joshua Bridges issued the search warrant.

Approximately thirty minutes after Sergeant McKinney had initially arrived at 801

South Lafayette Street, he returned and executed the search warrant. He read the

search warrant to Defendant, and officers began to search the building.

¶8 During the officers’ search, they initially found two firearms in a locked supply

closet: a pistol up on a horizontal structural beam above the closet and a shotgun in

the corner of the closet floor. Detective Smith testified that this locked supply closet

could not be seen through the window from the outside of the building; therefore, it

was not the same room in which he saw the ladder being erected. Sergeant McKinney

notified Defendant when the first two firearms were located, and Defendant

responded that “he didn’t know anything about a pistol but did own that shotgun.”

Defendant made this statement to Sergeant McKinney before Defendant was charged

with or arrested for any crimes.

¶9 An officer subsequently located two additional firearms “on top of a heater that

was suspended from the ceiling” in the same storage room. The officers were not

aware of Defendant’s convicted felon status until after they conducted the search.

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Detective Smith testified during voir dire on the motion to suppress that “[o]nce [the

officers] had located the firearms in the building [they] called in to dispatch to check

and see if [Defendant] had any felony convictions”—it was confirmed that he did.

¶ 10 In addition to the four firearms, the officers also found and seized ammunition,

shotgun shells, a glass smoking pipe, a pill bottle containing one white pill, a digital

scale with marijuana residue, and a Mason jar containing marijuana residue.

Following the search, Defendant was arrested and charged by magistrate’s order with

one count of possession of a firearm by a felon pursuant to N.C. Gen. Stat. § 14-415.1.

¶ 11 On 19 March 2018, a Cleveland County grand jury indicted Defendant on one

charge of possession of a firearm by a felon pursuant to N.C. Gen. Stat. § 14-415.1.

Defendant was later indicted for having attained habitual felon status pursuant to

N.C. Gen. Stat. § 14-7.1 on 16 September 2019.

¶ 12 On 28 October 2019, Defendant filed a pretrial motion to suppress all evidence

obtained as a result of the 17 December 2017 search of 801 South Lafayette Street on

the basis that the search warrant lacked sufficient probable cause and violated

Defendant’s constitutional rights under the Fourth and Fourteenth Amendments of

the United States Constitution and Article 1, Sections 19, 20, and 23 of the North

Carolina Constitution. He also prayed the court to suppress his arrest for possession

of a firearm by a felon, to dismiss his charge of possession of a firearm by a felon, and

to suppress any statements made by Defendant in conjunction with or following the

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alleged illegal search.

¶ 13 On 28 October 2019, the Cleveland County Superior Court conducted a

suppression hearing before the Honorable Gregory Hayes on Defendant’s motion to

suppress to determine whether the magistrate properly concluded that probable

cause was established based on the supporting affidavit to the search warrant. At

the conclusion of the hearing, Judge Hayes orally denied Defendant’s motion to

suppress on the grounds that the State “prove[d] by the preponderance of the evidence

that probable cause exist[ed] for the issuance of the search warrant . . . .” On 3

December 2019, the trial court filed a written order on Defendant’s motion to

suppress (the “Order”), concluding, inter alia, that the 17 December 2017 entry and

search of Defendant’s building was “legal and based on probable cause.”

¶ 14 On 29 October 2019, a jury trial began before the presiding judge, Judge Hayes.

The jury returned verdicts finding Defendant guilty of possession of a firearm by a

felon and attaining habitual felon status. Defendant gave oral notice of appeal in

open court.

II. Jurisdiction

¶ 15 This Court has jurisdiction to address Defendant’s appeal pursuant to N.C.

Gen. Stat. § 7A-27(b)(1) (2019) and N.C. Gen. Stat. § 15A-1444(a) (2019).

III. Issue

¶ 16 The sole issue on appeal is whether the trial court erred in denying Defendant’s

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motion to suppress evidence obtained pursuant to a search warrant where the

supporting affidavit lacked information as to when the alleged events occurred.

IV. Standard of Review

¶ 17 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). “[T]he trial

court’s conclusions of law are reviewed de novo and must be legally correct.” State v.

