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No. COA13-666 TENTH DISTRICT
NORTH CAROLINA COURT OF APPEALS**************************************************
STATE OF NORTH CAROLINA ))
v. ) From Wake)
VICTOR NNAMDI INYAMA )
**************************************************
DEFENDANT-APPELLANT’S BRIEF
**************************************************
INDEX
TABLE OF AUTHORITIES.....................................................iv
ISSUES PRESENTED...............................................................1
STATEMENT OF THE CASE..................................................2
GROUNDS FOR APPELLATE REVIEW................................2
STATEMENT OF THE FACTS................................................3
STANDARD OF REVIEW......................................................11
ARGUMENT............................................................................12
I. THE TRIAL COURT ERRED IN DENYING MR. INYAMA’S MOTION TO SUPPRESS BECAUSE THE TRIAL COURT’S FINDING OF FACT THAT PHILIP BECOAT “INFORMED THE OFFICERS THAT VICTOR INYAMA WAS NATASHA MONTGOMERY’S BOYFRIEND” IS NOT SUPPORTED BY COMPETENT EVIDENCE...........................................12
II. THE TRIAL COURT ERRED BY DENYING MR. INYAMA’S MOTION TO SUPPRESS BASED ON THE CONCLUSION THAT THERE WAS PROBABLE CAUSE TO BELIEVE THAT VICTOR INYAMA WOULD BE FOUND AT 217-101 MERRELL DRIVE..........................................13
III. THE TRIAL COURT ERRED BY DENYING MR. INYAMA’S MOTION TO SUPPRESS BASED ON THE CONCLUSION THAT THERE WAS PROBABLE CAUSE TO BELIEVE THAT EVIDENCE OF A CRIME WOULD BE FOUND AT 217-101 MERRELL DRIVE BECAUSE THE AFFIDAVIT FAILED TO IMPLICATE THE PREMISES SEARCHED...............................................21
- ii -
IV. THE TRIAL COURT ERRED BY DENYING MR. INYAMA’S MOTION TO SUPPRESS BASED ON THE CONCLUSION THAT THERE WAS PROBABLE CAUSE TO BELIEVE THAT FIREARMS WOULD BE FOUND AT 217-101 MERRELL DRIVE BASED ON THE HALF-SMOKED MARIJUANA CIGARETTE FOUND DURING THE PROTECTIVE SWEEP........................25
A. Guns are Associated with Drug Dealers and Drug Traffickers – Not a Person in Possession of a Small Quantity of Personal Use Marijuana.....................................................27
B. The Affidavit was Insufficient to Support a Search for Firearms.............................................28
CONCLUSION.........................................................................30
CERTIFICATE OF COMPLIANCE .......................................30
CERTIFICATE OF SERVICE.................................................31
APPENDIX ..............................................................................32
TABLE OF AUTHORITIES
CASES
Camara v. Municipal Court of San Francisco, 387 U.S. 523, 18 L.Ed. 2d 930 (1967)...........................26
Illinois v. Gates, 462 U.S. 213, 76 L.Ed. 2d 527 (1983).....................23, 26
Massachusetts v. Upton, 466 U.S. 727, 80 L.Ed. 2d 721 (1984)...........................16
Payton v. New York, 445 U.S. 573, 63 L.Ed. 2d 639 (1980)...........................15
State v. Biber, 365 N.C. 162, 712 S.E.2d 874 (2011)............................11
State v. Boyd, 177 N.C. App. 165, 628 S.E.2d 796 (2006)...................27
State v. Brunson, 285 N.C. 295, 204 S.E.2d 661 (1974)............................20
State v. Campbell, 282 N.C. 125, 191 S.E.2d 752 (1972)................15, 23, 26
State v. Garcia, 197 N.C. App. 522, 677 S.E.2d 555 (2009)...................27
State v. Goforth, 65 N.C. App. 302, 309 S.E.2d 488 (1983).........22, 23, 24
State v. Heath, 73 N.C. App. 391, 326 S.E.2d 640 (1985).....................23
State v. Huerta,___ N.C. App. ___, 727 S.E.2d 881 (2012)...................27
State v. Hyleman, 324 N.C. 506, 379 S.E.2d 830 (1989)......................28, 29
State v. Lakey, 183 N.C. App. 652, 645 S.E.2d 159 (2007)...................27
State v. Ledbetter, 120 N.C. App. 117, 461 S.E.2d 341 (1995)...................16
State v. McCoy, 100 N.C. App. 574, 397 S.E.2d 355 (1990).............16, 22
State v. Oates, ___ N.C. App. ___, 736 S.E.2d 228 (2012).......17, 18, 19
State v. Simmons, 179 N.C. App. 656, 635 S.E.2d 74, 2006 N.C. App. LEXIS 2039 (N.C. Ct. App. Oct. 3, 2006).....................28
State v. Smith, 99 N.C. App. 67, 392 S.E.2d 642 (1990).......................27
State v. Taylor, 191 N.C. App. 587, 664 S.E.2d 421 (2008)...................23
State v. Thompson, 349 N.C. 483, 508 S.E.2d 277 (1998)............................19
State v. Willis, 125 N.C. App. 537, 481 S.E.2d 407 (1997)...................27
Steagald v. United States, 451 U.S. 204, 68 L.Ed.2d 38 (1981)........................15, 16
United States v. Gay, 240 F.3d 1222 (10th Cir. 2001)......................................20
United States v. Hardin, 539 F.3d 404 (6th Cir. 2008)..........................................19
United States v. Hill, 649 F.3d 258 (4th Cir. 2011)....................................17, 19
United States v. Lauter, 57 F.3d 212 (2d Cir. 1995).......................................19, 20
STATUTES
N.C. Gen. Stat. § 7A-27..............................................................2
N.C. Gen. Stat. § 15A-242........................................................28
N.C. Gen. Stat. § 15A-244......................................15, 16, 22, 26
N.C. Gen. Stat. § 15A-245........................................................22
N.C. Gen. Stat. § 15A-974..................................................24, 29
N.C. Gen. Stat. § 15A-979..........................................................2
N.C. Gen. Stat. § 90-95............................................................29
CONSTITUTIONAL PROVISIONS
N.C. Const., art. I, § 20.......................................................15, 26
U.S. Const. amend. IV..............................................................26
No. COA13-666 TENTH DISTRICT
NORTH CAROLINA COURT OF APPEALS**************************************************
STATE OF NORTH CAROLINA ))
v. ) From Wake)
VICTOR NNAMDI INYAMA )
**************************************************
DEFENDANT-APPELLANT’S BRIEF
**************************************************
ISSUES PRESENTED
I. THE TRIAL COURT ERRED BY DENYING MR. INYAMA’S MOTION TO SUPPRESS BECAUSE THE TRIAL COURT’S FINDING OF FACT THAT PHILIP BECOAT “INFORMED THE OFFICERS THAT VICTOR INYAMA WAS NATASHA MONTGOMERY’S BOYFRIEND” IS NOT SUPPORTED BY COMPETENT EVIDENCE.
