               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA17-1134

                                 Filed: 5 June 2018

Wake County, No. 14 CRS 205326

STATE OF NORTH CAROLINA

             v.

JOSEPH EDWARDS TEAGUE, III


      Appeal by defendant from judgment entered 8 December 2016 by Judge

Michael R. Morgan in Wake County Superior Court. Heard in the Court of Appeals

17 May 2018.


      Attorney General Joshua H. Stein, by Assistant Attorney General Kevin G.
      Mahoney, for the State.

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


      TYSON, Judge.


      Joseph Edward Teague, III (“Defendant”) appeals from a judgment entered

upon a plea agreement from which he pleaded guilty to a count of possession with

intent to sell or distribute marijuana and possession of marijuana. We find no error.

                                    I. Background

      On 6 March 2014, Raleigh Police Detective N.D. Braswell applied for a search

warrant for the premises located at 621 Manchester Drive in Raleigh, North Carolina.

In his probable cause affidavit (the “Affidavit”), submitted to a magistrate, Detective
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Braswell stated that “he received information from a concerned citizen in the

neighborhood who wants to remain anonymous . . . that he/she believes narcotics are

being sold from 621 Manchester Drive.” The Affidavit does not state when Detective

Braswell received this information from the anonymous tipster, nor what led the

tipster to “believe[] narcotics [were] being sold from 621 Manchester Drive.” Based

upon the anonymous tip, Detective Braswell began an investigation and surveillance

of activities occurring at 621 Manchester Drive (the “Residence”).

      According to the Affidavit, Detective Braswell drove by the Residence and

checked the license plate number on a 1989 Buick automobile parked in the driveway

through CJLEADs, a law enforcement database. This database search showed the

automobile was registered to Laura Teague. In the Affidavit, Detective Braswell

stated, “I am familiar with this address and the son of Ms. Teague from my previous

assignments as a patrol beat officer with Raleigh Police Department.          Joseph

Edwards Teague III is the son of Ms. Teague.”

      Detective Braswell “then checked city of Raleigh databases” and found

Defendant had an established waste and water utilities account for the Residence.

Detective Braswell “utilized another database and confirmed that [Defendant] lives

at 621 Manchester Dr.”

      After noting the “regular refuse day for [the Residence] is Thursday,” Detective

Braswell averred in the Affidavit that he had “conducted a refuse investigation in the



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early morning hours of Thursday.” Detective Braswell did not designate what was

the date of the Thursday he had conducted the refuse investigation, nor to which

“Thursday” he referred. The trash can Detective Braswell searched was located to

the left of the driveway of the Residence, “only inches from the curb line.” There was

not a house or structure located to the left of the Residence. The nearest structure to

the left of the Residence was a church at an unspecified distance.

      Inside the trash can, Detective Braswell found three white trash bags.

Detective Braswell found a red Solo cup containing a green leafy substance; five cut-

open food saver bags; and a Ziplock bag containing trace residue “of what appear[ed]

to be marijuana” inside the trash bags. Inside one of the trash bags, Detective

Braswell also found a Vector butane gas container, which he noted in the Affidavit

can be “used to make butane hash oil by extracting the THC from marijuana through

the use of butane.” According to the Affidavit, Detective Braswell “utilized a narcotics

analysis reagent kit to test the substance for marijuana. The green leafy substance

field tested positive for marijuana.”

      In the Affidavit, Detective Braswell also included information about prior

criminal charges and case dispositions involving Defendant, including:

             [Defendant] was charged with possession [of] marijuana
             [of] less than one half ounce and possession of drug
             paraphernalia . . . . He accepted a plea to possession of drug
             paraphernalia. [Defendant] was charged with simple
             possession of marijuana and possession of drug
             paraphernalia . . . and dismissed by [the] DA. [Defendant]


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            was charged with PWISD marijuana, maintaining a
            dwelling for controlled substance, and possession of drug
            paraphernalia . . . . He accepted a plea to possession of drug
            paraphernalia.