Pickard, 178 N.C. App. 330, 334, 631 S.E.2d 203, 206, disc. rev. denied, 361 N.C. 177,

640 S.E.2d 59 (2006).

V. Motion to Suppress

¶ 18 Defendant challenges the trial court’s denial of his motion to suppress on three

separate grounds: (1) the search warrant did not provide sufficient information from

which the magistrate could find probable cause; (2) the information contained in the

affidavit was stale because the affidavit did not state when the offenses used to

establish probable cause occurred; and (3) the search warrant was overly broad

because it included firearms and other items in the description of evidence to be

seized without providing a reasonable basis for the seizure of such items.

¶ 19 The Fourth Amendment to the United States Constitution, made applicable to

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the states through the Fourteenth Amendment, protects “[t]he right of the people to

be secure in their persons, houses, papers, and effects, against unreasonable searches

and seizures . . . .” U.S. Const. amend. IV, XIV. Under the Fourth Amendment, a

search warrant may be issued only “upon probable cause, supported by [o]ath or

affirmation, and particularly describing the place to be searched, and the persons or

things to be seized.” U.S. Const. amend. IV. “Article I, Section 20 of the Constitution

of North Carolina likewise prohibits unreasonable searches and seizures and requires

that warrants be issued only on probable cause” despite its divergent language from

the United States Constitution. State v. Allman, 369 N.C. 292, 293, 794 S.E.2d 301,

302–03 (2016); see N.C. Const. art. I, § 20; see also N.C Gen. Stat. § 15A-245 (2019)

(describing the information an issuing officer may consider “in determining whether

probable exists for the issuance” of a search warrant).

¶ 20 “Probable cause . . . means a reasonable ground to believe that the proposed

search will reveal the presence upon the premises to be searched of the objects sought

and that those objects will aid in the apprehension or conviction of the offender.”

State v. Campbell, 282 N.C. 125, 128–29, 191 S.E.2d 752, 755 (1972) (citation

omitted).

¶ 21 North Carolina courts have adopted the “totality of the circumstances” analysis

for determining sufficiency of search warrant applications to establish probable

cause. State v. Arrington, 311 N.C. 633, 642, 319 S.E.2d 254, 260 (1984); see State v.

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Walker, 70 N.C. App. 403, 405, 320 S.E.2d 31, 32 (1984). Under the “totality of the

circumstances” test, the magistrate’s task in issuing a search warrant “is simply to

make a practical, common-sense decision whether, given all the circumstances set

forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of

persons supplying hearsay information, there is a fair probability that contraband or

evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S.

213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983) (citation omitted); see

also Arrington, 311 N.C. at 638, 319 S.E.2d at 257–58. Thus, in applying the “totality

of the circumstances” test, a reviewing court must determine “whether the evidence

as a whole provides a substantial basis for concluding that probable cause exists.”

State v. Beam, 325 N.C. 217, 221, 381 S.E.2d 327, 329 (1989).

¶ 22 Under North Carolina law, an application for a search warrant must meet

certain requirements. See N.C. Gen. Stat. § 15A-244 (2019). One such requirement

is “each application . . . must be made in writing upon oath or affirmation.” Id.

Furthermore, each application must contain:

(1) The name and title of the applicant; and

(2) A statement that there is probable cause to believe

that items subject to seizure under [N.C. Gen. Stat.

§] 15A-242 may be found in or upon a designated or

described place, vehicle, or person; and

(3) Allegations 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

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that the items are in the places or in the possession

of the individuals to be searched; and

(4) A request that the court issue a search warrant

directing a search for and the seizure of the items in

question.

N.C. Gen. Stat. § 15A-244(1)–(4). Additionally, our case law indicates that an

affidavit supporting a search warrant application “is sufficient if it supplies

reasonable cause to believe that the proposed search for evidence of the commission

of the designated criminal offense will reveal the presence upon the described

premises of the objects sought and that they will aid in the apprehension or conviction

of the offender.” State v. Vestal, 278 N.C. 561, 576, 180 S.E.2d 755, 765 (1971), disc.

rev. denied sub nom. Vestal v. North Carolina, 414 U.S. 874, 94 S. Ct. 157, 38 L. Ed.

2d 114 (1973).