II. THE TRIAL COURT ERRED BY DENYING MR. INYAMA’S MOTION TO SUPPRESS BASED ON THE CONCLUSION THAT THERE WAS PROBABLE CAUSE TO BELIEVE THAT VICTOR INYAMA WOULD BE FOUND AT 217-101 MERRELL DRIVE.
III. THE TRIAL COURT ERRED BY DENYING MR. INYAMA’S MOTION TO SUPPRESS BASED ON THE CONCLUSION THAT THERE WAS PROBABLE CAUSE TO BELIEVE THAT EVIDENCE OF A CRIME WOULD BE FOUND AT 217-101 MERRELL DRIVE BECAUSE THE AFFIDAVIT FAILED TO IMPLICATE THE PREMISES SEARCHED.
IV. THE TRIAL COURT ERRED BY DENYING MR. INYAMA’S MOTION TO SUPPRESS BASED ON THE CONCLUSION THAT THERE WAS PROBABLE CAUSE TO BELIEVE THAT FIREARMS WOULD BE FOUND AT 217-101 MERRELL DRIVE BASED ON THE HALF-SMOKED MARIJUANA CIGARETTE FOUND DURING THE PROTECTIVE SWEEP.
STATEMENT OF THE CASE
The defendant, Victor Inyama, was indicted on November 28-29, 2011 in
Wake County on charges of Possession with Intent to Sell or Deliver Marijuana,
Possession of a Firearm by a Felon, and having attained the status of an habitual
felon. (Rpp. 6-8). Mr. Inyama filed a pretrial motion to suppress on October 4,
2012. (Rpp. 38-43). Mr. Inyama’s pretrial motion to suppress came on for hearing
at the October 15, 2012 Criminal Session of Wake County Superior Court, the
Honorable Paul Ridgeway presiding. The trial court denied Mr. Inyama’s motion
to suppress. Defense counsel preserved the right to appeal the denial of the motion
to suppress. (Rpp. 52-54, Tpp. 104-106). Following the denial of his motion to
suppress, Mr. Inyama pled guilty as charged. (Rpp. 55-58). The court imposed an
active sentence of 77-102 months with 425 days credit for time served. (Rpp. 61-
62).
GROUNDS FOR APPELLATE REVIEW
Mr. Inyama appeals his conviction pursuant to N.C. Gen. Stat. § 7A-27(b)
from a final judgment of the Wake County Superior Court, having preserved his
right to appeal the denial of his motion to suppress pursuant to N.C. Gen. Stat. §
15A-979(b).
On August 5, 2013, Mr. Inyama filed a Petition for Writ of Certiorari to
permit appellate review of the October 15, 2012 judgment where the right to
appeal was lost due to a technical defect in the notice of appeal given by Mr.
Inyama’s trial counsel. On August 23, 2013, this Court entered an Order referring
the Petition for Writ of Certiorari to the panel assigned to hear the appeal.
STATEMENT OF THE FACTS
On August 16, 2011, Officer Camacho was conducting an investigation of
Dominique McLaughlin. Officer Camacho is a police officer and member of the
Gang Suppression Unit for the Raleigh Police Department. (Tp. 7). The Gang
Suppression Unit works “to reduce the presence of [gang] activity and violence of
street gangs[.]” (Tp. 9). The Unit also “identif[ies] and arrest[s] any gang members
that commit crimes.” (Tp. 9).
During the course of Camacho’s August 16 investigation, Camacho and
other members of the Gang Suppression Unit searched the house of Dominique
McLaughlin. (Tp. 8). The officers had “dealt with [McLaughlin] in the past.” (Tp.
8). When the officers searched McLaughlin’s home, they found marijuana,
cocaine, and guns. (Tp. 8). McLaughlin was arrested. Camacho questioned
McLaughlin after his arrest. Camacho testified that McLaughlin told him “that the
weapons and drugs were not his, they belonged to Victor Inyama.” (Tp. 8).
Based on McLaughlin’s claim, on August 17, 2011 Camacho began
researching Victor Inyama. Camacho discovered that Mr. Inyama had an
outstanding warrant for failure to appear on the charges of speeding and driving
while licensed revoked. Camacho also learned through a police report that he had
previously interacted with Mr. Inyama at a traffic stop on May 25, 2011. The
report showed that on that date, Mr. Inyama was driving a 1998 Cadillac Deville
with North Carolina license plate ACC 7005.1 (Tpp. 9-11). Camacho recalled that
Mr. Inyama “was very polite and cooperative” when Camacho stopped him on
May 25. (Tp. 34). Camacho then searched DMV records and learned that the 1998
Cadillac Deville was registered to Natasha Montgomery at the address 2721
Milburnie Road. (Tp. 12). Mr. Inyama confirmed that the car belonged to Ms.
Montgomery, but explained that he had paid for it. (Tp. 42).
Camacho and Officer Carpenter, who is also a member of the Gang
Suppression Unit, went to 2721 Milburnie Road. (Tp. 12). The officers spoke with
Philip Becoat, Natasha Montgomery’s stepfather. Mr. Becoat allowed the officers
to search his house for Ms. Montgomery. The officers told Mr. Becoat that they
were not looking for Ms. Montgomery, but were looking for her boyfriend, Mr.
Inyama. (Tp. 12). Camacho testified that Mr. Becoat explained that Mr. Inyama
and Ms. Montgomery used to live at his house, and stated that “they were living
together in an apartment complex off New Bern.” (Tp. 12).
Next, Officer Camacho searched for Ms. Montgomery’s name in the City of
Raleigh Utilities database. A City of Raleigh Utilities account stated that Natasha 1 A different North Carolina license plate, ACC-7075, was provided on the warrant application to search the 1998 Cadillac Deville as well as on the inventory of the property seized from that vehicle. (Rpp. 34, 36).