      On 6 March 2014, Detective Braswell submitted an application along with the

Affidavit to obtain a warrant to search Defendant’s Residence. The magistrate found

probable cause and issued the search warrant.           Pursuant to that warrant, law

enforcement officers searched Defendant’s Residence on 7 March 2014, and the

following items were seized:

            1. 358 grams of marijuana

            2. 40.39 grams of marijuana

            3. 39 grams butane hash oil

            4. $1,015 in United States currency

            5. 55 grams of butane hash oil in multi-colored containers

            6. 2 empty red plastic containers

            7. Time Warner mail addressed to Defendant.

            8. 1 gram of butane hash oil on a Silpat.

            9. a black pelican case containing a glass marijuana pipe

            10. a Mastercool pump

            11. a metal bowl, glass bowl, temp, gauge, hot plate, razor
            blades, and a skinny glass cylinder

            12. plastic air tight containers with marijuana residue



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             13. an assortment of marijuana pipes

      On 21 July 2014, a grand jury indicted Defendant for two counts of possession

with intent to sell or deliver (“PWISD”) marijuana and one count of maintaining a

dwelling for controlled substances. The grand jury subsequently returned three

superseding indictments. The final superseding indictment charged Defendant with

PWISD marijuana, PWISD of a schedule VI controlled substance, maintaining a

dwelling for a controlled substance, and felony possession of marijuana.

      Prior to trial, Defendant filed a motion to suppress the search of the Residence,

and argued the information in Detective Braswell’s Affidavit was insufficient to

establish probable cause for the magistrate to issue the search warrant. In his motion

to suppress, Defendant asserted the lack of information regarding: (1) when the

anonymous tip was made to Detective Braswell; (2) the basis or source of the

anonymous informant’s information; (3) the date on which Detective Braswell

conducted the refuse investigation; (4) the contents of the trash bag being linked to

the Residence or Defendant; and, (5) any indication on the trash can connecting it to

the Residence.

      On 30 October 2015, the trial court conducted a hearing upon Defendant’s

motion to suppress. The trial court denied Defendant’s motion and entered a written

order containing the following findings of fact:

             1. That a search warrant was granted by a Wake County
             Magistrate that was dated March 6, 2014 for the search of


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the dwelling of 621 Manchester Drive, Raleigh, North
Carolina 27612.

2. Within the Search Warrant application, there was a
probable cause affidavit attached in support of the warrant
application.

3. This affidavit given by Detective N. Braswell with the
Raleigh Police Department, listed his experience of 12
years as a law enforcement officer and description of the
types of previous drug investigations he had been involved
in.

4. The affidavit additionally gives information that
Detective Braswell received information from an
anonymous concerned citizen in the neighborhood of
Manchester Drive that they believed narcotics were being
sold from 621 Manchester Drive.

5. The affidavit further states as a result of receiving that
information, Detective Braswell began his investigation by
driving by the residence and inquiring as to who the
registered owner was of [the] car in the driveway under the
carport of the home.

6. The affidavit lists that the registered owner of the
vehicle seen in the driveway as Laura Teague with an
address of 6104 Ivy Ridge Road, Raleigh, North Carolina
27612.

7. The affidavit states that Detective Braswell was familiar
with this address and the son of Ms. Teague known as
Joseph Teague, III, from previous assignments with the
Raleigh Police Department.

8. The affidavit states that Detective Braswell checked City
of Raleigh databases and Joseph Teague, III had a solid
waste and water account for the address of 621 Manchester
Drive. Detective Braswell also utilized other databases
and confirmed that Joseph Teague, III resided at 621


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Manchester Drive, Raleigh, North Carolina.

9. The affidavit includes information that Detective
Braswell conducted a refuse investigation in the early
morning hours of Thursday and that Thursdays are the
regular trash collection days for 621 Manchester Drive.

10. Within the affidavit, it does not list a date or any
reference to a specific Thursday that the refuse
investigation was collected.

11. The affidavit includes that the refuse can was to the
left of the concrete driveway only inches from the curb line
and there are no other residences to the left of 621
Manchester Drive.

12. The affidavit indicates that the results of the refuse
investigation yielded three white trash bags that were tied
shut. Within the bags the following was located: marijuana
residue that was located within a red solo cup that field
tested positive [for] marijuana, five open food saver bags
and one Ziploc bag that also contained marijuana residue
that also field tested positive for marijuana, and [a] Vector
butane gas container.

13. Detective Braswell further lists in the affidavit that
Butane gas containers can be used to make butane hash oil
by extracting THC from marijuana using the Butane, and
that hash oil can be smoked or taken orally.

