               IN THE SUPREME COURT OF NORTH CAROLINA

                                    No. 140PA18

                                Filed 16 August 2019

 STATE OF NORTH CAROLINA
              v.
 ROBERT DWAYNE LEWIS



      On discretionary review pursuant to N.C.G.S. § 7A-31 of a consolidated appeal

from two decisions of the Court of Appeals, one a published opinion reported at 816

S.E.2d 212 (N.C. Ct. App. 2018), vacating and remanding judgments entered on 7

February 2017 by Judge Richard T. Brown in Superior Court, Hoke County, and the

other an unpublished opinion reported at 812 S.E.2d 730 (N.C. Ct. App. 2018),

vacating and remanding judgments entered on 6 April 2017 by Judge Kendra D. Hill

in Superior Court, Johnston County. Heard in the Supreme Court on 13 May 2019 in

session in the Halifax County Courthouse in the Town of Halifax pursuant to section

18B.8 of Chapter 57 of the 2017 Session Laws of the State of North Carolina.


      Joshua H. Stein, Attorney General, by Milind Dongre, Assistant Attorney
      General, for the State-appellant/appellee.

      Glenn Gerding, Appellate Defender, by Kathryn L. VandenBerg, Assistant
      Appellate Defender, for defendant-appellant/appellee.


      DAVIS, Justice.

      This case presents the unique circumstances of an officer possessing

information that would suffice to establish probable cause for the issuance of a search
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                                  Opinion of the Court



warrant but failing to include pertinent portions of this information in his affidavit

in support of the warrant. Because we conclude that the omission of key facts in the

search warrant application in this case resulted in a lack of probable cause for the

issuance of the search warrant for either defendant’s residence or vehicle, we affirm

in part and reverse in part the decision of the Court of Appeals.

                      Factual and Procedural Background

      On 21 September 2014, a man armed with a handgun and wearing dark

clothing and a blue piece of cloth covering his face entered a Family Dollar store in

Hoke County. The man told a store employee to take the money from the store’s safe,

place the money in a bag, and give the bag to him. After the employee complied with

his demand, the man told her to go into the bathroom and stay there until he had

exited the store. A witness outside the store saw the man flee the scene in a dark blue

Nissan Titan pickup truck.

      A similar robbery occurred at a Dollar General store in Hoke County on 26

September 2014. On that occasion, as two employees were closing the store, a man

holding a handgun and wearing dark clothing and a blue face covering approached

them. He directed the employees to empty the money from the safe and cash registers

into a bag and give it to him. The suspect then ordered the employees to enter the

bathroom and remain there until he left the store.

      Two days later, on 28 September, a third robbery took place at another Dollar

General store in Hoke County. A man armed with a handgun and wearing dark


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clothing and a blue face covering ordered store employees to give him the money in

the store’s safe. Upon obtaining the money, the man ordered the employees to go into

the bathroom and then fled the premises. Law enforcement officers did not receive a

description of the vehicle driven by the suspect for either the 26 September or 28

September robberies.

      A fourth robbery took place during the early morning hours of 19 October 2014

at a Sweepstakes store in Smithfield in nearby Johnston County. A man armed with

a handgun wearing dark clothing and a blue face covering forced an employee to

retrieve money from the store’s safe. As he exited the store, the man was recognized

and identified as defendant Robert Dwayne Lewis by a Smithfield police officer who

was familiar with him from a previous encounter. Defendant fled the scene in a dark

gray Kia Optima. Law enforcement officers subsequently engaged in a high-speed

pursuit but were unable to apprehend defendant during the chase.

      That same day, officers from the Smithfield Police Department notified the

Hoke County Sheriff’s Office of the Sweepstakes store robbery and asked that

deputies be on the lookout for a dark gray Kia Optima being driven by defendant. The

officers also provided the license plate number of the Kia Optima and informed the

Sheriff’s Office that the address associated with the Kia Optima’s registration was

7085 Laurinburg Road in Raeford, North Carolina.

      Shortly after beginning his shift at 7:00 a.m. on 19 October 2014, Deputy Tim

Kavanaugh of the Hoke County Sheriff’s Office drove past the residence located at


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7085 Laurinburg Road. He observed a blue Nissan Titan truck parked in the yard in

front of the home. Deputy Kavanaugh did not, however, see a Kia Optima matching

the description of the vehicle observed in connection with the Smithfield robbery

earlier that morning.

      Deputy Kavanaugh then continued with his normal patrol duties. He drove

back by the home at 7085 Laurinburg Road at approximately 1:00 p.m. on that same

day. At that time, Deputy Kavanaugh saw a dark gray Kia Optima parked in the yard

in front of the house in addition to the Nissan Titan that he had previously observed.

He then parked across the street from the home “[t]o see if [he] could possibly identify

anybody coming from the residence . . . or . . . one of the vehicles leaving from the

residence.”

      Shortly thereafter, a man matching the suspect’s description exited the house

and walked to the residence’s mailbox across the street. Deputy Kavanaugh

approached the man and asked him for his name. The man identified himself as

Robert Lewis, after which Deputy Kavanaugh immediately placed him under arrest.