Montgomery lived at 217 Merrell Drive, Apartment 101. (Tpp. 12-13). A search
for Mr. Inyama’s address did not connect him to 217 Merrell Drive, Apartment
101. (Tpp. 38-39). Nevertheless, Officers Camacho and Carpenter went to 217-101
Merrell Drive.2 The officers saw the Cadillac Deville that Mr. Inyama was driving
three months previously, on May 25, 2011, parked in the parking lot next to the
apartment building. A 2009 Toyota Camry, also registered to Natasha
Montgomery, was also in the parking lot. (Tp. 13).
Officers Camacho and Carpenter parked their patrol cars down the road and
walked to apartment 101. The apartment building was two or three stories high.
Apartment 101 was located on the first floor of the building and was the first
apartment on the left when entering the front of the building through the
breezeway. On the back of the building was a balcony with a sliding glass door.
(Tp. 14).
Officer Carpenter went to the back of the apartment and Camacho went to
the front door. (Tp. 14). Camacho heard muffled male voices; he could not hear
what they were saying. According to Carpenter, the blinds to the sliding glass door
2 217-101 Merrell Drive is the mailing address for apartment 101, located at 217 Merrell Drive. Because the officers referred to the location of Ms. Montgomery’s apartment as 217-101 Merrell Drive in the search warrants, that designation is also used throughout the brief.
were closed.3 Carpenter could not see inside the apartment or tell how many people
were inside. (Tpp. 15-16).
Camacho knocked on the front door and “heard [people] frantically moving
around the residence.” (Tp. 16). Camacho identified himself as an officer and
asked for someone to answer the door. Camacho persistently knocked for about ten
minutes but no one answered. (Tp. 17). Camacho requested that his supervisor,
Sergeant Palczak4, come to the apartment to help.
When Sgt. Palczak arrived, he too knocked on the door to apartment 101. No
one answered. (Tpp. 17-18). Sgt. Palczak got Ms. Montgomery’s phone number
from a police database. Sgt. Palczak called Ms. Montgomery around 3:55 pm.
Camacho testified that during Sgt. Palczak’s telephone conversation, Ms.
Montgomery told Sgt. Palczak that she was at work, that no one should be inside
her apartment, and that she did not know who could be inside. Ms. Montgomery
told Sgt. Palczak that Mr. Inyama does not stay at her apartment. (Tp. 42). Ms.
Montgomery also said that Mr. Inyama should not be inside the apartment and
explained that the last time Mr. Inyama was at the apartment was a few days ago.
Ms. Montgomery would not consent to the officers’ entry to her apartment. (Tpp.
18, 54).
3 Officer Camacho testified that Officer Carpenter told him that the blinds on the sliding glass door were initially open but were closed shortly after Carpenter walked by. Carpenter did not see who or what was inside the apartment. (Tpp. 15-16). 4 Sgt. Palczak is no longer with the Raleigh Police Department and did not testify at the suppression hearing. (Tp. 37).
When Ms. Montgomery did not give the officers permission to enter her
apartment, Officer Camacho applied for a search warrant to search the apartment
for Mr. Inyama. Before leaving to get the search warrant, Camacho smelled smoke
coming from the apartment and heard a fire alarm sound for a brief period of time.
Camacho left the scene to obtain a search warrant. (Tpp. 25, 40-41, 52-53).
While Camacho went to apply for a warrant, the rest of the Gang
Suppression Unit in addition to the Selective Enforcement Unit5 (“SWAT team”)
arrived at the apartment at Merrell Drive. (Tpp. 18-19). The magistrate found
probable cause to believe that Mr. Inyama was present inside the apartment and
issued a warrant to search the apartment for his person. (“Search Warrant 1”) (Rpp.
22-25).
With Search Warrant 1 in hand, Camacho returned to Merrell Drive for the
SWAT team to execute the warrant. The SWAT team executes “high-risk warrants
for the gang unit[.]” (Tp. 66). The ten person SWAT team executed the search
warrant of the apartment. (Tpp. 43-44, 66-67). Prior to their execution of the search
warrant, Camacho told the SWAT team that Mr. Inyama was implicated a day
earlier by Dominique McLaughlin as the owner of guns and drugs seized by police;
that Mr. Inyama had a history with guns; and that Mr. Inyama had a previous
firearm violation. Camacho further advised the SWAT team that there were several
people inside the apartment and that Mr. Inyama associated with Blood gang 5 The Selective Enforcement Unit is commonly referred to as the SWAT team. (Tp. 23).
members. (Tpp. 21-22, 67-68). Camacho also told the SWAT team that he thought
something had been burning inside the apartment. (Tpp. 52-53).
When the SWAT team entered the apartment, they announced their presence
and stated that anyone inside the apartment needed to make his/her presence
known. The SWAT team saw smoke inside the apartment. Three people, later
identified as Victor Inyama, Philip Inyama, and Jeremy Bridges, came out of the
back bedroom of the apartment. The SWAT team searched and detained the three
men outside the apartment. (Tpp. 26, 69-70, 75, 77). Mr. Inyama was not
combative with the officers. No weapons, drugs, or other contraband were found
during the search of his person. (Tp. 50).
After the men were detained, the SWAT team searched the apartment for
any people that could be hiding inside. The officers searched all of the rooms of
the apartment in every place where a person could hide; no other people were
found. (Tpp. 26, 69-70, 75).
Officer Matthews, a member of the SWAT team, searched the first bedroom
on the left. Matthews looked under the bed, beside the bed, and inside the closets.
During the search of that room, Officer Matthews “saw a partially smoked
marijuana cigarette lying on the floor.” (Tp. 71). Matthews found Camacho and
“told him that there was some evidence [he] located in plain view in the
apartment.” (Tpp. 23, 71). Matthews took Camacho inside the apartment and
showed him “what appeared to be a marijuana cigarette.” (Tp. 77). Matthews
“wasn’t certain” it was marijuana. (Tp. 78). Based on its smell and appearance,
Camacho “knew [it was a] marijuana blunt.” (Tpp. 45-46, 49).
Based on his observation of the “half-smoked marijuana blunt” on the floor
of the apartment, Officer Camacho believed that “more narcotics [would] be
located upon a further search [of the apartment].” (Tpp. 24, 27, Rp. 28). Camacho
applied for a second search warrant to search the apartment for “[c]ontrolled
substances, paraphernalia, documents indicating dominion or ownership of
residence, packaging material, currency, firearms, ammunition, cellular telephones,
and any and all evidence relating to the criminal [p]ossession of controlled
substances.” (Rp. 29). The magistrate found probable cause to believe that
narcotics were present inside the apartment and issued a warrant to search the
apartment. (“Search Warrant 2”). (Rpp. 26-31).
