               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                 No. COA17-1143

                                 Filed: 5 June 2018

Mecklenburg County, No. 15 CRS 222077

STATE OF NORTH CAROLINA

              v.

TAMMY RENEE HOWARD


      Appeal by defendant from judgment entered 16 March 2017 by Judge Daniel

A. Kuehnert in Mecklenburg County Superior Court. Heard in the Court of Appeals

2 May 2018.


      Attorney General Joshua H. Stein, by Assistant Attorney General Torrey D.
      Dixon, for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender Jillian C.
      Katz, for defendant-appellant.


      TYSON, Judge.


      Tammy Renee Howard (“Defendant”) appeals from judgment entered upon a

jury’s conviction of felonious use or possession of counterfeit trademark goods with

intent to sell and having a value exceeding $10,000. We find no error in the trial

court’s denial of Defendant’s motion to suppress. We remand to the trial court to

enter appropriate conclusions of law.

                                   I. Background
                                  STATE V. HOWARD

                                  Opinion of the Court



      On 22 June 2015, North Carolina Secretary of State’s Trademark Enforcement

Division Special Agent Derek Wiles (“Agent Wiles”) obtained a search warrant to

search the residence and vehicles located at 13606 Coram Place in Charlotte, North

Carolina. During the search of the premises, Agent Wiles and his team discovered

counterfeit items located in the house, garage, and inside a van parked adjacent to

the house. The officers seized hundreds of counterfeit items, including handbags,

watches, and sunglasses, as well as over 2700 designer labels, with an approximate

suggested retail value of two million dollars.

      Defendant was indicted for felony criminal use of counterfeit trademark on 19

January 2016. On 13 March 2017, she filed a motion to suppress all the evidence

recovered and all statements made in connection with the search of 13606 Coram

Place. The trial court denied Defendant’s motion. Defendant failed to object to the

subsequent entry and admission at trial of evidence obtained as a result of the search.

      The jury returned a verdict finding Defendant guilty of felony use or possession

of counterfeit trademark goods.        Defendant was sentenced to 6-17 months

imprisonment, which was suspended for 36 months of supervised probation.

Defendant was required to serve an active sentence of 45 days during the first 12

months of her probation. Defendant entered timely notice of appeal.

                                    II. Jurisdiction




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                                   Opinion of the Court



      An appeal of right lies with this Court pursuant to N.C. Gen. Stat. §§ 7A-27(b)

and 15A-1444(a) (2017).

                                       III. Issues

      Defendant argues the trial court erred by denying her motion to suppress, and

in the alternative, the trial court erred by failing to provide its rationale during its

ruling from the bench.

                               IV. Motion to Suppress

                                A. Standard of Review

      Defendant failed to object at trial to the entry of the evidence obtained from

the search of 13606 Coram Place to preserve the error, but has assigned plain error

review on appeal. See State v. Miller, 198 N.C. App. 196, 198, 678 S.E.2d 802, 805

(2009).

      To show plain error, “a defendant must demonstrate that a fundamental error

occurred at trial. To show that an error was fundamental, a defendant must establish

prejudice—that, after examination of the entire record, the error had a probable

impact on the jury’s finding that the defendant was guilty.” State v. Lawrence, 365

N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (citation and internal quotation marks

omitted).

                            B. Probable Cause for Search




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                                   Opinion of the Court



      Defendant argues the trial court erred in denying her motion to suppress. She

asserts no reasonable grounds existed to believe the search would reveal evidence of

criminal activity at 13606 Coram Place. We disagree.

      A search warrant cannot be constitutionally issued absent a finding of probable

cause. U.S. Const. amend. IV; N.C. Const., art. I, § 20. “Probable cause means that

there must exist a reasonable ground to believe that the proposed search will reveal

the presence upon the premises to be searched of the objects sought and that those

objects will aid in the apprehension or conviction of the offender.” State v. Lindsey, 58

N.C. App. 564, 565, 293 S.E.2d 833, 834 (1982) (citation and internal quotation marks

omitted).

      Our statutes mandate that an application for a search warrant must include a

statement under oath that probable cause exists to believe items subject to seizure

may be found at the described place that is the subject of the search, and allegations

of fact supporting the statement, which may be further supported by one or more

affidavits. N.C. Gen. Stat. § 15A-244 (2017). The affidavit “must establish a nexus

between the objects sought and the place to be searched. Usually this connection is

made by showing that criminal activity actually occurred at the location to 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) (internal

citations and quotation marks omitted).