      After arresting defendant, Deputy Kavanaugh approached the residence and

spoke to Waddell McCollum, defendant’s stepfather, on the front doorstep of the

home. McCollum informed Deputy Kavanaugh that defendant lived at the residence.

He further stated that defendant owned the Kia Optima and that, although

McCollum owned the Nissan Titan, defendant also drove that vehicle on occasion.




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       When he finished speaking to McCollum, Deputy Kavanaugh walked over to

the Kia Optima parked in the front yard “and looked inside of the passenger area, the

rear of the vehicle, and observ[ed] in plain sight a BB&T money bag on the passenger

floor of the vehicle.” Deputy Kavanaugh also saw dark clothing in the back seat of the

Kia.

       Following defendant’s arrest, Detective William Tart of the Hoke County

Sheriff’s Office—who had been investigating the three Hoke County robberies—

prepared a search warrant application seeking permission to search the residence at

7085 Laurinburg Road as well as the Nissan Titan and Kia Optima parked in front

of the home. The sworn affidavit accompanying Detective Tart’s search warrant

application described in detail the 21 September, 26 September, and 28 September

2014 Hoke County robberies as well as the 19 October 2014 Johnston County robbery.

The affidavit noted the similarities between the four robberies as to both the clothing

worn by the robber and the manner in which the crimes were carried out. The

affidavit also stated that Smithfield police officers had identified defendant as the

perpetrator of the 19 October 2014 robbery and that he had been arrested at the 7085

Laurinburg Road residence. The affidavit, however, failed to (1) disclose that

defendant lived at 7085 Laurinburg Road, (2) contain any other information linking

defendant to that address, (3) describe the circumstances surrounding his arrest at

that address, or (4) mention Deputy Kavanaugh’s interactions with defendant or his

stepfather.


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      With regard to the vehicles, the affidavit stated that defendant had driven

away from the 21 September Hoke County robbery in a dark blue Nissan Titan and

that he had fled the scene of the 19 October Johnston County robbery in a Kia Optima.

The affidavit further related that a dark blue Nissan Titan “was observed at the

residence of 7085 Laurinburg Road . . . on October 19, 2014 by Hoke County Patrol

Deputies when serving a felony arrest warrant on [defendant].” The affidavit did not

mention the fact that Deputy Kavanaugh had also seen a Kia Optima parked in front

of the residence. Nor did it relate that the deputy had seen potentially incriminating

evidence upon looking into the window of the Kia Optima.

      An unsworn attachment to the search warrant application listed a “dark blue

Nissan Titan pick-up truck” and a “gray 2013 Kia Optima EX four door car” among

the property to be searched by law enforcement officers if the warrant was issued.

This attachment also contained registration information and a VIN number for each

vehicle. Based upon the information provided in Detective Tart’s affidavit, a

magistrate issued a search warrant for the 7085 Laurinburg Road residence, the

Nissan Titan, and the Kia Optima.

      Detective Tart executed the search warrant on 19 October 2014. He seized

various items of evidence that were located inside the Kia Optima. These items

included the BB&T bank bag that Deputy Kavanaugh had previously viewed through

the window of the vehicle, which contained receipts and other documents connected

to the Smithfield robbery. Detective Tart also seized a blue helmet liner that was


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consistent with the face covering worn by the suspect and a rusty handgun from the

Kia.1

        On 21 September 2015, defendant was indicted by a Hoke County grand jury

on three counts of robbery with a dangerous weapon, five counts of second-degree

kidnapping, and one count of attempted robbery with a dangerous weapon.2 He was

indicted on 5 October 2015 by a Johnston County grand jury on charges of robbery

with a dangerous weapon and two counts of second-degree kidnapping. A second

Johnston County grand jury subsequently indicted him on 2 November 2015 for

common law robbery.3

        On 2 March 2016, defendant filed motions to suppress in both the Superior

Court, Hoke County and the Superior Court, Johnston County in which he sought to

exclude evidence obtained during the execution of the search warrant by Detective

Tart. In his motion, he argued that the evidence should be suppressed on the grounds

that (1) an “insufficient connection” existed “between the items sought and property

to be searched,” and (2) the search of the Kia Optima was not permissible under the

plain view doctrine.




        The record is unclear as to the nature of the evidence discovered by Detective Tart
        1

during his search of the residence or the Nissan Titan.

        Defendant’s indictment for attempted robbery with a dangerous weapon stemmed
        2

from a separate incident that allegedly occurred on 9 September 2014.

        The indictment for common law robbery was based on a separate incident alleged to
        3

have occurred on 30 August 2014.

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      Defendant’s motion to suppress was heard on 7 April 2016 in Superior Court,

Hoke County before the Honorable Tanya T. Wallace. Both Deputy Kavanaugh and

Detective Tart testified at the hearing. During his testimony, Deputy Kavanaugh

related that he traveled to the Laurinburg Road residence on 19 October 2014 in

response to a report from Johnston County law enforcement officers that a possible

suspect living at that location had been seen fleeing the scene of the Smithfield

robbery in a Kia Optima. He further testified that the report provided a description

of the suspect as well as his name (identifying him as defendant) and address. Deputy

Kavanaugh also stated that while on the premises of the residence, he spoke with

defendant’s stepfather, who confirmed that defendant lived at 7085 Laurinburg Road.

