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STATE OF NORTH CAROLINA v. DONALD KEVIN WASHBURN,Defendant.
NO. COA09-72
(Filed  17 November  2009)
Search and Seizure  - motion to suppress drugs  - narcotics dog  -
hallway outside storage unit
The trial court did not err in a controlled substances
case by denying defendant’s motion to suppress evidence
obtained from searches of his home and storage unit.    The
police were lawfully present in the common hallway outside
the storage unit with a narcotics dog, and there was
probable cause for a search warrant for his house based on
the search of the storage unit and the statements of an
informant.
Appeal by defendant from judgments entered  17 September  2008
by Judge William Z. Wood, Jr. in Forsyth County Superior Court.
Heard in the Court of Appeals  31 August  2009.
Roy Cooper, Attorney General, by Grady L. Balentine, Jr.,
Special Deputy Attorney General, for the State.
A. Wayne Harrison, for defendant.
MARTIN, Chief Judge.
Defendant was indicted on charges of felony possession of
cocaine pursuant to N.C.G.S.  §  90-95(d)(3), possession of drug
paraphernalia pursuant to N.C.G.S.  §  90-113.22, maintaining a
dwelling for keeping or selling controlled substances pursuant to
N.C.G.S.  §  90-108(a)(7), maintaining a storage unit or a building
to keep or sell controlled substances pursuant to N.C.G.S.  §  90-
108(a)(7), possession with intent to manufacture, sell, or
deliver cocaine pursuant to N.C.G.S.  §  90-95(a)(1), possession
with intent to sell or deliver Dihydrocodeinone pursuant to
N.C.G.S.  §  90-95(a)(1), trafficking in opium-possession pursuant




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to N.C.G.S.  §  90-95(h)(4), and resisting a public officer
pursuant to N.C.G.S.  §  14-223.    He moved to suppress evidence
seized from searches of a rented storage unit and from his
residence.
The evidence at the suppression hearing tended to show that
on  18 September  2006, Line Sergeant R.K. Smith  (“Sergeant Smith”)
of the Kernersville Police Department received a tip from an
informant who had been providing accurate information to him for
thirteen years.    The informant told Sergeant Smith that defendant
kept a large quantity of drugs in a blue toolbox in his garage
and rented a climate-controlled storage unit somewhere within the
Kernersville town limits.    In addition, the informant told
Sergeant Smith defendant’s name and address, the model and color
of defendant’s truck, and defendant’s license plate number.
Sergeant Smith relayed this information to the Kernersville
Police Department’s Vice and Narcotics Unit.    Officer A.B. Cox
(“Officer Cox”), a detective with the unit, received the
information and contacted Sergeant Smith for more details.
With this information, Officer Cox began an investigation of
defendant’s activities, conducting surveillance several times at
4612 Clipstone Lane in Kernersville, North Carolina, the address
supplied by the informant, and visiting Shields Road Self-Storage
(“storage facility”), the only climate-controlled storage
facility in town at that time.    He confirmed defendant lived at
the address supplied by the informant after finding mail
addressed to defendant in garbage collected by the Department of




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Public Works.    In addition, Officer Cox confirmed the informant’s
information regarding defendant’s truck, the presence of a blue
toolbox in defendant’s garage, and defendant’s rental of a
storage unit at the storage facility.
In the course of his investigation, on  26 October  2006,
Officer Cox requested that Detective Kevin Clodfelter  (“Detective
Clodfelter”) of the Kernersville Police Department’s Narcotics
Unit perform a random sweep of the storage facility with a dog
trained in drug detection.    After receiving permission from the
manager of the facility, Ben Mastin  (“Mr. Mastin”), to enter the
facility and search with a K-9 unit, Detective Clodfelter began
the search.    Detective Clodfelter was not provided any
information as to which specific unit was the potential storage
unit at issue.    Once inside the hallway of the building
containing defendant’s individual unit, the dog indicated the
presence of contraband by alerting on the door of unit  4078-C,
defendant’s unit.
Detective Clodfelter then left to obtain a search warrant
for the unit, and upon his return with the warrant, the lock to
defendant’s unit was drilled off and the officers entered.
Inside the unit, the officers discovered, inter alia, drug
paraphernalia, a residue of white powder on the floor, and  $5,100
in one-hundred- dollar bills.    Officer Cox conducted a field test
on the white powder, which tested positive for the presence of
cocaine.    The officers then seized the items found in the storage
unit.