The Gang Suppression Unit executed Search Warrant 2 and searched the
apartment. The search of the apartment revealed, inter alia, guns, marijuana, and
drug paraphernalia. (Tpp. 28, 61, Rp. 30). An inventory of the property seized was
mailed to Ms. Montgomery; nothing was mailed to Mr. Inyama. (Rpp. 30-31).
Because the search of the apartment revealed guns, marijuana, and drug
paraphernalia, Officer Goree, an officer with the Gang Suppression Unit, applied
for a third search warrant to search the three cars parked outside the apartment for
“[c]ontrolled substances, paraphernalia, documents indicating dominion or
ownership of residence, packaging material, currency, firearms, ammunition,
cellular telephones, and any and all evidence relating to the criminal [p]ossession
of controlled substances.” (Tpp. 29, 62, Rpp. 34-45). Specifically, Goree asked to search
the following cars:
Vehicle License Plate Registered Owner
Silver 2009 Toyota Camry ACB 7000 Natasha Jeree Montgomery
Cream 1998 Cadillac Deville ACC 7075 Natasha Jeree Montgomery
White 2003 Saturn Ion ZYE 3491 Jeremy Bridges
(Rp. 34). The magistrate found probable cause and issued a warrant to search the
three vehicles. (“Search Warrant 3”). (Rpp. 32-37).
Officer Goree asked Ms. Montgomery for the keys to the Cadillac Deville.
(Tp. 62). Two guns, marijuana stems, a photograph of a group of people, and a
document with Victor Inyama’s name were seized from the Cadillac Deville.
Nothing was seized from the Toyota Camry. Jeremy Bridges’ identification card, a
receipt for Bridges’ storage unit, and drug paraphernalia were seized from the
Saturn Ion. An inventory of the seized property was mailed to Mr. Bridges and Ms.
Montgomery; a copy was not mailed to Mr. Inyama. (Rpp. 36-37).
On August 17, 2011, Officer Camacho charged Mr. Inyama with the
possession of the three firearms found inside the apartment. (Rpp. 4-5, 30).
Camacho also charged Mr. Inyama with possession with intent to sell or deliver
marijuana based on the marijuana found inside the apartment. (Rpp. 2-3, 30). The
arrest warrants did not provide 217-101 Merrell Drive as Mr. Inyama’s address.
(Rpp. 2-5).
Mr. Inyama was not charged with any crimes in connection with the drugs
and guns found inside the Cadillac Deville. (Rp. 36). Mr. Inyama also was never
charged with any crimes relating to the guns or drugs found in Dominique
McLaughlin’s home. (Tp. 58).
STANDARD OF REVIEW
On appeal from the denial of a motion to suppress, the trial court’s findings
of fact are binding if supported by competent evidence, but the trial court’s
conclusions of law are subject to de novo review and must be legally correct as
well as supported by the findings of fact. See State v. Biber, 365 N.C. 162, 167-
168, 712 S.E.2d 874, 878 (2011).
ARGUMENT
I. THE TRIAL COURT ERRED BY DENYING MR. INYAMA’S MOTION TO SUPPRESS BECAUSE THE TRIAL COURT’S FINDING OF FACT THAT PHILIP BECOAT “INFORMED THE OFFICERS THAT VICTOR INYAMA WAS NATASHA MONTGOMERY’S BOYFRIEND” IS NOT SUPPORTED BY COMPETENT EVIDENCE.
The trial court’s finding of fact that Officer Camacho and Officer Carpenter
“spoke with Natasha Montgomery’s stepfather, Philip Becoat, who informed the
officers that Victor Inyama was Natasha Montgomery’s boyfriend” is not
supported by competent evidence. (Rp. 46, finding # 6).
At the suppression hearing, Officer Camacho testified as follows: 6
[PROSECUTOR]: What else did you do in trying to locate Mr. Inyama[?]
[OFFICER CAMACHO]: Officer Carpenter and I [...] went to the address of 2721 Milburnie Road, which was where the [Cadillac Deville] was registered to.
[PROSECUTOR]: [W]hat happened once you got there?
[OFFICER CAMACHO]: I spoke to Ms. Montgomery’s stepfather, Philip Becoat. […] He was very cooperative, very polite. He introduced himself as Philip Becoat. He allowed us to go inside and search for Ms. Montgomery. We informed him that we [weren’t] looking for her. We were looking for her boyfriend, Victor Inyama.
I spoke to – actually, Officer Carpenter and I spoke to him. He stated that they used to live there at 2721 Milburnie Road but that he couldn’t take their nonsense. I didn’t ask him too much
6 Officer Carpenter did not testify at the suppression hearing.
what he meant by nonsense. He stated they were living together in an apartment complex off New Bern.
(Tp. 12).
According to Officer Camacho’s recollection of their conversation, it was
Officer Camacho, not Mr. Becoat, who identified Mr. Inyama as Ms.
Montgomery’s boyfriend. Because Officer Camacho did not testify that Mr. Becoat
told him that Mr. Inyama was Ms. Montgomery’s boyfriend, the trial court’s
finding of fact is not supported by competent evidence.
II. THE TRIAL COURT ERRED BY DENYING MR. INYAMA’S MOTION TO SUPPRESS BASED ON THE CONCLUSION THAT THERE WAS PROBABLE CAUSE TO BELIEVE THAT VICTOR INYAMA WOULD BE FOUND AT 217-101 MERRELL DRIVE.
The trial court erred in denying Mr. Inyama’s motion to suppress based on
the conclusion that “based upon the four corners of the application for the search
warrant, the magistrate had a substantial basis for concluding that there was
probable cause to believe that the person named in the warrant [Victor Inyama]
would be found at [217-101 Merrell Drive].” (Rpp. 49-50, conclusion #1).
