State v. Inyama
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NO. COA13-666 NORTH CAROLINA COURT OF APPEALS Filed: 6 May 2014 STATE OF NORTH CAROLINA v. Wake County No. 11 CRS 219377 VICTOR NNAMDI INYAMA Appeal by defendant from judgment entered 15 October 2012 by Judge Paul C. Ridgeway in Wake County Superior Court. Heard in the Court of Appeals 6 January 2014. Attorney General Roy Cooper, by Assistant Attorney General Joseph E. Elder, for the State. Appellate Defender Staples S. Hughes, by Appellate Defender Hannah E. Hall, for defendant. Assistant McCULLOUGH, Judge. Victor Nnamdi Inyama ( defendant ) appeals the denial of his motion to suppress following the entry of judgment based upon his deliver guilty pleas marijuana, to possession possession of a with intent firearm by attaining the status of an habitual felon. reasons, we affirm. I. Background a to sell felon, or and For the following -2On 17 August 2011, defendant was arrested on an outstanding warrant for failure to appear on charges of speeding and driving while license revoked firearms were found. additional arrest at an apartment where marijuana and As a result of the marijuana and firearms, warrants were served for possession with intent to sell or deliver marijuana and possession of a firearm by a felon. On 28 November 2011, a Wake County Grand Jury returned separate bills of indictment indicting defendant on charges of possession with intent to sell or possession of a firearm by a felon. County Grand Jury also indicted deliver marijuana and The following day, a Wake defendant for attaining the status of an habitual felon. Prior to trial, on 4 October 2012, defendant filed a motion to suppress any evidence obtained from [his] person, the [apartment] where [he] was arrested, and any statements made by [him] as a result of searches and seizures of his person and/or residence[.] In the motion, defendant challenged the validity of three warrants issued on 17 August 2011, arguing the warrants were not based on sufficient or legally obtained evidence within the affidavits supporting their issuance. The motion came on to -3be heard in Wake County Superior Court before the Honorable Paul C. Ridgeway on 15 October 2012. Evidence presented during the suppression hearing tended to show that members of the Raleigh Police Department s Gang Suppression Unit became interested in defendant on 16 August 2011 when Dominique McLaughlin, with whom the police had dealt in the past, identified defendant by name as the owner of drugs and firearms found during the search of McLaughlin s residence. The following day, Officer Eddie Camacho ran defendant s name through the warrant database and discovered an outstanding warrant for defendant s arrest for failure to appear on charges of speeding and driving while license revoked. Camacho also realized that he had previously encountered defendant during a traffic stop on 25 May 2011. At the time, defendant was driving a 1998 Cadillac DeVille, license plate number ACC-7005. DMV records for the vehicle indicated it was registered to Natasha Montgomery of 2721 Milburnie Road. Although the vehicle was registered to Montgomery, Camacho recalled that during his prior encounter with defendant at the traffic stop, defendant acknowledged the car was registered in his girlfriend s name but stressed that it was his vehicle because he paid for it. -4In search of defendant, Camacho and another officer went to the address to which the vehicle was registered on Milburnie Road. Montgomery s stepfather, Phillip door and spoke with the officers. that they were not searching Becoat, answered the The officers informed Becoat for Montgomery, Montgomery s boyfriend, naming defendant. but for Becoat responded that defendant and Montgomery used to live there at 2721 Milburnie Road[,] but were [now] living together in an apartment complex off New Bern. With the information from Becoat, Camacho searched the City of Raleigh s utility records to find the apartment. His search revealed that Montgomery lived at 217 Merrell Drive, Apartment 101. When the officers arrived at the apartment, they noticed the 1998 Cadillac Montgomery in the DeVille and parking another lot near vehicle the registered apartment. to Upon approaching the front door of the apartment, Camacho could hear male voices inside. Camacho, however, could not understand what the voices were saying or determine how many people were inside. Camacho then frantically knocked moving answered the door. on around the door. inside the He could apartment, hear but people no one Camacho continued to knock and announce -5himself for five to ten minutes before calling his supervisor for assistance. Camacho s supervisor arrived shortly thereafter and knocked on the door. Again, no one responded. Camacho s supervisor then found Montgomery s phone number in a police database and called Montgomery. Montgomery told the officers that she was at work, no one