             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                 No. COA15-1347

                                Filed: 21 June 2016

Gaston County, Nos. 12 CRS 65856, 14 CRS 3491-92

STATE OF NORTH CAROLINA

            v.

DON NEWTON BROWN


      Appeal by Defendant from order entered 19 March 2013 by Judge James W.

Morgan and judgment entered 20 July 2015 by Judge Jesse B. Caldwell III in Gaston

County Superior Court. Heard in the Court of Appeals 25 April 2016.


      Attorney General Roy Cooper, by Special Deputy Attorney General Phillip K.
      Woods, for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender Michele A.
      Goldman, for Defendant.


      STEPHENS, Judge.


      In this case, a search warrant was issued based on an affidavit that failed to

specify when an informant witnessed Defendant’s allegedly criminal activities. Such

an affidavit contains insufficient information to establish probable cause and thus

cannot support the issuance of a search warrant. Accordingly, we reverse the trial

court’s order denying Defendant’s motion to suppress evidence discovered as a result

of the execution of that search warrant and vacate the judgment entered upon

Defendant’s subsequent guilty pleas.
                                     STATE V. BROWN

                                    Opinion of the Court



                          Factual and Procedural Background

         This case arises from the execution of a search warrant applied for and granted

to Detective Kevin Putnam of the Gastonia Police Department (“GPD”) on 26

November 2012. On that date, Putnam sought and received a warrant to search the

residence of Defendant Don Newton Brown at 1232 North Ransom Street in Gaston

County for counterfeit currency and related items, as well as firearms.             The

application included an affidavit by Putnam that averred, inter alia, Putnam had

received a counterfeit $100 bill from an informant who claimed it had been obtained

from Brown’s home, where the informant also claimed to have seen firearms,

including a handgun.       As a result of items found during the search of Brown’s

residence, he was indicted on one count each of possession of a stolen motor vehicle,

possession of five or more counterfeit instruments, and possession of a firearm by a

felon.

         On 7 January 2013, Brown moved to suppress the fruits of the search of his

residence, asserting that “[t]hat the application and warrant fail to contain the

information necessary to meet the ‘lack of staleness’ requirement . . . .” The motion

to suppress was heard in the Gaston County Superior Court on 18 March 2013 before

the Honorable James W. Morgan, Judge presiding. At the hearing, Putnam was the

sole witness, testifying about what he intended for the affidavit to state in an effort

to clarify vague language about when the informant obtained his information



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                                   Opinion of the Court



regarding Brown’s allegedly criminal activities.          The trial court denied Brown’s

motion in open court and entered a written order memorializing the ruling on 19

March 2013 (“the suppression order”).

      The case came on for trial at the 20 July 2015 criminal session of Gaston

County Superior Court, the Honorable Jesse B. Caldwell III, Judge presiding. Brown

pled guilty to all three charges against him, specifically reserving his right to appeal

the suppression order. The trial court consolidated the convictions for judgment,

imposing a term of 25-39 months in prison. Brown gave notice of appeal in open court.

                                      Discussion

      On appeal, Brown argues that the trial court erred in (1) denying his motion

to suppress the evidence discovered as a result of the search, (2) calculating his prior

record level, and (3) including a civil judgment for restitution in the written judgment

which was not part of the court’s oral ruling. We reverse the order denying the motion

to suppress and vacate the judgment entered upon Brown’s subsequent guilty pleas.

As a result, we do not consider Brown’s other arguments.

                                 I. Motion to suppress

      Brown argues that the trial court erred in denying his motion to suppress.

Specifically, Brown contends that Putnam’s affidavit in support of his search warrant

application was conclusory and lacked sufficient details about when the informant




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                                   Opinion of the Court



(“the CRI”) acquired the information that formed the basis of Putnam’s warrant

request. We agree.

                           A. Standard of review on appeal

             The scope of appellate review of a ruling upon 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. Johnston, 115 N.C. App. 711, 713, 446 S.E.2d 135, 137 (1994) (citation and

internal quotation omitted).    “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). “An appellate court accords great deference to the trial court’s ruling on a

motion to suppress because the trial court is entrusted with the duty to hear

testimony (thereby observing the demeanor of the witnesses) and to weigh and

resolve any conflicts in the evidence.” Johnston, 115 N.C. App. at 713, 446 S.E.2d at

137 (citations omitted).