14. Lastly, Detective Braswell listed the criminal history
of Joseph Teague, III, indicating prior drug convictions
from 2009 and 2010.

15. The trash pull was done for the purpose of
corroborating the information received by Detective
Braswell from the concerned citizen and furthering the
investigation.

16. While there is no specific date listed for what Thursday


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             the refuse investigation was done, this Court has found
             that a reasonable magistrate using common sense would
             indicate that this refuse investigation was done within a
             relatively short time after receiving the information from
             the concerned citizen and the beginning of this
             investigation.

      Based upon these findings, the trial court concluded that, under “the totality

of the circumstances . . . there was sufficient evidence for probable cause for the basis

of the Search Warrant for [the Residence,]” and denied Defendant’s motion to

suppress.

      At trial, Defendant’s counsel renewed his objection to the search resulting from

the search warrant prior to the evidence being introduced at trial. At the close of the

State’s evidence, Defendant and the State entered into a plea agreement wherein

Defendant agreed to plead guilty to PWISD marijuana and felony possession of

marijuana, and the State agreed to voluntarily dismiss the remaining charges.

Defendant reserved the right to appeal the denial of his motion to suppress.

      The trial court fined Defendant $300, sentenced Defendant to a term of six to

seventeen months of imprisonment, and suspended the sentence to twenty-four

months of supervised probation. Defendant gave oral notice of appeal in open court.

                                    II. Jurisdiction

      “An order finally denying a motion to suppress evidence may be reviewed upon

an appeal from a judgment of conviction, including a judgment entered upon a plea

of guilty.” N.C. Gen. Stat. § 15A-979(b) (2017). Defendant reserved the right to appeal


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the trial court’s denial of his motion to suppress pursuant to his plea of guilty to the

charged offenses. The State does not contest Defendant’s right to appeal. This appeal

is properly before us.

                               III. Standard of Review

      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). “We review de novo a trial court’s conclusion that a

magistrate had probable cause to issue a search warrant.” State v. Worley, __ N.C.

App. __, __. 803 S.E.2d 412, 416 (2017).

                                     IV. Analysis

                                  A. Probable Cause

      The Fourth Amendment to the Constitution of the United States requires

probable cause must be shown before a search warrant may be issued. U.S. Const.

amend. IV. Defendant argues the search warrant to search his Residence was not

supported by sufficient probable cause.




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      To determine whether probable cause existed to issue a search warrant, a

reviewing court looks to the “totality of the circumstances.” State v. Arrington, 311

N.C. 633, 641, 319 S.E.2d 254, 259 (1984); see Illinois v. Gates, 462 U.S. 213, 238, 76

L.Ed.2d 527, 548 (1983). Under the “totality of the circumstances” test, an affidavit

submitted to obtain a search warrant provides sufficient probable cause if it provides

             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.

Arrington, 311 N.C. at 636, 319 S.E.2d at 256 (citations omitted). “When reviewing

a magistrate’s determination of probable cause, this Court must pay great deference

and sustain the magistrate’s determination if there existed a substantial basis for the

magistrate to conclude that articles searched for were probably present.” State v.

Hunt, 150 N.C. App. 101, 105, 562 S.E.2d 597, 600 (2002) (citations omitted).

             A grudging or negative attitude by reviewing courts toward
             warrants is inconsistent with the Fourth Amendment’s
             strong preference for searches conducted pursuant to a
             warrant; courts should not invalidate warrant[s] by
             interpreting affidavit[s] in a hypertechnical, rather than
             commonsense, manner. [T]he resolution of doubtful or
             marginal cases in this area should be largely determined
             by the preference to be accorded to warrants.

State v. Riggs, 328 N.C. 213, 222, 400 S.E.2d 429, 434-35 (1991) (alterations in

original) (citations and quotation marks omitted).



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                                      B. Staleness

      To support his argument that probable cause did not exist to support issuance

of the search warrant, Defendant asserts that the information obtained from the

anonymous tipster and Detective Braswell’s investigation of the trash can outside the

Residence were potentially stale.

             The test for staleness of information on which a search
             warrant is based is whether the facts indicate that
             probable cause exists at the time the warrant is issued.
             Common sense must be used in determining the degree of
             evaporation of probable cause. The likelihood that the
             evidence sought is still in place is a function not simply of
             watch and calendar but of variables that do not punch a
             clock.

