United States v. Queen (732 F. Supp. 1342, 1990)

ORDER

ROBERT D. POTTER, Chief Judge.

THIS MATTER is before the Court on a Memorandum and Recommendation (hereinafter “M & R”) filed by United States Magistrate Paul B. Taylor on February 2, 1990.

I. INTRODUCTION

The M & R is in response to Motions to Suppress filed by Defendants on October 13, 1989. Defendant Queen filed an amendment to the Motion to Suppress on January 8, 1990. The Government responded to the Motions to Suppress on October 27, 1989. On January 11 and 16, 1990, the Magistrate conducted hearings on this matter. Defendant Black filed a timely objection to the M & R on February 12, 1990, and Defendant Queen timely filed his objection to the M & R on February 15, 1990. On February 23, 1990, the Government responded to Defendants’ objections to the M & R.

Title 28, United States Code, Section 636(b) permits the Court to designate the Magistrate to hear and determine any pretrial criminal matters except motions to dismiss the indictment or to suppress evidence. When the matter involves motions to dismiss or suppress, the Court may designate the magistrate to conduct evidentia-ry hearings, and to submit to the Court proposed findings of fact and recommendations of disposition. Within ten days after being served with a copy of the M & R, any party may file written objections to the M & R. The Court must make a de novo determination of those portions of the M & R to which objection is made. Thereafter, the Court may accept, reject or modify the M & R, and the Court may also receive further evidence or recommit the matter to the magistrate with instructions.

In making its de novo review, the Court has carefully reviewed the entire record in this case. In particular, the Court has read the Motions to Suppress along with Defendant Queen’s amendment to the Motion, the Government’s response to the Motions, the M & R, the objections to the M & R, and the Government’s answer to the objections. The Court has also carefully examined the lengthy transcript from the January 11th and 16th hearings. Finally, the Court has studied the applicable law as cited by the parties and the Magistrate. The Court’s conclusion of the de novo review follows.

II. FACTUAL BACKGROUND

Although the Magistrate has done an excellent job in the M & R of setting forth the facts of this case, the Court will summarize the relevant facts for the sake of clarity. The Court does not believe the most important facts are in dispute.

On May 20, 1989 at 12:15 p.m., Sgt. R.T. Lytton of the Gaston County Police Department, received a telephone call from Myra Summey. Summey informed Lytton that Defendant Queen had 3500 pounds of marijuana in the attic of his home as well as “stacks and stacks of money.” She gave the address of Defendant Queen’s residence as 1816 E. Garrison Avenue. Sum-mey then provided a detailed description of the way the marijuana was packaged. Summey also told Lytton that the reason she was reporting Queen was that she did not want her child around drug dealing, and that she was mad at Queen because she had found him with another woman. She further stated that Queen had recently beaten her.

After receiving the statement, Lytton requested that Summey come to the police station. Five minutes later, Summey arrived at the station and identified herself as Summey. Lytton recognized her voice. Summey brought with her a ledger that she claimed contained records of Queen’s drug activities. At the police station, Sum-mey repeated her accusations but provided more detail of the operation and a more detailed description of Queen’s house. She also stated that Defendant Black was Queen’s partner and that Queen kept the marijuana at his house while Black kept the money and drug records at his house. Summey further stated that she had seen the marijuana in Queen’s attic within the past 72 hours, and informed Lytton that he was planning to move it in the immediate future. Lytton also observed several bruises on Summey’s body which she claimed Queen caused by throwing her out of the attic when she was looking at the marijuana.

Thereafter, Lytton drove by the residence located at 1816 E. Garrison Street. The house was located where Summey claimed and matched the description she had given to Lytton. In addition, the boat and blue Nova which Summey had described were in the driveway.

Shortly after 2:30 p.m., Det. Daniel Haw-ley and Sgt. Edwards of the Gaston County Police Department arrived at the police station. Lytton then introduced Summey to the two officers who took over the investigation.

Summey repeated her allegations consistently with the report she had twice given to Lytton. She also told the officers that she used to live with Queen in Maiden, North Carolina and moved in again with him in March 1989 after both moved to Gastonia. Summey stated that she had numerous conversations with Queen and Black about their drug dealing. Summey further related an incident in which Queen got angry at her 9-year-old son after he witnessed Queen and Black cutting marijuana in the kitchen of Queen’s home. Summey also told the officers that she and Queen were experiencing problems in their relationship because of his drug dealing, and that she had moved out of his house the week prior to May 20, 1989. On May 18, 1989, Sum-mey returned to the house to discuss the relationship with Queen. It was on that day she observed 15 to 18 bales of marijuana and other drug paraphernalia in Queen’s attic. Summey stated she knew the bales contained marijuana because she recognized it by smell and sight.

After the interview, Hawley prepared a search warrant application for Queen’s house. The affidavit recounted the reports by Summey to Lytton and then to Hawley and Edwards. Hawley also stated that he had checked the information and found it to be true and accurate. Hawley also included information obtained from other Gasto-nia officers that an on-going investigation of Queen’s drug activities was being conducted prior to Summey coming forward with her information. Based on the affidavit, a state magistrate issued a search warrant for Queen’s house.

The subsequent search confirmed the accuracy of Summey’s information. In the attic, officers found 46 bales of marijuana and 14 one-pound bags packaged in the manner described by Summey. The officers also discovered various scales, baggies, a shotgun and $840.00 in cash. The marijuana weighed 1,420 pounds. The items were seized and Queen was arrested. Television news crews recorded the incident and ran a story about the search on television that night.

At about 9:00 p.m., Hawley began preparing a search warrant application for Black’s residence. Summey was present and revealed that Black kept all the drug money and records at his house. She also told Hawley that Queen and Black had flown to Texas within the past several months to purchase marijuana. During the search of Queen’s home, airline tickets to Texas were found in the names of Black and Queen. Summey described Black’s house and its location on Can Do Court, and further stated that she thought the address was 4721 Can Do Court. Sgt. Ivey then drove to Can Do Court and found the house described by Summey. Shortly after Ivey arrived at the house, Black’s wife returned. Because Ivey feared drug records might be destroyed, he informed Black’s wife that if she chose to enter the house before the warrant was executed that he would have to enter as well. After Mrs. Black entered the house, Ivey assumed control of the house, but did not conduct a search at that time.