             This deference, however, is not without limitation. A
             reviewing court has the duty to ensure that a [judicial
             officer] does not abdicate his or her duty by “mere[ly]
             ratif[ying] . . . the bare conclusions of [affiants].” [Illinois
             v.] Gates, 462 U.S. [213,] 239, 103 S. Ct. [2317,] 2333, 76 L.
             Ed. 2d [527,] 549 [(1983)]; see State v. Campbell, 282 N.C.
             125, 130-31, 191 S.E.2d 752, 756 (1972) (“Probable cause
             cannot be shown by affidavits which are purely conclusory
             . . . .” (citation and internal quotation marks omitted)); see
             also United States v. Leon, 468 U.S. 897, 914, 104 S. Ct.
             3405, 3416, 82 L. Ed. 2d 677, 693 (1984) (“[C]ourts must . . .


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                                     Opinion of the Court



              insist that the [judicial officer] purport to perform his
              neutral and detached function and not serve merely as a
              rubber stamp for the police.”) (citations and internal
              quotation marks omitted), superseded in part by Fed. R.
              Crim. P. 41(e).

State v. Benters, 367 N.C. 660, 665, 766 S.E.2d 593, 598 (2014).

              B. Standard and scope of review at the suppression hearing

        The question for a trial court

              reviewing the issuance of a search warrant is whether
              there is substantial evidence in the record supporting the
              [judicial officer’s] decision to issue the warrant. North
              Carolina [employs] the totality of the circumstances
              approach for determining the existence of probable cause
              . . . . Thus, the task of the issuing judicial officer is to make
              a common-sense decision based on all the circumstances
              that there is a fair probability that contraband or evidence
              of a crime will be found in a particular place.

State v. McCoy, 100 N.C. App. 574, 576, 397 S.E.2d 355, 357 (1990) (citations and

internal quotation marks omitted).

        Because its duty in ruling on a motion to suppress based upon an alleged lack

of probable cause for a search warrant involves an evaluation of the judicial officer’s

decision to issue the warrant, the trial court should consider only the information

before the issuing officer. Thus, although our appellate courts have held that “the

scope of the court’s review of the [judicial officer’s] determination of probable cause is

not confined to the affidavit alone[,]” additional information can only be considered

where



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                                   Opinion of the Court



             [t]he evidence shows that the [judicial officer] made his
             notes on the exhibit contemporaneously from information
             supplied by the affiant under oath, that the paper was not
             attached to the warrant in order to protect the identity of
             the informant, that the notes were kept in the magistrate's
             own office drawer, and that the paper was in the same
             condition as it was at the time of the issuance of the search
             warrant.

State v. Hicks, 60 N.C. App. 116, 119, 120-21, 298 S.E.2d 180, 183 (1982) (internal

quotation marks omitted; emphasis added), disc. review denied, 307 N.C. 579, 300

S.E.2d 553 (1983). In such circumstances, an appellate court may consider whether

probable cause can be supported by the affidavit in conjunction with the

aforementioned notes. Id. at 121, 298 S.E.2d at 183; see also N.C. Gen. Stat. § 15A-

245(a) (2015) (“Before acting on the application, the issuing official may examine on

oath the applicant or any other person who may possess pertinent information, but

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

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

warrant unless the information is either recorded or contemporaneously summarized

in the record or on the face of the warrant by the issuing official.”) (emphasis added).

Outside of such contemporaneously recorded information in the record, however, it is

error for a reviewing court to “rely[] upon facts elicited at the [suppression] hearing

that [go] beyond ‘the four corners of [the] warrant.’ ” See Benters, 367 N.C. at 673, 766

S.E.2d at 603.

        C. “Staleness” of information supporting issuance of a search warrant


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                                   STATE V. BROWN

                                  Opinion of the Court



      The concern regarding the possible “staleness” of information in an affidavit

accompanying a search warrant application arises from the requirement that

             proof of probable cause must be established by facts so
             closely related to the time of issuance of the warrant so as
             to justify a finding of probable cause at that time. The
             general rule is that no more than a reasonable time may
             have elapsed. 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.

             As a general rule, an interval of two or more months
             between the alleged criminal activity and the affidavit has
             been held to be such an unreasonably long delay as to vitiate
             the search warrant.

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

internal quotation marks, and ellipsis omitted; emphasis added). However, where

the alleged criminal activity has been observed within a day or two of the affidavit

and warrant application, the information is generally not held to be stale. See, e.g.,

State v. Walker, 70 N.C. App. 403, 405, 320 S.E.2d 31, 33 (1984) (upholding a search

warrant for a location where an informant had seen marijuana within the past 48

hours); State v. Barnhardt, 92 N.C. App. 94, 97, 373 S.E.2d 461, 463 (upholding a

search warrant for a location where an informant had seen cocaine within the past

24 hours), disc. review denied, 323 N.C. 626, 374 S.E.2d 593 (1988).