Deputy Kavanaugh testified that following his conversation with defendant’s

stepfather, he observed dark clothing and a BB&T bank bag through the window of

the Kia Optima.

      On 10 June 2016, the trial court entered an order denying defendant’s motion

to suppress. In its order, the court concluded that the affidavit in support of Detective

Tart’s search warrant application sufficiently established probable cause to support

the magistrate’s issuance of a warrant authorizing a search of the 7085 Laurinburg

Road residence, the Nissan Titan, and the Kia Optima. The court further ruled that

“[n]otwithstanding the affidavit of probable cause to search the Kia,” the evidence

viewed by Deputy Kavanaugh through the window of the Kia Optima before issuance

of the search warrant was lawfully obtained under the plain view doctrine.


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      On 7 February 2017, defendant entered an Alford plea in Superior Court, Hoke

County as to all the charges for which he had been indicted in that county but

expressly preserved his right to appeal the denial of his motion to suppress. The

Honorable Richard T. Brown sentenced him to three consecutive terms of 103 to 136

months of imprisonment. Defendant gave timely notice of appeal from the Hoke

County judgments to the Court of Appeals.

      On 6 April 2017, defendant entered an Alford plea in Superior Court, Johnston

County to the charges for which he had been indicted in that venue. He once again

preserved his right to appeal the denial of his motion to suppress.4 The Honorable

Kendra D. Hill sentenced him to terms of imprisonment of 103 to 136 months for his

robbery with a dangerous weapon conviction, 50 to 72 months for each second-degree

kidnapping conviction, and 25 to 39 months for his common law robbery conviction—

all to be served consecutively. Defendant filed a timely notice of appeal from the

Johnston County judgments to the Court of Appeals.

      In the Court of Appeals, defendant argued that Judge Wallace erred by

denying his motion to suppress because (1) the search warrant affidavit submitted by

Detective Tart was insufficient to establish probable cause to search either the home

at 7085 Laurinburg Road or the two vehicles parked in front of the residence, and (2)




      4 No separate order was entered in the Superior Court, Johnston County matter in
connection with defendant’s motion to suppress. Instead, it appears from the record that
Judge Wallace’s order was made a part of the court file in the Johnston County case.

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the plain view doctrine did not permit the search of the Kia Optima. On 1 May 2018,

the Court of Appeals issued two opinions regarding defendant’s separate appeals from

the Hoke County and Johnston County judgments. A published opinion, State v.

Lewis, 816 S.E.2d 212 (N.C. Ct. App. 2018) (Lewis I), addressed defendant’s Hoke

County appeal, and an unpublished opinion, State v. Lewis, 812 S.E.2d 730, 2018 WL

2016031 (N.C. Ct. App. 2018) (unpublished) (Lewis II), addressed his Johnston

County appeal.

      In its published opinion, the Court of Appeals held that the affidavit supporting

Detective Tart’s search warrant application was sufficient to establish probable cause

to search the Nissan Titan and Kia Optima parked in front of the residence but was

insufficient to establish probable cause to search the dwelling itself. Lewis I, 816

S.E.2d at 213. With regard to its conclusion that the search warrant affidavit did not

establish probable cause to search the home, the Court of Appeals noted that the

affidavit failed to state that defendant resided at 7085 Laurinburg Road. Id. at 217.

The Court of Appeals further reasoned that, based solely upon the information

contained in the affidavit, “7085 Laurinburg Road could have been . . . someone else’s

home with no connection to Lewis at all. That Lewis visited that location, without

some indication that he may have stowed incriminating evidence there, is not enough

to justify a search of the home.” Id.

      With regard to the vehicles, the Court of Appeals held that probable cause

existed for the issuance of the warrant because Detective Tart’s affidavit “contained


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enough information, together with reasonable inferences drawn from that

information, to establish a substantial basis to believe that the evidence sought

probably would be found in the blue Nissan Titan and Kia Optima located at 7085

Laurinburg Road.” Id. at 216. The Court of Appeals explained its reasoning as follows:

              There was evidence that the same suspect committed four
              robberies, the first while driving a dark blue Nissan Titan
              and the fourth while driving a Kia Optima. Later on the
              same day of the fourth robbery, officers arrested Lewis.
              When they located him they saw—of all the makes, models,
              and colors of all the vehicles in the world—a dark blue
              Nissan Titan, matching the description of the vehicle used
              in the first robbery. These facts were more than sufficient
              for the magistrate to conclude that, if officers returned to
              that location and found a dark blue Nissan Titan and Kia
              Optima there, there was probable cause to believe that
              those vehicles contained evidence connected to the
              robberies.

Id. at 217.