The magistrate issued the search warrant at 11:58 p.m. based on the above-stated information contained in Hawley’s affidavit. In addition, Hawley recounted the successful search of Queen’s home and the links of Queen to Black including the airline tickets and an auto dealer partnership owned by both men. At 12:30 a.m. on May 21, 1989, officers searched Black’s house. Various records were found as well as approximately $200,000.00 in cash. In addition, the officers discovered a .357 magnum handgun, cigarette rolling machines, bank records, and over three pounds of marijuana.

A search warrant was later issued for Black’s safety deposit box at Branch Banking and Trust based on information provided by Summey. That search revealed $40,-000.00 in cash and a certificate of deposit in the amount of $159,000.00. The cash was seized but the certificate of deposit was returned to Black.

Defendants emphasize several facts. First, none of the officers knew Summey before the incidents, and hence, her reliability as an informant had not been previously tested. Second, Summey did not swear to an affidavit nor was she apprised of the penalties for making a false police report. Finally, the relationship between Summey and Queen was not verified by any independent means such as interviewing Summey's son; having Summey produce a key to the house or a picture of Queen and Summey together or a document showing she lived with Queen; or by having Summey call the residence at 1816 Garrison Boulevard and speak with Queen while the officers listened.

III. THE MAGISTRATE’S RECOMMENDATIONS

The M & R recommends that the Motions to Suppress be denied. The Magistrate concluded that the search warrants for Black’s and Queen's homes were supported by probable cause. Alternatively, the Magistrate found that even if probable cause was lacking that the good faith exception was applicable and legitimized these searches.

As to Black’s safety deposit box, the Magistrate did not decide whether the warrant was issued on a showing of probable cause. Instead, the Magistrate recommended that the Court find that the evidence seized be admitted under the good faith exception.

The Motions to Suppress also challenged the constitutionality of searches conducted by the police of American Auto Sales (Queen and Black’s place of business) and a 1978 Chevrolet Z-28 Camaro located on the premises of American Auto Sales. At the January 11th hearing, the Government stipulated that it would not seek to introduce any evidence at trial seized during these searches. Thus, the Magistrate recommended the Motions to Suppress evidence seized during these searches be dismissed as moot. Because neither parties’ objections challenge this recommendation, the Court will affirm the recommendation without further comment. Thus, the Court's discussion will focus on the constitutionality of searches conducted at Queen’s house, Black’s house, and Black’s safety deposit box.

IV. DEFENDANTS’ OBJECTIONS

A. Defendant Queen.

Defendant Queen has stated two arguments to support his contention that the M & R is legally incorrect. Those arguments are:

(1) The tip provided by Summey to the relevant law enforcement officials did not establish probable cause to be believe [sic] that marijuana was located at 1816 Garrison Boulevard; and

(2) The good faith exception does not apply to this case because the search warrant affidavit contain [sic] statements made in reckless disregard of the truth.

B. Defendant Black.

Defendant Black’s objection does not provide the Court with much guidance. The objection is nothing more than a list of page numbers from the M & R and verbatim portions of sentences found therein. While such an approach to filing an objection may be technically permissible under 28 U.S.C. § 636, the Court does not know on what basis Defendant Black is objecting to the particular portions of the M & R or why Defendant Black believes the M & R is factually or legally inaccurate. Thus, the Court is left in the difficult position of attempting to conjure to what Defendant Black specifically objects.

Nonetheless, the Court has examined each objection. Defendant Black’s objection to the findings of facts must be rejected by the Court because Defendants chose not to put on any evidence at the hearings. Thus, the Court can only examine the testimony of the Government’s witnesses. The Court agrees with the Magistrate’s findings that the officers’ testimony was “internally consistent and wholly credible.” See M & R at 2.

Defendant Black’s conclusion of law objections numbers (1) and (2) address the Magistrate’s conclusion that the so-called “silver platter doctrine” is inapplicable to a case where officers obtain evidence in violation of a defendant’s rights under state statutory or constitutional law for use in federal court. The Magistrate cited extensive case law showing that “every circuit court which has addressed the issue has held that evidence obtained in violation of state law, including state constitutional rights, is nonetheless admissible in a federal prosecution if properly obtained under federal law.” See M & R at 31. Thus, even if Defendant’s proposition is true that the North Carolina Supreme Court has rejected a good faith exception under state law, that fact is meaningless for purposes of a federal prosecution. Defendant has failed to cite a single case to the contrary, and the Court’s review of the case law cited by the Magistrate demonstrates that the M & R is legally sound on that basis. Thus, the Court rejects Defendant Black’s objection to the M & R conclusion of law numbers (1) and (2).

Defendant Black’s conclusions of law objections numbers (3) through (8) address the Magistrate’s conclusion that ample probable cause existed for the search warrant of Defendant Black’s house to be issued. These objections will be addressed below in the “Probable Cause” section of the discussion.

Defendant Black’s conclusion of law objections numbers (9) through (12) address the Magistrate’s conclusion that the good faith exception was applicable to the search of Black’s house. These arguments will be addressed below under the “Good Faith Exception” section of the discussion.

Defendant Black’s conclusion of law objection number (13) addresses the supposed illegal entry by Sgt. Ivey into Black’s house. The Court agrees with the Magistrate that Segura v. United States, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984) does not require suppression of evidence seized from a residence where there may have been an illegal initial entry, but a search warrant was obtained and no search was conducted prior to the warrant arriving at the residence. See M & R at 40. In this case, the Court believes Ivey was justified in taking control of the residence. Ivey gave Black’s wife the option of entering the house. Had she not chosen to enter the house, Ivey would not have feared the possible destruction of drug documents and hence, a need to control the premises would not have existed.

Defendant Black’s conclusion of law objection numbers (14) through (18) address the Magistrate’s conclusion that the good faith exception justified the seizure of evidence found in Defendant’s safety deposit box. The Court will address these objections below in the “Good Faith Exception” section of the discussion.