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                                  STATE V. BROWN

                                 Opinion of the Court



                                    D. Analysis

      Here, in support of his warrant application, Putnam submitted an affidavit

stating:

            In the past 48 hours, Det. Putnam spoke with a person
            whose name cannot be revealed. This person has concern
            for their [sic] safety, and Det. Putnam feels this person
            would be of no further value to law enforcement if their [sic]
            true identity was revealed. For the remainder of this
            application Det. Putnam will refer to this person as “CRI
            #1095.” CRI #1095 has been in contact with Don Brown
            and has provided Det. Putnam with a counterfeit $100 bill
            that came from 1232 N. Ransom St. Det. Putnam verified
            that this is the addess [sic] of Don Newton Brown. Don
            Brown resides at this residence with a black female by the
            name of Kisha Harris. The house is also frequented by
            Paquito Brown and Don . . . Brown. Don Brown is known
            to have firearms and the CRI stated that Don Brown has
            been seen with a handgun.

            In the past 48 hours, Det. Putnam spoke to Special Agent
            Rumney, United States Secret Service (USSS), Charlotte
            Field Office. Agent Rumney conducted a couneterfeit [sic]
            (CFT) note search on the serial number provided by CRI
            #1095. The searial [sic] number is of record with the USSS
            with passes having been conducted in the Gaston County
            area in 2005 and 2006.

            Furthermore, SA Rumney (USSS) stated that Don Brown
            is of record with the USSS from a previous counterfeit case
            involving the manufacturing a [sic] passing of CFT Federal
            Reserve Notes (FRNS) in 2005 and 2006 in Gaston County
            and surrounding counties.

            Additionally, SA Rumney (USSS) stated that in Nov. 2010,
            he interviewed Paquito Rafeal Brown, nephew of Don
            Brown, at the Gaston County Jail, after P. Brown was
            found to be in possession of a CFT $100 FRN. A CFT FRN


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                                  Opinion of the Court



             inquiry on the serial number in P. Brown’s possession
             matched those involved in the 2005-2006 counterfeit case
             involving Don Brown.

(Emphasis added).

      At the suppression hearing, Putnam testified that what he meant to say in the

first paragraph of the affidavit was both (1) that the CRI told Putnam the information

about Brown within 48 hours of applying for the warrant and also (2) that the CRI

had obtained the counterfeit money within that time period. At the hearing, as on

appeal, Brown did not dispute that Putnam intended to say that the CRI had gathered

the information he gave Putnam within 48 hours of the warrant application. Instead,

he argued that: (1) Putnam’s affidavit did not state when the CRI obtained the

information about Brown, making it impossible to evaluate the information’s

staleness; and, (2) in ruling on the question of staleness, the trial court should not

consider Putnam’s hearing testimony about what he intended to say in the affidavit:

             . . . . Now, I understand [Putnam’s] explanation is that he
             meant this to say that all of that occurred within 48 hours.
             Any independent person reading [the affidavit] has no way
             of understanding that. That’s not what—that’s not what’s
             written here, that’s not what’s understood by any
             independent person reading this. There is no way that
             occurs.

             There is no information in this affidavit as to when that
             information the CRI supposedly gave this officer, there is
             no information about when that information was gathered
             by the CRI, anything. All we know is when that CRI told
             that officer that information.



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                                   Opinion of the Court



              ....

              As the [c]ourt is aware, the magistrate is stuck with what—
              the magistrate and this [c]ourt are stuck with what’s in the
              application in this writing unless they reduce or record any
              other information, or put it on the search warrant,
              anything like that. None of that occurred in this case.
              When any independent third[]party reads this application
              they [sic] have no idea when that information was
              gathered. If you read the warrant actually it looks like it
              could have been from 2005 through 2010, just as readily as
              it was supposedly from what the officer said that day.
              That’s what he put in the application. Any independent
              third[]party doesn’t have the information necessary to
              make a decision to issue a valid warrant.

The State, in contrast, “contend[ed] [Putnam] can explain what he put in the affidavit

. . . . This would go to explain his writing with regard to the affidavit and what

sources he relied on.”