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                                  STATE V. HOWARD

                                   Opinion of the Court



      The Supreme Court of the United States has established a “totality of the

circumstances” test to determine whether the State has proved that probable cause

exists. Illinois v. Gates, 462 U.S. 213, 230, 76 L. Ed. 2d 527, 543 (1983). The Supreme

Court of North Carolina adopted this same test. State v. Arrington, 311 N.C. 633, 643,

319 S.E.2d 254, 260-61 (1984). When applying the “totality of the circumstances”

test, an “affidavit is sufficient if it supplies 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.” Id. at 636, 319 S.E.2d at 256 (citation omitted).

      The affidavit Agent Wiles submitted to establish probable cause for the

warrant contains the following information: Agent Wiles possessed twenty-six years

of law enforcement experience, during which time he had investigated thousands of

cases involving counterfeit merchandise. At the time of the application, he was

employed and assigned to the Secretary of State’s Trademark Enforcement Division.

      On 8 May 2013, a Mecklenburg County police officer informed Agent Wiles that

Defendant had been found to be in possession of possible counterfeit items. She was

charged with a violation of Charlotte’s peddler’s license ordinance. The items seized

were later confirmed to be counterfeit.

      As part of a compliance check/counterfeit merchandise interdiction operation

at the DHL International Hub in Charlotte on 7 October 2013, Agent Wiles



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                                  Opinion of the Court



intercepted two packages from a known counterfeit merchandise distributor in China,

addressed to Defendant at 13606 Coram Place. The boxes were inspected and were

found to contain counterfeit handbags, wallets, watches, and headphones. Agent

Wiles attempted a “controlled delivery” of the packages to 13606 Coram Place, but no

one was home. Two other packages previously delivered by DHL were present on the

porch. Agent Wiles contacted Defendant, who agreed to meet with him and consented

to him bringing the other two packages with him. Defendant consented to a search

of the other two packages left at the address, which contained additional counterfeit

merchandise. Defendant stated she did not realize the merchandise was counterfeit,

voluntarily surrendered it all, and was issued a warning.

      Agent Wiles was working as a part of a compliance check outside of the Bank

of America Stadium during a Carolina Panthers football game on 3 November 2013.

Defendant, doing business as “Store on Wheels,” was found selling counterfeit

handbags, wallets, and other items from two SUVs. Defendant was charged with

felony criminal use of a counterfeit trademark, and pled guilty to the lesser included

misdemeanor charge on 4 March 2014.

      During another compliance check, outside of the Charlotte Convention Center

on 30 May 2015, Agent Wiles found a booth rented by a business called “Store on

Wheels.” The booth was unmanned, but contained a large display of counterfeit

items. Business cards were found at the booth with the “Store on Wheels” business



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                                      STATE V. HOWARD

                                      Opinion of the Court



name on them, along with the name “Tammy” listed as the owner. Prior to applying

for the search warrant, Agent Wiles substantiated the address of 13606 Coram Place

“to be the location of the [sic] Tammy Renee Howard.”

                               C. Location of Counterfeit Items

         Defendant asserts the affidavit failed to contain sufficient evidence to support

a reasonable belief that evidence of counterfeit items would be found at 13606 Coram

Place.

         Defendant argues State v. Parsons, __ N.C. App. __, 791 S.E.2d 528 (2016),

controls the outcome of this case. In Parsons, the defendant was dropped off at a

“burned residence and blue recreational vehicle/motor home located at 394 Low Gap

Road”      after   allegedly     purchasing     decongestant      used   to   manufacture

methamphetamine. Id. at __, 791 S.E.2d at 538. The officers established surveillance

at that location, and witnessed the defendant exiting the recreational vehicle. Id. The

officers approached and asked the defendant to search the house and recreational

vehicle, but the defendant refused. Id.

         This Court found that those allegations in the affidavit were insufficient to

connect the property location with any illegal activity. Id. Defendant asserts the

finding that “[n]othing in the affidavit provides context to where Defendant’s ‘home’

was or that his ‘home’ was 394 Low Gap Road” is similar to the situation in this case.

Id. “[T]he simple fact that an individual is dropped off at a particular address does



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                                  STATE V. HOWARD

                                   Opinion of the Court



not establish probable cause to search that address in the absence of other allegations

of criminal activity.” Id. (emphasis supplied).

      The affidavit in the present case included evidence of counterfeit merchandise

being previously delivered to 13606 Coram Place, and evidence Defendant was

continuing to conduct her business selling counterfeit items, after previous warnings

and arrests, less than a month before the search warrant was executed. Agent Wiles

also attested under oath that he had substantiated Defendant resided at 13606

Coram Place.     Even if Agent Wiles “did not spell out in exact detail” how he

substantiated Defendant’s address, the affidavit includes sufficient evidence

connecting the presence of counterfeit materials with the address of 13606 Coram

Place. See State v. Edwards, 185 N.C. App. 701, 705, 649 S.E.2d 646, 649 (2007).