should be inside the apartment, she did not know who was in the apartment, apartment a few days earlier. and defendant was last in the The officers had received a key to the apartment from apartment management, but Montgomery would not consent for the officers to enter the apartment to search for defendant. At that time, Camacho applied for and obtained a warrant to search the apartment for defendant ( warrant one ). When Enforcement Camacho Unit returned ( SEU ) with already warrant on the one, scene a Selective executed the warrant as Camacho and other officers maintained a perimeter. The SEU was made aware that multiple people were inside and defendant had prior firearms violations. The SEU used the key obtained from management to enter the apartment. three men, including defendant, exited a back Upon entry, room of the apartment at the orders of the SEU and were detained outside. -6The SEU then performed a protective sweep of the apartment, during which Officer C.R. Matthews noticed what he believed to be a partially smoked marijuana cigarette lying on the floor in one of the bedrooms in plain view. Officer Matthews informed Camacho and of the marijuana cigarette Camacho entered the apartment and, based on its appearance and smell, confirmed that the item on the bedroom floor was in fact a partially smoked marijuana cigarette. Based obtained on a the marijuana warrant substances, to cigarette, search paraphernalia, the Camacho apartment documents applied for indicating and controlled dominion or ownership of residence, packaging material, currency, firearms, ammunition, relating cellular to the telephones, criminal substances[] ( warrant two ). two, officers found drugs, and any and [p]ossession all of evidence controlled During the execution of warrant drug paraphernalia, materials for packaging drugs, firearms, and ammunition in the apartment. A third warrant ( warrant three ) was later issued to search three vehicles in the parking lot, including the 1998 Cadillac DeVille associated with defendant. Additional firearms, marijuana stems, a receipt with defendant s name on -7it, and a picture of defendant with a group of people were recovered from the 1998 Cadillac DeVille. Upon consideration of the testimony, warrant applications, and arguments, the trial court denied defendant s motion in open court stating the following: I've reviewed the evidence submitted in this case, the four corners of the search warrants as well as the case law handed up. And with respect to each of the three warrants, I find that, based on the four corners of the application of the search warrant, the magistrate had substantial basis for concluding that there was probable cause to believe that the defendant -- in the case of the first search warrant, the defendant would be found at the location described therein; and with respect to warrants two and three, that evidence of a crime would be found at those locations described therein. After preserved the his trial right court to announced appeal the its decision, denial of his defendant motion to suppress and pled guilty to possession with intent to sell or deliver marijuana, possession of a firearm attaining the status of an habitual felon. by a felon, and Judgment was entered based on defendant s plea sentencing defendant as an habitual felon to a term of 77 to 102 months imprisonment. appealed the denial of his motion to suppress. Defendant -8A written order denying defendant s motion to suppress was later filed by the trial court on 27 November 2012. II. Discussion On appeal, defendant raises various issues with regard to the trial court s denial of his motion to suppress. 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. 132, 134, 291 S.E.2d 618, 619 State v. Cooke, 306 N.C. (1982). The trial court s conclusions of law . . . are fully reviewable on appeal. State v. Hughes, 353 N.C. 200, 208, 539 S.E.2d 625, 631 (2000). Findings of Fact In the first issue raised on appeal, defendant argues the trial court erred in issuing finding of fact number six because it is not supported by competent evidence. number six provides, Officer Camacho proceeded to 2721 Milburnie Road. with Natasha Montgomery s and Finding of fact Officer Carpenter At that address, they spoke stepfather, Phillip Becoat, who -9informed the officers that Victor Inyama was Natasha Montgomery s boyfriend. Specifically, defendant contends there is no evidence that Becoat informed boyfriend. precise officers that defendant was Montgomery s In response, the State does not address defendant s argument, but instead asserts there was sufficient evidence that defendant was Montgomery s boyfriend and, in the alternative, the finding is not critical to the trial court s denial of defendant s motion to suppress. Although defendant support was the testimony at Montgomery s finding that the suppression boyfriend, Becoat the informed defendant was Montgomery s boyfriend. hearing