State v. Lindsey, 58 N.C. App. 564, 565-66, 293 S.E.2d 833, 834 (1982) (citations,

internal quotation marks, and ellipsis omitted).           “[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. The continuity of the offense

may be the most important factor in determining whether the probable cause is valid

or stale.” State v. McCoy, 100 N.C. App. 574, 577, 397 S.E.2d 355, 358 (1990) (internal

citations omitted).

      “[C]ommon sense is the ultimate criterion in determining the degree of

evaporation of probable cause.” State v. Pickard, 178 N.C. App. 330, 335, 631 S.E.2d

203, 207 (2006) (citing State v. Jones, 299 N.C. 298, 305, 261 S.E.2d 860, 865 (1980)).

“Other variables to consider when determining staleness are the items to be seized


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and the character of the crime.” Id. at 335-36, 631 S.E.2d at 207. A defendant’s past

criminal conduct and reputation for criminal conduct is relevant to whether probable

cause exists. See State v. Sinapi, 359 N.C. 394, 399-400, 610 S.E.2d 362, 365-66 (2005)

(recognizing a defendant’s drug-related criminal history recited in an officer’s

affidavit as relevant to finding probable cause to issue a warrant to search the

defendant’s residence for evidence of drug crimes).

      Here, Detective Braswell’s Affidavit states, in relevant part:

             I have received information from a concerned citizen in the
             neighborhood who wants to remain anonymous for fear of
             retaliation that he/she believes narcotics are being sold
             from [the Residence]. When I received this information I
             started an investigation.

             ...

             The regular refuse day for [the Residence] is Thursday. I
             conducted a refuse investigation in the early morning
             hours of Thursday and there was a green refuse can to the
             left of the concrete driveway only inches from the curb line.

      Although the Affidavit does not state when or over what period of time the

anonymous tipster observed criminal activity at Defendant’s Residence, when the

tipster relayed this information to police, or the exact date Detective Braswell

conducted the refuse search, the Affidavit was based on more than just the

information supplied by the anonymous tipster and the information regarding the

refuse search. Detective Braswell’s Affidavit included details regarding database

searches indicating Defendant had a waste and water utility account at the


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Residence, that Defendant resided at the Residence, that Detective Braswell was

familiar with the Residence and Defendant from his previous assignment as a patrol

officer. The Affidavit also recounted Defendant’s prior charges for possession of drug

paraphernalia, PWISD marijuana, and maintaining a dwelling for a controlled

substance.

      To the extent the information from the anonymous tip may have been stale, it

was later corroborated by Detective Braswell’s refuse search, in which Detective

Braswell found a Solo cup containing marijuana residue, plastic bags containing

marijuana residue, and a butane gas container that Detective Braswell specified is

consistent with the potential manufacturing of butane hash oil. These averments are

sufficient grounds to provide a magistrate with “a reasonable ground to believe . . .

the proposed search [would] reveal the presence upon the premises” of the drug-crime

related items sought in the search warrant. Lindsey, 58 N.C. App. at 565, 293 S.E.2d

at 834.

      Detective Braswell averred in his Affidavit that “the regular refuse day for [the

Residence] is Thursday. I conducted a refuse investigation in the early morning

hours of Thursday[.]” Although the Affidavit is not explicit about which “Thursday”

Detective Braswell conducted the refuse search, a “common sense” reading of the

Affidavit would indicate the “Thursday” referred to by Detective Braswell was the

most recent Thursday to 6 March 2017, the date he swore out the Affidavit and



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submitted the search warrant application. See Pickard, 178 N.C. App. 330, 335, 631

S.E.2d 203, 207.

      For purposes of addressing Defendant’s argument that Detective Braswell’s

refuse search was potentially stale, we take judicial notice of the records of the United

States Naval Observatory. See State v. Garrison, 294 N.C. 270, 280, 240 S.E.2d 377,

383 (1978) (taking judicial notice of U.S. Naval Observatory report to affirm

nighttime element in burglary conviction). “A court may take judicial notice, whether

requested or not.” N.C. Gen. Stat. § 8C-1, Rule 201(c) (2017). The 2014 edition of the

U.S. Naval Observatory’s Nautical Almanac indicates 6 March 2014 was a Thursday.

