When a Person Sells Drugs Away from His or Her Home, Does that Provide Probable Cause to Search the Person’s Home?

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The question in the title of this post is an oversimplified version of the issue addressed by the court of appeals last week in State v. Bailey, __ N.C. App. __, __ S.E.2d __, 2019 WL 3925864 (Aug. 20, 2019). But it isn’t oversimplified by much, and the appellate division may be inching closer to answering the question in the affirmative.

Facts. Bailey began when Carteret County officers saw a blue Jeep park in an apartment complex. Its occupants were a man and a woman who lived together. Each had a history of drug activity. A second woman emerged from another vehicle, entered the Jeep, and emerged 30 seconds later. Both vehicles then drove away. Suspecting that they had just witnessed a drug transaction, officers followed the second woman’s vehicle, stopped it for traffic infractions, and asked her whether she had just purchased heroin. She acknowledged that she had and was released with a “strong reprimand.” Meanwhile, other officers followed the Jeep until it arrived at the occupants’ residence. Both occupants went into their home.

Based on the above facts, officers sought and obtained a search warrant for the residence. When the warrant was executed, both were present, as was the eventual defendant, apparently a third roommate in the home. Officers seized drugs, paraphernalia, and $900 from the defendant and he was charged with trafficking in cocaine. He moved to suppress, arguing that the warrant was not supported by probable cause. The trial court denied the motion and the defendant pled guilty and appealed.

Majority opinion. Judge Berger wrote the majority opinion, joined by Judge Dietz. The majority relied heavily on State v. Allman, 369 N.C. 292 (2016). Bob Farb wrote about Allman here. In a nutshell, the court held that there was probable cause to support a search warrant for the residence of two men who (1) were found to have eight ounces of marijuana and $1600 in cash in their car and (2) lied to the officers who stopped them about their home address. The Allman court cited federal case law and concluded that “based on the insight from [the applicant’s] training and experience that evidence of drug dealing is likely to be found at a drug dealer’s home, and the fact that [one of the men] lied about where [they] lived, it was reasonable for the magistrate to infer that there could be evidence of drug dealing at [their home].”

Returning to Bailey, Judge Berger emphasized that probable cause is a low hurdle and that a reviewing court should defer to a magistrate’s determination of probable cause. Then he noted that the Jeep’s occupants had “traveled directly from the scene of the drug transaction to [their] residence” and that, at a minimum, the money they made from the drug transaction was evidence of the crime and was likely to be in their home. Finally, citing Allman, he argued that it would be “reasonable to infer” that the Jeep’s occupants “would have other additional drugs or paraphernalia stored in their residence or vehicle” and that “[t]he practical considerations involved in selling quantities of heroin require that the product be cut, weighed, and packaged at some location,” most likely a residence.

Dissent. Judge Zachary viewed the case as governed by State v. Campbell, 282 N.C. 125 (1972) (holding that there was insufficient probable cause to support a search warrant for a residence shared by three men, each of whom had sold drugs to an undercover officer, because “[n]owhere in the affidavit is there any statement that narcotic drugs were ever possessed or sold in or about the dwelling to be searched”). In Judge Zachary’s view, there was not a sufficient nexus between the apartment and the off-site drug activity. Accordingly, she would have reversed the trial court’s ruling on the motion to suppress.

Comment. Presumably the defendant will ask the state supreme court to review this case based on the dissent. If so, the court will have the opportunity to wade into a sprawling national split of authority. Professor Wayne LaFave explains that courts fall in two general camps. The first group of courts will find probable cause to search a drug seller’s home based on drug sales outside the home only when there are “some additional facts . . . which would support the inference that the supply [of drugs] is located [in the home].” Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 3.7(d) (5th ed. 2012) (exhaustively collecting authority). The “additional facts” need not be especially strong and may include an effort to conceal the location of the seller’s home from police; a visit to the home immediately before or after the sale; or a close proximity between the home and the sale, among other possibilities. But there must be some additional peppercorn connecting the drug activity and the home.