Officer Camacho applied for a search warrant to search for Mr. Inyama
inside the apartment located at 217-101 Merrell Drive, Raleigh, North Carolina
27610. After describing his experience and qualifications, Officer Camacho stated
the following facts to establish probable cause:
On 8/17/2011, I have been diligently searching for a wanted subject by the name of Victor NNamdi [sic] Inyama wanted for a speeding Failure to appear warrant (09CR36003). Through our law enforcement data base, [sic] I developed information that Mr. Inyama was cited on 5/25/2011 while operating a 1998 Cadillac Deville (ACC7075/NC). Officer Carpenter and I responded to the address assigned to the vehicle which was 2721 Milbrunie Rd. The registered owner is Natasha Montgomery. Upon our arrival, [w]e spoke with Mr. Phillip Becoat who is M[s]. Montgomery’s step-father. [sic] Mr. Phillip Becoat advised that Mr. Victor Inyama is [M]s. Natasha Montgomery’s boyfriend. Through researching city of Raleigh utilities it was found that Ms. Natasha Montgomery resides at 217-101 Merrell Dr. Prior to conducting a knock and talk I heard items being moved by the front door and muffled speech. Officer Carpenter advised that the shades were open to the patio deck. I began to knock on the door and announcing myself when I heard subjects frantically moving about the residence. Officer Carpenter then advised that the shades on the patio deck were closed. Through multiple attempts of heavy knocking and announcing myself no one has came to the door thus far. Ms. Montgomery has two vehicles registered in her name. Both vehicles are on scene including the vehicle that Mr. Inyama was scene [sic] operating. At approximately 3:55 PM Sgt. Palczak spoke with Ms. Montgomery via telephone. She advised no one should be inside her residence located at 217 Merrell Dr. Apt. 101. When I asked who is inside she advised she does not know. She advised suspect Inyama should not be inside the residence and he was last there ‘a few days ago.’ Ms. Montgomery would not give verbal consent for the police to enter with a key they had obtained from the apartment management.
Based on the above stated facts, I feel that there is sufficient reason to believe that Mr. Victor Inyama is inside 217-101 Merrell Dr[.] and refusing to come to the door. I respectfully request this search warrant be issued for 217-101 Merrell Dr. Raleigh, NC, 27610.
(Rp. 22).
Police must have a search warrant, in addition to an arrest warrant, to enter a
third party’s home to serve an arrest warrant. This is true even where the police
have reason to believe the suspect is present inside the third party’s residence.
Steagald v. United States, 451 U.S. 204, 68 L.Ed.2d 38 (1981). Compare Payton v.
New York, 445 U.S. 573, 603, 63 L.Ed. 2d 639, 661 (1980) (“an arrest warrant
founded on probable cause implicitly carries with it the limited authority to enter a
dwelling in which the suspect lives when there is reason to believe the suspect is
within”). A search warrant may be issued by a magistrate upon a showing that
there is probable cause to believe that the subject of an arrest warrant is located in
the place to be searched. Steagald, 451 U.S. at 212-213, 68 L.Ed.2d at 46.
The Fourth Amendment to the United States Constitution provides that “no
warrants shall issue, but upon probable cause.” Accord N.C. Const., art. I, § 20.
Search warrant applications “must contain … one or more affidavits particularly
setting forth the facts and circumstances establishing probable cause to believe that
the items are in the places … to be searched.” N.C. Gen. Stat. § 15A-244(3). See
State v. Campbell, 282 N.C. 125, 132, 191 S.E.2d 752, 757 (1972) (affidavit must
supply reasonable cause to believe objects sought are “upon the described
premises”).
Conclusory statements concerning the location of the person sought are not
sufficient to establish probable cause. See Campbell, 282 N.C. at 130-131, 191
S.E.2d at 756-757. The affidavits must establish a nexus between the person sought
and the place to be searched. See State v. McCoy, 100 N.C. App. 574, 576, 397
S.E.2d 355, 357 (1990). See also Steagald, 451 U.S. at 214, fn. 7, 68 L.Ed.2d at 46
(explaining that the same “judicial determination must be made when the search of
a person’s home is for another person as is necessary when the search is for an
object”). A court reviews the issuance of a search warrant to determine “whether
there is substantial evidence in the record supporting the magistrate’s decision to
issue the warrant.” State v. Ledbetter, 120 N.C. App. 117, 121, 461 S.E.2d 341,
343 (1995) (quoting Massachusetts v. Upton, 466 U.S. 727, 728, 80 L.Ed.2d 721,
724 (1984)). See N.C. Gen. Stat. § 15A-244.
Here, the warrant affidavit was insufficient to demonstrate probable cause to
believe that Victor Inyama was located at 217-101 Merrell Drive. While it is true
that Natasha Montgomery lived at that address, the warrant application contained
no information to support a belief that Mr. Inyama was located inside Ms.
Montgomery’s apartment. The affidavit lacked any basis to show that Mr. Inyama
was inside the apartment:
There was no indication that anyone saw Mr. Inyama at Ms. Montgomery’s apartment on August 17, 2011;
There was no indication that Mr. Inyama lived at Ms. Montgomery’s apartment;
No one identified the voices inside the apartment as Mr. Inyama’s;
There was no indication that Mr. Inyama regularly drove Ms. Montgomery’s car;
There was no indication that Mr. Inyama had driven Ms. Montgomery’s car since May 25, 2011;
The affidavit does not contain a single statement to support a reasonable
belief that Mr. Inyama was inside the apartment at 217-101 Merrell Drive on
August 17, 2011. Unidentified voices inside the apartment cannot support a
reasonable belief that Mr. Inyama was present inside. United States v. Hill, 649
F.3d 258, 264 (4th Cir. 2011) (“noise coming from inside of a house is not enough
to give the police a reason to believe that a defendant is present” particularly where
police were informed by resident of house that defendant was not there).
The only fact which connects Mr. Inyama to that apartment is Ms.
Montgomery’s hearsay statement that Mr. Inyama was at her apartment “a few
days ago.” (Rp. 22). The fact that Mr. Inyama was at Ms. Montgomery’s house a
few days ago does not provide a reasonable basis to believe that Mr. Inyama would
be found inside her apartment on August 17, 2011.
In State v. Oates, ___ N.C. App. ___, 736 S.E.2d 228 (2012), this Court
found probable cause to search the residence of a third party based on information
that a suspect in possession of a large quantity of cocaine was staying at the third
party’s home. Julio Keith lived in New York. An informant told police that Keith
drove to Clinton, North Carolina on September 1 with the plan to stay in North
Carolina for one week and sell a kilo of cocaine. The informant explained that
Keith was staying with his parents at 451 McKoy Street in Clinton, North Carolina.
