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Criminal Practice — Search & Seizure – Warrant Affidavit – Timing of Events – First Impression

Criminal Practice — Search & Seizure – Warrant Affidavit – Timing of Events – First Impression

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Where the affidavit in support of a search warrant application lacked information as to when the alleged events occurred, the application was insufficient to allow the magistrate to find probable cause to search defendant’s premises.

We reverse the trial court’s denial of defendant’s motion to suppress, vacate defendant’s convictions for possession of a firearm by a felon and attaining habitual felon status, and remand for a new trial.

Defendant, a convicted felon, threw a party at his auto detail shop. Police officers responding to a noise complaint detected a strong odor of burnt marijuana. The officers applied for and obtained a warrant to search defendant’s premises, where they located several firearms.

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.

We hold 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 consistent with the rule of law that a magistrate must be able to reasonably infer when alleged facts occurred to find probable cause.

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.

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 activities occurred. The affidavit was invalid; thus, any evidence obtained as a result of the search warrant was erroneously admitted at trial.

New trial.

State v. Logan (Lawyers Weekly No. 011-123-21, 22 pp.) (Jeff Carpenter, J.) Appealed from Cleveland County Superior Court (Gregory Hayes, J.) Joseph Elder for the state; Michael Spivey for defendant. 2021-NCCOA-311

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