Professor LaFave summarizes the second perspective as follows: “[I]n more recent times, many courts have been disinclined to require such facts in the particular case to support that inference. Rather, it is commonly held that this gap can be filled merely on the basis of the affiant-officer’s experience (or, for that matter, the magistrate’s common-sense judgment) that drug dealers ordinarily keep their supply, records, and monetary profits at home.” Id. See also F. Lee Bailey & Kenneth Fishman, Handling Narcotic & Drug Cases § 131.2 (Feb. 2019 update) (citing State v. Thein, 977 P.2d 582 (Wash. 1999), for the proposition that “[g]eneral statements in a search warrant affidavit to the effect that drug dealers commonly keep drugs, drug-related records, and firearms in their homes, does [sic] not provide probable cause to search the home of a particular suspect,” but also noting contrary authority from other courts).

It isn’t totally obvious where North Carolina fits. Campbell suggests perhaps the first camp, but it is an older case and the court’s explanation of its reasoning isn’t crystal clear. Although Allman is certainly favorable for the State, the opinion emphasizes the “additional fact” that the suspects had lied to the officers about where they lived. Therefore, Allman doesn’t put North Carolina firmly in the second camp. Some of the language in Bailey comes closer to endorsing the second perspective, but Bailey may be appealed further. And there’s no guarantee that a further appeal will clarify the issue completely. The state supreme court could decide the issue on narrow grounds by focusing on the “additional fact” that the drug sellers returned to the residence immediately after the sale.

In the meantime, one suggestion for officers drafting, and judicial officials reviewing, search warrant applications is to pay close attention to what the affiant says about his or her training and experience with drug offenses and where drug sellers keep the tools of their trade. Judge Zachary, in distinguishing Allman, pointed out that the affidavit in Bailey contained no “insight from the affiant’s ‘training and experience’ which might have helped to link the single occurrence of a narcotics transaction with the presence of additional narcotics inside the suspected dealer’s home.” Courts elsewhere have also looked to officers’ training and experience, as reflected in the affidavit, to support the idea that people who sell drugs often keep contraband in their homes. Thus, careful drafting may make the difference between a valid warrant and an invalid one.

7 comments on “When a Person Sells Drugs Away from His or Her Home, Does that Provide Probable Cause to Search the Person’s Home?

  1. So a rookie police officer / one with less than a year or so may not have the “experience” of interacting with numerous drug dealers/sellers/buyers but their training and common sense should suffice. If one looks like a snake, slithers like a snake and acts like a snake…guess what it is a snake. Drug dealers keep drugs up their anus, in their babies diapers and in any location possible to forego detection. The sheer volume of drugs and those with the desire to financially gain from their use is staggering and the likelihood of one selling it not having it on their person while in their home or hidden in their home is asking for us to believe in the tooth fairy. This retired officer found drugs on grandmas, children, pregnant women, professionals, clergy and a host of other upstanding individuals….in their cars, in their homes, in their sheds, flower pots, washing machine hoses, dryer vents, ice trays, cereal boxes, formula cans, baby food jars, ac vents, electrical outlets and more. If the courts tie the hands of officers anymore then why bother stopping a drug deal if you cant finish it by getting the whole stash. Either the courts are concerned with those who are victims of drugs or the rights of drug dealers…cant have both and I vote for the victims…screw the dealers!

  2. Naturally, an officer SHOULD request a search warrant for the residence in order to seize “fruits of the crime,” more drugs, paraphernalia, etc. Stopping with just the seizure at the location of the traffic stop is only half of the job.

