NO. COA02-822
On writ of certiorari to review the judgment entered 9
November 2000 by Judge W. Robert Bell in Mecklenburg County
Superior Court. Heard in the Court of Appeals 20 January 2003.
Attorney General Roy Cooper, by Assistant Attorney General
Marvin R. Waters, for the State.
Margaret Creasy Ciardella for defendant-appellant.
TYSON, Judge.
I. Background
On 25 October 1999, Officer W. D. Carey of the Charlotte-
Mecklenburg Police Department received information from a
confidential informant. The informant was known to Officer Carey
for two or three months, and had previously provided information to
Officer Carey that led to two arrests involving controlled
substances. The informant was working with the police so that
someone else would get credit for the informant's efforts. The
informant told Officer Carey that a subject known as Terry, also
known as “Fuzz,” was: (1) going to be at a parking lot of an
Eckerd's store at 3740 East Independence Boulevard; (2) wouldarrive between 4 and 4:15 in the afternoon; and (3) would be
driving a silver Buick. Officer Carey testified that the informant
also informed him of the subject's race, height, and weight. The
subject was to complete a drug deal previously arranged.
After receiving the information, Officer Carey was discussing
the case with Officer R. T. Melton when a third officer overheard
their conversation. The third officer identified the subject as
Terry Bernard McManus (“defendant”). The officers retrieved a
photograph of the defendant.
Officer Carey set up a surveillance in the parking lot for the
Eckerd's store. The confidential informant was seated upon the
back seat of Officer Carey's vehicle. Shortly after 4 p.m.,
defendant pulled into the parking lot in a silver Buick. As he
drove by Officer Carey's car, the informant stuck his head up and
identified the defendant. The informant then hid in the back of
the car because he was concerned for his safety if defendant
recognized him.
After arriving at the parking lot, defendant remained in his
car for five to ten minutes. Eventually, defendant exited the
vehicle and headed towards the Eckerd's store. Officers then
approached defendant and asked him for consent to search.
Defendant denied consent. Officer Melton then approached the
defendant. Officer Melton asked defendant where he had come from,
and defendant said he had just gotten off the city bus and was
going inside the store to buy a Coke. Officer Melton noticed that
defendant appeared nervous and fidgety, and decided to pat thedefendant down for weapons. As Officer Melton was patting the
defendant down, he felt a hard substance in his right front pocket.
Officer Melton believed the object to be cocaine. Officer Melton
searched defendant's pocket and retrieved the item, which was in
fact cocaine. Defendant was arrested.
On 15 November 1999, defendant was indicted for two counts of
trafficking in cocaine. The case was tried at the 8 November 2000
Criminal Session of the Mecklenburg County Superior Court.
Prior to trial, defendant moved to suppress the evidence,
arguing that it was the product of an unlawful search and seizure.
The trial court denied the motion, finding that the police had
reasonable suspicion to stop the defendant based on the informant's
tip which was independently verified by the police. The trial
court further found that once the police had reasonable suspicion
to stop defendant, they had a right to frisk the defendant for a
weapon. During the course of the frisk, the police felt the drugs
and thus had probable cause to arrest the defendant.
On 9 November 2000, defendant pled guilty to two counts of
trafficking in cocaine and was sentenced to one term of thirty-five
to forty-two months imprisonment. On 3 August 2001, this Court
allowed defendant's petition for writ of certiorari.
II. Issue
Defendant's sole argument on appeal is that the trial court
erred by denying his motion to suppress because the reliability of
the confidential informant was not established.
III. Reliability of Informant
Defendant argues that Officer Carey's experience with the
informant was limited to information which led to two arrests.
Defendant further notes that there is no evidence in the record
that the arrests were valid or led to convictions. Defendant
further argues that (1) the record does not show that the officers
did any independent investigation to corroborate the informant's
information, and (2) the information offered by the informant did
not indicate the source of his information, or that he even knew
the defendant. Defendant contends these factors show that the
informant lacked any indicia of reliability, and that the police
lacked any reasonable suspicion to suspect defendant of any
wrongdoing.
After careful review of the record, briefs and contentions of
the parties, we affirm. “The scope of review on appeal of the
denial of a defendant's motion to suppress is strictly limited to
determining whether the trial court's findings of fact are
supported by competent evidence, in which case they are binding on
appeal, and in turn, whether those findings support the trial
court's conclusions of law.”
State v. Corpening, 109 N.C. App.
586, 587-88, 427 S.E.2d 892, 893 (1993). This Court has further
stated that:
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.”
. . . Further, in making the probable cause
determination, independent police
corroboration of the facts given by the
informant are important in evaluating thereliability of the informant's tip.
State v. Earhart, 134 N.C. App. 130, 133-34, 516 S.E.2d 883, 886,
appeal dismissed, 351 N.C. 112, 540 S.E.2d 372 (1999)(quoting
Illinois v. Gates, 462 U.S. 213, 234, 76 L. Ed. 2d 527, 545,
rehearing denied, 463 U.S. 1237, 77 L. Ed. 2d 1453 (1983)).
Here, the trial court found that the informant:
predicted that a silver Buick automobile would
arrive at a fifteen minute window, more or
less, at a certain time and at a certain
location in the City of Charlotte, and the
passenger would be a light skinned heavy set
black male, and he would have a large amount
of contraband on him.
The trial court further found that:
The officers in this case did not rely merely
upon the informant's veracity even though the
informant had in fact set up at least two
other deals or two other situations where
arrest had been made, so they had some
indication of reliability from that,
nonetheless the officers independently
verified the information by being on the scene
- - the officers independently were able to
verify that in fact it was a silver Buick
driven by a person matching the description at
the location indicated and at the time
indicated.
Based upon these findings of fact, the trial court concluded that
police had reasonable suspicion to stop the defendant and pat him
down for weapons. Once the officers felt the drugs, the court
determined that they had probable cause to seize the drugs and
arrest the defendant.
IV. Conclusion
We conclude that there is substantial evidence in the record
to support the trial court's findings of fact, and that the trialcourt's findings of fact supports its conclusions of law.
Defendant argues that the State did not establish that the
informant was reliable because Officer Carey had used him only
twice prior to these events. This Court has previously found
probable cause existed where police received a tip from an
informant they had used on two prior occasions that had led to
arrests, and the tip was independently corroborated by the police.
See State v. Smith, 118 N.C. App. 106, 454 S.E.2d 680,
reversed on
other grounds, 342 N.C. 407, 464 S.E.2d 45-46 (1995),
cert. denied,
517 U.S. 1189, 134 L. Ed. 2d 779 (1996). In
Smith, and here, the
informant provided “detailed predictions of defendant's future
actions ordinarily not easily predicted.”
Id. at 113, 454 S.E.2d
at 684;
see also State v. Chadwick, 149 N.C. App. 200, 204, 560
S.E.2d 207, 210,
disc. review denied, 355 N.C. 752, 565 S.E.2d 672
(2002)(informant deemed reliable where informant provided detailed
information including physical description of the driver, the car
and location of the drug transaction, all of which were verified by
police surveillance). We affirm the trial court's denial of
defendant's motion to suppress.
Affirmed.
Judges TIMMONS-GOODSON and BRYANT concur.
Report per Rule 30(e).
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