      Because it could not determine from the record “which evidence officers seized

from the vehicles and which evidence they seized from the home,” the Court of

Appeals vacated defendant’s convictions and remanded the case “with instructions

for the trial court to allow [defendant’s] motion to suppress the evidence seized from

the residence located at 7085 Laurinburg Road.” Id. Based upon its holding that

probable cause supported the issuance of the search warrant for the vehicles, the

Court of Appeals did not address defendant’s additional argument that a search of

the Kia Optima was not supported by the plain view doctrine. Id. at 217. In its opinion




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in Lewis II, the Court of Appeals reached identical conclusions regarding the trial

court’s order denying defendant’s motions to suppress.5

       The State filed petitions for discretionary review on the issue of whether

probable cause existed to support a search of the residence. Defendant, in turn, filed

petitions for discretionary review on the issue of whether the search warrant affidavit

established probable cause to search the Kia Optima. We granted all of the parties’

petitions.6

                                         Analysis

       The Fourth Amendment to the United States Constitution states that the

“right of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause.” U.S. Const. amend. IV. “ ‘[A] neutral and detached

magistrate,’ not an ‘officer engaged in the often competitive enterprise of ferreting

out crime,’ must determine whether probable cause exists.” State v. Allman, 369 N.C.

292, 294, 794 S.E.2d 301, 303 (2016) (quoting Illinois v. Gates, 462 U.S. 213, 240, 76

L. Ed. 2d 527, 549 (1983)). This determination must be based upon the totality of the

circumstances. E.g., State v. Benters, 367 N.C. 660, 664, 766 S.E.2d 593, 597 (2014).


       5 Based upon its ruling that defendant’s convictions must be vacated, the Court of
Appeals dismissed as moot a petition for certiorari filed by defendant seeking review of the
factual basis for his Alford pleas to the two second-degree kidnapping charges. Lewis II, 2018
WL 2016031, at *1.

       6The parties’ appeals from Lewis I and Lewis II were subsequently consolidated for
review by this Court.

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      “The task of the issuing magistrate is simply to 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) (quoting Gates, 462 U.S. at 238, 76 L. Ed. 2d at 548). It is well established that

“a magistrate is entitled to draw reasonable inferences from the material supplied to

him by an applicant for a warrant.” State v. Sinapi, 359 N.C. 394, 399, 610 S.E.2d

362, 365 (2005) (citation omitted). This Court has opined that “as long as the pieces

fit together well and yield a fair probability that a police officer executing the warrant

will find contraband or evidence of a crime at the place to be searched, a magistrate

has probable cause to issue a warrant.” Allman, 369 N.C. at 294, 794 S.E.2d at 303.

      We have recognized that “great deference should be paid a magistrate’s

determination of probable cause and . . . after-the-fact scrutiny should not take the

form of a de novo review.” Arrington, 311 N.C. at 638, 319 S.E.2d at 258. Thus,

“[r]eviewing ‘courts should not invalidate warrant[s] by interpreting affidavit[s] in a

hypertechnical, rather than a commonsense, manner.’ ” Allman, 369 N.C. at 294, 794

S.E.2d at 303 (second and third alterations in original) (quoting State v. Riggs, 328

N.C. 213, 221, 400 S.E.2d 429, 434 (1991)). “This deference, however, is not without

limitation. A reviewing court has the duty to ensure that a magistrate does not

abdicate his or her duty by ‘mere[ly] ratif[ying] . . . the bare conclusions of




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[affiants].’ ” Benters, 367 N.C. at 665, 766 S.E.2d at 598 (alterations in original)

(quoting Gates, 462 U.S. at 239, 76 L. Ed. 2d at 549).

I.   Search of Residence

      We first address whether the search warrant affidavit at issue established

probable cause for law enforcement officers to conduct a search of the residence

located at 7085 Laurinburg Road. In evaluating the sufficiency of the affidavit, we

are guided by our decision in State v. Campbell, 282 N.C. 125, 191 S.E.2d 752 (1972).

      In Campbell the defendant lived in a home with two roommates. Id. at 130,

191 S.E.2d at 756. All three residents of the dwelling were suspected drug dealers

with outstanding arrest warrants for the sale and possession of narcotics. Id. at 130,

191 S.E.2d at 756. Law enforcement officers sought to obtain a search warrant for the

residence. The affidavit in support of the warrant stated that the affiant possessed

arrest warrants for the three men living in the home. Id. at 130, 191 S.E.2d at 756.

It further reported that the defendant and his roommates “all have sold narcotics to

Special Agent J. M. Burns of the SBI and are all actively involved in drug sales to

Campbell College students; this is known from personal knowledge of affiant,

interviews with reliable confidential informants and local police officers.” Id. at 130,

191 S.E.2d at 756.

      We held that the affidavit was “fatally defective,” explaining our reasoning as

follows:

             The affidavit implicates those premises solely as a


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             conclusion of the affiant. Nowhere in the affidavit is there
             any statement that narcotic drugs were ever possessed or
             sold in or about the dwelling to be searched. Nowhere in
             the affidavit are any underlying circumstances detailed
             from which the magistrate could reasonably conclude that
             the proposed search would reveal the presence of illegal
             drugs in the dwelling. The inference the State seeks to
             draw from the contents of this affidavit—that narcotic
             drugs are illegally possessed on the described premises—
             does not reasonably arise from the facts alleged. Therefore,
             nothing in the foregoing affidavit affords a reasonable basis
             upon which the issuing magistrate could conclude that any
             illegal possession or sale of narcotic drugs had occurred, or
             was occurring, on the premises to be searched.

Id. at 131, 191 S.E.2d at 757.