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After obtaining a warrant based on the evidence seized from
the storage unit and information provided by the informant,
Officer Cox, accompanied by Detective Clodfelter and Detective
Hess, arrived at defendant’s  4612 Clipstone Lane residence.
Having knocked on defendant’s door and receiving no response, the
officers entered the residence and found defendant hiding in the
attic.    The officers then searched defendant’s home in accordance
with the search warrant.
At the conclusion of the evidence, the trial court denied
defendant’s motion based on its findings that the hallway outside
defendant’s storage unit was a public area, the warrants to
search the individual unit and residence were properly obtained,
and the discovery of drugs in the storage unit combined with
other pertinent facts was enough to connect his residence with
the possibility of drugs being sold.
Defendant subsequently pled guilty to felony possession of
cocaine, possession of drug paraphernalia, maintaining a dwelling
for keeping or selling controlled substances, maintaining a
storage unit or a building to keep or sell controlled substances,
possession with intent to manufacture, sell, or deliver cocaine,
and resisting a public officer.    The charges of possession with
intent to manufacture, sell, or deliver Dihydrocodeinone and
trafficking in opium-possession were dropped.    Having properly
retained his right to appeal the denial of his motion to
suppress, defendant now appeals from the order denying the motion
to suppress.    We affirm.




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In defendant’s sole argument before this Court, he contends
the trial court erred in denying the motion to suppress evidence
obtained from all searches and seizures conducted by the
Kernersville Police Department.    We disagree.
When analyzing a trial court’s denial of a motion to
suppress, the scope of review 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. Bone,  354 N.C.  1,  7,  550 S.E.2d  482,  486  (2001)
(quoting State v. Cooke,  306 N.C.  132,  134,  291 S.E.2d  618,  619
(1982)), cert. denied,  535 U.S.  940,  152 L. Ed.  2d  231  (2002).
When a defendant has not assigned error to any of the trial
court’s findings of fact, those findings are conclusive and
binding on appeal.    State v. Jacobs,  162 N.C. App.  251,  254,  590
S.E.2d  437,  440  (2004).                                                 “The trial court’s conclusions of law,
however, are fully reviewable on appeal.”    State v. Hughes,  353
N.C.  200,  208,  539 S.E.2d  625,  631  (2000).
Defendant initially contends that the dog sniff of the
hallway outside of his locked storage unit constitutes an illegal
warrantless search because he had a reasonable expectation of
privacy in the storage facility, including the hallway area.    We
disagree.
The first clause of the Fourth Amendment protects the  “right
of the people to be secure in their persons, houses, papers, and




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effects, against unreasonable searches and seizures.”    U.S.
Const. amend. IV.                                                        “[T]he touchstone of the Fourth Amendment
analysis has been whether a person has a constitutionally
protected reasonable expectation of privacy.”    State v. Phillips,
132 N.C. App.  765,  770,  513 S.E.2d  568,  572  (internal quotation
marks omitted), disc. review denied and appeal dismissed,  350
N.C.  846,  539 S.E.2d  3  (1999).    Such an unreasonable search
“occurs when an expectation of privacy that society is prepared
to consider reasonable is infringed.”      United States v.
Jacobsen,  466 U.S.  109,  113,  80 L. Ed.  2d  85,  94  (1984).
Official conduct that does not compromise any legitimate
interest in privacy is not a search subject to the Fourth
Amendment.    Id. at  123,  80 L. Ed.  2d at  101.    Any interest in
possessing contraband cannot be deemed legitimate, and thus,
governmental conduct that only reveals the possession of
contraband does not compromise any legitimate privacy interest.
Id. at  121-23,  80 L. Ed.  2d at  99-101.
The United States Supreme Court discussed the Fourth
Amendment implications of a canine sniff in United States v.
Place.                                                                   462 U.S.  696,  77 L. Ed.  2d  110  (1983).    There, the Court
treated the sniff of a well-trained narcotics dog as sui generis
because the sniff  “disclose[d] only the presence or absence of
narcotics, a contraband item.”    Id. at  707,  77 L. Ed.  2d at  121.
As the United States Supreme Court explained in Illinois v.
Caballes, since there is no legitimate interest in possessing
contraband, a police officer’s use of a well-trained narcotics