¶ 23 It is well-established in North Carolina that “a magistrate is entitled to draw

reasonable inferences from the material supplied to him by an applicant for a

warrant.” State v. Sinapi, 359 N.C. 394, 399, 610 S.E.2d 362, 365 (2005). However,

“[b]efore a search warrant may be issued, proof of probable cause must be established

by facts so closely related to the time of issuance of the warrant so as to justify a

finding of probable cause at that time.” State v. Lindsey, 58 N.C. App. 564, 565, 293

S.E.2d 833, 834 (1982).

A. Four Corners of Affidavit & Lack of a Temporal Component

¶ 24 In his first argument, Defendant contends that “[t]he circumstances set forth

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in the search warrant were not sufficient to permit the magistrate to arrive at a

common-sense decision that there was a fair probability that contraband or evidence

of a crime would be found in [his] building.” Specifically, Defendant argues that the

affidavit’s absence of information as to “when the officers smelled marijuana”

prevented the magistrate from making “a reasoned determination” that there was

probable cause to issue the search warrant. Hence, the “trial court cured the

deficiencies” of the affidavit by relying on information outside the four corners of the

search warrant to find probable cause. The State argues the trial court’s order

denying Defendant’s motion to suppress was not improperly based on evidence

outside of the four corners of the warrant application. And even if the court did err

in relying on evidence beyond the affidavit, the State argues “the remaining findings

of fact support a conclusion that the warrant was issued based on probable cause.”

¶ 25 The State correctly asserts in its brief that Defendant failed to preserve the

issue of “staleness” for appellate review; however, because the issues—whether the

trial court considered only the four corners of the affidavit, and whether the affidavit

contained current information upon which proximate cause could be found—are

inexorably intertwined in this case, we consider the arguments together. Although

the affidavit failed to provide any reference of time to indicate when the alleged facts

occurred, the State contends “the magistrate was permitted to infer that the officers’

observations occurred shortly before [Sergeant] McKinney applied for a search

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warrant” at around 4:00 a.m. due to “the nature of the investigation and the early

hour at which [Sergeant] McKinney appeared to apply for the search warrant . . . .”

¶ 26 After careful review, we agree with Defendant that the affidavit in support of

the search warrant application did not provide sufficient facts from which the

magistrate could conclude there was probable cause because it did not specify when

the purported events occurred nor did it indicate sufficient facts from which the

magistrate could reasonably infer the timing of such events; therefore, for the reasons

set forth below, the search warrant obtained as a result of the affidavit was invalid

and resulted in an unreasonable search and seizure. See U.S. Const. amend. IV; N.C.

Const. art. I, § 20.

¶ 27 In addition to ensuring an application for a search warrant meets the

requirement imposed in N.C. Gen. Stat. § 15A-244, the issuing official is charged with

verifying the basis for the issuance of a search warrant is justified. As part of this

duty,

the issuing official may examine on oath the applicant or

any other person who may possess pertinent information,

but information other than that contained in the affidavit

may not be considered . . . in determining whether probable

cause exists . . . unless the information is either recorded

or contemporaneously summarized in the record or on the

face of the warrant by the issuing official.

N.C. Gen. Stat. § 15A-245(a) (emphasis added). Similarly, our Supreme Court has

affirmed that a trial court may not consider facts “beyond the four corners” of a search

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warrant in determining whether a search warrant was supported by probable cause

at a suppression hearing. State v. Benters, 367 N.C. 660, 673, 766 S.E.2d 593, 603

(2014) (internal quotation marks omitted). Therefore, evidence “outside the four

corners” should not be considered by the trial court at a suppression hearing, and any

findings of fact made by the trial court referencing such information are considered

“immaterial to [the reviewing court’s] determination of whether probable cause

existed.” State v. Parson, 250 N.C. App. 142, 154, 791 S.E.2d 528, 537 (2016).

¶ 28 Here, Sergeant McKinney included with his application for a search warrant

an affidavit in which he recited his training and experience and swore to the following

facts to establish probable cause for the issuance of a search warrant:

[t]his search warrant pertains to an investigation being

conducted by the Shelby Police Department concerning 801

S. Lafayette St. Shelby, NC. Officers were dispatched to

801 S. Lafayette St. in reference to a loud music complaint.

Upon Officers Brandon Smith and Officer Brent Walker

[sic] arrival they spoke with a William Logan about the

loud music. While speaking with Mr. Logan the Officers

could smell marijuana coming from inside the business.