Defendant Black’s conclusion of law objections numbers (19) and (20) address whether the scope of the search warrant of Black’s safety deposit box was excessive. The Court concurs with the Magistrate’s reliance on Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976). The Court agrees that “the language contained in the present warrant is no more general than that contained in Andresen v. Maryland.” See M & R at 44.

To summarize, the Court finds no merit in Defendant Black’s Findings of Fact objections. Likewise, the Court believes Defendant Black's conclusion of law objections numbers (1), (2), (13), (19), and (20) are invalid on their face. Thus, the Court adopts the Magistrate’s conclusions of law as to these objections. The remaining objections are discussed below.

V. DISCUSSION

A. Probable Cause.

The Court believes the Magistrate correctly concluded that probable cause existed for the search warrant to be issued for both Queen’s and Black’s houses.

Defendant Queen states in his objection that the Government failed to meet the totality of the circumstances test established in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). In particular, Defendant Queen contends that where information from a tipster is obtained, the reliability of the information must be established. Defendant suggests four methods exist to test the reliability of the information:

(1) Corroborative police work;

(2) Proven reliability of the tipster in the past;

(3) Status of the tipster — whether the tipster is an “unquestionably honest citizen" who comes forward to report criminal activity or if the individual is an accomplice or jaded lover who has a motivation to fabricate the information; or

(4) The circumstance attendant to the giving of the information — whether it was given under oath, by way of affidavit, or given as a statement against penal interest.

From the outset, the Court notes that Defendant Queen failed to provide a citation to a case standing for the proposition that a tipster’s information must be established by one of these four methods. The Court is hesitant to adopt such an analysis given the United States Supreme Court’s rejection of the Aguilar and Spinelli two-prong test. In rejecting the previous test, the Court was attempting to develop a “practical, common-sense” approach to deciding whether probable cause exists. See Gates, 462 U.S. at 238, 103 S.Ct. at 2332. Thus, the Court believes it must examine all relevant indicia of reliability and not those four narrow areas proposed by Defendant Queen.

Even if Defendant Queen’s approach was adopted, the Court would find probable cause existed. The Court believes the officers corroborated Summey’s information to a sufficient degree. There were at least four conversations by officers with Sum-mey. Each of those individual conversations were consistent with each of the other conversations. Moreover, the interviews were face-to-face giving the officers opportunity to examine Summey’s facial and body expressions. Furthermore, the officers had information, which was included in the affidavit, from two other sources that both Defendants were involved in drug activity. See Transcript from January 11, 1990 hearing, at 72 (informant of Officer Tommy Wilson) and 74 (Detective Gala-more).

Defendant Queen attempts to distinguish Massachusetts v. Upton, 466 U.S. 727, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984) (per curium) on two grounds. First, the officers in Upton knew the girlfriend, but in this case the officers had never met Summey. Second, the girlfriend in Upton provided information that was verified by comparison of recent events such as a description of stolen items similar to items that police had already recovered. Defendant Queen argues that Summey’s information was not verified.

The Court disagrees that Upton is distinguishable. Although the officers did not know Summey prior to the incident, she appeared in person at the police station whereas the girlfriend in Upton gave her information over the phone. Hence, the officers in this ease had ample opportunity to assess the credibility of Summey. Moreover, the Court believes Summey’s information contained such vivid detail as to place upon it an inference of reliability. See United States v. Darensbourg, 520 F.2d 985, 988 (5th Cir.1975). Furthermore, the information that the officers did verify such as the description and location of Defendant Queen’s house was accurate. Thus, the Court believes that Summey’s “story and the surrounding facts possessed an internal coherence that gave weight to the whole,” and that the search warrant was supported by probable cause. See Upton, 466 U.S. at 734, 104 S.Ct. at 2088-89.

If the search warrant of Queen’s house was supported by probable cause, it follows that the search warrant for Black’s house was also supported by even more probable cause. The application for that warrant recalled the successful search of Queen’s house and the seizure of over 1500 pounds of marijuana. Thus, the reliability of Sum-mey was confirmed. Moreover, Summey indicated drug records and money was kept at Black’s house. The absence of such records and cash at Queen’s house supports the inference that those items, necessary for a large scale drug distribution scheme, must have been at Black’s house.

The link between Queen and Black was further established by their partnership in American Auto Sales. In addition, the affidavit submitted for the search warrant indicates Summey told officers that Black and Queen traveled to Texas to purchase marijuana. During the search of Queen’s house, a recent airline ticket to Texas with both Defendants’ names was discovered.

As to both search warrants, the Court agrees with the Magistrate that Defendants have attempted to hold the Government to a standard of proof not required by Gates. See M & R at 24.

Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence useful in formal trials, have no place in the Magistrate’s decision ... [I]t is clear that only the probability and not a prima facie showing of criminal activity is the standard of probable cause. See Gates, 462 U.S. at 235, 103 S.Ct. at 2330-31.

Thus, the Court believes that probable cause existed for the issuance of both search warrants.

B. Good Faith Exception.

With regard to the search warrants of the houses of Black and Queen, the Magistrate found that the good faith exception enunciated in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) would justify the searches, regardless of the absence of probable cause. Both Defendants contend that Leon is inapplicable because “the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth.” Id. at 923.

The Court disagrees with Defendants’ contentions. Defendants can only point to one statement made by Officer Hawley that was arguably false. In the affidavit for the search warrant of Queen’s house, Hawley said that he “has checked the above information confirming the same and found it to be true and accurate ...” See M & R at 15. In fact, Hawley had not conducted a substantial investigation to confirm Summey’s story.

The Court does not believe this statement contained a material falsehood. Instead, the statement appears to be standard “boiler-plating.” Moreover, it is unreasonable to assume that the state magistrate placed a great deal of weight on this statement. Much of the information in the affidavit was attributed to Summey who alone had access to the information. Thus, Hawley could not have checked the accuracy of the information, and the Court believes the state magistrate was aware of this fact.