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dog that reveals only the possession of narcotics does not
compromise any legitimate privacy interest and does not violate
the Fourth Amendment.                                                   543 U.S.  405,  408-09,  160 L. Ed.  2d  842,
847  (2005).
In the present case, the officers’ use of the dog to sweep
the common area of a storage facility, alerting them to the
presence of contraband in defendant’s storage unit, did not
infringe upon defendant’s Fourth Amendment rights.    As defendant
had no legitimate interest in possessing contraband, there has
been no legitimate privacy interest compromised which the Fourth
Amendment seeks to protect.    Id.    Therefore, the question before
this Court is whether the police were lawfully present in the
hallway area of the storage facility in order to permit the dog
sniff.    See United States v. Brock,  417 F.3d  692,  697  (7th Cir.
2005);    United States v. Roby,  122 F.3d  1120,  1124-25  (8th Cir.
1997);    United States v. Venema,  563 F.2d  1003,  1005  (10th Cir.
1977).
It is well-settled that when a third party with common
authority over a home or other protected area consents to a
search, the need for a search warrant is obviated.    Georgia v.
Randolph,  547 U.S.  103,  106,  164 L. Ed.  2d  208,  217  (2006)
(citing Illinois v. Rodriguez,  497 U.S.  177,  111 L. E.  2d  148
(1990); United States v. Matlock,  415 U.S.  164,  39 L. Ed.  2d  242
(1974)).    In United States v. Brock,    the officers were granted
consent to search the common areas of a residence by a resident
with common authority over that area.                                   417 F.3d at  697.    Because




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of this consent, the entry of the dog into that common space did
not infringe on the other roommate’s legitimate expectation of
privacy.    Id.    The Court reasoned that consent granted by a
third-party to search shared property is based on a  “reduced
expectation of privacy in the premises or things shared with
another.”    Id.  (internal quotation marks omitted).                  “When someone
shares an apartment or a home with another individual, he
ordinarily assumes the risk that a co-tenant might consent to a
search, at least to all common areas and those areas to which the
other has access.”    Id.  (internal quotation marks omitted).
The Eighth Circuit has also concluded that the use of a dog
sniff in a common area is not a search.    Roby,  122 F.3d at  1124-
25.    There, the Court considered whether a canine sniff in the
common corridor of a hotel intrudes upon a legitimate expectation
of privacy.    Id. at  1124.    The Court determined that, although
there is a reasonable expectation of privacy in one’s hotel room,
a privacy expectation does not extend to the corridor outside the
hotel room as that area is traversed by many people.    Id. at
1125.    The Court also noted that the fact that a dog is more
skilled at odor detection than a human does not render the sniff
illegal.    Id. at  1124-25.
Similarly, in United States v. Venema, the Tenth Circuit
held that the dog sniff of the areaway in front of the
defendant’s rented storage locker did not constitute a search.
563 F.2d at  1005-06.    There, the Court reasoned that, while the
area inside the locker itself was private, the area in front of




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the locker was semi-public in nature.    Id. at  1005.    Since the
officers brought the dog on the premises with the owner of the
storage company’s consent, they were there lawfully, and did not
implicate the Fourth Amendment.    Id. at  1005-06.
In the present case, the facts are substantially similar to
the cases cited above.    The police officers were lawfully present
in the common hallway outside defendant’s individual storage
unit. The storage facility, in which renters obtain access into
the gated facility by way of a personalized access code, consists
of several buildings divided into four or five sections, with
each section containing fifteen units.    The doors to the
individual units line hallways inside the various buildings, and
the individual units are secured by the individual renters’
locks.    The hallway at issue, as with all of the common areas in
the facility, was open to every person who had an access code and
any invited guests.    The police department also had its own
access code to the storage facility, which had previously been
supplied to it by a person with common authority over the
building, the facility manager, Mr. Mastin.    On the particular
day at issue, Officer Cox and Detective Clodfelter obtained
additional permission to access the common areas with a drug dog
from Mr. Mastin.
Because this hallway area was open to any individual who
rented a storage unit, facility management, guests of renters,
and representatives from the police department, it was a common
area and defendant could not possibly have possessed a reasonable




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expectation in the hallway area.    Thus, with Mr. Mastin’s
consent, the officer’s were lawfully present in the hallway.
Since the police were lawfully present in the common hallway, the
use of the drug dog in that area did not infringe on defendant’s
legitimate privacy interests.    Accordingly, a search warrant for
the hallway area was not needed.
Defendant argues this case requires a different result and
relies on the Second Circuit’s decision in United States v.
Thomas.                                                                 757 F.2d  1359  (2nd Cir.  1985).    There, the Court
rejected the notion that  “a sniff can never be a search.”    Id. at
1366.    Basing its decision on the  “heightened privacy interest
that an individual has in his dwelling place,” id., the Second
Circuit reasoned that  “the defendant had a legitimate expectation
that the contents of his closed apartment would remain private,
that they could not be  ‘sensed’ from outside his door.    Use of
the trained dog impermissibly intruded on that legitimate
expectation.”    Id. at  1367.
Thomas, however, is criticized in that its proposition
“conflicts with the Supreme Court’s determination that  [n]o
legitimate expectation of privacy is impinged by governmental
conduct that can reveal nothing about noncontraband items.”
United States v. Lingenfelter,  997 F.2d  632,  638  (9th Cir.  1993)
(internal quotation marks omitted).    We join the Ninth Circuit’s
reasoning and hold that defendant had no expectation of privacy
in the common hallway of the storage facility, making the dog
sniff permissible within the confines of the Fourth Amendment.