Based on the totality of the circumstances[,] Sergeant

McKinney believes a reasonable person would suspect that

illegal narcotics and drug paraphernalia are being kept at

this residence. And a search of this residence is warranted.

Sergeant McKinney described the evidence to be seized as: (1) marijuana; (2) any

other controlled substance; (3) currency (domestic or foreign); (4) guns/ammunition;

(5) ledgers or any other similar documentation; (6) drug paraphernalia; (7)

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documentation to establish residency; (8) any other item of evidentiary value; and (9)

cellular phone. He provided in his application a description of the location and

address of the residence to be searched.

¶ 29 Following the hearing on Defendant’s motion to suppress, the trial court made

the following pertinent findings of fact:

(1) That on December 17, 2017, Officers with the Shelby

Police Department (SPD) responded to 801 S.

Lafayette Street, Shelby, North Carolina 28150 in

reference to a loud noise complaint at approximately

2:48 AM.

(2) Upon Officer Brandon Smith and Officer Brent

Walker’s arrival, they observed a lot of vehicles in

this building[’]s parking lot, they heard the loud

noise coming from the building and smelled

marijuana emitting from the building in question.

(3) While approaching said building, the Officers were

approached by the Defendant. The Defendant told

the Officers this was his building and he was in

control of the building. The Officers informed him of

the loud noise complaint and the odor of marijuana

coming from the Defendant[’]s building.

(4) Officer Smith and Officer Walker contacted other

SPD Officers for assistance, including [Sergeant]

McKinney who had sixteen years of experience with

the SPD, about obtaining a search warrant and

assisting them with this investigation.

(5) [Sergeant] McKinney, as well as other Officers,

arrived at said location and noticed the smell of

marijuana coming from the Defendant[’]s building

as well.

(6) [Sergeant] McKinney left the scene to obtain a

search warrant.

(7) In [Sergeant] McKinney’s experience as a law

enforcement officer, firearms, ammunition, drugs

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including marijuana, and U.S. currency go hand in

hand.

(8) While waiting for the search warrant, Officers with

the SPD at 801 S. Lafayette St. were able to make

entry to the building and lock down the building for

community safety and officer safety while awaiting

the search warrant.

(9) [Sergeant] McKinney applied for the search warrant

in writing upon oath that contained the name and

title of the applicant, [Sergeant] McKinney on

12/17/2017 for a search of 801 S. Lafayette St.,

Shelby, NC 28150 and its curtilage. That there was

probable cause to search said place due to the smell

and odor of marijuana emitting from said building.

The place to be searched was properly described.

The description of evidence to be seized was properly

described and contained items that go hand in hand

with marijuana. [Sergeant] McKinney outlined in

detail his experience as a law enforcement officer

and that the Officers could smell marijuana coming

from inside this building in an affidavit establishing

probable cause.

(10) [Sergeant] McKinney returned with a valid search

warrant for 801 S. Lafayette St. and executed the

search warrant. The search warrant was read to the

Defendant. Officers with SPD then began with the

search of the building.

(11) Among other things, while searching said building

Officers located documents indicating the building

was in the Defendant’s control, drug paraphernalia,

marijuana, ammunition and four firearms. The

firearms located were in a locked room that the

Defendant informed the Officers was his room and

the room he kept all his supplies. One of the

firearms was a loaded shotgun.

(12) The Defendant also made a statement to [Sergeant]

McKinney that he knew about the shotgun located

but did not know about the pistol.

(13) The Defendant made such statements about the

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room with the firearms and the admission about

knowing about the shotgun on his own free will. The

Defendant was not in custody when making such

statements and was not being interrogated.

(14) Through the investigation, the Officers learned the

Defendant was a convicted felon and was therefore

not legally allowed to possess a firearm.

(15) The Defendant was charged according.

¶ 30 Defendant challenges findings of fact 1 through 15 of the Order on the ground

the trial court relied on information outside the four corners of the warrant to

determine whether the magistrate had probable cause to issue the search warrant.

The State concedes that numerous findings of fact are based on information either

outside the affidavit or are related to matters that occurred subsequent to the

magistrate issuing the search warrant, but nonetheless the State argues that there

were sufficient findings of fact to support the trial court’s determination that probable

cause existed.

