              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA17-943

                                   Filed: 5 June 2018

Rutherford County, No. 13 CRS 2557

STATE OF NORTH CAROLINA

             v.

JESSE JAMES LENOIR


      Appeal by defendant from judgment entered 16 March 2016 by Judge Robert

G. Horne in Rutherford County Superior Court. Heard in the Court of Appeals 21

February 2018.


      Attorney General Joshua H. Stein, by Assistant Attorney General Kimberly
      Grande, for the State.

      W. Michael Spivey for defendant-appellant.


      DAVIS, Judge.


      In this appeal, we revisit the issue of how much factual information a law

enforcement officer’s affidavit must contain in order to establish probable cause for

the issuance of a search warrant. Because we conclude that the affidavit at issue in

this case lacked sufficient detail, we reverse the trial court’s denial of the defendant’s

motion to suppress and vacate his conviction.

                       Factual and Procedural Background
                                   STATE V. LENOIR

                                   Opinion of the Court



      On 29 July 2013 at 1:45 p.m., Sergeant Chadd Murray of the Rutherford

County Sheriff’s Office — along with several other law enforcement officers — went

to the home of Jesse James Lenoir (“Defendant”) in Forest City, North Carolina to

conduct a knock and talk. Defendant’s brother, David Lenoir (“David”), answered the

door and invited the officers into the residence.

      Sergeant Murray asked David if there was anyone else in the house, and David

responded that no one else was present. Sergeant Murray noticed that a light was

on in a back bedroom and asked David if he could “check and make sure nobody was

there” for the safety of the officers. David gave his consent, and Sergeant Murray

walked to the back bedroom where he saw a woman lying on a bed. Sergeant Murray

also observed a “glass smoke pipe” on a dresser in the bedroom.

      That same day, Sergeant Murray applied for a search warrant for the residence

and submitted a supporting affidavit that stated, in its entirety, as follows:

             On July 29, 2013 I went to 652 Byers Road Lot 10 Forest
             City, N.C. for a knock and talk. Once at the residence I
             spoke with the tenant at the residence David Lenoir.
             Lenoir stated he and his brother Jesse Lenoir both lived
             there. David consented to a search of the residence and
             stated no one was inside the residence. In a back bedroom
             was Dawn Bradley sleeping and I could see a smoke pipe
             used for methamphetamine in plain view. The bedroom
             she was in belonged to Jessie [sic] Lenoir. Jessie [sic] was
             unable to be reached. Dawn would not admit to the smoke
             pipe being hers but she did stated [sic] Jessie [sic] and
             Rebecca Simmons stayed in that bedroom as well.




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                                       Opinion of the Court



       Based upon this affidavit, a search warrant was issued.1 The officers then

conducted a search of the home and discovered a shotgun in the same bedroom where

Sergeant Murray had observed the glass pipe. The weapon was hidden from view

behind a “speaker box.”

       On 31 July 2013, Sergeant Murray questioned Defendant about the shotgun,

and Defendant admitted that the gun belonged to him. Defendant was subsequently

indicted by a grand jury on 4 November 2013 for possession of a firearm by a felon.

A jury trial was held on 16 March 2016 before the Honorable Robert G. Horne in

Rutherford County Superior Court. Before the trial began, a hearing was held to

address an oral motion to suppress made by Defendant. Despite the fact that the

motion was not in writing, the State did not object on procedural grounds to its

consideration by the trial court, and the court agreed to hear Defendant’s motion.

Following the arguments of counsel, the trial court orally denied the motion to

suppress.

       At trial, counsel for Defendant failed to object to the admission of evidence as

to the shotgun being found in the residence during the officers’ search. On 16 March

2016, the jury found Defendant guilty of possession of a firearm by a felon. The trial




       1 Approximately three hours after obtaining and executing this search warrant, Sergeant
Murray obtained a second search warrant for the residence. However, the State did not offer at
Defendant’s trial any evidence that was seized by the officers while they were executing the second
warrant. Therefore, we confine our review to the first search warrant obtained by Sergeant Murray.

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                                 Opinion of the Court



court sentenced him to a term of 19 to 32 months imprisonment, suspended the

sentence, and placed Defendant on supervised probation for 36 months.