      This Court reached a contrary conclusion in Allman with respect to whether a

search warrant affidavit established probable cause to search the defendant’s

residence. In Allman, the defendant, Brittany Allman, lived in a home with half-

brothers named Sean Whitehead and Jeremy Black, to whom she was not related.7

Allman, 369 N.C. at 292, 794 S.E.2d at 302. Law enforcement officers sought a search

warrant for the residence after stopping a vehicle in which Whitehead and Black were

traveling, leading to the discovery of 8.1 ounces of marijuana and over $1600 in cash

inside the car. Id. at 292–93, 794 S.E.2d at 302.

      The affidavit accompanying the search warrant in Allman—in addition to

describing the discovery of contraband in the vehicle—stated that the affiant had run



      7 Although the opinion in Allman related primarily to the activities of Whitehead and
Black, the defendant was also charged with offenses pertaining to the manufacture,
possession, and sale or delivery of illegal drugs.

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criminal record checks on the two men and learned that both of them had been

previously charged with offenses related to the sale and possession of illegal drugs.

Id. at 295, 794 S.E.2d at 304. The affidavit further stated the following:

              During the vehicle stop, Whitehead maintained that he
              and Black lived at 30 Twin Oaks Drive in Castle Hayne,
              North Carolina. . . .

                     On the same day as the vehicle stop, [the affiant]
              went to 30 Twin Oaks Drive. When he got there, he
              discovered that neither half-brother lived at that address
              but that Whitehead’s and Black’s mother, Elsie Black, did.
              Ms. Black told Detective Bacon that the two men lived at
              4844 Acres Drive in Wilmington and had not lived at 30
              Twin Oaks Drive for about three years. She described the
              Acres drive property as a small one-story residence that
              had “a big, tall privacy fence in the backyard” and said that
              “there should be an old red truck and an old white truck at
              the house.” At that point, another detective went to 4844
              Acres Drive. The property matched the description given
              by Ms. Black, and one of the two trucks outside of the house
              was registered to Jeremy Black.

Id. at 295, 794 S.E.2d at 304 (footnote omitted).

      This Court held that the facts set out in the affidavit were sufficient to

establish probable cause to search the Acres Drive residence that the defendant

shared with the two men. Id. at 298, 794 S.E.2d at 306. While “acknowledg[ing] that

nothing in Detective Bacon’s affidavit directly linked defendant’s home with evidence

of drug dealing,” id. at 297, 794 S.E.2d at 305, we determined that the magistrate

could have reasonably inferred that evidence of drug dealing was likely to be found

in the home


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             [b]ased on the mother’s statement that Whitehead and
             Black really lived at [the same residence as the
             defendant] . . . . [a]nd based on the insight from Detective
             Bacon’s training and experience that evidence of drug
             dealing is likely to be found at a drug dealer’s home, and
             the fact that Whitehead lied about where he and Black
             lived . . . .

Id. at 296, 794 S.E.2d at 305. We distinguished the facts and result in Allman from

our decision in Campbell, in part, by noting that “while a suspect in this case lied to

[the officer who stopped their vehicle] about his true address, nothing in the Campbell

opinion indicates that any of the subjects of that search lied to the authorities about

their home address. So Campbell does not alter our conclusion.” Id. at 297, 794 S.E.2d

at 305.

      In State v. McKinney, 368 N.C. 161, 775 S.E.2d 821 (2015), we likewise

distinguished Campbell in holding that probable cause supported the issuance of a

warrant to search the dwelling of a suspected drug dealer. Id. at 166, 775 S.E.2d at

825–26. In McKinney, law enforcement officers received a tip that the defendant was

conducting drug deals in his apartment as well as in the parking lot of his apartment

complex. Id. at 162, 775 S.E.2d at 823. In response to the tip, officers began

surveilling the defendant’s residence. They observed a visitor leave the dwelling after

only being there six minutes. Id. at 162, 775 S.E.2d at 823. After stopping the visitor’s

vehicle for a traffic violation, officers discovered marijuana in the car and $4258 in

cash on the driver’s person. Id. at 162, 775 S.E.2d at 823. Officers arrested Roy

Foushee, the driver of the vehicle, and subsequently found texts on his cell phone in


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which he appeared to have arranged a drug transaction with the defendant that

coincided with the timing of his visit to the defendant’s apartment. Id. at 162, 775

S.E.2d at 823.

      Following this arrest, law enforcement officers sought and obtained a search

warrant for the defendant’s apartment. The affidavit accompanying the warrant

application “described the nature of the citizen complaint that triggered the

investigation, the results of the officers’ surveillance, the arrest of Foushee, the

material found on Foushee’s person and in his car, and the text messages recovered

from Foushee’s telephone.” Id. at 162, 775 S.E.2d at 823. In concluding that the

statements contained in the affidavit were sufficient to support the issuance of a

search warrant for the defendant’s residence, we distinguished the circumstances at

issue in that case from those of Campbell. “Unlike the case at bar, the affidavit in

Campbell included no information indicating that drugs had been possessed in or sold

from the dwelling to be searched. As a result, Campbell does not control the outcome

here.” Id. at 166, 775 S.E.2d at 826.

