STATE OF NORTH CAROLINA
v. Wake County
No. 02 CRS 18327-8
DERRICK STEVEN GREENE
Attorney General Roy Cooper, by Special Deputy Attorney
General W. Dale Talbert, for the State.
Russell J. Hollers, III, for defendant-appellant.
TIMMONS-GOODSON, Judge.
Derrick S. Greene (“defendant”) appeals his convictions of
trafficking in MDMA by possession and trafficking in MDMA by
transportation. We hold that defendant received a trial free of
prejudicial error.
The procedural history of the instant appeal is as follows:
On 8 April 2002, defendant was indicted for trafficking in MDMA
(Ecstasy) by possession and trafficking in MDMA by transportation.
On 21 June 2002, defendant filed a motion to dismiss the charges,
motion to suppress statements made to the police, and motion to
suppress evidence of MDMA found in defendant's vehicle. The trial
court granted defendant's motion to suppress statements made to thepolice, but denied defendant's other motions. Specifically, the
trial court found probable cause existed for the search of
defendant's vehicle. Thereafter, defendant entered a plea of
guilty to both charges but reserved the right to appeal the trial
court's denial of his motion to suppress. Defendant was sentenced
to 132-168 months imprisonment.
The pertinent evidence presented at trial tends to show the
following: On 28 February 2002, Sergeant Kennon and Detective
Baker of the Raleigh Police Department arrested Willie Allen
(“Allen”) for possession of MDMA tablets. Upon arrest, Allen
identified his supplier as “D,” a black man who lived in Virginia.
Allen said that he had purchased, from defendant, 1000-2000 MDMA
tablets at a time on several different occasions. Allen also said
that he could identify defendant and the reddish color pickup truck
that he drove. Allen, whom had provided the police with accurate
tips in the past, agreed to participate in a controlled buy with
“D.”
The Raleigh Police Department monitored and recorded several
conversations between Allen and “D,” wherein “D” agreed to deliver
2000 MDMA tablets to the place he thought was Allen's residence.
Several officers positioned themselves at the delivery location -
a parking lot adjacent to an apartment complex - and waited for “D”
to arrive. Around the expected time and location, a reddish color
pickup truck with Virginia license plates pulled into the parking
lot. Soon thereafter, Allen received a call from “D” announcing
his arrival. Allen positively identified “D” as the driver. “D” had exited the vehicle and was standing near the vehicle
when officers instructed him to get down on the ground. After “D”
was handcuffed, an officer took the truck keys, searched the
console, and found two large bags of MDMA tablets identical to the
tablets found on Allen. The officers did not have a warrant for
the search.
At the suppression hearing, the trial court made the following
findings of fact:
With regard to Sergeant Kennon and Detective
Baker, will note that the Court was able to
observe their demeanor, their responses to
questions; that they appeared to be fair in
answering the questions, that their answers
were reasonable and believable; and that by a
preponderance of the evidence and clear and
convincing evidence, the Court found that
their testimony was believable and
uncontroverted and they were credible
witnesses.
. . . .
[Defendant's] answers at first were not
believable and not credible, but after a
number of suggestions that perhaps he should
try just to answer the questions, it did
appear that he was telling the truth when he
testified that he in fact had come down here
from Richmond with 2,000 pills of MDMA to
deliver to Mr. Allen and that those pills were
in the console of his truck, and the Court
finds that at that point Mr. Brown was a
credible witness.
. . . .
That on February 28th, 2002, one Willie Allen
was arrested for a trafficking amount of MDMA
. . . Mr. Allen immediately agreed to
cooperate with the law enforcement officers of
Raleigh; he advised that the source was
defendant; that he had a deal more or less set
up with the defendant to purchase some more
pills; that he'd be willing to work with the
police; . . . and at the same time Mr. Allen
was also apparently working in anothercapacity on another case for the police.
That Mr. Allen talked by telephone to the
defendant, and that defendant corroborated
that at this hearing by saying that was true;
and that Mr. Allen was supervised by the
police at all times during this deal . . . .
. . . .
Mr. Allen told the police that [defendant]
would be coming from Virginia, that he would
be driving a truck, that the truck would be
reddish in color or red in color . . . .
. . . .
All these phone calls were monitored.
Apparently one of the phone calls was not
taped, but Detective Baker and Sergeant Kennon
specifically recalled the conversation wherein
the defendant agreed to deliver 2,000 Ecstacy
pills to Mr. Allen.
. . . .
When the defendant drove up that night in a
reddish truck with Virginia tags, he was
promptly identified by Mr. Allen, he was
positively identified, and at that time the
other police officers were advised over the
radio.
. . . .
[Defendant] got out of the truck and began
walking away. He was immediately apprehended,
taken into custody.
The keys were seized from him, and Sergeant
Kennon searched the truck and found in the
console a quantity in excess of 2,000 pills
which were . . . identical in physical
description to the pills seized from Mr. Allen
the day before.
