State v. Daye

253 N.C.App. 408

798 S.E.2d 817 (Table)

STATE of North Carolina

v.Jabari Raheim DAYE

No. COA16-1119

Court of Appeals of North Carolina.

Filed: May 2, 2017

Attorney General Joshua H. Stein, by Assistant Attorney General Michael E. Bulleri, for the State.

Hale Blau & Saad, Attorneys at Law, P.C., Raleigh, by Daniel M. Blau, for Defendant.

McGEE, Chief Judge.

Jabari Raheim Daye ("Defendant") appeals from judgment entered after a jury found him guilty of possession with the intent to sell and deliver marijuana; possession of marijuana paraphernalia; and maintaining a dwelling place to keep, sell or use a controlled substance.

I. Background

Investigator J.P. Killian ("Investigator Killian"), of the Statesville Police Department, applied for a warrant on 15 April 2015 to search a residence in Statesville, North Carolina ("the residence"). The search warrant application was accompanied by an affidavit from Investigator Killian explaining the circumstances that he believed established probable cause for the search ("the affidavit"). The search warrant application was approved by a judge on 15 April 2015, and Investigator Killian, along with five other law enforcement officers (collectively, "the officers"), executed a "no knock" warrant at 12:20 p.m. the same day.

The officers approached the residence, observed that the door was locked, and "used force to gain entry into the residence." As soon as Investigator Killian "c[a]me through the front door" of the residence, he observed Defendant lying on the couch in the living room. The officers identified themselves, advised Defendant they had a search warrant, and detained Defendant by placing him in handcuffs. The officers then conducted a "sweep" of the residence looking for other occupants, and found no one else inside. After advising Defendant of his Miranda rights, Investigator Killian asked Defendant if "he wanted to take responsibility for anything in [the residence], and [Defendant] stated he had marijuana above the refrigerator in the cabinet." Investigator Killian checked the cabinet and located "a plastic bag containing six ... individually-bagged marijuana [sic]." A detailed search of the residence resulted in the officers locating four digital scales and a shotgun.

The officers also recovered a blue iPhone ("the cell phone"), that was located on the couch next to Defendant. Investigator Killian asked Defendant about the owner of the cell phone, and Defendant claimed ownership. Defendant was arrested at the residence. Investigator Killian later applied for, and received, a separate search warrant (the "cell phone warrant") to examine the text messages and other data located on the cell phone. Several text message exchanges found on the cell phone were later admitted into evidence and published to the jury.

Defendant made an oral motion to suppress the evidence found in the search of the residence prior to trial, arguing that the affidavit supporting the search warrant did not establish probable cause. The trial court considered the merits of Defendant's motion despite the fact that it was not accompanied by an affidavit,¹ and denied Defendant's motion. Defendant did not renew his objection to the admission of the evidence found in the search of the residence when that evidence was offered at trial.

A jury convicted Defendant of possession with the intent to sell and deliver marijuana; possession of marijuana paraphernalia; and maintaining a dwelling place to keep, sell or use a controlled substance. After the jury's verdict was announced, the trial court granted Defendant's motion for judgment notwithstanding the verdict as to Defendant's conviction for possession of marijuana paraphernalia due to an error in the jury instructions. Defendant also pleaded guilty to attaining habitual felon status. Defendant was sentenced to a total of 76 months to 116 months in prison. Defendant appeals.

II. Analysis: Probable Cause to Search the Residence

Defendant contends the trial court erred in denying his motion to suppress because the warrant that authorized the search was unsupported by probable cause and, therefore, the search violated the Fourth Amendment to the United States Constitution and Article I, Section 20 of the North Carolina Constitution. Specifically, Defendant contends the affidavit lacked sufficient details about when the confidential informants described in the affidavit acquired the information about the residence and Defendant's alleged drug activity. We agree.