      Defendant filed an untimely notice of appeal on 8 April 2018. However, he

filed a petition for writ of certiorari on 12 September 2016, and this Court granted

the petition on 22 September 2016.

                                     Analysis

      Defendant’s sole argument on appeal is that the trial court erred by denying

his motion to suppress. Specifically, he contends that the search warrant issued for

his residence was not supported by probable cause based on the insufficiency of

Sergeant Murray’s supporting affidavit.

      As an initial matter, we must determine whether this issue was properly

preserved for appeal. Defendant acknowledges that although he made a motion to

suppress the evidence of the shotgun found in his home, he failed to object when the

State sought to admit that evidence at trial. Our Supreme Court has explained that

            [t]o preserve an issue for appeal, the defendant must make
            an objection at the point during the trial when the State
            attempts to introduce the evidence. A defendant cannot
            rely on his pretrial motion to suppress to preserve an issue
            for appeal. His objection must be renewed at trial.
            [Defendant’s] failure to object at trial waived his right to
            have this issue reviewed on appeal.




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                                  Opinion of the Court



State v. Golphin, 352 N.C. 364, 463, 533 S.E.2d 168, 232 (2000) (internal citations

omitted), cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305 (2001). Accordingly, Defendant

has not properly preserved this issue for appellate review.

      However, in cases where a defendant fails to preserve for appellate review an

issue relating to the suppression of evidence we conduct plain error review if the

defendant specifically and clearly makes a plain error argument on appeal. State v.

Waring, 364 N.C. 443, 467-68, 701 S.E.2d 615, 631-32 (2010), cert. denied, 565 U.S.

832, 181 L. Ed. 2d 53 (2011). Because Defendant expressly seeks such review in his

appellate brief, we review for plain error the issue of whether probable cause existed

to support the issuance of the search warrant obtained by Sergeant Murray.

             For error to constitute 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. Moreover, because
             plain error is to be applied cautiously and only in the
             exceptional case, the error will often be one that seriously
             affects the fairness, integrity or public reputation of
             judicial proceedings.

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (internal citations,

quotation marks, and brackets omitted).

      In conducting plain error review, we must first determine whether the trial

court did, in fact, err in denying Defendant’s motion to suppress.          See State v.

Oxendine, __ N.C. App. __, __, 783 S.E.2d 286, 292, disc. review denied, __ N.C. __,


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                                   Opinion of the Court



787 S.E.2d 24 (2016) (“The first step under plain error review is . . . to determine

whether any error occurred at all.”).

      Normally, “[t]he standard of review in evaluating the denial of a motion to

suppress is whether competent evidence supports the trial court’s findings of fact and

whether the findings of fact support the conclusions of law.” State v. Jackson, 368

N.C. 75, 78, 772 S.E.2d 847, 849 (2015) (citation and quotation marks omitted). Here,

however, the trial court summarily denied Defendant’s motion to suppress without

making any findings of fact or conclusions of law. Our Supreme Court has held that

“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. When there is no conflict in the evidence, the trial

court’s findings can be inferred from its decision.” State v. Bartlett, 368 N.C. 309,

312, 776 S.E.2d 672, 674 (2015) (internal citations omitted).

      “N.C. [Gen. Stat.] § 15A-244 requires that an application for a search warrant

must contain (1) a probable cause statement that the items will be found in the place

described, and (2) factual allegations supporting the probable cause statement.”

State v. Taylor, 191 N.C. App. 587, 589, 664 S.E.2d 421, 423 (2008) (citation omitted).

Furthermore, “the statements must be supported by one or more affidavits

particularly setting forth the circumstances establishing probable cause to believe




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                                   Opinion of the Court



that the items are in the places or in the possession of the individuals to be searched.”

Id. (citation, quotation marks, and brackets omitted).

      In determining whether to issue a warrant, the magistrate must “make a

practical, common sense decision whether, given all the circumstances set forth in

the affidavit before him . . . there is a fair probability that contraband or evidence of

a crime will be found in a particular place.” State v. Arrington, 311 N.C. 633, 638,

319 S.E.2d 254, 257-58 (1984) (citation omitted); see also State v. McCoy, 100 N.C.

App. 574, 576, 397 S.E.2d 355, 357 (1990) (“The standard for a court reviewing the

issuance of a search warrant is whether there is substantial evidence in the record

supporting the magistrate’s decision to issue the warrant.” (citation and quotation

marks omitted)).