That Mr. Allen had been used before by
Detective Young as a source, and Detective
Young advised Detective Baker that Mr. Allen
was reliable and that his information would be
good.
Based on these findings, the trial court concluded the
following:
Based on the totality of the circumstances,
the Court finds that there was probable cause
to arrest [defendant] and to take him into
custody; there was probable cause to search
the truck; there was probable cause to seize
the drug.
. . . .
No statutory or Constitutional right, Federal
or State, of the defendant, was violated by
the actions of the Raleigh Police Department
on March 1st, 2002.
. . . .
The search of [Defendant's] vehicle and
seizure there of the substances found in the
console were for the same reason already
outlined by the Court not in violation of the
defendant's Constitutional rights, Federal or
state, and were executed upon sufficient
probable cause and exigent
circumstances . . . .
State v. Cooke, 306 N.C. 132, 135, 291 S.E.2d 618, 620 (1982)
(citations omitted).
The validity of a warrantless search of a vehicle is justified
when an officer has probable cause to believe that “the contents of
the automobile offend against the law.” State v. Ratliff, 281 N.C.
397, 403, 189 S.E.2d 179, 182 (1972) (citations omitted). The
search of a vehicle “in a public vehicular area is not in violation
of the fourth amendment if it is based on probable cause, even
though a warrant has not been obtained.” State v. Isleib, 319 N.C.
634, 638, 356 S.E.2d 573, 576 (1987). Probable cause has been
found to exist when the facts and circumstances of the case would
give rise to a reasonable belief that a crime is being or has been
committed. State v. Mills, 104 N.C. App. 724, 728, 411 S.E.2d 193,
195 (1991) (citations omitted) (“Probable cause exists where 'the
facts and circumstances within . . . [the officers'] knowledge, and
of which they had reasonably trustworthy information [are]
sufficient in themselves to warrant a man of reasonable caution inthe belief that' an offense has been or is being committed.”).
In the case where officers rely upon an informant's tip that
a crime is being or has been committed, the trial court must
consider the totality of the circumstances to determine whether
probable cause existed. State v. Chadwick, 149 N.C. App. 200, 203,
560 S.E.2d 207, 209, disc. review denied, 355 N.C. 752, 565 S.E.2d
672 (2002). The court must make a balanced assessment of the
reliability of the informant's tip, id., taking into consideration
“(1) whether the informant was known or anonymous, (2) the
informant's history of reliability, and (3) whether information
provided by the informant could be and was independently
corroborated by the police.” State v. Collins, 160 N.C. App. 310,
316, 585 S.E.2d 481, 485 (2003). In State v. Martinez, our Court
concluded that the police had probable cause to search a vehicle
when they were able to independently corroborate an informant's tip
as to the description of the vehicle, the description of the
passengers, the location of the drug sale, and the arrival time of
the seller. 150 N.C. App. 364, 369, 562 S.E.2d 914, 917, disc.
review denied, 356 N.C. 172, 568 S.E.2d 859 (2002).
In the instant case, the police arrested Willie Allen for
possession of MDMA. Allen told the officers that he purchased the
drugs from a black man he identified as “D.” Allen stated that “D”
was from Virginia, and he could identify “D” and his vehicle. One
of the officers understood Allen to be a trustworthy source, and
that information Allen had provided in the past proved to be
accurate. Thereafter, Allen agreed to participate in a controlledbuy with “D.”
Officers monitored several conversations between Allen and
“D,” wherein “D” agreed to deliver 2000 MDMA tablets. “D” arrived
at the expected time and location, and called Allen to inform Allen
of his arrival. The vehicle “D” was driving matched the
description of the vehicle Allen provided the police. Moreover,
Allen positively identified “D” as the black man from whom he
purchased MDMA. “D” was later identified as defendant.
In the instant case, the police sufficiently corroborated
Allen's information, and thus, had probable cause to search
defendant's vehicle. See Martinez, 150 N.C. App. at 369, 562
S.E.2d at 917. As such, the warrantless search of defendant's
vehicle was valid under an exception to the warrant requirement.
See Cooke, 306 N.C. at 135, 291 S.E.2d at 620. We therefore
conclude that the trial court committed no error in denying
defendant's motion to suppress.
We note that defendant's Judgment and Commitment worksheet
incorrectly lists defendant's convictions as two counts of
trafficking in MDMA by possession. The Transcript of Plea
contained in the record correctly lists defendant's convictions as
one count of trafficking in MDMA by possession and one count of
trafficking in MDMA by transportation. While neither party assigns
error to this discrepancy, we detected the discrepancy and remand
to the trial court to correct the clerical error. The Judgment and
Commitment is to reflect defendant's convictions as indicated in
the Transcript of Plea contained in the record. Affirmed and remanded to the trial court to correct the
Judgment and Commitment.
Judges CALABRIA and ELMORE concur.
Report per Rule 30(e).
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