      After viewed in its totality, and not as singular instances or isolated events,

sufficient evidence supports a reasonable cause to believe a search of 13606 Coram

Place would produce contraband evidence of Defendant’s criminal activity. See

Arrington, 311 N.C. at 636, 319 S.E.2d at 256. Defendant’s argument is overruled.

                              D. Evidence was not Stale

      Defendant also argues the evidence alleged in the affidavit was stale, and

specifically asserts the only evidence linking the address of 13606 Coram Place with

criminal activity allegedly took place in October 2013, some twenty months prior to

the issuance of the search warrant.



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                                  STATE V. HOWARD

                                  Opinion of the Court



      “Generally, two factors determine whether evidence of previous criminal

activity is sufficient to later support a search warrant: (1) the amount of criminal

activity and (2) the time period over which the activity occurred.” McCoy, 100 N.C.

App. at 577, 397 S.E.2d at 358. No bright line rule exists governing the amount of

time lapse considered reasonable, but such consideration depends “upon such

variable factors as the character of the crime and the criminal, the nature of the item

to be seized and the place to be searched.” Lindsey, 58 N.C. App. at 566, 293 S.E.2d

at 834 (citation omitted).

      In cases where contraband is likely to be sold and disposed of, information

obtained over a year prior has been held to be too stale to support probable cause to

search. Id. at 567, 293 S.E.2d at 835. However, in cases where “the alleged crime is

a complex one taking place over a number of years [and] [t]he place to be searched is

an ongoing business,” information that is fourteen months old is not considered stale.

State v. Louchheim, 296 N.C. 314, 323, 250 S.E.2d 630, 636 (1979). “[W]here the

affidavit properly recites facts indicating activity of a protracted and continuous

nature, a course of conduct, the passage of time becomes less significant.” McCoy, 100

N.C. App. at 577, 397 S.E.2d at 358.

      Defendant argues this case is more similar to the facts in Lindsey, as the

evidence concerned counterfeit contraband, likely to be sold and disposed of.

However, the evidence in Lindsey concerned marijuana, which is a substance not only



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                                   STATE V. HOWARD

                                   Opinion of the Court



likely to be sold, but is also “easily concealed and moved about.” 58 N.C. App. at 567,

293 S.E.2d at 835. It appears Defendant conducted her business out of multiple

vehicles and a rented booth, making the counterfeit items easy to move.              It is

reasonable to believe Defendant kept a large stock of contraband inventory on hand

for sale, requiring an appropriate storage location. The evidence tends to show

Defendant had been conducting this business over a number of years, at numerous

locations, and the process was complex, necessitating the acquisition of knock-off

merchandise from China and the attachment of false designer labels.

      The facts of this case are more similar to those in Louchheim, where

information supporting the warrant that was fourteen months old was held not to be

stale. 296 N.C. at 323, 250 S.E.2d at 636. Because of the history and apparent

continuous nature of Defendant’s business, evidence that occurred twenty months

prior to the execution of the search warrant is not so far removed to be considered

stale as a matter of law. Defendant’s argument is overruled.

                     V. Findings of Fact and Conclusions of Law

      Defendant alternatively argues this matter should be remanded to the trial

court for findings of fact and conclusions of law to support its ruling on her motion to

suppress.

      After a motion to suppress evidence is presented at the trial court, “[t]he judge

must set forth in the record his findings of fact and conclusions of law.” N.C. Gen. Stat.



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                                    STATE V. HOWARD

                                    Opinion of the Court



§ 15A-977(f) (2017) (emphasis supplied). Our Supreme Court has held, “the absence

of factual findings alone is not error because only a material conflict in the evidence—

one that potentially affects the outcome of the suppression motion—must be resolved

by explicit factual findings that show the basis for the trial court’s ruling.” State v.

Faulk, __ N.C. App. __, __, 807 S.E.2d 623, 630 (2017) (quoting State v. Bartlett, 368

N.C. 309, 312, 776 S.E.2d 672, 674 (2015)) (internal quotation marks omitted). Even

so, “it is still the trial court’s responsibility to make the conclusions of law.” State v.

McFarland, 234 N.C. App. 274, 284, 758 S.E.2d 457, 465 (2014).

      The State argues no material conflicts in the evidence exist, and the trial

court’s conclusion was clear from its ruling. The record of the suppression hearing

reveals no material conflicts existed.      Defense counsel called Agent Wiles as a

witness, and introduced a copy of the search warrant and a photograph taken at the

time the search warrant was executed.

