Criminal Practice – Search & Seizure – Warrant Affidavit – Citizen Complaint – Arrestee’s Texts

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State v. McKinney (Lawyers Weekly No. 15-06-0832, 10 pp.) (Robert Edmunds Jr., J.) Appealed from Guilford County Superior Court (Patrice Hinnant & William Wood Jr., JJ.) On discretionary review from the Court of Appeals. N.C. S. Ct.

Holding: Although a citizen told a police officer that she believed the behavior at an apartment was related to narcotics, the citizen also reported (1) heavy traffic in and out of the apartment, (2) abbreviated stays by the visitors, and (3) seeing a resident of the apartment dealing in narcotics in the complex’s parking lot. This was not just a “naked assertion” that the observed activities were narcotics-related.

We reverse the Court of Appeals’ holding that the search warrant was unsupported by probable cause.

After the citizen lodged the complaint, police conducted surveillance of the apartment; saw Roy Foushee make a six-minute visit; and, upon a subsequent investigatory stop of Foushee, found both marijuana remnants and a substantial sum of cash.

Incident to Foushee’s arrest, officers searched his cell phone. They found a series of text messages, which had been exchanged minutes before Foushee entered the apartment.

The first was sent to Foushee from “Chad” and said, “Bra, when you come out to get the money, can you bring a fat 25. I got the bread.” The next, also from “Chad,” asked, “Can you bring me one more, Bra?” Foushee replied, “About 45,” and “Chad” responded, “ight.”

From this exchange, Officer Christopher Bradshaw inferred that Foushee had just completed a delivery of drugs for cash, so he applied for a search warrant for the apartment.

The timing and substance of the texts suggested preparation for and negotiation of a drug transaction involving Foushee and someone he was about to meet. Although no “Chad” was identified when defendant’s apartment was later searched, this contingency could not have been foreseen when Officer Bradshaw applied for the warrant. Instead, the information available to the officer and provided to the magistrate sufficiently indicated that the transaction adumbrated in the texts was consummated moments later in defendant’s apartment.

Under the totality of circumstances, all the evidence described in the affidavit both established a substantial nexus between the marijuana remnants recovered from Foushee’s vehicle and defendant’s residence, and also was sufficient to support the magistrate’s finding of probable cause to search defendant’s apartment. Considering this evidence in its entirety, the magistrate could reasonably conclude that the proposed search would reveal the presence of illegal drugs in the apartment.

Reversed.