in the Court of Appeals 22 February 2018.
by defendant from judgments entered 7 February 2017 by Judge
Richard T. Brown in Hoke County Nos. 14 CRS 51735-37, 15 CRS
557 Superior Court.
Attorney General Joshua H. Stein, by Assistant Attorney
General Milind Dongre, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate
Defender Kathryn L. VandenBerg, for defendant.
Robert Dwayne Lewis appeals his convictions for three counts
of armed robbery, one count of attempted armed robbery, and
five counts of kidnapping related to a string of robberies at
businesses in Hoke County. After the trial court denied his
motion to suppress, Lewis pleaded guilty to all charges,
reserving his right to appeal the denial of his motion to
appeal, Lewis argues that the trial court erred in denying
his motion to suppress because the affidavit law enforcement
submitted with its search warrant application was
insufficient to establish probable cause for a search of the
cars and house where the evidence was found. As explained
below, the warrant application and accompanying affidavit
contained sufficient information to establish probable cause
to search the two vehicles allegedly involved in the crimes.
But we agree with Lewis that the warrant application did not
contain sufficient information to establish probable cause to
search the home. We therefore vacate Lewis's convictions
and remand this case for further proceedings consistent with
and Procedural History
September 2014, a man wearing a blue mask, dark clothing, and
carrying a handgun robbed a dollar store in Hoke County and
fled in a blue Nissan Titan. Witnesses described the suspect
as calm and composed. Five days later, another dollar store
was robbed. Again, witnesses described the suspect as a
composed man, wearing a blue mask and dark clothing, and
carrying a handgun. The man ordered two people into a
bathroom before fleeing the scene. Two days later, a third
dollar store was robbed. Once again, witnesses described the
suspect as a man in a blue mask, carrying a handgun. And
again, the man ordered people into a bathroom before fleeing.
William Tart of the Hoke County Sheriff's Office was
assigned to the case. Tart got a break in the case several
weeks later on 19 October 2014, when law enforcement in
Smithfield notified him that a man in a blue head cover, dark
clothing, and carrying a handgun robbed a business in
neighboring Johnston County. The Smithfield police reported
that they saw the suspect flee in a Kia Optima and were able
to identify him from a previous encounter as Defendant Robert
Dwayne Lewis. The same day, Smithfield police issued an
arrest warrant for Lewis.
County Sheriff's Deputy Tim Kavanaugh, acting on
information from the Johnston County investigation, drove to
Lewis's address, 7085 Laurinburg Road in Hoke County, and
saw a blue Nissan pickup truck parked in the yard matching
the description of the Nissan Titan witnesses saw during the
first robbery. Deputy Kavanaugh did not see the Kia Optima
that officers saw during the fourth robbery.
Kavanaugh continued his normal patrol duties and then drove
past 7085 Laurinburg Road again later in the day. This time
he saw a Kia Optima in the yard of the house. Kavanaugh
parked nearby and watched the house until he observed a man
matching Lewis's description walk from the house out to
the mailbox and take mail out. Kavanaugh approached the man
and asked him for his name. The man said "Robert
Lewis" and Kavanaugh placed him under arrest.
arresting Lewis, Deputy Kavanaugh walked up to the front door
of the home at 7085 Laurinburg Road and spoke to a man who
identified himself as Waddell McCollum, Lewis's
stepfather. Kavanaugh asked McCollum if Lewis lived at the
residence and also asked who owned the vehicles parked in the
yard. McCollum told Kavanaugh that Lewis lived there, that
the Nissan truck belonged to McCollum but Lewis sometimes
drives it, and that the Kia belonged to Lewis. After speaking
with McCollum at the front door of the house, Kavanaugh
"went over to the Kia that was in the yard, and looked
inside of the passenger area, the rear of the vehicle"
and saw "a BB&T money bag on the passenger floor of
the vehicle" as well as some dark clothing. The Kia was
"backed into the yard, in front of the residence, not in
the driveway but in the grass" about twenty feet from
the front porch where Kavanaugh spoke to McCollum.
law enforcement arrested Lewis, Detective Tart prepared a
search warrant application to search the residence at 7085
Laurinburg Road where Lewis was arrested and ...