An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA04-1030


Filed: 2 August 2005


v .                         Guilford County
                            Nos. 00 CRS 98289, 98291

    Appeal by defendant from judgment entered 17 October 2003 by Judge A. Moses Massey in Superior Court, Davidson County. Heard in the Court of Appeals 13 April 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Marc Bernstein, for the State.
    Haakon Thorsen for defendant-appellant.

    McGEE, Judge.

    Jensen Alan Jimerson (defendant) was indicted on 18 September 2000 by a grand jury on three counts: (I) trafficking by possession of more than ten pounds but less than fifty pounds of marijuana; (II) possession with intent to sell marijuana; and (III) possession of more than one and one-half ounces or marijuana. On the same day, defendant was charged with conspiracy to traffic by possessing more than ten pounds but less than fifty pounds of marijuana in a separate indictment. Defendant moved to suppress the evidence obtained in alleged illegal searches on 1 December 2000. A hearing on the motion was held by Judge Clarence Carter on 6 March 2001 and an order denying the motion to suppress was filed 26 November 2001.     The State's evidence at trial tended to show that on 4 August2000, Detective James Melton (Detective Melton) and Detective James Anders (Detective Anders), narcotics officers with the Guilford County Sheriff's Department, were conducting drug interdiction. Detective Melton was at a United Parcel Service (UPS) facility. Detective Melton's trained canine began scratching and biting at a package. The dog's behavior indicated that the package contained narcotics. The package was from Hollywood, California and was addressed to Tasha Duke, Apartment F, 3800 West Avenue, Greensboro, North Carolina (Apartment F).
    Detective Melton obtained a search warrant to search the package. Upon opening the package, he discovered that it contained marijuana. Detective Anders also testified that he agreed the package contained marijuana. Detective Melton and Detective Anders decided they would execute a controlled delivery of the package, meaning that officers would surround Apartment F and Detective Melton would pose as a delivery person and deliver the package.
    Detective Anders conducted surveillance at Apartment F in preparation for Detective Melton's delivery. Detective Anders observed a woman drive up to the apartment complex. He later learned that the woman was Kizzy Kenyatta Brown (Brown).
    Detective Melton, dressed as a UPS courier, arrived at the apartment complex in a van painted to look like a UPS van. Brown approached Detective Melton before he reached Apartment F, and signed for the package as Tasha Duke. Brown threw the package into her car and walked up the stairs toward Apartment F. Shortly thereafter, Brown came back down the stairs and attempted to leavethe apartment complex. Officers blocked her exit. Detective Anders read Brown her Miranda rights and asked for her cooperation. Brown indicated that she wished to cooperate in furthering the investigation. When Detective Melton spoke further with Brown, she stated she was employed by defendant to pick up packages containing narcotics. Brown said that she would pick up the packages and defendant would come to Brown's apartment, where Brown and defendant would cut up the marijuana and pack it into one-pound bags. At the officers' urging, Brown called defendant and asked him to come to her apartment to pick up the package, but defendant "played dumb," saying he didn't know what Brown was talking about. Brown told Detective Melton where defendant lived, and officers began a surveillance of defendant's residence.
    Detective Melton left the Apartment F complex to obtain a search warrant. While Detective Melton was obtaining a search warrant, defendant returned to his residence. When defendant appeared to be leaving his residence in his vehicle, Detective Anders called Detective Melton and learned that Detective Melton had obtained a search warrant and was five minutes away from defendant's residence. The officers blocked defendant's exit. Detective Anders conducted a search of defendant for "safety reasons" and found a small amount of marijuana in defendant's pocket.
    Detective Melton arrived at defendant's residence with a search warrant, and the officers executed the warrant and searched defendant's residence. The officers found marijuana in defendant's living room, as well as a date planner with the name "Tasha Duke"written on the last page. An additional 32.7 grams of marijuana was confiscated from the trunk of defendant's vehicle. The marijuana from the UPS package weighed 11.8 pounds. The marijuana found in defendant's pocket weighed 4.6 grams, and the marijuana from his residence weighed 5.3 grams.
    At trial, Brown testified that she had been employed by defendant to pick up packages containing narcotics since May 2000. Brown further testified that per defendant's instructions, Brown would drive to the designated apartment complexes and wait for an UPS courier to arrive. Brown would then approach the courier before the courier could deliver a specific package, and Brown would sign a false name to accept the package, leading the courier to believe that Brown lived at the address that was on the package. Brown was aware that the packages contained marijuana. Brown also testified that defendant had instructed Brown to intercept the package addressed to Tasha Duke.
    In addition to the above, the State presented cellular telephone records at trial. The records showed that Brown spoke to defendant at his residence and on his cell phone several times between midnight and 1:30 a.m. on 4 August 2000, and several times while Brown was waiting for the package to be delivered later that day.
    Defendant was convicted on count III, possession of more than one and one-half ounces of marijuana, on 4 December 2001. The State dismissed count II, and a mistrial was declared on count I, trafficking by possession of more than ten pounds but less thanfifty pounds of marijuana, and on the conspiracy charge because the jury could not reach a verdict.     Defendant was tried again on 13 October 2003 for count I and the conspiracy charge. He was convicted of both charges on 17 October 2003 and was sentenced to twenty-five to thirty months in prison. Defendant appeals.    
    We note that defendant has presented an argument in support of only two of his assignments of error. Defendant has therefore abandoned his remaining assignments of error. See N.C.R. App. P. 28(b)(6).