      In the present case the search warrant affidavit submitted by Detective Tart

contained statements that a suspect wearing dark clothing, using a blue face

covering, and carrying a handgun had committed similar robberies of Hoke County

stores on 21 September, 26 September, and 28 September 2014. The affidavit also

stated that the suspect fled the scene of the first robbery in a “dark blue Nissan Titan

with an unknown NC registration. This description is consistent with a dark blue


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Nissan Titan that was observed at the residence of 7085 Laurinburg Road . . . on

October 19, 2014 by Hoke County Patrol Deputies when serving a felony arrest

warrant on Robert Lewis.”

      The affidavit further asserted that a Sweepstakes store in Johnston County

was robbed “in the earlier hours of [the] morning” of 19 October by a man armed with

a handgun who was wearing dark clothing and a blue face covering. The affidavit

stated that “[t]he clothing description and method of operation were similar to those

robberies previously described within Hoke County.” In addition, the affidavit

contained a statement that the suspect had been identified as defendant by

Smithfield law enforcement officers and had fled the scene in a Kia Optima.

      Critical to our analysis of this issue, however, is the information that was not

contained in Detective Tart’s affidavit. His affidavit failed to set forth any of the

circumstances surrounding defendant’s arrest at 7085 Laurinburg Road and offered

no explanation as to why law enforcement officers had gone to that address in the

first place. Notably, the affidavit did not include the fact that the address had been

provided by Johnston County law enforcement officers. It also failed to include any

details of Deputy Kavanaugh’s conversation with defendant’s stepfather—who had

confirmed that defendant lived in the home—and contained no mention of the fact

that a Kia Optima was parked in front of the residence at the time of defendant’s

arrest.

      We conclude that the information contained in the affidavit failed to establish


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                                   Opinion of the Court



the existence of probable cause to search the residence at 7085 Laurinburg Road. The

affidavit simply did not connect defendant with the residence that the officers wished

to search in any meaningful way beyond the mere fact that he was arrested there and

that a dark blue Nissan Titan was observed in the vicinity of the house at that time.

Defendant could have been present at 7085 Laurinburg Road at the time of his arrest

for any number of reasons. Absent additional information linking him to the

residence or connecting the house with criminal activity, no basis existed for the

magistrate to infer that evidence of the robberies would likely be found inside the

home.

        The State relies heavily on Allman in support of its argument that probable

cause existed to support the issuance of a search warrant for 7085 Laurinburg Road

even in the absence of evidence directly linking the residence with the robberies. But

Allman is easily distinguishable. In that case the officer’s affidavit established that a

suspected drug dealer had lied about where he lived—suggesting that evidence of

criminal activity would likely be found in his residence. Allman, 369 N.C. at 295, 794

S.E.2d at 304. The affidavit further noted that law enforcement officers had later

received information from the suspects’ mother as to their actual address and

subsequently corroborated that information before applying for a search warrant. Id.

at 295, 794 S.E.2d at 304. Unlike the present case, the affidavit in Allman stated not

only that the residence to be searched was connected to the suspects but also that—

based on the officer’s training and experience and the fact that one of the suspects


                                          -20-
                                       STATE V. LEWIS

                                      Opinion of the Court



had lied about where they lived—it likely contained evidence of the crime for which

a warrant was sought. Id. at 295–96, 794 S.E.2d at 304. McKinney is likewise

distinguishable from the present case because the search warrant affidavit there

contained information implicating both the defendant and his residence in the

criminal activity being investigated. McKinney, 368 N.C. at 166, 775 S.E.2d at 826.

       We therefore hold that the allegations contained in Detective Tart’s affidavit

failed to provide the magistrate with a sufficient basis from which to conclude that

probable cause existed to search the 7085 Laurinburg Road residence.8 Accordingly,

we affirm the ruling of the Court of Appeals that defendant’s motion to suppress

evidence seized from the residence should have been allowed.

II.   Search of the Kia Optima

       The final issue before us is whether Detective Tart’s affidavit in support of the

search warrant established probable cause to support a search of the Kia Optima.9

Defendant argues that the Court of Appeals erred in affirming the trial court’s


       8  We note that in its order denying defendant’s motion to suppress, the trial court
relied, in part, upon testimony at the suppression hearing from Deputy Kavanaugh and
Detective Tart that was not contained in Detective Tart’s affidavit. The court’s reliance on
this testimony was improper because it was required to evaluate the existence of probable
cause for the search warrant based solely on the information in the affidavit that was
available to the magistrate at the time the warrant was issued. See Benters, 367 N.C. at 673–
74, 766 S.E.2d at 603 (appellate court erred in determining existence of probable cause to
support issuance of search warrant by “relying upon facts elicited at [the suppression]
hearing that went beyond ‘the four corners of [the] warrant.’ ” (second alteration in original)).

       9 In his appeal to this Court, defendant has not argued that probable cause was lacking
for the search of the Nissan Titan. Therefore, that issue is not before us.


                                              -21-
                                    STATE V. LEWIS

                                   Opinion of the Court



determination that probable cause existed to support that search because the

affidavit failed to “explain why evidence . . . would be found in the Kia Optima listed

as a vehicle to be searched” or “state that there was a Kia Optima at the Laurinburg

Road address.”