Using a DMV photo, an officer identified Keith as the person sitting on the porch
of the residence at 451 McKoy Street on September 6. On September 7, police
applied for a search warrant to search the residence at 451 McKoy Street for, inter
alia, drugs and weapons. Id. at 232-234.
This Court found that the affidavit contained a sufficient nexus between the
contraband and the place to be searched based on the “informant’s firsthand
observations of [Keith’s] involvement with illegal drugs and guns in New York,
[…] Keith’s plans to travel at a specific time to North Carolina to sell drugs and to
stay in [his parents’] residence; and the confirmation that [Keith] was actually
staying at [his parents’] residence during that specific time[.]” Id. at 236.
In this case, unlike in Oates, the affidavit for the search warrant did not
contain a sufficient nexus between the objects sought and the place to be searched.
In Oates, the affidavit contained information that the suspect would be staying at
his parent’s house on the day the warrant was executed. In this case, the affidavit
contained information that Mr. Inyama “should not be inside the residence” on the
day the warrant was executed and that “a few days” had passed since Mr. Inyama
was last at Ms. Montgomery’s apartment. (Rp. 22). The affidavit in this case,
unlike in Oates, did not contain an eyewitness account of Mr. Inyama at the home
of the third-party within 24-hours of the application for the warrant to search the
residence. (COA10-725-2, Rp. 4).7
Unlike in Oates, the affidavit for the search warrant in this case was
insufficient because it did not contain sufficient facts and circumstances from
which the magistrate could reasonably conclude that Mr. Inyama would be found
at Ms. Montgomery’s apartment. See United States v. Hill, 649 F.3d 258, 261-265
(4th Cir. 2011) (insufficient evidence to form reasonable belief that defendant was
inside residence where officers heard noises coming from inside girlfriend’s house,
where girlfriend told police that she was at work and the only person that could be
inside the townhouse was girlfriend’s sister); United States v. Hardin, 539 F.3d
404, 420-424 (6th Cir. 2008) (insufficient evidence to form a reasonable belief
defendant was present in girlfriend’s apartment based on information that
defendant might be staying with girlfriend at specific apartment complex; that
girlfriend’s apartment was located in certain area of complex; and that the vehicle
matching the description of the vehicle defendant was thought to be driving was
parked nearby). Compare United States v. Lauter, 57 F.3d 212, 215 (2d Cir. 1995)
(probable cause to believe defendant was present at the time police sought to
execute warrant at 8:30 am on a Monday where “a reliable CI, whose father was
7 An officer observed the suspect at the residence at 3:22 p.m. on September 6, 2007. Oates, 736 S.E.2d at 235. Mr. Inyama requests that this Court take judicial notice of the search warrant from the record on appeal in Oates, which is attached to this brief, and shows that the search warrant was received at 10:05 a.m. on September 7, 2007. See State v. Thompson, 349 N.C. 483, 497, 508 S.E.2d 277, 286 (1998).
the landlord at [the apartment complex], told [the officer] that [the suspect] moved
to the basement apartment during the weekend” and that the suspect “was
unemployed and typically slept late.”);8 United States v. Gay, 240 F.3d 1222, 1227-
1228 (10th Cir. 2001) (officers reasonably believed defendant was present during
time of entry where confidential informant knew of defendant’s drug selling
activity, visited defendant at his residence on multiple occasions, and informed
police that defendant was currently within residence at the time of officer’s entry).
Because the affidavit for the search warrant did not contain sufficient facts
and circumstances from which the magistrate could reasonably conclude that Mr.
Inyama would be found at Ms. Montgomery’s apartment, the trial court erred in
denying Mr. Inyama’s motion to suppress based on the conclusion that “based
upon the four corners of the application for the search warrant, the magistrate had a
substantial basis for concluding that there was probable cause to believe that the
person named in the warrant [Victor Inyama] would be found at [217-101 Merrell
Drive].” (Rpp. 49-50, conclusion #1).
8 The officers searched the apartment on February 8, 1993. Lauter, 57 F.3d at 213. Mr. Inyama asks this Court to take judicial notice that February 8, 1993 was a Monday. See State v. Brunson, 285 N.C. 295, 302, 204 S.E.2d 661, 665 (1974).
III. THE TRIAL COURT ERRED BY DENYING MR. INYAMA’S MOTION TO SUPPRESS BASED ON THE CONCLUSION THAT THERE WAS PROBABLE CAUSE TO BELIEVE THAT EVIDENCE OF A CRIME WOULD BE FOUND AT 217-101 MERRELL DRIVE BECAUSE THE AFFIDAVIT FAILED TO IMPLICATE THE PREMISES SEARCHED.
The trial court erred by denying Mr. Inyama’s motion to suppress based on
the conclusion, with respect to search warrant 2, that “based upon the four corners
of the application for the search warrant[], the magistrate had a substantial basis for
concluding that there was probable cause to believe that evidence of a crime, as
described in the warrant[], would be found at [217-101 Merrell Drive].” (Rpp. 49-
50, conclusion #2).
Officer Camacho applied for a search warrant (“Search Warrant 2”) to
search the apartment located at 217-101 Merrell Drive, Raleigh, North Carolina
27610 for “[c]ontrolled substances, paraphernalia, documents indicating dominion
or ownership of residence, packaging material, currency, firearms, ammunition,
cellular telephones, and any and all evidence relating to the criminal [p]ossession
of controlled substances.” (Rp. 29). After describing his experience and
qualifications, Officer Camacho stated the following fact to establish probable
cause:
While executing a search warrant for a wanted person[,] marijuana was found in plain view. Based on this discovery[,] it is my reasonable belief that more narcotics will be located upon a further search.
(Rp. 28).
The affidavit for Search Warrant 2 was insufficient because it did not
contain any facts connecting the marijuana found in plain view to the place to be
searched. An application for a search warrant must contain an affidavit
“particularly setting forth the facts and circumstances establishing probable cause
to believe that the items are in the places or in the possession of the individuals to
be searched[.]” N.C. Gen. Stat. § 15A-244(3). The affidavit “must establish a
nexus between the objects sought and the place to be searched.” State v. McCoy,
100 N.C. App. 574, 576, 397 S.E.2d 355, 357 (1990). “Probable cause cannot be
shown by an affidavit which is purely conclusory and does not state underlying
circumstances upon which the affiant’s belief of probable cause is founded; there
must be facts or circumstances in the affidavit which implicate the premises to be
searched.” State v. Goforth, 65 N.C. App. 302, 308, 309 S.E.2d 488, 493 (1983).
