Appeal by the State from order entered 9 October 2000 by Judge
W. Allen Cobb, Jr. in Onslow County Superior Court. Heard in the
Court of Appeals 29 January 2002.
Attorney General Roy Cooper, by Special Deputy Attorney
General William P. Hart and Assistant Attorney General
Christopher W. Brooks, for the State.
John W. Ceruzzi, for defendant-appellee.
TYSON, Judge.
The State of North Carolina appeals the trial court's order
granting defendant's motion to suppress evidence. We reverse the
trial court's order.
I. Facts
Deputy Kirk Newkirk (“Deputy Newkirk”) received a page from a
known informant at 12:30 a.m. on 16 December 1999 and returned the
call. The informant advised Deputy Newkirk that someone known as
“Breeze,” later identified as Jermaine Chadwick (“defendant”),
would deliver large amounts of cocaine to the parking lot of a
Texaco gas station located at the corner of Highway 17 North and
Piney Green Road to conduct a drug transaction.
Deputy Newkirk
testified at the hearing that he knew defendant “from around town.”
Moments after the call, Deputy Newkirk set up surveillance inthe area near the Texaco station with other officers from Onslow
County and the Jacksonville police department. At approximately
1:18 a.m. Deputy Newkirk and the other officers observed a black
Nissan Sentra automobile, driven by a black woman with an
unidentified black man siting in the passenger seat, turn into the
Texaco parking lot and park next to a telephone booth.
The “take down” signal was given. Deputy Charles Carnes
approached the passenger side of the car, his gun drawn, ordered
defendant to exit the car, opened the door, pulled defendant to the
ground, and handcuffed him. Deputy Carnes noticed a large lump in
defendant's front pockets, conducted a pat-down search, and pulled
the bulge out of defendant's pockets. The white powder was later
identified as 112.4 grams of powdered cocaine. Defendant was
detained while officers questioned the driver, Ms. Hatchell. Ms.
Hatchell requested that she be allowed to return home to check on
her child. Officers escorted Ms. Hatchell to her house where she
consented to a search.
At the scene defendant made numerous incriminating statements
to police. Deputies told defendant that Ms. Hatchell was escorting
police to her house, and defendant told the deputies that he had
placed marijuana in the closet and cocaine between the mattresses.
Officers recovered three pounds of marijuana and one-half ounce of
cocaine from that location. Defendant admitted that he owned those
drugs. The deputies placed defendant into the patrol car.
Defendant asked the deputies how they knew he was selling drugs
because no one knew. Defendant was driven to the Onslow CountySheriff's Office where he was advised of his Miranda rights. The
defendant then signed a waiver of his rights and communicated a
statement admitting ownership of all the drugs. Defendant was
released and no formal charges were filed at that time.
On 26 January 2000, Deputy Newkirk obtained a warrant,
arrested defendant, and charged him with (1) trafficking cocaine by
manufacturing, (2) trafficking cocaine by possession, (3)
trafficking cocaine by delivery, (4) trafficking cocaine by
transporting, (5) possession with intent to sell and deliver
marijuana, and (6) manufacturing marijuana. The Onslow County
Grand Jury indicted defendant on all offenses except trafficking in
cocaine by delivery.
Defendant filed a motion to suppress on 4 August 2000. At the
hearing defendant offered no evidence. The trial court took the
matter under advisement, and granted defendant's motion to suppress
on 19 September 2000. The State appeals.
II. Issue
The only issue on appeal is whether the officers and deputies
had probable cause to arrest defendant.
Orders of the superior court granting motions to suppress
evidence are appealable to the appellate division prior to trial
provided that the prosecutor certifies that the appeal is not taken
for the purpose of delay and that the evidence is essential to the
case. N.C. Gen. Stat. § 15A-979 (1979);
State v. Dobson, 51 N.C.
App. 445, 446, 276 S.E.2d 480, 482 (1981).