testimony the indicated does officers not that During the suppression hearing, Camacho testified as follows: I spoke to Ms. Montgomery's stepfather, Philip Becoat. . . . He was very cooperative, very polite. He introduced himself as Philip Becoat. He allowed us to go inside and search for Ms. Montgomery. We informed him that we wasn't [sic] looking for her. We were looking for her boyfriend, Victor Inyama. I spoke to -- actually, Officer Carpenter and I spoke to him. He stated that they used to live there at 2721 Milburnie Road but that he couldn't take their nonsense. I didn't ask him too much what he meant by nonsense. He stated they were living -10together Bern. While this in an testimony apartment implies complex defendant off New was Montgomery s boyfriend, it is not evidence that Becoat explicitly informed officers that defendant was Montgomery s boyfriend. However, we agree with the State that the finding was not necessary motion for to a determination suppress. In of the defendant s merits motion of defendant s to suppress, defendant did not seek to suppress evidence by challenging the truthfulness of the affidavits accompanying the applications pursuant to N.C. Gen. Stat. § 15A-978. warrant Instead, defendant sought to suppress evidence on the ground that there was insufficient evidence probable cause to search. in the affidavits to establish Simply stated, the sole question raised by the defendant's motion to suppress is whether the officer's affidavit was sufficient to support a finding probable cause for the issuance of a search warrant. of State v. Rutledge, 62 N.C. App. 124, 125, 302 S.E.2d 12, 13 (1983). In this case, Camacho s sworn statement in the application for warrant one provided, Becoat advised that [defendant] is [Montgomery s] boyfriend. Because defendant did not challenge the truthfulness of the sworn statement below, we accept the -11evidence in the affidavit as true for the sake of analyzing the remaining issues on appeal. Moreover, affidavit, that we note Becoat that the advised statement [defendant] in is Camacho s Montgomery s boyfriend[,] is not irreconcilable with Camacho s testimony at the suppression hearing. If defendant had challenged the truthfulness of Camacho s affidavit in the motion to suppress, it is likely the State could have produced evidence to support the affidavit. Conclusions of Law In defendant s second, third, and fourth issues on appeal, defendant challenges the trial court s warrants were supported by probable cause. conclusions that the These are the issues raised in defendant s motion to suppress below. As this Court has explained, A valid search warrant application must contain 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 that the items are in the places or in the possession of the individuals to be searched. Although the affidavit is not required to contain all evidentiary details, it should contain those facts material and essential to the case to support the finding of probable cause. . . . The clear purpose of these requirements for affidavits -12supporting search warrants is to allow a magistrate or other judicial official to make an independent determination as to whether probable cause exists for the issuance of the warrant under N.C. Gen. Stat. § 15A 245(b) (2001). N.C. Gen. Stat. § 15A-245(a) requires that a judicial official may consider only information contained in the affidavit, unless such information appears in the record or upon the face of the warrant. State v. McHone, 158 N.C. App. 117, 120, 580 S.E.2d 80, 83 (2003) (quotation marks, alterations, and citations omitted). When addressing whether a search warrant is supported by probable cause, a reviewing court must consider the totality of the circumstances. In applying the totality of the circumstances test, our Supreme Court has stated that an affidavit is sufficient if it establishes reasonable cause to believe that the proposed search . . . probably will reveal the presence upon the described premises of the items sought and that those items will aid in the apprehension or conviction of the offender. Probable cause does not mean actual and positive cause nor import absolute certainty. Thus, under 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. In adhering to this standard of review, we are cognizant that great deference should be paid to a magistrate's determination of probable cause and that after-the-fact scrutiny should not take the form of a de novo review. It is well settled that whether probable cause has been established is based on factual and practical considerations of everyday life on which reasonable and -13prudent persons, not legal technicians, act. Probable cause is a flexible, common-sense standard. It does not demand any showing that such a belief be correct or more likely true than false. A practical, nontechnical probability is all that is required. State v. Pickard, 178 N.C. App. 330, 334-35, 631 S.E.2d 