While Defendant made an oral pretrial motion to suppress, he failed to timely object to the evidence at trial. Our Supreme Court has held that a pretrial motion to suppress is a type of motion in limine , State v. Golphin , 352 N.C. 364, 405, 533 S.E.2d 168, 198 (2000), and a "motion in limine is insufficient to preserve for appeal the question of the admissibility of evidence if the defendant fails to further object to that evidence at the time it is offered at trial." State v. Hayes , 350 N.C. 79, 80, 511 S.E.2d 302, 303 (1999) (per curiam) (citations omitted). Defendant concedes he did not properly preserve this issue for review, but contends that the error constitutes plain error. State v. Lawrence , 365 N.C. 506, 516, 723 S.E.2d 326, 333 (2012) (holding that to be entitled to plain error review, a defendant "must ‘specifically and distinctly contend’ that the alleged error constituted plain error"). The plain error rule

is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a "fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done," or "where [the error] is grave error which amounts to a denial of a fundamental right of the accused," or the error has " ‘resulted in a miscarriage of justice or in the denial to appellant of a fair trial’ " or where the error is such as to "seriously affect the fairness, integrity or public reputation of judicial proceedings" or where it can be fairly said "the ... mistake had a probable impact on the jury's finding that the defendant was guilty."

State v. Cummings , 352 N.C. 600, 616, 536 S.E.2d 36, 49 (2000) (alterations in original) (quoting State v. Odom , 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) ); see also State v. Waring , 364 N.C. 443, 468, 701 S.E.2d 615, 631 (2010) (holding that when a defendant "fail[s] to preserve issues relating to [a] motion to suppress, we review for plain error"). A defendant must show "not only that there was error, but that absent the error, the jury probably would have reached a different result." State v. Haselden , 357 N.C. 1, 13, 577 S.E.2d 594, 602 (2003) (internal quotation marks and citation omitted).

In evaluating a trial court's ruling on a motion to suppress, "[a]n appellate court accords great deference to the trial court's ruling ... because the trial court is entrusted with the duty to hear testimony ... and to weigh and resolve any conflicts in the evidence." State v. Johnston , 115 N.C. App. 711, 713, 446 S.E.2d 135, 137 (1994) (citations omitted). The scope of appellate review of a trial court's ruling on 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. Brown , ––– N.C. App. ––––, ––––, 787 S.E.2d 81, 84 (2016) (citation and internal quotation marks omitted). "[W]hen ... the trial court's findings of fact are not challenged on appeal, they are deemed to be supported by competent evidence and are binding on appeal." State v. Biber , 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011) (citation omitted). "The trial court's conclusions of law ... are fully reviewable on appeal." Brown , ––– N.C. App. at ––––, 787 S.E.2d at 84.

In the present case, Defendant has not challenged any of the findings of fact made by the trial court, and the trial court's findings are therefore binding. Biber , 365 N.C. at 168, 712 S.E.2d at 878. In its order denying Defendant's motion to suppress, the trial court only considered "the affidavit in support of the search warrant" to determine whether probable cause existed to justify the search of the residence. In the affidavit, Investigator Killian summarized his law enforcement credentials, and listed general information he knew about "large scale drug traffickers" and their habits based upon his law enforcement training, education, and experience. The affidavit then listed the following allegations about Defendant and the residence:

During the past two months Statesville Police Narcotic Investigators have been investigating suspicious activity at [the residence]. Investigators have observed high vehicle traffic coming to and from the residence. You affiant [Investigator Killian] known this type of behavior is consistent with the sale of illegal narcotics.

Your affiant [Investigator Killian] received information about marijuana being at [the residence]. This information has been provided by a confidential, reliable informant, for purposes of this search warrant affidavit, known as "Keith". "Keith" has worked for the Statesville Narcotics Division for approximately 2 years. During the past 2 years, "Keith" has helped investigators with over 53 drug related cases. At the conclusion of these investigations, suspects were charged with Possession with intent to sell/deliver a controlled substance. "Keith" has assisted Investigators with numerous controlled purchases in which search warrants were obtained and executed at the conclusion of the investigation. Marijuana was seized as a result of the search warrants. "Keith" is reliable and has proven so through assisting investigators in seizing illegal narcotics in the Statesville area, specifically marijuana. On several different occasions "Keith"

...