      Agent Wiles’ testimony revealed that (1) the search warrant had initially

included a typographical error, identifying the premise to be searched as 13605

Coram Place in a few paragraphs; (2) some houses in the location were of a similar

construction as Defendant’s; and, (3) the warrant referenced past events, specifically

the October 2013 incident, where multiple packages delivered by DHL to 13606

Coram Place were found to contain counterfeit evidence.




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                                  STATE V. HOWARD

                                  Opinion of the Court



      On cross-examination, the State did not dispute any of the evidence, but

clarified that (1) the warrant also contained the correct address; (2) once Agent Wiles

realized the typographical error, he had the area secured and returned to the

magistrate to correct the address; and, (3) Agent Wiles experienced no issue

identifying Defendant’s house to execute the search warrant, because he had

previously been to her house, specifically in October 2013.

      “It previously has been determined that a material conflict in the evidence does

not arise when the record on appeal demonstrates that defense counsel cross-

examined the State’s witnesses at the suppression hearing.” State v. Baker, 208 N.C.

App. 376, 383, 702 S.E.2d 825, 830 (2010).         While Agent Wiles was called as

Defendant’s witness at the suppression hearing, he was a witness for the State in the

subsequent trial. Defendant presented evidence at the hearing, which was given by

the officer who had applied for and executed the search warrant, and none of which

was contradicted by the State’s cross-examination.

      While no material conflicts exist in the evidence presented at the suppression

hearing, the judge failed to provide any rationale from the bench to explain or support

his denial of Defendant’s motion. The only statement from the trial court concerning

Defendant’s motion was, “I’m going to allow the case to go forward with some

reluctance, but – I’m going to deny the Motion to Suppress.” This lack of rationale




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                                  STATE V. HOWARD

                                   Opinion of the Court



from the bench “precludes meaningful appellate review.” Faulk, __ N.C. App. at __,

807 S.E.2d at 630.

      The trial court’s failure to articulate or record its rationale from the bench

supports a remand. McFarland, 234 N.C. App. at 284, 758 S.E.2d at 465 (“The

mandatory language of N.C. Gen. Stat. § 15A-977(f) . . . forces us to conclude that the

trial court’s failure to make any conclusions of law in the record was error.”).

             Where there is prejudicial error in the trial court involving
             an issue or matter not fully determined by that court, the
             reviewing court may remand the cause to the trial court for
             appropriate proceedings to determine the issue or matter
             without ordering a new trial. If the trial court determines
             that the motion to suppress was properly denied, then
             defendant would not be entitled to a new trial because
             there would have been no error in the admission of the
             evidence, and his convictions would stand. If, however, the
             court determines that the motion to suppress should have
             been granted, defendant would be entitled to a new trial.
             We have found no other prejudicial error at defendant’s
             trial. Therefore, the trial court’s failure to make adequate
             conclusions to support its decision to deny defendant’s
             motion to suppress does not require that we order a new
             trial.

McFarland, 234 N.C. App. at 284, 758 S.E.2d at 465 (internal citations and quotation

marks omitted).

      As in McFarland and Faulk, we remand for the trial court to make appropriate

conclusions of law to substantiate its ruling upon Defendant’s motion to suppress. See

id.; see also Faulk, __ N.C. App. at __, 807 S.E.2d at 630.

                                    VI. Conclusion


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                                  STATE V. HOWARD

                                  Opinion of the Court



      Applying the “totality of the circumstances” test, Agent Wiles’ affidavit

accompanying the application for the search warrant for 13606 Coram Place

contained sufficient evidence to show the required nexus between the items sought

and the location to be searched. McCoy, 100 N.C. App. at 576, 397 S.E.2d at 357. Due

to the nature of the alleged, continuing criminal activity, the evidence presented in

the affidavit was not stale and supports a finding of probable cause. Id. at 577, 397

S.E.2d at 358. Defendant has failed to show error, let alone plain error, in the trial

court’s denial of her motion to dismiss.

      The statutorily mandated conclusions of law to support the trial court’s denial

were not met. N.C. Gen. Stat. § 15A-977(f). We remand to the trial court for entry of

appropriate conclusions of law in accordance with the statute and consistent with the

precedents cited above. See McFarland, 234 N.C. App. at 284, 758 S.E.2d at 465; see

also Faulk, __ N.C. App. at __, 807 S.E.2d at 630. It is so ordered.

      NO ERROR IN PART AND REMANDED.

      Judges ELMORE and ZACHARY concur.




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