The remainder of Defendants’ claims that the affidavit contained false or reckless statements are better characterized as omissions. For example, Defendant Queen contends that Hawley failed to inform the state magistrate that Summey was a “jilted lover.” The M & R notes that some courts have considered a jilted lover to be more reliable than the average informant because the jilted lover’s motivation to “burn” the ex-lover provides adequate incentive for extremely accurate information. See Upton, 466 U.S. at 734, 104 S.Ct. at 2088-89; United States v. Edwards, 798 F.2d 686, 689 (4th Cir.1986). Thus, it can hardly be said that Hawley’s failure to inform the state magistrate that Summey was a “jilted lover” was intended to mislead the magistrate into issuing a search warrant Hawley knew lacked probable cause.

The Court believes the Supreme Court intended Leon to legitimize searches such as the one in this case. While the officers may have left out some information from the affidavit, it was the job of the magistrate to determine whether additional information was needed to satisfy the probable cause requirement. See United States v. Edwards, 798 F.2d 686, 691 (4th Cir.1986). Where the officers exercise good faith, there is not a good reason to punish them by excluding the evidence. Id. In other words, the Court does not believe that the exception to Leon applies where officers may have been sloppy in preparing the affidavit, but did not intend to intentionally mislead the magistrate through omissions or false statements.

Defendant Black also objects to the conclusion of law that the good faith exception justified the search of his safety deposit box. The Court agrees with the Magistrate’s finding that “although Sgt. Farley could have included additional information in the affidavit, his failure to do so does not lessen his good faith reliance on the warrant.” See M & R at 42. The “technical requirements of elaborate specificity” has no proper place in the reviewing of search warrants. See Gates, 462 U.S. at 236, 103 S.Ct. at 2331.

VI. ORDER

NOW, THEREFORE, IT IS ORDERED:

(1) That the M & R be AFFIRMED and ADOPTED in its entirety;

(2) That the Motions to Suppress the evidence seized at American Auto Sales and a 1978 Chevrolet Z-28 Camaro be DISMISSED as moot; and

(3) That the Motions to Suppress the evidence seized at Black’s house, Black’s safety deposit box, and Queen’s house be, and hereby are, DENIED.

MEMORANDUM & RECOMMENDATION

PAUL B. TAYLOR, United States Magistrate.

THIS MATTER is before the undersigned Magistrate on reference from the District Court pursuant to 28 U.S.C. § 636(b)(1)(B) to consider motions to suppress evidence filed by Defendants David Rayn Queen and Dale Woodrow Black. The motions to suppress challenge the evidence obtained during the execution of five separate North Carolina state search warrants authorizing the search of 1816 East Garrison Boulevard, Gastonia, North Carolina (Queen’s residence); 4721 Can Do Court, Gastonia, North Carolina (Black’s residence); safety deposit box # 359 at Branch Banking and Trust Company on Garrison Boulevard, Gastonia, North Carolina (Black’s safety deposit box); American Auto Sales, Gastonia, North Carolina (Queen and Black’s place of business); and a 1978 Chevrolet Z-28 Camaro located on the premises of American Auto Sales.

On January 11 and 16, 1990, the undersigned conducted hearings to receive evidence and arguments on these motions. During the January 11th hearing, the Government stipulated that it would not offer at trial any evidence obtained from the search of American Auto Sales or the 1978 Chevrolet Z-28 Camaro. Accordingly, the motions to suppress evidence from those two searches are now moot. With regard to the remaining three searches, having fully considered the testimony and arguments presented at the hearings, as well as pertinent legal authorities, the undersigned herewith enters the following findings of fact, conclusions of law and recommendation.

I. FINDINGS OF FACT

A. Testimonial Evidence

During the January 11, 1990 evidentiary hearing, the Government offered the testimony of several Gaston County police officers who participated in the investigation of this case, the applications for the search warrants, and the searches. The Defendants offered no testimony in support of their motions. After carefully considering the demeanor of each of the Government’s witnesses, the undersigned finds that their testimony, although somewhat disorganized at times, was nonetheless internally consistent and wholly credible. The relevant testimony may be fairly summarized as follows:

(1) Sgt. R.T. Lytton:

Sgt. R.T. Lytton of the Gaston County Police Department testified that he was on duty at the Police Department on Saturday, May 20, 1989 when he received a telephone call at 12:15 p.m. from a woman who identified herself as Myra Summey. Ms. Sum-mey informed Sgt. Lytton that she wanted to report a major drug deal, but that she was afraid her life would be in danger. After Sgt. Lytton informed her that the police would do the best they could to provide her with protection, Ms. Summey told him that David Queen had bought 3500 pounds of marijuana from a man by the name of Gilbert Layle. Ms. Summey informed Sgt. Lytton that Mr. Queen had bales of marijuana in the attic of his home along with “stacks and stacks” of money. Ms. Summey further testified that Mr. Queen had been dealing drugs from his residence at 1816 E. Garrison Avenue in Gastonia, and that she had seen bales of marijuana wrapped in silvery tape in the attic. She further stated that she knew it was marijuana because she had used it before and knew what marijuana looked and smelled like. She further stated that David Queen and his partner, Dale Black, operated a car lot on Bessemer City Road and that they would stack money from their drug dealing at the car lot.

Ms. Summey told Sgt. Lytton that she was making this telephone call because she did not want her child to be around drug dealing and also because she was mad at Queen because she had found him with another woman. Ms. Summey further stated that Queen had recently beaten her.

After receiving the above statement from Ms. Summey, Sgt. Lytton asked her to come to the police station, which she agreed to do. After approximately five minutes, a woman who identified herself as Myra Summey, and who had the same voice as the woman on the telephone, met Sgt. Lytton at the Gaston County Police Department. Ms. Summey brought with her a ledger which she described as being an itemization of the marijuana shipment David Queen had recently received. Ms. Summey also showed Sgt. Lytton various car titles which she stated involved cars that had been bought with drug money. She further stated that Queen had recently bought a large boat with cash from drug proceeds. Ms. Summey stated that Gilbert Layle, a man in Texas, was the supplier for Queen and Black. She repeated that there were “stacks and stacks of money” in the house, and stated that Queen and Black would bring money into the house and take marijuana out of the attic. She stated she observed Queen and Black cut open the bales in the kitchen and put marijuana in smaller Ziploc bags. She described the marijuana bales as being wrapped in silver duct tape. She stated that she understood that this drug dealing had been going on for several months but that she personally did not know about it until March of 1989. She stated that Queen would keep the marijuana at his house, and Black would keep the money at his house. Queen frequently talked about his marijuana business with Black in Ms. Summey’s presence and told her that Black had received a lot of money from a lawsuit and used it to get started in the drug business. Ms. Summey told Sgt. Lytton that Queen and Black would bring marijuana to North Carolina from Texas in a U-Haul.