“[I]nformation 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.” N.C. Gen. Stat. § 15A-245(a) (emphasis added). See N.C. Gen.
Stat. § 15A-244. Thus, a magistrate issuing a search warrant “can base a finding of
probable cause only on statements of fact confirmed by oath or affirmation of the
party making the statement, or on information which the magistrate records or
contemporaneously summarizes in the record.” State v. Heath, 73 N.C. App. 391,
393, 326 S.E.2d 640, 642 (1985). See Illinois v. Gates, 462 U.S. 213, 238, 76 L.Ed.
2d 527, 548 (1983) (“The task of the issuing magistrate is simply to make a
practical, common-sense decision … given all the circumstances set forth in the
affidavit before him”) (emphasis added).
An affidavit is fatally defective if it fails to implicate the premises to be
searched. See, e.g., State v. Campbell, 282 N.C. 125, 131, 191 S.E.2d 752, 756-757
(1972) (affidavit was fatally defective where the affidavit did not contain a
“statement that narcotic drugs were ever possessed or sold in or about the dwelling
to be searched”); State v. Taylor, 191 N.C. App. 587, 590-591, 664 S.E.2d 421,
423-424 (2008) (affidavit describing two dwellings was insufficient where the
affidavit failed to “particularly set forth where on the premises the drug deals
occurred” and contained no facts which “particularly stated whether the drug deals
occurred in either [of the two dwellings identified in the warrant]”); Goforth, 65
N.C. App. at 308, 309 S.E.2d at 493 (affidavit was insufficient where the affidavit
did not “recite facts or circumstances sufficient to implicate the premises
[searched] as a place where drugs were being stored or where drug-related
activities were taking place”).
The affidavit in this case was insufficient because it did not contain any facts
or circumstances implicating the place to be searched, the apartment located at
217-101 Merrell Drive. The probable cause section of the affidavit contained only
one fact: “While executing a search warrant for a wanted person[,] marijuana was
found in plain view.” (Rp. 28). The affidavit does not contain any facts connecting
the marijuana to the apartment to be searched. The affidavit does not specify the
location where the officer observed the marijuana in plain view and does not
contain any facts to show that the marijuana was found in plain view inside the
apartment to be searched.
An affidavit that does not contain sufficient facts or circumstances to
implicate the premises to be searched is fatally defective. A search warrant issued
upon a defective affidavit is invalid and the fruits of the search must be suppressed.
See Goforth, 65 N.C. App. at 308, 309 S.E.2d at 493. See N.C. Gen. Stat. § 15A-
974. The affidavit in this case was fatally defective because it failed to implicate
the premises to be searched. Therefore, the trial court erred by denying Mr.
Inyama’s motion to suppress based on the conclusion that “based upon the four
corners of the application for the search warrant[], the magistrate had a substantial
basis for concluding that there was probable cause to believe that evidence of a
crime, as described in the warrant[], would be found at [217-101 Merrell Drive].”
(Rpp. 49-50, conclusion #2).
IV. THE TRIAL COURT ERRED BY DENYING MR. INYAMA’S MOTION TO SUPPRESS BASED ON THE CONCLUSION THAT THERE WAS PROBABLE CAUSE TO BELIEVE THAT FIREARMS WOULD BE FOUND AT 217-101 MERRELL DRIVE BASED ON THE HALF-SMOKED MARIJUANA CIGARETTE FOUND DURING THE PROTECTIVE SWEEP.
The trial court erred by denying Mr. Inyama’s motion to suppress based on
the conclusion, with respect to search warrant 2, that “based upon the four corners
of the application for the search warrant[], the magistrate had a substantial basis for
concluding that there was probable cause to believe that evidence of a crime, as
described in the warrant[], would be found at [217-101 Merrell Drive].” (Rpp. 49-
50, conclusion #2).
During the protective sweep, officers found “a partially smoked marijuana
cigarette lying on the floor” of the apartment. (Tp. 71). Based on this discovery,
Officer Camacho applied for a search warrant to search the apartment located at
217-101 Merrell Drive, Raleigh, North Carolina 27610. Among other items, the
search warrant requested seizure of firearms and ammunition. (Rp. 29). After
describing his experience and qualifications, Officer Camacho stated the following
fact to establish probable cause:
While executing a search warrant for a wanted person[,] marijuana was found in plain view. Based on this discovery[,] it is my reasonable belief that more narcotics will be located upon a further search.
(Rp. 28). In the application for the search warrant, Camacho asserted that there was
probable cause to believe, based on the violation of possession of marijuana, that
firearms and ammunition would be found inside the apartment. (Rpp. 28-29).
Based upon the issuance of that search warrant, officers seized three firearms from
the apartment.
The Fourth Amendment to the United States Constitution provides that “no
warrants shall issue, but upon probable cause.” Accord N.C. Const., art. I, § 20.
Search warrant applications “must contain … one or more affidavits particularly
setting forth the facts and circumstances establishing probable cause to believe that
the items are in the places … to be searched.” N.C. Gen. Stat. § 15A-244(3). See
State v. Campbell, 282 N.C. 125, 132, 191 S.E.2d 752, 757 (1972) (affidavit must
supply reasonable cause to believe objects sought are “upon the described
premises”). Further, a search for specific items of contraband, “even with a
warrant, is ‘reasonable’ only when there is ‘probable cause’ to believe that [the
items sought] will be uncovered in a particular dwelling.” Camara v. Municipal
Court of San Francisco, 387 U.S. 523, 535, 18 L.Ed. 2d 930, 939 (1967). See
Illinois v. Gates, 462 U.S. 213, 238, 76 L.Ed. 2d 527, 548 (1983) (issuing
magistrate must have a substantial basis for concluding that the affidavit supplied
reasonable cause to believe that the contraband sought will be found in a particular
place).
Here, the affidavit was insufficient to demonstrate probable cause to believe
that firearms and ammunition would be found in the apartment.
A. Guns are Associated with Drug Dealers and Drug Traffickers – Not a Person in Possession of a Small Quantity of Personal Use Marijuana.
