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Different views of probable cause

COA splits on controlling decision

A police detective’s hunch that illegal drug activity was occurring inside a residence proved to be right. He secured a warrant to search the house and discovered marijuana, a shotgun and what he believed to be liquid extract from psychedelic mushrooms.

But the trial court tossed the evidence after finding that police lacked probable cause to support the search warrant. A divided three-judge panel for the North Carolina Court of Appeals affirmed the ruling Jan. 5 in State v. Allman, a decision that is destined for the state’s Supreme Court.

The case is worth watching not only because of its potential Fourth Amendment implications but also because it involves an apparent conflict between two state appellate decisions separated by 43 years.

Judge Martha Geer, writing for the appellate panel’s majority, held that the affidavit in support of the warrant in question “did not reveal a sufficient nexus between” the suspected drug-dealing activity and the residence that was searched, which is where Brittany Allman lived with her boyfriend and his half brother.

A vice and narcotics detective with the New Hanover County Sheriff’s Office obtained a warrant to search the home following a traffic stop in which the brothers were caught with about eight ounces of marijuana and more than $1,600 in cash.

An affidavit in support of the application for the warrant detailed the traffic stop and noted that the two brothers had criminal records that included past drug trafficking and distribution charges and convictions.

The affidavit also stated that the pair had lied about where they lived, leading the detective who applied for the warrant to assert that he knew “through training and experience” that drug dealers often try to conceal their home addresses from law enforcement.

The state Attorney General’s Office cited several federal decisions to support its argument that the detective had sufficient probable cause for the warrant. But Geer found that “those cases, no matter how persuasive, cannot override controlling North Carolina authority.”

The majority’s affirmation of the suppression of the drug evidence found at Allman’s residence relied heavily on the North Carolina Supreme Court’s holding in 1972’s State v. Campbell.

In that case, the court rejected a search warrant affidavit because it lacked “any statement that narcotic drugs were ever possessed or sold in or about the dwelling to be searched,” and therefore showed insufficient probable cause.

In August 2015, the state Supreme Court held in State v. McKinney that Campbell controlled when an affidavit is silent about drug activity occurring at a residence police want to search.

But the court went on to uphold a search based on circumstantial evidence of drug dealing – in McKinney it was heavy traffic at an apartment and a visitor being caught with cash, drugs and suspicious text messages on his phone after leaving the residence.

Still, Geer determined that McKinney did not undermine “the controlling nature of Campbell,” which she said was indistinguishable from Allman. Judge Rick Elmore concurred.

‘Fair probability’ of a crime

Assistant appellate defender Paul Green of Durham contended in Allman’s appellate brief that under Campbell, which he cited as the controlling state precedent, “evidence that a person is involved in illegal narcotics sales does not of itself establish probable cause to search the person’s residence.”

“Likewise insufficient is the fact that a law enforcement officer’s training and experience leads him to conclude that there is ongoing drug activity inside a residence,” he added.

Derrick Mertz, an assistant attorney general in Raleigh, acknowledged in the state’s brief that an affidavit must establish a nexus between what police are seeking and the place they want to search.

However, he said the “legal concept [of a nexus] has been convoluted by defendants into a proposition for which it does not stand.”

Mertz asserted that “the word ‘nexus’ is just the embodiment of the language that there must be a ‘fair probability that contraband or evidence of a crime will be found in a particular place’…, and requires nothing more.”

Not ‘up to the standard’

The state Attorney General’s Office is appealing the Court of Appeal’s decision to the North Carolina Supreme Court based on a dissent from Judge Chris Dillon.

He contended that the trial judge’s decision to suppress the evidence against Allman should have been reversed in light of McKinney, which he said contradicts Campbell.

Under Dillon’s interpretation of McKinney, the court must determine only whether there is a “fair probability” that police will find what they’re looking for in order to find probable cause to issue a warrant.

Dillon argued that the warrant affidavit in Allman contained enough information – primarily that the brothers allegedly lied about where they lived – for a judge to conclude, by “exercising common sense,” that there was a “probability or substantial chance” that drugs would be found during a search of the residence.

Green declined an interview request. The state Attorney General’s Office does not comment on pending cases.

Gordon Widenhouse, a criminal defense lawyer at Rudolf Widenhouse in Chapel Hill, said he would be concerned if fair probability “becomes the touchstone for probable cause.”

“Because there is a constitutional requirement to get a warrant, the standard needs to be sufficiently high,” he said. “Here, it just feels like fair probability isn’t up to the standard, which is probable cause.”

“That’s the bottom line the Supreme Court will have to answer,” he added.

The 23-page opinion is State v. Allman (Lawyers Weekly No. 011-017-16).

Follow Phillip Bantz on Twitter @NCLWBantz

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