Ms. Summey further testified that within the past 72 hours, she had seen numerous marijuana bales in Queen’s attic, and informed Sgt. Lytton that the police would have to hurry to get the marijuana because she believed Queen was about to move it. Her reason for this belief was that she had gotten into a fight with Queen and he had thrown her down the attic stairs. Ms. Summey showed Sgt. Lytton several bruises on her body which she claimed were the result of being thrown down the stairs. Also during this argument, Ms. Summey told Queen that she was going to the police, and Queen responded that he would move the marijuana out of his house in a used furniture box.

When describing Queen’s residence, Ms. Summey informed Sgt. Lytton that his house was located at 1816 E. Garrison Street, Gastonia, and that there was a boat in the driveway and a blue Nova in the carport. She further identified Black’s residence as being 4709 Can Do Court.

After conducting this interview with Ms. Summey, Sgt. Lytton drove by the house at 1816 E. Garrison Street and observed a boat in the driveway along with a blue Nova in the carport. He also saw the numbers 1816 on the front door. While looking at the house, Sgt. Lytton got a radio dispatch to call Ms. Summey at her father’s house. Sgt. Lytton drove to Ms. Summey’s father’s house and spoke with her there. At this time, Ms. Summey informed Sgt. Lytton that she had just talked to Queen by telephone and he said that he was going to be at home watching the Celtics game on television. Sgt. Lytton returned to the police department and began to call several vice officers to bring them in on the case. Shortly after 2:30 p.m., Detective Hawley of the Vice Department came into the Police Department. Sgt. Lytton called Myra Summey and asked her to return to the Police Department, which she did. At this time, Sgt. Lytton introduced Ms. Summey to Det. Hawley and Sgt. Edwards, who had also just arrived, and informed them of the extent of his investigation to that point.

On cross-examination, Sgt. Lytton stated that he had never met Ms. Summey before and that he did not participate in the search warrant applications.

(2) Det. Daniel Hawley.

Det. Daniel Hawley of the Gaston County Police Department testified that he went to the Gaston County Police Department on May 20, 1989 to meet Sgt. Lytton with regard to a marijuana investigation. At the Police Department, Sgt. Lytton introduced Myra Summey to Det. Hawley. Shortly thereafter, Sgt. Edwards came into the Police Department and joined them.

Det. Hawley and Sgt. Edwards talked to Ms. Summey alone at some time after 3:00 p.m. During this interview, Ms. Summey told them that she used to live with Queen in Maiden, North Carolina, and that in Maiden, Queen used to run the Classic Auto Sales. In February 1989, Queen moved to Garrison Boulevard in Gastonia and asked Ms. Summey not to move with him. She later moved in with Queen in March of 1989 at the Garrison Boulevard address. Since March of 1989, Ms. Sum-mey had heard numerous conversations regarding marijuana dealing between Queen and Black, and a third man by the name of Kenny Harrelson. Black and Queen would come to the 1816 Garrison Boulevard address with suitcases full of money and would count it in the kitchen. She also had seen Black and Queen bring bales of marijuana to the kitchen, cut them open, fill small Ziploc bags with marijuana, and then stack the Ziploc bags into larger garbage bags. On one occasion, Ms. Summey’s 8- or 9-year-old son went into the kitchen when Queen, Black and Harrelson were there breaking up a bale of marijuana. Queen got angry at the child and chased him out of the kitchen. Queen later told Ms. Summey to keep the kid out of the kitchen when they were cutting marijuana so that he would not tell other kids at school and cause the police to come. As a result of Queen’s marijuana dealing, Ms. Summey began to have problems in her relationship with him. During the week prior to May 20,1989, Ms. Summey and her child moved out of Queen’s home. On Thursday, May 18, 1989, (two days before Ms. Summey’s report to the police) Ms. Summey went to Queen’s house to talk about their problems. Queen stated that the problem had been taken care of and that the marijuana was all gone. Ms. Sum-mey stated she wanted to see for herself and went up to the attic. When she got into the attic, she saw 15 to 18 bales of marijuana, several one-pound bags of marijuana, and some scales. These bales were wrapped in the same silver material that she had seen wrapped around other bales which had been broken up in the kitchen. At this time, Queen became angry at Ms. Summey and threw her down the attic steps.

Ms. Summey stated that Black and Har-relson would bring suitcases of money, perhaps thousands or hundreds of thousands of dollars, to the house. She further stated that Queen and Black’s car lot was just a front and that they didn’t make enough money to live on from their car lot operation. Ms. Summey had heard Queen and Black discuss that it was best if the money and marijuana were not kept at the same location.

At the time of his interview with Ms. Summey, Det. Hawley was aware of information from Det. Galmore that Queen and Black were suspected of being involved in prior drug deals.

Ms. Summey told the officers that she knew what marijuana looked and smelled like. During the interview, Ms. Summey was extremely excited and nervous. She kept telling the officers that they would have to hurry because Queen was going to get rid of the marijuana.

After interviewing Ms. Summey, Det. Hawley prepared a search warrant application for Queen’s house and presented it to a state magistrate. After securing a search warrant from the magistrate, Det. Hawley and several other officers went to Queen’s residence at 1816 E. Garrison Boulevard and knocked at the door. When Queen answered the door, the officers identified themselves and showed him the search warrant. Queen responded that he had been expecting them.

Upon searching the house, the officers found in the attic 46 bales of marijuana wrapped in silver-gray duct tape, 21 empty wrappers with duct tape attached to them, 14 one-pound bags of marijuana, various scales, baggies, duct tape and other miscellaneous containers. In a den closet, the officers found a shotgun. On Queen’s person, the officers recovered $840.00 in cash. The total weight of all the marijuana seized from Queen’s residence was 1,420 pounds.