¶ 31 Our Supreme Court has stated “[t]he question for review [of a motion to

suppress] is whether the ruling of the trial court was correct . . . .” State v. Austin,

320 N.C. 276, 290, 357 S.E.2d 641, 650 (1987). Thus, “[t]he crucial inquiry for th[e

appellate c]ourt is admissibility and whether the ultimate ruling was supported by

the evidence.” Id. at 290, 357 S.E.2d at 650.

¶ 32 In this case, we need not consider Defendant’s specific challenges to the

findings of fact and conclusions of law because we conclude the trial court erred in

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denying Defendant’s motion to suppress and finding probable cause existed for the

search warrant based on the affidavit, which lacked sufficient facts to show when the

alleged criminal activity occurred. The “ultimate ruling” concluding probable cause

existed for the search warrant could not be “supported by the evidence” because the

search warrant was based on a facially insufficient and thus deficient supporting

affidavit. See id. at 290, 357 S.E.2d at 650. However, we note the trial court

improperly applied the preponderance of the evidence standard at the hearing on the

motion to suppress in determining whether probable cause existed for the search

warrant. Moreover, the written order denying the motion to suppress does not

reference the “totality of the circumstances” test; rather, it concludes that the search

warrant was “valid and legal” pursuant to N.C. Gen. Stat. § 15A-244. Therefore, it is

unclear from the record whether the Order reflects the correct standard by which the

trial court was to review the search warrant.

¶ 33 Our Court has not previously determined whether a search warrant affidavit

based on officers’ personal observations is fatally defective where the affidavit fails to

specify when the purported facts occurred. In State v. Campbell, our Court considered

whether an affidavit upon which a search warrant was issued provided “a sufficient

basis for the finding of probable cause.” 14 N.C. App. 493, 494, 188 S.E.2d 560, 561,

aff’d, 282 N.C. 125, 191 S.E.2d 752 (1972). Our Court noted the affidavit contained

statements that some undisclosed issuing officer on dates

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not stated, upon complaints, the factual basis for which is

not revealed, made to him by complainants whose identity

and reliability are not indicated, had found probable cause

to order the arrest of the persons accused for offenses

allegedly committed by them at places not specified on

dates ranging from approximately three to seven weeks

previous to the date of the affidavit.

Id. at 496, 188 S.E2d at 562. We held that the trial court erred in overruling the

defendant’s objections to the admission of evidence; thus, we remanded the case for a

new trial. Id. at 497, 188 S.E.2d at 562. Since the affidavit did not provide sufficient

facts from which a magistrate could conclude that the purported events had “occurred

on or in connection with the premises to be searched,” we did not reach the issue of

whether the lack of timing as to the purported events made the affidavit defective.

Id. at 497, 188 S.E.2d at 562.

¶ 34 In State v. Newcomb, our Court considered a supporting affidavit which was

based on information obtained by an informant whose credibility was not known. 84

N.C. App. 92, 95, 351 S.E.2d 565, 567 (1987). Moreover, the affiant did not attempt

to corroborate the informant’s statements before applying for the search warrant. Id.

at 95, 351 S.E.2d at 567. The affidavit did not indicate when the informant had last

been in the residence in which the officer sought to search, nor did it indicate whether

the informant had “current knowledge of details” surrounding the alleged events. Id.

at 95, 351 S.E.2d at 567. We held the affidavit failed to demonstrate probable cause,

and our Court refused to apply the Leon “good faith exception” because “the officer

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took no reasonable steps to comply with the fourth amendment.” Id. at 96, 351 S.E.2d

at 567; see United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677

(1984); State v. Welch, 316 N.C. 578, 342 S.E.2d 789 (1986).

¶ 35 Similarly, in State v. Brown, our Court found the affidavit at issue to be

substantially similar to the affidavit considered by the Newcomb Court because it

failed to specify when an informant had witnessed the defendant’s purported criminal

activities—it only provided timing as to when an officer had spoken to the informant.

248 N.C. App. 72, 77, 79–80, 787 S.E.2d 81, 86–87 (2016). Therefore, we held the

information in the affidavit was stale. Id. at 80, 787 S.E.2d at 88. Accordingly, we

reversed the trial court’s order denying suppression and vacated the judgment. Id.

at 80, 787 S.E.2d at 88.