203, 206-07 (quotation marks, citations, and alterations omitted), appeal dismissed and disc. rev. denied, 361 N.C. 177, 640 S.E.2d 59 (2006). Defendant first challenges the trial court s conclusion of law number one regarding the issuance of warrant one. Conclusion of law number one provides: With respect to [warrant one], the court concludes that, based upon the four corners of the application for the search warrant, the magistrate had a substantial basis for concluding that there was probable cause to believe that the person named in the warrant would be found at the location described therein. Defendant argues conclusion because the trial court erred in issuing this the affidavit accompanying the application for warrant one was insufficient to establish probable cause that defendant would be found in the apartment. Camacho s affidavit in the application for warrant one provided the following statement of facts to establish probable cause: On 8/17/2011, I have [sic] been diligently -14searching for a wanted subject by the name of Victor NNamdi [sic] Inyama wanted for a speeding [f]ailure to appear warrant (09CR36003). Through our law enforcement data base [sic], I developed information that Mr. Inyama was cited on 5/25/2011 while operating a 1998 Cadillac Deville (ACC7075/NC). Officer Carpenter and I responded to the address assigned to the vehicle which was 2721 Milburnie Rd. The registered owner is Natasha Montgomery. Upon our arrival, [w]e spoke with Mr. Phillip Becoat who is M[s]. Montgomery's step-father [sic]. Mr. Phillip Becoat advised that Mr. Victor Inyama is [M]s. Natasha Montgomery's boyfriend. Through researching [C]ity of Raleigh utilities it was found that Ms. Natasha Montgomery resides at 217-101 Merrell Dr. Prior to conducting a knock and talk I heard items being moved by the front door and muffled speech. Officer Carpenter advised that the shades were open to the patio deck. I began to knock on the door and announcing [sic] myself when I heard subjects frantically moving about the residence. Officer Carpenter then advised that the shades on the patio deck were closed. Through multiple attempts of heavy knocking and announcing myself no one has came [sic] to the door thus far. Ms. Montgomery has two vehicles registered in her name. Both vehicles are on scene including the vehicle that Mr. Inyama was scene [sic] operating. At approximately 3:55 PM Sgt. Palczak spoke with Ms. Montgomery via telephone. She advised no one should be inside her residence located at 217 Merrell Dr. Apt. 101. When I asked who is inside she advised she does not know. She advised suspect Inyama should not be inside the residence and he was last there a few days ago[.] [] Ms. Montgomery would not give verbal consent for the police to enter with a key they had -15obtained from the apartment management. Defendant contends this statement of the evidence does not contain a single statement supporting a reasonable belief that defendant was inside the apartment. In support of his argument, defendant distinguishes his case from State v. Oats, in which this Court search the determined grounds residence of a for probable third party cause where existed an to informant provided information to police that a suspect would be staying at the residence and police were able to identify a person sitting on the porch of the residence as the suspect, _ N.C. App. _, 736 S.E.2d 228 (2012), appeal dismissed and disc. rev. denied, _ N.C. _, 740 S.E.2d 473 (2013), and compares his case to federal cases in which it was determined there insufficient basis for a finding of probable cause. was an See United States v. Hill, 649 F.3d 258, 264 (4th Cir. 2011) ( [N]oise coming from inside of a house is not enough to give the police a reason to believe that a defendant is present. ); United States v. Hardin, 539 F.3d 404, 420-24 (6th Cir. 2008) (holding there was insufficient evidence to form a reasonable belief that a subject would be found in an apartment matching a description given by a confidential informant who claimed to have purchased drugs from the subject in the past where the informant could not -16identify the apartment by number, stated the subject would be staying in the apartment if he was staying in the area, and described a vehicle found near the apartment that defendant would likely be driving). In response to defendant s argument, the State argues that considering the totality of the circumstances, the affidavit included sufficient evidence to establish probable cause that defendant would be found in the apartment. In addition to evidence contained in Camacho s affidavit, the State relies on portions of Camacho s testimony during the suppression hearing that were not magistrate. familiar included in the affidavit relied on by the This evidence included testimony that Camacho was with the 1998 Cadillac DeVille that defendant had previously driven and testimony that Becoat informed officers