Det. Hawley further testified that television news crews were present during the search of Queen’s house and that they ran a story about the search on television that night.

Det. Hawley returned to the Police Department at approximately 9:00 p.m. Earlier in the evening, Det. Hawley had received a dispatch through which he was informed that Ms. Summey had called the police and complained of being threatened by Queen’s family. Upon returning to the station, Det. Hawley called Ms. Summey and asked her to return to the Police Department. When she arrived, Ms. Summey informed Det. Hawley that Queen’s mother had come to Ms. Summey’s father’s house and made several threats. To get rid of her, Ms. Summey’s father had fired a shot into the air.

After returning to the Police Department, Det. Hawley began drawing up a search warrant application for Black’s residence. At this time, Det. Hawley again talked to Ms. Summey who told him that Black would keep all of the drug money at his house. She also stated that he kept records of the drug transactions either at his house or at his car dealership. Ms. Summey stated that Black lived on Can Do Court and described his house as being either the fourth or fifth house on the right with a double-car garage to the rear and a concrete drive. She further stated she believed it was 4721 Can Do Court. Sgt. Ivey of the Gaston County Police Department drove to Can Do Court and found the house described by Ms. Summey.

Ms. Summey further told Det. Hawley that Queen and Black had flown to Texas within the past 60 days. During the search of Queen’s house, the police had found airline tickets in the name of Queen and Black for a round-trip flight to Texas. Ms. Summey stated that Queen and Black went to Texas to conduct drug transactions and that Queen had personally told her this.

After interviewing Ms. Summey, Det. Hawley prepared a search warrant application for Black’s house and submitted it to a state magistrate. After obtaining a search warrant, Det. Hawley drove to Black’s residence and arrived at approximately 12:20 a.m. on May 21, 1989. When Det. Hawley arrived, there were already two police officers there. Det. Hawley served the search warrant on Mrs. Black and then participated in a search of the house.

Upon searching the house, garage, and a car in the garage, the police officers found several papers in the master bedroom which appeared to be drug records; $2,500 in a bedroom dresser drawer; $52,500 in a brown grocery bag in the kitchen cabinet; $76,520 in a brown duffle bag behind the seat of a yellow Corvette in the garage; $42,920 in a compartment under the duffle bag in the Corvette; $1,225 in a Crown Royal bag in a chest-of-drawers in the master bedroom; $15,695 in a Crown Royal bag underneath the chest-of-drawers in the master bedroom; $5,000 in an inside pocket of a suit hanging in a hall closet; and a small bag of marijuana in a cabinet above the stove in the kitchen. Elsewhere in the house, the officers found a .357 Magnum revolver, cigarette rolling machines, and bank records from various banks. In a wooden shed behind the house, the officers found three one-pound bags of marijuana.

At the same time the officers were searching Black’s residence, several other officers were conducting a search pursuant to a search warrant of Black and Queen’s business, American Auto Sales. The application for the search warrant for this business location contained the exact same statement that Det. Hawley had used to obtain the search warrant for Black’s house.

On cross-examination, Det. Hawley stated that he did not know Ms. Summey or Queen before this incident, he did not have Ms. Summey swear to an affidavit, nor did he tell her that she could be subject to prosecution for making a false police report. He further conceded that he had no evidence other than Ms. Summey’s statement that Ms. Summey had ever lived with Queen, nor did he know that Queen lived at the house on Garrison Boulevard except through Ms. Summey’s statements. Det, Hawley did not interview Ms. Summey’s son before obtaining any of the search warrants. Det. Hawley had heard on an earlier occasion from Officer Wilson that an informant had provided information that marijuana was going to be unloaded from a Ryder truck at Black and Queen’s car lot. With regard to Black’s house, Det. Hawley testified that Ms. Summey had said that she had never been inside Black’s house. Det. Hawley conceded that there were no statements in the search warrant affidavits with regard to cash being located at Black’s residence or American Auto Sales.

In a later search of Black’s safety deposit box at Branch Banking and Trust, the police found $40,000 in cash contained in a Crown Royal bag and a certificate of deposit in the amount of $159,000. The cash was seized by the police, but the certificate of deposit was returned to Defendant Black.

(3) Douglas Ivey:

Douglas Ivey, a detective sergeant with the Gaston County Police Department testified that he drove to 4721 Can Do Court in Gaston County on May 20, 1989 to confirm the location of the house described by Ms. Summey and to watch it until a search warrant was prepared. Det. Ivey arrived at the house at approximately 9:00 p.m.

At the time he was dispatched to Black’s house, Det. Ivey was aware of the earlier search of Queen's house and seizure of marijuana, and that the search of Queen’s house had been on the television news. Ivey was also aware that Black’s house was going to be searched for documents and records regarding marijuana trafficking.

Ivey waited in the driveway of 4721 Can Do Court with Patrol Officer Hamrick until approximately 11:00 p.m. when Theresa Black arrived with her children. Det. Ivey identified himself to Mrs. Ivey and explained that a search warrant was being prepared for her house to search for documents and records regarding marijuana trafficking. Ivey further told Mrs. Black about the search of Queen’s house and that there was a search warrant on the way for the Black residence.

Ms. Black was concerned about putting her children to bed and wanted to go into the house. However, Det. Ivey felt that because documentary evidence could easily be destroyed, he would have to accompany Mrs. Black into the home. Det. Ivey and Patrol Officer Hamrick went into the house with Mrs. Black and waited while she put her children to bed. Ms. Black then came to the kitchen where the three of them sat for approximately an hour and a half until the other officers arrived with a search warrant.

(4) Officer William Farley.

Sgt. William Farley of the Gaston County Police Department testified that he spoke to Myra Summey on May 22, 1989. At this time, Sgt. Farley was aware of the earlier searches that had been conducted at the Black and Queen residences. Myra Summey told Sgt. Farley that Black kept a safety deposit box for the purpose of holding money from his drug deals, and that she knew this information from conversations she had overheard between Black and Queen where they talked about selling marijuana and putting money into a safety deposit box. Based on this information, Sgt. Farley called several bank employees to locate a lock box in the name of Black or Queen.