    • If an officer as indicated in this scenario is following the offenders home and they get inside the home while the officer waits for a warrant the “fruits of the crime” as you state will be flushed down the toilet, burned or otherwise destroyed. Cash will probably be untouched but the loss of drugs while waiting is why this is such a problem. Exigent circumstances should take precedent over warrant since courts have already established this rule along with the premise that this is probably not a one time act and drug dealers have weapons to protect themselves. Keeping an officer or officers (unmarked and in plain clothes) outside while waiting for a warrant only increases the likelihood of loosing valuable evidence since they will most likely be detected lookouts, neighbors and so on. Unless officers are granted full immunity if evidence is lost or another crime is committed that involves violence which would have been prevented if warrant had not be necessary….see the good guys can come up with scenarios too just like the scumbags who deal drugs and sue for their rights being violated…how asinine is that yet it happens everyday. Whose rights are more important…a drug dealer or yours to live in a drug free neighborhood. I like the last part.

  3. Jeff-This was my case and I was assisted by Gus Willis in doing the legal research. The Court of Appeals opinion stated that the warrant listed the property to be seized as “[h]eroin, scales, paraphernalia, packaging equipment, videos, photos, ledgers and
    documents” related to illegal narcotics, but they left out “U.S. Currency,” which was included in the warrant. We specifically argued that the $20 in currency given to the Jeep’s occupants being brought directly back to the apartment was not only “fruits of a drug transaction” but also U.S. Currency as “evidence of drug activity” as stated in the warrant.
    If the Jeep occupants had been buyers of drugs instead of sellers and had returned directly to the apartment with drugs, it would be a slam dunk case. Why different when they return with the cash “fruits” of a drug deal?

    As an aside, the same Nicholas Bailey made law several years ago when I convicted him of Possession of a Firearm by a Convicted Felon when the underlying felony was him serving a felony 90-96 drug probation. That case was reversed by the Court of Appeals as not a final judgment.

  4. First, the case particulars if accurately described have several problems that actually highlight why you should REQUIRE A search warrant.

    1) The woman who supposedly bought drugs purchased heroin, yet the only drug specifically mentioned in the description of the arrest is cocaine. Especially after the shootings in Houston, I want to know why the mismatch. Maybe the heroin was a sideline, and cocaine
    the main drug they sold? Or maybe the woman who bought the drugs was pressured into saying things to get off with a warning?

    2) The police have a confirmed heroin addict who just made a buy and let her drive off. Say what? Admittedly, while partially successful interdiction of other opiates, especially redirected prescriptions, may have changed the profile, but many heroin addicts are either “under the influence” or undergoing early withdrawal much of the time. Heroin addicts typically don’t go three day between doses, which means it’s a pretty easy per se case as they will test positive for an opiate with no prescription. A heroin addict is not typically considered a “safe driver.”

    I agree with the dissenting judge, but more because I find the Bill of Rights sacrosanct. I don’t like the new Red Flag laws if they go over the line and infringe the 2nd and 5th amendments, just as I am uncomfortable with the particulars of this case. A person accused of drug dealing has the exact same rights I do until convicted, while a convicted drug dealer on probation rightly has hugely reduced rights, rightfully so. It reminds me of the horrible case from Houston, and the warning of the heroin addict driving makes me wonder if the hope of a big asset seizure might have been a bigger factor here. Public Safety certainly was not the primary factor initially.

  5. I don’t think we need to flush the 4th amendment down the toilet just yet. When the details of the case are not cookie cutter it is always best to get a warrant. It will give time to conduct a safe entry with planning and most of the time a tactical unit. I would rather take time, plan and have the blessing of a judicial official. If you don’t get the warrant so what. Let the narcotics guys conduct a longer investigation with better surveillance and planning. Safety first. If you have time to make a plan and gather a team you usually have time to get a warrant. I don’t care how much “fruits of the crime” get flushed, I’m not risking the safety of my officers without good tactical planning and, as these facts are given, a search warrant. I think this case ruling is a positive for law enforcement and should be viewed as such. I’m interested to see what the Supreme Court rules if it continues that far.

  6. Probable cause is a very low threshold to cross. Did a crime occur? Probably. Did this person do it? Probably.

    A drug dealers job is, well, dealing drugs. A plumbers job is plumbing. A police officers job is policing. All of these are considered a “trade” job. Tools of the trade are kept, generally, at an employees home.

    So, does a drug dealer “probably” have tools of the trade at their house? Probably.

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