There was no indication that the officers suspected that drug sales or drug
trafficking were taking place at 217-101 Merrell Drive. Guns are associated with
drug dealers, not with a person in possession of a single half-smoked marijuana
cigarette. See, e.g., State v. Garcia, 197 N.C. App. 522, 527, 677 S.E.2d 555, 558
(2009) (“narcotics traffickers and sellers often carry firearms”); State v. Smith, 99
N.C. App. 67, 72, 392 S.E.2d 642, 645 (1990) (holding that trial court could
properly determine that evidence of a gun was relevant to the charge of possession
with intent to sell or deliver cocaine because “[a]s a practical matter, firearms are
frequently involved for protection in the illegal drug trade”).9 Compare State v.
Simmons, 179 N.C. App. 656, 635 S.E.2d 74, 2006 N.C. App. LEXIS 2039, at *9-
12 (N.C. Ct. App. Oct. 3, 2006) (error to admit shotgun into evidence because it
had no connection to defendant’s charge of felony possession of marijuana).10
9 See also State v. Willis, 125 N.C. App. 537, 542-544, 481 S.E.2d 407, 411-412 (1997) (finding officer’s search of drug trafficking suspect for guns reasonable based on officer’s belief that drug traffickers often carry guns); State v. Huerta, ___ N.C. App. ___, 727 S.E.2d 881, 888 (2012) (“those who engage in drug dealing, narcotics trafficking, are known to often carry weapons[,] firearms”); State v. Lakey, 183 N.C. App. 652, 653-655, 645 S.E.2d 159, 160-161 (2007) (presence of guns was relevant to defendant’s charges for trafficking and possession with intent to sell or deliver drugs); State v. Boyd, 177 N.C. App. 165, 171-172, 628 S.E.2d 796, 802 (2006) (finding the presence of a gun relevant to the defendant’s charges of trafficking in cocaine and possession with intent to sell or deliver cocaine). 10 A copy of the opinion in State v. Simmons is appended to this brief.
B. The Affidavit was Insufficient to Support a Search for Firearms.
An affidavit is insufficient if it fails to disclose any facts that would lead the
affiant or the magistrate to reasonably believe that the identified contraband was at
the residence to be searched. See State v. Hyleman, 324 N.C. 506, 508-510, 379
S.E.2d 830, 832-833 (1989). The affidavit in this case is insufficient because it did
not contain any facts that would support a reasonable belief that a firearm would be
found in the apartment. Further, the purpose of this search warrant was to search
for “evidence of [the] crime” of “[p]ossession of marijuana.” (Rp. 35). See N.C.
Gen. Stat. § 15A-242(4) (“An item is subject to seizure pursuant to a search
warrant if there is probable cause to believe that it [c]onstitutes evidence of an
offense[.]”). The affidavit to support the search warrant was also insufficient
because a gun is not evidence of the crime of possession of marijuana.
The probable cause section of the affidavit contains only one fact: “While
executing a search warrant for a wanted person[,] marijuana was found in plain
view.” (Rp. 28). The affidavit does not mention the quantity of marijuana found
and does not contain any facts to show that the officer believed that drug sales
were occurring at the residence to be searched. To the contrary, the affidavit
suggests that the officer did not believe that drug sales were taking place at the
apartment to be searched.11 Additionally, the affidavit does not contain any facts to
show that known drug dealers resided at the apartment.
Further, as explained in Issue III, the affidavit fails to connect the marijuana
to the place to be searched. The affidavit does not state the location where the
officer observed the marijuana in plain view and does not contain any facts to
show that the marijuana was found in plain view inside the residence to be
searched.
The affidavit was insufficient because it did not contain facts that would lead
a magistrate to reasonably believe that firearms and ammunition would be found
inside the apartment to be searched. A constitutional violation, as well as a
“substantial violation” under N.C. Gen. Stat. § 15A-974, requiring suppression of
the evidence occurs where evidence is seized as a result of an inadequate affidavit.
State v. Hyleman, 324 N.C. 506, 510, 379 S.E.2d 830, 833 (1989). Because the
firearms and ammunition were seized as a result of the search warrant issued upon
the insufficient affidavit, the trial court erred in denying Mr. Inyama’s motion to
suppress. See Id.
11 The officer cited possession of marijuana as the criminal violation to support the issuance of the search warrant. (Rpp. 28-29). See N.C. Gen. Stat. § 90-95(d)(4). If the officer had reason to believe that drug sales were taking place at the residence, then the officer would have cited possession with intent to sell or deliver marijuana as the criminal violation to support the issuance of the search warrant. See N.C. Gen. Stat. § 90-95(b)(2).
CONCLUSION
For all the foregoing reasons, Mr. Inyama respectfully asks this Court to
reverse the trial court’s order denying his motion to suppress.
Respectfully submitted, this the 9th day of September, 2013.
Electronic SubmissionHannah HallAssistant Appellate DefenderNorth Carolina State Bar No. 42874
Staples HughesAppellate DefenderOffice of the Appellate Defender123 West Main Street, Suite 500Durham, North Carolina 27701(919) [email protected]@nccourts.org
ATTORNEYS FOR THE DEFENDANT
CERTIFICATE OF COMPLIANCE WITH N.C. R. APP. P. 28(j)(2)
Undersigned counsel hereby certifies that this brief is in compliance with N.C. R. App. P. 28(j)(2) in that it is printed in 14-point Times New Roman font and contains no more than 8,750 words in the body of the brief, footnotes and citations included, as indicated by the word-processing program used to prepare the brief.
This the 9th day of September, 2013.
Electronic Submission Hannah HallAssistant Appellate Defender
CERTIFICATE OF SERVICE
I hereby certify that a copy of the above and foregoing Defendant-Appellant’s Brief has been duly served upon Joseph Elder, Assistant Attorney General, North Carolina Department of Justice, Medical Facilities Section, Post Office Box 629, Raleigh, North Carolina 27602, by electronic mail addressed to [email protected].
This the 9th day of September, 2013.
Electronic SubmissionHannah HallAssistant Appellate Defender
No. COA13-666 TENTH DISTRICT
NORTH CAROLINA COURT OF APPEALS**************************************************
STATE OF NORTH CAROLINA ))
v. ) From Wake)
VICTOR NNAMDI INYAMA )
**************************************************
APPENDIX
**************************************************
INDEX
Search Warrant, COA10-725, Record on Appeal, page 4,
State v. Oates, ___ N.C. App. ____, 736 S.E.2d 228 (2012)..................1
State v. Simmons, 179 N.C. App. 656, 635 S.E.2d 74, 2006 N.C. App. LEXIS
2039, at *9-12 (N.C. Ct. App. Oct. 3, 2006)........................................2-7