             Probable cause . . . means 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. Probable cause does not mean actual and
             positive cause, nor does it import absolute certainty. . . . If
             the apparent facts set out in an affidavit for a search
             warrant are such that a reasonably discreet and prudent
             man would be led to believe that there was a commission
             of the offense charged, there is probable cause justifying
             the issuance of a search warrant.

State v. Campbell, 282 N.C. 125, 128-29, 191 S.E.2d 752, 755 (1972) (internal citation

and quotation marks omitted).         N.C. Gen. Stat. § 15A-245(a) provides that

“information other than that contained in the affidavit may not be considered by the



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                                  Opinion of the Court



issuing official in determining whether probable cause exists for the issuance of the

warrant unless the information is either recorded or contemporaneously summarized

in the record or on the face of the warrant[.]” N.C. Gen. Stat. § 15A-245(a) (2017).

      In assessing the sufficiency of Sergeant Murray’s affidavit, we find instructive

several decisions from our appellate courts. In State v. Benters, 367 N.C. 660, 766

S.E.2d 593 (2014), law enforcement officers with “extensive training and experience

with indoor marijuana growing investigations” received an anonymous tip regarding

the defendant’s involvement in an indoor marijuana growing operation. Id. at 661,

766 S.E.2d at 596. After visiting the address referenced in the tip, the officers

observed various gardening materials on the property including potting soil,

fertilizer, and seed starting trays. However, they did not see any gardens or potted

plants. Based upon their observations as set forth in an affidavit, a search warrant

was issued for the property located at that address. Id. at 662-63, 766 S.E.2d at 596-

97.

      In ruling that the affidavit in support of the search warrant application was

insufficient to provide probable cause, our Supreme Court stated that it was “not

convinced that these officers’ training and experience are sufficient to balance the

quantitative and qualitative deficit left by an anonymous tip . . . , observations of

innocuous gardening supplies, and a compilation of conclusory allegations.” Id. at




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                                  Opinion of the Court



673, 766 S.E.2d at 603 (citation omitted).      With regard to the gardening items

observed by law enforcement, the Court specifically noted that

             [n]othing [in the affidavit] indicates a fair probability that
             contraband or evidence of a crime will be found in a
             particular place beyond [the officer’s] wholly conclusory
             allegations. The affidavit does not state whether or when
             the gardening supplies were, or appeared to have been,
             used, or whether the supplies appeared to be new, or old
             and in disrepair. Thus, amid a field of speculative
             possibilities, the affidavit impermissibly require[d] the
             magistrate to make what otherwise might be reasonable
             inferences based on conclusory allegations rather than
             sufficient underlying circumstances. This we cannot abide.

Id. at 672, 766 S.E.2d at 602 (internal citations and quotation marks omitted).

      State v. Beaver, 37 N.C. App. 513, 246 S.E.2d 535 (1978), involved the

warrantless seizure of a shot glass from the defendant’s vehicle by a law enforcement

officer during a routine traffic stop. Id. at 514-15, 246 S.E.2d at 537. The shot glass

contained a “film of a white substance appearing to be some type of white powder.”

Id. at 517, 246 S.E.2d at 539. This Court held that the seizure was unsupported by

probable cause, concluding as follows:

             [W]e cannot say that a white powder residue in a glass
             gives rise to facts of general knowledge or facts of a
             particular science so notoriously true as to support a
             reasonable belief on the part of the seizing officer that he
             was seizing contraband or evidence of a crime. We think
             that, absent specific testimony indicating particular
             knowledge on the part of the officer . . . , a white powder
             residue in a glass must be taken as equally indicative of
             lawful substances and conduct as of contraband or
             unlawful conduct. Such would give rise to a mere


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                                  Opinion of the Court



             suspicion, which will not support a finding of probable
             cause.

Id. at 519, 246 S.E.2d at 539-40 (citation omitted).