      In focusing—as we must—not on the totality of the evidence that Detective

Tart had gathered but rather solely on the information that was actually set out in

his affidavit, we agree that the affidavit failed to establish probable cause for the

search of the Kia Optima. As noted above, the statements in Detective Tart’s affidavit

failed to mention the presence of a Kia Optima at 7085 Laurinburg Road at the time

of defendant’s arrest. Indeed, beyond stating that defendant fled the scene of the 19

October 2014 robbery in a “new model 4-door Kia Optima,” the affidavit provided no

other information whatsoever concerning the Kia Optima.10

      It is true that an unsworn attachment to the search warrant application listed

“[a] gray 2013 Kia Optima EX four door car with NC registration BMB4863; VIN#

5XXGN4A7XDG192163” among the property to be searched by officers upon

execution of the search warrant. But Detective Tart’s sworn affidavit itself contained

no mention of this identifying information for the vehicle. Nor did it explain how this

information had been obtained. Consequently, while the information possessed by




      10 The affidavit failed to mention that Deputy Kavanaugh had even seen the Kia
Optima, much less that he had observed the presence of potentially incriminating evidence
upon looking through the window of the vehicle.

                                          -22-
                                     STATE V. LEWIS

                                    Opinion of the Court



Detective Tart would have been sufficient to authorize a search warrant for the Kia

Optima had it all been contained within his affidavit, his failure to include crucial

information concerning the vehicle rendered the affidavit insufficient to establish

probable cause.

         Accordingly, we hold that the Court of Appeals erred in affirming the trial

court’s determination that probable cause existed to support the issuance of a search

warrant for the Kia Optima. Because the Court of Appeals did not address the trial

court’s alternative ruling that the search of the vehicle was supported under the plain

view doctrine, we remand this case to the Court of Appeals for a determination of that

issue.

                                       Conclusion

         For the reasons set forth above, we affirm the portions of the Court of Appeals’

decisions holding that defendant’s motion to suppress should have been allowed as to

evidence seized from defendant’s residence and reverse the portions of the Court of

Appeals’ decisions holding that probable cause existed to support the issuance of the

search warrant for the Kia Optima. The Court of Appeals’ ruling that probable cause

existed to support the search of the Nissan truck is not before us and is left

undisturbed. We remand this case for determination by the Court of Appeals whether

the evidence seized from the Kia Optima was admissible under the plain view

doctrine.

         AFFIRMED IN PART; REVERSED IN PART AND REMANDED.


                                           -23-
      Justice MORGAN concurring in part and dissenting in part.


      I respectfully dissent from the position taken by my learned colleagues of the

majority that there was a lack of probable cause for the issuance of the search warrant

by the magistrate to authorize law enforcement’s search of defendant’s Kia Optima.

While I agree with the majority view which concludes that the Court of Appeals

correctly determined that defendant’s motion to suppress should have been allowed

as to evidence seized from his residence because the information contained in the

search warrant did not sufficiently connect defendant to the house so as to provide a

basis for the magistrate to infer that evidence of the robberies would likely be found

in the home, nonetheless I disagree with the outcome that the lower appellate court

should be reversed regarding its determination that probable cause existed to

authorize the magistrate’s issuance of the search warrant. Since I would therefore

affirm in totality the decision of the Court of Appeals, consequently there would be

no need for the case to be remanded to the lower appellate court, as directed by the

majority, for a determination concerning whether the evidence seized from the Kia

Optima was admissible under the plain view doctrine, because the application of the

doctrine would be of no consequence in light of the finding of probable cause.

      My discomfort with the majority’s opinion stems from its regrettable rigidity

in tightly clinging to the legal rudiments of the establishment and recognition of

probable cause in search warrant affidavits which this Court has historically

declared, while exhibiting its remarkable reticence to equally embrace the practical
                                     STATE V. LEWIS

                    Morgan, J., concurring in part and dissenting in part



realities which law enforcement officers and magistrates must face in the

establishment and recognition of probable cause in search warrant affidavits which

this Court has also addressed in its opinions. In my view, an appropriate balance of

the considerations of legal requirements and practical aspects which this Court has

cited regarding the existence of probable cause in search warrant applications would

better serve the ends of justice in the instant case by determining the existence of

probable cause in the search warrant affidavit at issue to allow the search of

defendant’s Kia Optima, demonstrating the proper balancing approach between legal

requirements and practical aspects which govern the ascertainment of probable cause

in search warrant affidavits, and providing a clearer precedent for law enforcement

officers and magistrates to consult in order to better comprehend the salient

circumstances to be submitted and evaluated for the existence of probable cause in

search warrants.

