An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                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                     Assistant
       Appellate Defender Hannah E. Hall, for defendant.


       McCULLOUGH, Judge.


       Victor Nnamdi Inyama (“defendant”) appeals the denial of

his motion to suppress following the entry of judgment based

upon   his    guilty   pleas    to     possession    with   intent     to    sell   or

deliver      marijuana,    possession     of   a    firearm   by   a   felon,       and

attaining the status of an habitual felon.                    For the following

reasons, we affirm.

                                  I.     Background
                                              -2-
      On 17 August 2011, defendant was arrested on an outstanding

warrant for failure to appear on charges of speeding and driving

while    license    revoked        at    an    apartment     where     marijuana     and

firearms were found.         As a result of the marijuana and firearms,

additional    arrest       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    deliver     marijuana     and

possession of a firearm by a felon.                    The following day, a Wake

County   Grand     Jury    also    indicted         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
                                      -3-
be 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.
                                              -4-
       In search of defendant, Camacho and another officer went to

the address to which the vehicle was registered on Milburnie

Road.     Montgomery’s          stepfather,         Phillip    Becoat,      answered     the

door and spoke with the officers.                    The officers informed Becoat

that    they         were    not    searching         for     Montgomery,         but   for

Montgomery’s boyfriend, naming defendant.                      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      DeVille     and    another       vehicle      registered    to

Montgomery       in    the    parking     lot       near    the    apartment.           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    knocked      on   the    door.          He   could    hear    people

frantically      moving      around     inside       the    apartment,      but    no   one

answered the door.              Camacho continued to knock and announce
                                      -5-
himself 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,   and    defendant        was   last   in   the

apartment a few days earlier.          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     Camacho    returned    with    warrant        one,   a   Selective

Enforcement       Unit   (“SEU”)   already   on   the       scene   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.                     Upon entry,

three   men,      including   defendant,     exited     a    back   room   of   the

apartment at the orders of the SEU and were detained outside.
                                           -6-
The 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     of    the    marijuana       cigarette      and     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     on     the   marijuana       cigarette,        Camacho        applied       and

obtained     a    warrant      to    search     the    apartment       for      “controlled

substances,        paraphernalia,        documents          indicating        dominion        or

ownership of residence, packaging material, currency, firearms,

ammunition,        cellular      telephones,          and    any     and      all     evidence

relating         to     the     criminal         [p]ossession            of         controlled

substances[]” (“warrant two”).                  During the execution of warrant

two,   officers       found     drugs,    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
                                    -7-
it, 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    the   trial   court   announced       its     decision,     defendant

preserved   his    right   to   appeal    the     denial    of    his   motion   to

suppress and pled guilty to possession with intent to sell or

deliver   marijuana,   possession        of   a   firearm    by    a    felon,   and

attaining the status of an habitual felon.                 Judgment was entered

based on defendant’s plea sentencing defendant as an habitual

felon to a term of 77 to 102 months imprisonment.                        Defendant

appealed the denial of his motion to suppress.
                                            -8-
       A 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.”                   State v. Cooke, 306 N.C.

132,   134,     291    S.E.2d     618,     619    (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.                           Finding of fact

number    six    provides,        “Officer       Camacho    and    Officer      Carpenter

proceeded to 2721 Milburnie Road.                   At that address, they spoke

with     Natasha      Montgomery’s         stepfather,       Phillip      Becoat,       who
                                        -9-
informed     the      officers      that      Victor     Inyama      was    Natasha

Montgomery’s boyfriend.”

    Specifically, defendant contends there is no evidence that

Becoat     informed     officers       that    defendant      was    Montgomery’s

boyfriend.       In response, the State does not address defendant’s

precise    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        testimony    at    the    suppression     hearing      indicated

defendant    was    Montgomery’s      boyfriend,       the   testimony     does    not

support    the     finding   that     Becoat    informed     the    officers      that

defendant was Montgomery’s boyfriend.                   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
                                            -10-
            together       in    an    apartment       complex   off   New
            Bern.

While     this       testimony        implies        defendant   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      for    a   determination         of    the   merits    of    defendant’s

motion    to     suppress.            In    defendant’s      motion    to        suppress,

defendant did not seek to suppress evidence by challenging the

truthfulness         of   the      affidavits          accompanying        the     warrant

applications pursuant to N.C. Gen. Stat. § 15A-978.                               Instead,

defendant sought to suppress evidence on the ground that there

was     insufficient      evidence         in   the     affidavits     to        establish

probable cause to search.                  “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    of

probable cause for the issuance of a search warrant.”                            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
                                    -11-
evidence in the affidavit as true for the sake of analyzing the

remaining issues on appeal.

      Moreover,      we   note   that      the   statement        in   Camacho’s

affidavit,    that    “Becoat    advised    [defendant]      is    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   conclusions       that   the

warrants were supported by probable cause.            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
                              -12-
         supporting 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
                                      -13-
            prudent 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   the     trial    court     erred     in     issuing    this

conclusion because    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
                       -14-
searching 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
                                        -15-
             obtained 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     determined    grounds       for    probable     cause      existed      to

search     the   residence     of   a   third       party      where   an    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       was   an

insufficient basis for a finding of probable cause.                         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
                                            -16-
identify 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    included     in    the    affidavit     relied     on     by   the

magistrate.        This evidence included testimony that Camacho was

familiar    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
                                 -17-
prior 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    could hear several male voices

inside the apartment.      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.
                                           -18-
       As     our    courts     have     long     recognized,         “affidavits        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) (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    specify        the   location      where    the        officers   observed

marijuana      in     plain     view.      Therefore,          defendant     claims      the
                                              -19-
affidavit 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    marijuana

cigarette.

      In    support        of    his    argument,        defendant     cites     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
                                   -20-
to 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   reasons     discussed     above,    we    hold   there   was   a

substantial   basis   for   the   magistrate       to    determine   there   was

probable cause to issue the warrants.          Therefore, we affirm the

denial of defendant’s motion to suppress.

    Affirmed.

    Chief Judge MARTIN and JUDGE ERVIN concur.

    Report per Rule 30(e).