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In addition, defendant contends the police did not have
probable cause or reasonable suspicion to believe contraband was
contained in his storage unit before deciding to access the
adjoining hallway with a drug dog, thus making the subsequent
actions illegal under the Fourth Amendment.    We disagree.    As we
have already determined that the dog sniff was not a Fourth
Amendment search, probable cause was not a prerequisite for the
entry.    See United States v. Whitehead,  849 F.2d  849,  855  (4th
Cir.  1988)  (holding that police were not required to have
probable cause before bringing trained dogs into passenger train
sleeping compartment to sniff for narcotics).    Therefore,
defendant’s contention fails.
Defendant next argues that because the dog sniff was a
violation of his Fourth Amendment rights, the subsequent search
warrant of the individual storage unit and the evidence obtained
therefrom were invalid.    We disagree.
As discussed above, the drug dog was lawfully present in the
storage facility, and the information obtained from its sweep was
valid.    In addition, a positive alert for drugs by a specially
trained drug dog gives probable cause to search the area or item
where the dog alerts.    See United States v. Jeffus,  22 F.3d  554,
557  (4th Cir.  1994).    As such, the drug dog’s alert in the
present case provided the requisite probable cause to search
defendant’s storage unit.    Thus, the search warrant for the
storage unit was valid and the evidence procured from the




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subsequent search was properly within the police’s possession.
Accordingly, defendant’s argument to the contrary fails.
Lastly, defendant contends that, even if the evidence from
his storage facility was properly obtained, there was no nexus
between the presence of drugs in the storage unit and the
existence of drugs at his house to provide the requisite probable
cause for the search warrant of his residence.    Again, we
disagree.
The general rule, pursuant to the Fourth Amendment of the
United States Constitution and Article I, Section  20 of the North
Carolina Constitution, is that issuance of a warrant based upon
probable cause is required for a valid search warrant.    See State
v. Jones,  96 N.C. App.  389,  397,  386 S.E.2d  217,  222  (1989),
appeal dismissed and review denied,  326 N.C.  366,  389 S.E.2d  809
(1990).    An application for a search warrant must contain a
statement supported by allegations of fact that there is probable
cause to believe items subject to seizure may be found on the
premises sought to be searched.    See N.C. Gen. Stat.  §  15A-244
(2007).    Under the  “totality of the circumstances” standard
adopted by our Supreme Court for determining the existence of
probable cause:
[t]he 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,
including the  “veracity” and  “basis of
knowledge” of persons supplying hearsay
information, there is a fair probability that
contraband or evidence of a crime will be
found in a particular place.    And the duty of
a reviewing court is simply to ensure that




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the magistrate had a  “substantial basis for  .
.  . conclud[ing] that probable cause
existed.”
State v. Arrington,  311 N.C.  633,  638,  319 S.E.2d  254,  257-58
(1984)  (quoting Illinois v. Gates,  462 U.S.  213,  238-39,  76 L.
Ed.  2d  527,  548  (1983)).
When the application is based upon information provided by
an informant, the affidavit should state circumstances supporting
the informant’s reliability and basis for the belief that a
search will find the items sought. State v. Crawford,  104 N.C.
App.  591,  596,  410 S.E.2d.  499,  501  (1991).    A showing is not
required  “that such a belief be correct or more likely true than
false.    A practical, nontechnical probability is all that is
required.”    State v. Zuniga,  312 N.C.  251,  262,  322 S.E.2d  140,
146  (1984).    Further, a magistrate’s determination of probable
cause should be given great deference, and an  “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.
In addition, this Court has held that  “firsthand
information” of contraband seen in one location will support a
search of a second location.    State v. McCoy,  100 N.C. App.  574,
577-78,  397 S.E.2d  355,  357-58  (1990)  (citing State v.
Mavrogianis,  57 N.C. App.  178,  291 S.E.2d  163, disc. review
denied,  306 N.C.  562,  294 S.E.2d  227  (1982)).    However, evidence
obtained in one location cannot provide probable cause for the
search of another location when the evidence offered does not
“implicate the premises to be searched.”    State v. Goforth,  65