      The majority is certainly correct in its recitation of principles enunciated by

this Court in such cases as State v. Allman, 369 N.C. 292, 794 S.E.2d 301 (2016),

State v. Benters, 367 N.C. 660, 766 S.E.2d 593 (2014), State v. Sinapi, 359 N.C. 394,

610 S.E.2d 362 (2005), and State v. Arrington, 311 N.C. 633, 319 S.E.2d 254 (1984)

regarding the requirement that a neutral and detached magistrate is to issue a search

warrant only upon the existence of probable cause being shown, with such a

determination to be made based upon the totality of the circumstances in arriving at

a practical and commonsense decision in light of all of the circumstances set forth in

                                            -2-
                                     STATE V. LEWIS

                    Morgan, J., concurring in part and dissenting in part



the affidavit. The prevailing viewpoint also recognizes the considerations declared in

these rulings that appellate “courts should not invalidate [search] warrant[s] by

interpreting [search warrant] affidavit[s] in a hypertechnical, rather than a

commonsense, manner,” State v. Riggs, 328 N.C. 213, 222, 400 S.E.2d 429, 434 (1991)

(quoting Illinois v. Gates, 462 U.S. 213, 236 (1983)), and that a magistrate is entitled

to draw reasonable inferences from the material supplied through application for a

search warrant and has probable cause to issue the warrant “as long as the pieces fit

together well and yield a fair probability that a police officer executing the warrant

will find contraband or evidence of a crime at the place to be searched . . . .” Allman,

369 N.C. at 294, 794 S.E.2d at 303 (citing Massachusetts v. Upton, 466 U.S. 727, 733

(1984) (per curiam) and Gates, 462 U.S. at 230–31).

      In the present case, while the majority has demonstrated its awareness of all

of these guiding principles by citing them in its opinion, unfortunately the majority

readily implements only the standards that it chooses to employ, and conveniently

neglects the standards that it chooses to ignore.            The majority has elected to

emphasize that the investigating detective’s search warrant affidavit “failed to

mention the presence of a Kia Optima at 7085 Laurinburg Road at the time of

defendant’s arrest” and that “beyond stating that defendant fled the scene of the 19

October 2014 robbery in a ‘new model 4-door Kia Optima,’ the affidavit provided no

other information whatsoever concerning the Kia Optima.” However, as to the fact

that “an unsworn attachment to the search warrant application listed ‘[a] gray 2013

                                            -3-
                                        STATE V. LEWIS

                       Morgan, J., concurring in part and dissenting in part



Kia   Optima      EX    four   door    car    with    NC     registration      BMB4863;   VIN#

5XXGN4A7XDG192163’ among the property to be searched by officers upon execution

of the search warrant,” the majority has elected to minimize the extensive detail

utilized to identify the vehicle sought to be searched by opting to emphasize that the

investigating detective’s “sworn affidavit itself contained no mention of this

identifying information for the vehicle.” Based on these considerations, the majority

concludes that if all of the aforementioned information had been contained in the

investigating detective’s sworn search warrant affidavit rather than in an unsworn

attachment to the search warrant application, coupled with a sworn description of

the manner in which he obtained this identifying information for the Kia Optima,

then the search warrant would have been deemed to contain the requisite probable

cause.

         In applying this Court’s enunciated principles that a magistrate is entitled to

draw inferences from the material supplied to obtain a search warrant based upon

the totality of the circumstances in arriving at a practical and commonsense decision

in light of all of the circumstances set forth in the affidavit, I conclude that the

magistrate satisfactorily determined that probable cause existed for the issuance of

a search warrant to authorize law enforcement’s search of defendant’s Kia Optima.

The majority’s requirement that the information which establishes probable cause

must be included in the sworn search warrant affidavit instead of attached to the

sworn search warrant affidavit in order to be considered by a magistrate invokes the

                                               -4-
                                     STATE V. LEWIS

                    Morgan, J., concurring in part and dissenting in part



type of hypertechnical mandate for a probable cause determination which this Court

has expressly disavowed. Unfortunately, however, the majority here demands this

kind of precision in lieu of the magistrate’s practical and commonsense approach to

construe the informative material which was physically appended to the sworn search

warrant affidavit as being inherently intended in its presentation format to illustrate

that it was a part of the entire search warrant application to be evaluated by the

magistrate as to its fair probability that a police officer executing the warrant would

find contraband or evidence of the Johnston County robbery in the Kia Optima. In

light of all of these facts and circumstances which were being navigated by two

different law enforcement agencies in two different counties which were coordinating

their investigative resources in an effort to resolve a spate of crimes, the magistrate

involved here should have been accorded the authority to refrain from imposing a

hypertechnical requirement upon the investigating detective in favor of the practical

and commonsense decision to consider the totality of the information contained in the

combined application of the sworn search warrant affidavit as well as the unsworn

attachment of detailed information which was physically appended to it in order to

arrive at the determination of the existence of probable cause to search defendant’s

vehicle.

      In the very first sentence of its opinion, the majority acknowledges that this

case presents unique circumstances regarding an officer’s possession of information

“that would suffice to establish probable cause for the issuance of a search warrant

                                            -5-
                                      STATE V. LEWIS

                     Morgan, J., concurring in part and dissenting in part



but fail[s] to include pertinent portions of this information in his affidavit in support

of the warrant.” “The resolution of doubtful or marginal cases in this area should be

largely determined by the preference to be accorded to warrants.” Riggs, 328 N.C. at

222, 400 S.E.2d at 435 (quoting Gates, 462 U.S. at 237 n.10) (brackets omitted).

Guided by this Court’s precedent in applying it to the recognized uniqueness of the

circumstances presented in this case, I would affirm the decision of the Court of

Appeals.

      Justice NEWBY joins in this dissenting opinion.




                                             -6-