The State filed a
certificate on 27 September 1999 complying with all of therequirements of G.S. § 15A-979, and the appeal is properly before
us.
Our review of a trial court's conclusions of law on a motion
to suppress is
de novo.
State v. Brooks, 337 N.C. 132, 140-41, 446
S.E.2d 579, 585 (1994).
A. Probable Cause Based On Informant's Tips
The State argues that the trial court erred by concluding that
defendant's arrest was “illegal, unlawful and in violation of
Defendant's rights,” and that the officers lacked probable cause to
believe that defendant had committed or was committing a crime. We
agree.
“An arrest is
constitutionally valid whenever there exists
probable cause to make it.”
State v. Wooten, 34 N.C. App. 85, 88,
237 S.E.2d 301, 304 (1977) (emphasis in original).
“'[P]robable cause requires only
a probability or substantial
chance of criminal activity, not an actual showing of such
activity.'”
State v. Riggs, 328 N.C. 213, 219
, 400 S.E.2d 429, 433
(1991) (emphasis in original) (quoting
Illinois v Gates, 462 U.S.
213, 243 n.13, 76 L. Ed. 2d 527, 552 n.13 (1983)). “Probable
cause exists when there is 'a reasonable ground of suspicion,
supported by circumstances sufficiently strong in themselves to
warrant a cautious man in believing the accused to be guilty.'”
State v. Joyner, 301 N.C. 18, 21, 269 S.E.2d 125, 128 (1980)
(quoting
State v. Streeter, 283 N.C. 203, 195 S.E.2d 502
(1973)(citation omitted)).
Probable cause can be established through the use ofinformants.
Gates, 462 U.S. 213, 76 L. Ed. 2d 527. “'In utilizing
an informant's tip, probable cause is determined using a 'totality-
of-the circumstances' analysis which 'permits a balanced assessment
of the relative weights of all the various indicia of reliability
(and unreliability) attending an informant's tip.'”
State v.
Holmes, 142 N.C. App. 614, 621, 544 S.E.2d 18, 22 (2001) (quoting
State v. Earhart, 134 N.C. App. 130, 133, 516 S.E.2d 883, 886
(1999)). A known informant's information may establish probable
cause based on a reliable track record, or an anonymous informant's
information may provide probable cause if the caller's information
can be independently verified.
Alabama v. White, 496 U.S. 325,
332, 110 L. Ed. 2d 301, 310 (1990);
Gates, 462 U.S. at 245-46, 76
L. Ed. 2d at 553;
State v. Trap, 110 N.C. App. 584, 589-90, 430
S.E.2d 484, 488 (1993)
; Riggs, 328 N.C. at 219, 400 S.E.2d at 433.
At bar the trial court concluded that the officers had “a
reasonable and articulate suspicion” that defendant was
transporting narcotics. It also concluded that the circumstances
“reasonably justified a warrantless intrusion to stop and search
the Defendant's person and property.” The trial court then
concluded, however, that defendant's arrest was unlawful and
illegal because the officers did not have probable cause to believe
that defendant “had committed or was committing a crime.” This
ruling was error.
Deputy Newkirk returned a known and reliable informant's page
at 12:30 a.m. The informant furnished Deputy Newkirk detailed
information including that defendant would be delivering a largeamount of cocaine to a specific location in about fifty minutes.
The informant told Deputy Newkirk that defendant was about to (1)
deliver a large amount of cocaine to a specific location, (2) be
driven by a black female in an older model four-door black Nissan
Sentra, because defendant did not have a driver's license, (3) be
taken to a Texaco station at the corner of Highway 17 North and
Piney Green Road, (4) be traveling from a certain direction, (5)
park next to a telephone booth in the parking lot, (6) act like he
was there to use the telephone, and (7) conduct a drug transaction
there.