¶ 36 We are cognizant that the cases of Newcomb and Brown are distinguishable on

the grounds that those cases involved information provided by confidential

informants whereas the case sub judice concerns information obtained from the

personal observations of police officers. We nevertheless find the cases instructive in

reaching our conclusion that the search warrant at issue was invalid on the ground

the affidavit lacks a sufficient nexus between the odor of marijuana and the building

to be searched at the time the warrant was executed. Our holding is also consistent

with the rule of law that a magistrate must be able to reasonably infer when alleged

facts occurred to find probable cause. See Lindsey, 58 N.C. App. at 565, 293 S.E.2d

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at 834 (“The test for ‘staleness’ of information on which a search warrant is based is

whether the facts indicate that probable cause exists at the time the warrant is

issued.”); State v. Cobb, 21 N.C. App. 66, 69, 202 S.E.2d 801, 804 (1974) (holding a

“magistrate could realistically and reasonably conclude from the affidavit that the

informer observed the events so recently that reasonable cause existed to believe that

the illegal activities were occurring at the time of the issuance of the warrant.”)

(emphasis added). Other jurisdictions have adopted similar approaches in

considering the validity of search warrants where trial courts found probable cause

based on affidavits lacking any reference to time. See United States v. Doyle, 650

F.3d 460, 475 (4th Cir. 2011) (rejecting the Leon good faith exception “where the

totality of the information provided to the magistrate included no indication as to

when the events supposedly creating probable cause to search took place”);

Herrington v. State, 287 Ark. 228, 233, 697 S.W.2d 899, 901 (1985) (“An affidavit . . .

with absolutely no reference to a time frame, does not provide sufficient information

upon which a probable cause determination can be made.”); Garza v. State, 120 Tex.

Crim. 147, 151, 48 S.W.2d 625, 627 (1932) (holding an affidavit was inadequate to

support a search warrant where the statements in the affidavit did not “convey[ ] any

definite idea as to when the incident [the affiant] describe[d] took place”); Welchance

v. State, 173 Tenn. 26, 28, 114 S.W.2d 781, 781 (1938) (stating the date of the alleged

offense was “essential” in order for the magistrate to determine whether probable

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Opinion of the Court

cause existed); see also United States v. Zayas-Diaz, 95 F.3d 105, 114–15 (1st Cir.

1996) (“[A] reasonably well-trained law enforcement officer should be familiar with

the fundamental legal principle that both the ‘commission’ and ‘nexus’ elements of

‘probable cause’ include an essential temporal component.”).

¶ 37 Here, the supporting affidavit to the search warrant application was

completely devoid of any indication as to when the events used to establish probable

cause occurred. The affidavit did not include the date on which the officers’

investigation began, the date when the officers were dispatched to Defendant’s

address, the date when the officers spoke to Defendant regarding loud music, or the

date when the officers smelled marijuana coming from inside Defendant’s building.

The magistrate could not reasonably conclude that the search warrant application

established probable cause because it failed to provide “facts so closely related to the

time of issuance of the warrant,” as required for a valid search warrant. See Lindsey,

58 N.C. App. at 565, 293 S.E.2d at 834. To allow issuance of a search warrant without

such essential temporal information would encourage magistrates to make

speculations and assumptions regarding probable cause, which would in turn violate

constitutional protections against unreasonable searches and seizures. The State has

provided no arguments on appeal to justify the officers’ otherwise warrantless search.

Therefore, we hold the trial court erred in denying Defendant’s motion to suppress

where the supporting affidavit provided no indication as to when the alleged criminal

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Opinion of the Court

activities occurred. The affidavit was invalid; thus, any evidence obtained as a result

of the search warrant was erroneously admitted at trial. See N.C. Gen. Stat. § 15A-

974(a)(1) (2019) (“Upon timely motion, evidence must be suppressed if: [i]ts exclusion

is required by the Constitution of the United States or the Constitution of the State

of North Carolina . . . .”); see Campbell, 282 N.C. at 132, 191 S.E.2d at 757.

¶ 38 Because we conclude the trial court erred in denying Defendant’s motion to

suppress, we do not need to address his remaining argument that the search warrant

was overly broad in scope.

VI. Conclusion

¶ 39 For the foregoing reasons, we reverse the order denying Defendant’s motion to

suppress, vacate the judgment, and grant Defendant a new trial.

NEW TRIAL.

Judges DILLON and GORE concur