       The trial court denied Brown’s motion in open court and entered a written

order memorializing the ruling on 19 March 2013. That order contains the following

findings of fact:

              1. On November 26, 2012, Detective Putnam obtained a
              search warrant from a Gaston County Magistrate related
              to this matter, a copy of said search warrant was attached
              to [the] defendant’s motion to suppress.

              2. Detective Putnam stated in said application for search
              warrant that in the past 48 hours Detective Putnam had
              spoken with a confidential informant.          That the
              confidential informant had given him a counterfeit $100
              bill that had come from 1232 North Ransom Street, an
              address verified to be that of the defendant.



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                                    Opinion of the Court



             3. Detective Putnam testified that the 48 hours referred to
             conversations with the confidential informant occurring on
             November 23rd, November 24th, and November 26th.

             4. Further, Detective Putnam spoke with Special Agent
             Rumney, of the United States Secret Service, regarding
             connections between the counterfeit note and prior
             investigations between 2005 and 2010, which referred to
             the defendant.

(Emphasis added). As a result of these factual findings, the court concluded that the

motion should be denied because, “under the totality of the circumstances[,] there is

a substantial basis for the magistrate’s finding of probable cause . . . .”

      The suppression order clearly indicates that the trial court did consider

Putnam’s hearing testimony about what he intended the affidavit to mean—evidence

outside the four corners of the affidavit and not recorded contemporaneously with the

magistrate’s consideration of the application—in determining whether a substantial

basis existed for the magistrate’s finding of probable cause. As noted supra, this was

error. See N.C. Gen. Stat. § 15A-245(a); see also Benters, 367 N.C. at 673, 766 S.E.2d

at 604. More importantly, however, a plain reading of the order indicates a more

significant error: the trial court did not resolve the critical issue of whether Putnam’s

affidavit could be fairly read as stating that the CRI obtained the information

allegedly incriminating Brown within 48 hours of the warrant application. Our case

law makes clear that it cannot.




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                                   STATE V. BROWN

                                   Opinion of the Court



      Regarding staleness, we find the wording of the affidavit here strikingly

similar to that in State v. Newcomb:

             . . . . Within the past five days from [the date of the warrant
             application], the person who I will refer to as “He,”
             regardless of the person’s sex, contacted me. This person
             offered his assistance to the City-county vice unit in the
             investigation of drug sales in the Burlington-Alamance
             County area. This person told myself [sic] that he had been
             inside the residence described herein being Rt. 8, Box 122,
             Lot #82 County Club Mobile Home Park, Burlington,
             where he observed a room filled with marijuana plants. He
             stated that the suspect Charles Wayne Newcomb was
             maintaining the plants. . . .

84 N.C. App. 92, 93, 351 S.E.2d 565, 566 (1987). As did Putnam here, the officer in

Newcomb “failed to state . . . the time the informant’s observations were made.” Id.

at 93-94, 351 S.E.2d at 565.      Rather, as in Putnam’s affidavit, the affidavit in

Newcomb only provided information regarding the time when the informant spoke to

the officer. Id. In determining that this “bare-bones affidavit” contained insufficient

information to establish probable cause and support the issuance of a search warrant,

this Court observed that

             [t]he information [the informant] supplied is sparse. His
             statement gives no details from which one could conclude
             that he had current knowledge of details or that he had even
             been inside the defendant’s premises recently. The affidavit
             contains a mere naked assertion that the informant at
             some time saw a ‘room full of marijuana’ growing in [the]
             defendant’s house.




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                                 Opinion of the Court



Id. at 95, 351 S.E.2d at 567 (emphasis added). Compare id. with Walker, 70 N.C. App.

at 405, 320 S.E.2d at 33 (upholding search warrant based upon an affidavit stating,

inter alia, “the informant stated he had been in [the] defendant’s house within the

past 48 hours and had seen marijuana”) and Barnhardt, 92 N.C. App. at 97, 373

S.E.2d at 463 (upholding search warrant based upon an affidavit stating, inter alia,

“cocaine was seen in the residence located at 914 South Carolina Ave. by the

confidential informant within the past 24 hours”).      We cannot distinguish the

staleness of the CRI’s information contained in Putnam’s affidavit from that in

Newcomb. Accordingly, we reverse the trial court’s suppression order and vacate the

judgment entered upon Brown’s subsequent guilty pleas.       In view thereof, it is

unnecessary to address Brown’s remaining arguments.

      ORDER REVERSED; JUDGMENT VACATED.

      Chief Judge McGEE and Judge DAVIS concur.




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