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N.C. App.  302,  308,  309 S.E.2d  488,  493  (1983)  (holding that
conclusory statements in the supporting affidavit that two people
were going to a certain location to buy drugs and evidence that
these two individuals in fact went to that location was
insufficient to implicate the premises and therefore provide
probable cause to search that residence); see also State v.
Campbell,  282 N.C.  125,  131,  191 S.E.2d  752,  756-57  (1972)
(holding that statements that defendants sold drugs in other
parts of town and lived in the residence to be searched did not
implicate the residence as a place where drugs would likely be
found and therefore there was no probable cause for a search
warrant of that residence).
In the present case, there was sufficient evidence offered
in support of the search warrant for defendant’s residence to
provide probable cause to believe that contraband would be found
in that location.    First of all, Officer Cox, in his affidavit,
offered proof of illegal drugs, which we have already determined
were lawfully seized, found in defendant’s storage unit.    In
addition, Officer Cox provided statements made by an informant
that defendant stored additional drugs in a blue tool box at his
residence.    Assuming the informant is reliable and provides a
basis for his belief that illegal drugs would be found, see
Crawford,  104 N.C. App. at  596,  410 S.E.2d at  501, his testimony,
taken in conjunction with the evidence seized from the storage
unit, sufficiently implicates defendant’s residence as one where
contraband would likely be discovered, providing ample probable




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cause.    Thus, the only issue left for this Court to address is
the informant’s reliability and basis for his belief.    Id.
Though it is true that an informant’s statements cannot
blindly provide probable cause for a search warrant, there is no
reason, given the circumstances in this case, to doubt this
informant’s reliability and basis of knowledge.    See id. at  595-
96,  410 S.E.2d at  501-02.    First of all, the informant’s
reliability is clearly supported by facts established in Officer
Cox’s affidavit.    Specifically, the affidavit established that
Sergeant Smith spoke with a source from whom he had been
receiving accurate information for nearly thirteen years.    As in
Illinois v. Gates, where the letter received from the informant
was referred to another officer to pursue the information,  462
U.S. at  225,  76 L. E.  2d at  540, Sergeant Smith referred the tip
to the narcotics unit for Officer Cox to conduct the
investigation.    One notable difference, however, is that in Gates
the source was anonymous, id., whereas the informant here had
been a trusted source of Sergeant Smith’s for many years.    So
while the source may have initially been unknown to Officer Cox,
Sergeant Smith believed him to be reliable based on past
experiences.    Thus, the informant’s reliability is clearly
evident.
In addition, the affidavit indicates the informant’s basis
of knowledge.    In the present case, the informant told Sergeant
Smith that defendant’s name was Kevin Washburn, he lived at  4612
Clipstone Lane, drove a white-over-tan Ford pick-up truck with




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license plate number XL-2269, kept a large quantity of drugs in a
blue toolbox in his garage, and had a climate-controlled storage
unit.    The informant had attained this information by way of a
female waitress at Zoe’s Restaurant who had been involved with
defendant.    Sergeant Smith referred this information to Officer
Cox who investigated it.    Officer Cox went to the Clipstone Lane
address, saw the truck and license plate informant had provided,
and confirmed that the vehicle belonged to defendant.    Officer
Cox returned to the residence on several more occasions to
conduct surveillance, and on one of those occasions saw a blue
toolbox in the corner of the garage.    He was eventually able to
confirm this location as defendant’s address through mail found
in the garbage collected outside the residence.    He also
confirmed that defendant rented a storage unit at Shields Road
Self-Storage.    Officer Cox later spoke with the informant
himself, who reiterated the information previously given to
Sergeant Smith.    Given the investigation Officer Cox conducted
and his ability to confirm the information the informant
provided, the informant’s basis and veracity of knowledge is
established.    Therefore, the totality of the circumstances
standard set forth by Gates is satisfied.
Accordingly, based on the evidence obtained from the search
of defendant’s storage unit and the valid statement provided by
the informant that drugs were contained in defendant’s blue tool
box, there was a substantial basis for the magistrate to conclude
there was probable cause to believe drugs would be found in




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defendant’s residence.    The search warrant of defendant’s home is
therefore valid and defendant’s assignment of error is dismissed.
Thus, we affirm the trial court’s denial of defendant’s
motion to suppress the evidence obtained from both his individual
storage unit and his residence.
Affirmed.
Judges HUNTER and BRYANT concur.

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