Based on information that a crime was in progress, Deputy
Newkirk set up surveillance near the location provided by the known
informant. Deputy Newkirk and other officers independently
corroborated all the information given by the known informant with
minute particularity. Deputy Newkirk testified that “this wasn't
the first time that we -- we had set a deal up with -- with the
defendant.” Deputy Newkirk observed the older model four-door
black Nissan Sentra pass by his surveillance location. Deputy
Newkirk testified that at that moment he recognized defendant in
the passenger seat. All of the officers observed the Nissan drive
into the Texaco parking lot and drive toward the earlier described
telephone booth. Deputy Newkirk testified that the confidential
informant was known to him and had proven reliable on prior
occasions.
Deputy Newkirk and the other officers verified all of the
informant's information which proved to be reliable to the smallestdetail. All of these factors establish that Deputy Newkirk and the
other officers had probable cause to seize, arrest and search
defendant. “'[P]robable cause to arrest and search defendant
existed on the basis of the minute particularity with which the
informant described defendant and the physical and independent
verification of this description' by the officer.”
State v. Ellis,
50 N.C. App. 181, 184, 272 S.E.2d 774, 776 (1980) (quoting
State v.
Ketchie, 286 N.C. 387, 393, 211 S.E.2d 207, 211 (1975)).
“Once he
corroborated the description of the defendant and his presence at
the named location, [Deputy Newkirk] had reasonable grounds to
believe a felony was being committed in his presence which in turn
created probable cause to arrest and search defendant.”
Wooten, 34
N.C. App. at 88, 237 S.E.2d at 304. We hold that these facts and
circumstances sufficiently established an indicia of reliability
that defendant was engaged in criminal activity to provide the
officers with probable cause to seize and arrest defendant based on
a known reliable informant's tip independently corroborated and
verified by the officers in minute detail.
B. Warrantless Arrest and Search
“Police officers may arrest without a warrant any person who
they have probable cause to believe has committed a felony.”
State
v. Hunter, 299 N.C. 29, 34, 261 S.E.2d 189, 193 (1980) (citing G.S.
§ 15A-401(b)(2)a;
United States v. Watson, 423 U.S. 411, 46 L.
Ed.2d 598 (1976)). “A warrantless arrest is lawful if based upon
probable cause,
Brinegar v. United States, 338 U.S. 160, 93 L. Ed.
1879 (1949);
State v. Phillips, 300 N.C. 678, 683-84, 268 S.E.2d452, 456 (1980), and permitted by state law.”
State v. Mills, 104
N.C. App. 724, 728, 411 S.E.2d 193, 195 (1991) (citing
Wooten, 34
N.C. App. at 88, 237 S.E.2d at 304).
Transporting large amounts of cocaine is felonious criminal
activity. N.C. Gen. Stat. § 90-95 (2001). The deputies and
officers had probable cause to believe that defendant was
transporting large quantities of cocaine. We hold that the
officers and deputies had probable cause to believe that defendant
was engaged in criminal activity sufficient to justify a
warrantless arrest. N.C. Gen. Stat. § 15A-401(b) (1999).
“An officer may conduct a warrantless search incident to a
lawful arrest.”
Mills, 104 N.C. App. at 728, 411 S.E.2d at 195
(citing
State v. Hardy, 299 N.C. 445, 455, 263 S.E.2d 711, 718
(1980)). “A search is considered incident to arrest even if
conducted prior to formal arrest if probable cause to arrest exists
prior to the search and the evidence seized is not necessary to
establish that probable cause.”
Id. (citing
Wooten, 34 N.C. App.
at 89, 237 S.E.2d at 305).
Probable cause to arrest defendant existed prior to the
defendant being searched. The large quantity of cocaine found on
defendant was unnecessary to establish probable cause to arrest.
We hold that the search of defendant was incident to a lawful
arrest.
The trial court improperly granted defendant's motion to
suppress the evidence. All evidence seized and statements made as
a result of the lawful seizure, arrest and search of defendant were properly and legally obtained. We reverse the trial court's
order to suppress.
Reversed.