Nautical Almanac Office of the United States Naval Observatory, The Nautical

Almanac for the Year 2014 (2014).

       A magistrate drawing reasonable inferences from the Affidavit would have a

substantial, common-sense basis to conclude the “Thursday” referred to in the

Affidavit was the day Detective Braswell swore out his Affidavit and applied for the

search warrant. The magistrate could reasonably infer Detective Braswell would not

delay in applying for a search warrant given the nature with which marijuana-related

evidence may quickly dissipate. See Lindsey, 58 N.C. App. at 567, 293 S.E.2d at 835

(noting that marijuana “can be easily concealed and moved about and which is likely

to be disposed of or used.”).

      Even if the anonymous tip was potentially stale, the refuse search, Defendant’s



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prior history of drug charges and offenses, and the database searches linking

Defendant to the Residence all provided sufficient probable cause to issue the search

warrant. Defendant does not contest the legality of the refuse search conducted by

Detective Braswell.

      The Supreme Court of North Carolina noted in Sinapi, a case involving a refuse

search for drug-related evidence, that a magistrate may “rely on his personal

experience and knowledge related to residential refuse collection to make a practical,

threshold determination of probable cause,” and he is “entitled to infer that the

garbage bag in question came from [the] defendant’s residence and that items found

inside that bag were probably also associated with that residence.” Sinapi, 359 N.C.

at 399, 610 S.E.2d at 365 (holding that a search warrant was supported by probable

cause where the defendant had been previously arrested twice for drug-related

offenses and several marijuana plants were discovered in a garbage bag outside the

defendant’s home).

      In addition to our Supreme Court in Sinapi, the courts of other jurisdictions

have recognized:

             that “the recovery of drugs or drug paraphernalia from the
             garbage contributes significantly to establishing probable
             cause.” U.S. v. Briscoe, 317 F.3d 906, 908 (8th Cir.2003)
             (holding that marijuana seeds and stems found in the
             defendant’s garbage were sufficient, standing alone, to
             establish probable cause because “simple possession of
             marijuana seeds is itself a crime under both federal and
             state law”); see also U.S. v. Colonna, 360 F.3d 1169, 1175


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             (10th Cir.2004) (holding that evidence of drugs in the
             defendant’s trash cover, while potentially indicating only
             personal use, was sufficient to establish probable cause
             because “all that is required for a valid search warrant is a
             fair probability that contraband or evidence of a crime will
             be found in a particular place”) (quoting Illinois, 462 U.S.
             at 238, 76 L.Ed.2d at 543).

State v. Lowe, 242 N.C. App. 335, 341, 774 S.E.2d 893, 898 (2015), aff’d in part, rev’d

in part on other grounds, 369 N.C. 360, 794 S.E.2d 282 (2016).

      Presuming, arguendo, the anonymous tip was so stale as to be unreliable, the

marijuana-related items obtained from Detective Braswell’s refuse search and

attested to in his Affidavit, Defendant’s criminal history, and the database searches

specifically linking Defendant to the Residence to be searched, provided a substantial

basis upon which the magistrate could determine probable cause existed to issue the

search warrant of Defendant’s Residence, under the totality of the circumstances. See

Sinapi, 359 N.C. at 399, 610 S.E.2d at 365 (determining refuse search resulting in

evidence of marijuana provided probable cause for search warrant to issue); see also

Arrington, 311 N.C. at 641, 319 S.E.2d at 259 (specifying that a court reviewing the

existence of probable cause to issue a search warrant is to employ the totality of the

circumstances test).

                                    V. Conclusion

      The Affidavit and application submitted by Detective Braswell to obtain the

warrant to search Defendant’s Residence gave the magistrate a substantial basis to



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conclude probable cause existed to issue the warrant. Recognizing the deference we

are to give to the magistrate’s determination of probable cause and deferring to the

reasonable inferences the magistrate could have made based on the information

contained in Detective Braswell’s Affidavit, this Court concludes the magistrate had

a substantial basis for determining probable cause that the evidence to be searched

for and seized was located at Defendant’s Residence. See Hunt, 150 N.C. App. at 105,

562 S.E.2d at 600.

      The trial court’s order, which denied Defendant’s motion to suppress, is

affirmed. It is so ordered.

      AFFIRMED.

      Judges DIETZ and BERGER concur.




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