      In the present case, Sergeant Murray’s affidavit simply stated that he saw “a

smoke pipe used for methamphetamine” in a bedroom in Defendant’s house. It made

no mention at all of Sergeant Murray’s training and experience; nor did it present

any information explaining the basis for his belief that the pipe was being used to

smoke methamphetamine as opposed to tobacco. In addition, the affidavit did not

explain how Sergeant Murray was qualified to distinguish between a pipe being used

for lawful — as opposed to unlawful — purposes. Indeed, the affidavit did not even

purport to describe in any detail the appearance of the pipe or contain any indication

as to whether it appeared to have recently been used. It further lacked any indication

that information had been received by law enforcement officers connecting Defendant

or his home to drugs.

      As with the gardening supplies in Benters and the white residue in Beaver, a

pipe — standing alone — is neither contraband nor evidence of a crime. Rather, the

pipe referenced in Sergeant Murray’s affidavit “must be taken as equally indicative

of lawful substances and conduct as of contraband or unlawful conduct.” Beaver, 37

N.C. App. at 519, 246 S.E.2d at 540.

      While the State cites State v. Lowe, 369 N.C. 360, 794 S.E.2d 282 (2016), in

support of its contention that the warrant obtained by Sergeant Murray was properly


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                                   Opinion of the Court



issued, that case is inapposite. In Lowe, our Supreme Court held that probable cause

supported the issuance of a search warrant where (1) the investigating officer

received an anonymous tip that the defendant was selling and storing narcotics at

his house; (2) the affidavit in support of the warrant listed the officer’s training and

experience; and (3) the officer discovered marijuana residue in a garbage bag outside

the defendant’s residence. Id. at 361-62, 246 S.E.2d at 284.

      Noting that the affidavit “presented the magistrate with direct evidence of the

crime for which the officers sought to collect evidence[,]” the Court ruled that “under

the totality of the circumstances there was a substantial basis for the issuing

magistrate to conclude that probable cause existed.” Id. at 365-66, 794 S.E.2d at 286

(citation and quotation marks omitted). The Supreme Court distinguished its ruling

in Lowe from its prior decision in Benters by noting that “[a]lthough there were many

reasons the gardening equipment may have been outside the defendant’s house in

Benters, the presence of marijuana residue in defendant’s trash offers far fewer

innocent explanations.” Id. at 365, 794 S.E.2d at 286 (citation and quotation marks

omitted).

      Here, given the absence of additional information in Sergeant Murray’s

affidavit   to   support   his   bare   assertion   that   the   pipe   was   “used   for

methamphetamine,” we hold that the affidavit was insufficient to establish probable




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                                     Opinion of the Court



cause for the issuance of the search warrant. Accordingly, the trial court erred in

denying Defendant’s motion to suppress.

       Having determined that the trial court erred, we now turn to the issue of

whether the error rose to the level of plain error.           Defendant was convicted of

possession of a firearm by a felon. His conviction was based solely upon the discovery

of a shotgun in his home. There is no indication in the record that Sergeant Murray

saw the gun — which was hidden from view — prior to seeking the search warrant.

Rather, the gun was found only once the search warrant had been obtained and was

being executed by the officers.2

       Thus, the trial court’s denial of Defendant’s motion to suppress necessarily had

a probable impact on his conviction because the jury could not have convicted

Defendant of possession of a firearm by a felon but for the admission of evidence

concerning the shotgun seized during the execution of the search warrant. See State

v. Canty, 224 N.C. App. 514, 521, 736 S.E.2d 532, 537 (2012) (“Without the search, no

weapons would have been found. Without the weapons, Defendant could not have

been convicted of . . . possession of a firearm by a convicted felon.”), disc. review

denied, 366 N.C. 578, 739 S.E.2d 850 (2013). Therefore, we hold that the trial court’s

denial of Defendant’s motion to suppress amounted to plain error.3


       2 Indeed, the State makes no argument that the shotgun would have been discovered by law

enforcement officers even in the absence of the search warrant obtained by Sergeant Murray.




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                                         Opinion of the Court



                                            Conclusion

        For the reasons stated above, we reverse the trial court’s denial of Defendant’s

motion to suppress and vacate his conviction for possession of a firearm by a felon.

        REVERSED AND VACATED.

        Judges STROUD and ARROWOOD concur.




         3 Based on our holding, we need not reach Defendant’s additional argument that he received

ineffective assistance of counsel based on his trial counsel’s failure to object at trial to the evidence
obtained as a result of the search warrant.

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