Sgt. Farley was aware that information provided to the police by Ms. Summey with regard to the Black and Queen residence had in fact proven true and reliable. Sgt. Farley was also aware that money seized at Black’s residence had been contained in several Crown Royal bags.

After locating a safety deposit box for Black at Branch Banking and Trust, Sgt. Farley obtained a search warrant. At some point during the preparation of the search warrant application, Sgt. Farley was informed that Black’s mother or mother-in-law was attempting to get into the safety deposit box. Sgt. Farley informed the bank employee that a search warrant was being prepared and that no one was to have access to the safety deposit box.

Upon searching the safety deposit box, Sgt. Farley found a certificate of deposit made out in the amount of $159,902.23 and four Crown Royal bags each containing $10,000 in cash.

On cross examination, Sgt. Farley stated that he did not know how recently Ms. Summey had overheard Black and Queen talking about putting money from drug sales into the safety deposit box.

B. The Search Warrant Applications (1) 1816 E. Garrison Blvd. (Queen’s Residence):

On May 20, 1989, a North Carolina state magistrate issued a search warrant for the residence of David Rayn Queen at 1816 East Garrison Boulevard, Gastonia, North Carolina. In the application for this search warrant, Detective D.K. Hawley of the Ga-ston County Police Department submitted the following affidavit:

Applicant states that he is a Detective assigned to the Special Investigation Unit (SIU) of the Gaston County Police Department assigned to work drug and other vice related crimes. Applicant has been a police officer in Gaston County for over 12 years, over 9 years with the County Police. Applicant possesses an Advanced Certificate in Criminal Justice and has numerous hours investigative training including drug investigations. Applicant is familiar with persons and places involved in drug activities in Ga-ston County and the habits of such persons and places.

On this date Sgt. R.T. Lytton received a phone call from Myra Summey who subsequently came to the Gaston County Police Dept, and met with Sgt. Lytton personally. Sgt. Lytton then contacted Det. D.K. Hawley and Sgt. J.F. Edwards who were introduced to Ms. Summey and obtained the following information from her:

Ms. Summey states that shehas (sic) lived with the subject, David Rayn Queen, at Queen’s rental residence located at 1816 Garrison Blvd. since March 1989. Prior to this Ms. Summey lived with Queen at Rt. 1, Maiden, N.C. since August 1988. Queen moved to the Garrison Blvd. address in Feb. 1989 and Ms. Summey moved in with him once again approximately 2 weeks later. After moving back in with Queen, Ms. Summey noticed that several of Queen[’]s friends started frequeting (sic) the residence and would bring large amounts of money. Ms. Summey also observed bails (sic) of Marijuana being broken down by Queen and his friends into pound bags and other quantities, tagged and carried out by Queen[’]s friends. Ms. Summey has personally observed several bails (sic) of marijuana stored in the attic of the residence wrapped in silver grey tape. Ms. Summey observed this approximately 72 hours ago and estimated that there were between 16 and 18 bails (sic) at that time. Ms. Summey states that she personally knows what marijuana looks like and smells like.

This applicant states he has checked the above information confirming same and found it to be true and accurate and this applicant states he has reason to believe that Ms. Summey is being truthful in her information.

Applicant further states that for the past five months the Gaston County Police Dept, and the Gastonia Police Departments have been receiving information from various sources concerning the activities of David Queen and have been investigating.

In addition, Det. Tony Wilson of the Gastonia Police Dept, has relayed to applicant that he has received information from a confidential reliable informant who has provided information to Wilson on Queen and American Auto Sales, which Queen is co-owner, that confirms the basic general information given by Ms. Summey.

Based on the above stated facts and applicant[’]s experience and training, applicant has reason to believe that the controlled substance marijuana is being possessed at the residence describe[d] at this time and requests] a search warrant be issued.

(2) fy721 Gan Do Court (Black’s Residence):

On May 20, 1989, a North Carolina state magistrate issued a search warrant for the home of Dale Woodrow Black located at 4721 Can Do Court, Gastonia, North Carolina. In the application for this search warrant, Det. D.K. Hawley of the Gaston County Police Department submitted the following affidavit:

Applicant states he is a detective assigned to the Special Investigations Unit of the Gaston County PoliceDept. (sic) assigned to work drug related crimes. Applicant has been a ploice (sic) officer in Gaston Countyfor (sic) the past 12 years and the past 9 years with the Gaston County Police Dept, and 2years (sic) experience as a narcotics officer. Applicant possesses an Advanced Law Enforcement Certificate and has received numerous hours training including drug investigations. Applicant states he is familiar with drug traffickers in Gaston County and the investigations thereof.

Applicant states that on 5-20-89 he received information from a white female known as Myra Summey that led toa (sic) search warrant for the residence of David Queen, 1816 Garrison Boulevard. Queen being a former boyfriend of Ms. Summey. The search warrant was executed and as a result over 1500 pounds of Marijuana was seized and Mr. Queen arrested.

Applicant states further that Myra Summey also stated that David Queen was in partnership both in the trafficking of marijuana and the used car business with a W/M known as Dale Woodrow Black of Can Do Ct., Gastonia. The used car business Queen is partners withe (sic) Black in is American Auto Sales located at the intersection of N.C. 274 and N.C. 275, Gastonia, N.C. Summey stated that the records for the drug transactions were kept at either or both Black’s residence or American Auto Sales.

Applicant states that there appeared to be no record of the drug transactions kept at David Queen’s residence.upon-search (sic) by the Gaston County Police.

Myra Summey stated that Dale Black and David Queen had flown to Texas together within the past 60 days with several thousand dollars to pay for drug transactions. Some of the papers seized during thesearch (sic) of David Queen’s residence were two American airline tickets to Texas in the names of David Queen and Dale Black dated March 18, 1989.

Applicant states that Myra Summey has proven her reliability to this applicant in that everything she has stated thus far has been accurate and reliable.