that defendant lived with Montgomery. Although we recognize that the State errs in relying on evidence that was not before the magistrate, upon review of Camacho s affidavit, we agree with the State that there was sufficient evidence to establish probable cause. Despite no direct evidence that defendant was in the apartment, the affidavit considered by the magistrate indicated that the 1998 Cadillac DeVille which defendant was driving on a -17prior occasion when he was stopped by police was parked outside of his girlfriend s apartment. A second vehicle registered to defendant s girlfriend was also in the parking lot. Although defendant s girlfriend informed police that no one should be inside the apartment and defendant was last in the apartment a few days earlier, the police inside the apartment. could hear several male voices Defendant s girlfriend indicated she did not know who was inside. Considering only the evidence within the four corners of the affidavit, we hold there was sufficient evidence from which the magistrate could find probable cause to believe defendant was inside the apartment. Therefore, the trial court did not err in concluding there was a substantial basis to support the magistrate s issuance of warrant one. On appeal, defendant also raises challenges to the trial court s conclusion of law number two regarding the issuance of warrant two. Conclusion of Law number two provides: With respect to [warrant two and warrant three], the Court concludes that, based upon the four corners of the applications for the search warrants, the magistrate had a substantial basis for concluding that there was probable cause to believe that evidence of a crime, as described in the warrants, would be found at the locations described therein. -18As our courts have long recognized, affidavits must establish a nexus between the objects sought and the place to be searched. criminal Usually this activity connection actually is occurred made at by the showing location to that be searched or that the fruits of a crime that occurred elsewhere are observed at a certain place. State v. McCoy, 100 N.C. App. 574, 576, 397 S.E.2d 355, 357 (1990) (citation omitted). In this case, the affidavit accompanying the application for warrant two described in detail the place to be searched. The following statement of facts was then listed as the basis to establish probable cause: While executing a search warrant for a wanted person marijuana was in [sic] observed in plain view. Based on this discovery it is my reasonable belief that more narcotics will be located upon a further search. Defendant argues the trial court erred in concluding there was probable cause to believe evidence of a crime would be found at the apartment because the affidavit accompanying the application for warrant two failed to implicate the premises searched. Specifically, defendant contends the affidavit does not connect the marijuana to the apartment to be searched and does not marijuana specify in the plain location view. where Therefore, the officers defendant observed claims the -19affidavit is fatally defective. See State v. Campbell, 282 N.C. 125, 131, 191 S.E.2d 752, 756-57 (1972) (holding an affidavit that detailed no underlying facts and circumstances from which the issuing officer could find that probable cause existed to search the premises described was fatally defective). Although the affidavit does not state that the search warrant for defendant was executed at the address identified to be searched, we hold that it is clear from a common sense reading of the affidavit that the place to be searched was the same place searched during the execution of the prior search warrant. Therefore, we hold the affidavit was not fatally defective. In defendant s final argument on appeal, defendant argues the trial court erred in concluding there was probable cause to believe firearms and ammunition would be found at the apartment based on the discovery of the partially smoked argument, defendant cites marijuana cigarette. In support of his cases that stand for the proposition that firearms are associated with drug dealers and drug trafficking. Defendant then contends that the partially smoked marijuana cigarette was insufficient, based on the amount of marijuana, to support a finding of probable cause -20to believe firearms and ammunition would be found. We disagree. Where criminal activity has been discovered at the apartment, we find the trial court did not err in concluding there was a reasonable basis for the magistrate to believe firearms would be found. III. Conclusion For the substantial reasons basis for discussed the above, magistrate probable cause to issue the warrants. we to hold determine was there a was Therefore, we affirm the denial of defendant s motion to suppress. Affirmed. Chief Judge MARTIN and JUDGE ERVIN concur. Report per Rule 30(e). there
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