Applicant states that based on all the above information and the excellant (sic) reliability of Myra Summey that thisap-plicant (sic) has reason to believe th-t (sic) papers, records and documents pertaining to drug trafficking is being kept inside the above stated location and applicant requests a serach (sic) warrant be issued for the seizure of records, papers and documents.

(3) Safety Deposit Box #359, Branch Banking & Trust Company (Black’s Safety Deposit Box):

On May 22, 1989, a North Carolina state magistrate issued a search warrant for safety deposit box # 359 at the Garrison Boulevard branch of Branch Banking and Trust Company in Gastonia, North Carolina. In the application for this search warrant, Sgt. William Farley of the Gaston County Police submitted the following affidavit:

The applicant is a detective assigned to the Special Investigation Unit of the Ga-ston County Police Department. The applicant has been employed by the Gaston County Police for over six years. During this time the applicant has received-training (sic) and instruction in the field of law enforcement and in particular specific training and instruction relating to controlled substance violations and investigations. The applicant is certified and has received his Advanced Law Enforcement Certificate from the North Carolina Criminal Justice Training and Standards Commission.

The applicant states that he has received information from a confidential and reliable source of information. (Hereafter refered (sic) to as CRI). The CRI has given truthful and accurate information in the past, has never given false information to any officer. The CRI has given information which has led to both arrests and seizure of controlled substances. The CRI has no reason to be untruthful in this matter.

The CRI has described a safety deposit box located at the BB & T on Garrison Blvd. The CRI has described the contents of this box to be cash, proceeds from narcotic sales, specifically marijuana. The CRI knows this through conversations with and conversations heard involving Dale Black and David queen. The applicant states that he is familiar with the modus operandi of narcotic suppliers, and knows that the concealment of monies within safety deposit boxes is a common practice. The CRI states that he has spoken to bank officials who have confirmed the existence of this box and also the persons to whom it is listed. Based on the information contained herin (sic), this officer[’]s own knowledge and experience, the applicant believes that monies from the sale of controlled substances, personal papers including the records of these sales as well as other items related to thisinvestigation (sic) are contained within the safety deposit box described above and respectfully requests that a search warrant be issued.

II. CONCLUSIONS OF LAW

A. The Search of Queen’s Residence

In support of his motion to suppress, Defendant Queen argues (1) that there was insufficient probable cause for the issuance of the search warrants; (2) that, assuming the good faith exception of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) applies, the Government is prevented from relying on that exception due to material misrepresentations and omissions in the search warrant applications; and (3) that because the North Carolina Supreme Court has held in State v. Carter, 322 N.C. 709, 370 S.E.2d 553 (1988) that the North Carolina Constitution does not permit a good faith exception to the lack of probable cause in a search warrant application, that the good faith exception should not be permitted in this case.

(1) Probable Cause:

Defendant Queen first argues that the police had insufficient probable cause to obtain a search warrant for his house. In essence, Queen’s complaint is that the officers unreasonably relied on the statement of Myra Summey, a witness of unknown reliability, without corroborating her story by further investigation. Queen further argues that Ms. Summey’s reliability should have been drawn into question by the officers because of her apparent anger from her recent break-up with David Queen.

In attacking the search warrant affidavit, Queen focuses not on what is contained in the affidavit but, rather, on what is missing. Queen points out that the officers did not require Ms. Summey to make a sworn statement; they did not talk to any other witnesses, including Ms. Summey’s son; and they did not confirm by independent evidence the fact that Ms. Summey ever lived with Queen or that the house at 1816 E. Garrison was even occupied by Queen.

In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the Supreme Court abandoned the strict two-prong test for probable cause in search warrant applications established by Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), in favor of a more flexible “totality of the circumstances analysis.” Under this new test,

The task of the issuing magistrate is simply to make a practical, commonsense 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 the magistrate had a “substantial basis for ... concluding]” that probable cause existed. 462 U.S. at 238-39, 103 S.Ct. at 2332.

A year later in Massachusetts v. Upton, 466 U.S. 727, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984), the Supreme Court reiterated its holding in Gates and upheld a search warrant on facts quite similar to those in the present case. In Upton, a police officer had obtained a search warrant after reciting in an affidavit the fact that he had received a telephone call from the Defendant’s girlfriend who identified herself and the defendant by name, and described the location of a house trailer where specific items taken in a recent burglary could be found. The woman further indicated knowledge of a recent police raid on a motel room that was related to the burglary and stated that because of the raid, the evidence in the trailer was about to be moved. The affidavit further recited that the woman stated she had recently broken up with the defendant and wanted to “burn him.” Although the woman admitted her name to the police officer when he asked if she was the Defendant's girlfriend, she declined to leave a telephone number or address where she could be reached. On these facts, the Supreme Court upheld the issuance of the search warrant for the house trailer.

In reversing the Supreme Court of Massachusetts, the Supreme Court held that the lower court had failed to properly apply the “totality of the circumstances analysis” adopted in Gates and "also erred in failing to grant any deference to the decision of the Magistrate to issue a warrant.” 466 U.S. at 732, 104 S.Ct. at 2088. On this latter point, the Supreme Court observed that “[a] deferential standard of review is appropriate to further the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant.” 466 U.S. at 733, 104 S.Ct. at 2088.

In finding that the facts summarized above established probable cause, the Supreme Court further observed that

[i]n concluding that there was probable cause for the issuance of this warrant, the Magistrate can hardly be accused of approving a mere “hunch” or a bare recital of legal conclusions. The informant’s story and the surrounding facts possessed an internal coherence that gave weight to the whole. Accordingly, we conclude that the information contained in [the officer’s] affidavit provided a sufficient basis for the “practical, common-sense decision” of the Magistrate. “Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.” 466 U.S. at 734, 104 S.Ct. at 2089, citing, United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).

In the present case, Det. Hawley’s affidavit identified Myra Summey by name and revealed that she voluntarily telephoned, and then personally visited, the police station to report a crime. During her interview with vice officers at the station, Ms. Summey reported that she had been living with David Queen at 1816 Garrison Boulevard since March 1989; that after moving in, she observed Queen’s friends bringing large sums of money to the house, and further observed Queen and his friends breaking down bales of marijuana into pound bags and other quantit