    Defendant first argues that the trial court violated protections against double jeopardy in the United States and North Carolina constitutions. Specifically, defendant contends the indictment did not clearly state that counts I and III involved different parcels of marijuana, and was thus insufficient to charge separate crimes. We disagree.
    "'The common law doctrine of merger is a judicial tool to prevent the subsequent prosecution of a defendant for a lesser[-] included offense once he has been acquitted or convicted of the greater. It is primarily a device to prevent the defendant from being placed twice in jeopardy for the same offense.'" State v. Carter, 153 N.C. App. 756, 762, 570 S.E.2d 772, 776 (2002) (quoting State v. Moore, 34 N.C. App. 141, 142, 237 S.E.2d 339, 340 (1977). When the charges are based on "two distinct criminal statutes which require proof of different elements . . ., the punishment of each of these separate offenses by consecutive sentences does not violate theconstitutional prohibition against double jeopardy." Id. (quoting State v. Evans, 125 N.C. App. 301, 304, 480 S.E.2d 435, 436, disc. review denied, 346 N.C. 551, 488 S.E.2d 813 (1997)).
    In the present case, the challenged indictment reads as follows:
        [Count I (trafficking by possession):] [T]he defendant named above unlawfully, willfully and feloniously did traffic by possessing more than 10 pounds but less than 50 pounds of marijuana, a Schedule VI controlled substance, which is included in the North Carolina Controlled Substances Act.
        [Count II (possess with intent to sell or deliver marijuana):] [T]he defendant named above unlawfully, willfully and feloniously did possess with intent to sell or deliver marijuana, a controlled substance which is included in the North Carolina Controlled Substances Act.

        [Count III (possess marijuana):] [T]he defendant named above unlawfully, willfully, and feloniously did possess more than one and one- half ounces of marijuana, a Schedule VI controlled substance included in the North Carolina Controlled Substances Act.
    Defendant contends that the prohibition against double jeopardy prohibits prosecution under the indictment as stated above because counts I and III should have been merged. Defendant argues that counts I and III are too vague and that both could be interpreted as referring to the quantity of marijuana that was found in the UPS parcel, resulting in two prosecutions for the same crime. However, the offenses charged in counts I and III clearly refer to two separate quantities of marijuana as well as two separate crimes. Count I refers to "more than 10 pounds but less than 50 pounds" of marijuana, and count III refers to "one and one-half ounces" of marijuana. Additionally, the counts refer to two separate offenses:trafficking in count I and possession in count III. The offenses charged require proof of different elements, and the trial court did not err in denying defendant's motion for merger of those offenses. Cf. State v. Pipkins, 337 N.C. 431, 432-33, 446 S.E.2d 360, 361-62 (1994) (holding that the defendant's convictions and punishments for trafficking in cocaine by possession and felonious possession of cocaine, based on the same contraband, did not violate the principles of double jeopardy); State v. Rozier, 69 N.C. App. 38, 54-55, 316 SE.2d 893, 903-04 (holding that possession of two different amounts of cocaine justified separate indictments), cert. denied, 312 N.C. 88, 321 S.E.2d 907 (1984). Defendant's argument alleging a double jeopardy violation is without merit.
    The purposes of an indictment "include giving a defendant notice of the charge against him so that he may prepare his defense and be in a position to plead prior jeopardy if he is again brought to trial for the same offense." State v. Freeman, 314 N.C. 432, 435, 333 S.E.2d 743, 745 (1985). When an indictment is sufficient to charge the crimes and to put the defendant on notice of the charges, "[n]othing more is required." State v. Kennedy, 320 N.C. 20, 24, 357 S.E.2d 359, 362 (1987). In the present case, the indictments were specific enough to inform defendant of the charges against him with sufficient clarity to satisfy constitutional guarantees. The indictments put defendant on notice of the different charges against him, and he presented a defense in response to the charges. Defendant's argument is without merit.    
    Defendant next argues that the trial court erred in denying his motion to suppress evidence obtained in violation of the Fourth Amendment of the United States Constitution. Specifically, defendant contends that both the search of his person and the search of his residence were illegal. First, defendant argues that the trial court erred in admitting the evidence that defendant had marijuana on his person because the search of his person was performed without a warrant. We disagree.
    "The fundamental inquiry under the Fourth Amendment is whether the governmental intrusion into a private individual's liberty and property was reasonable." State v. Shearin, ___ N.C. App. ___, ___, 612 S.E.2d 371, 375 (2005) (citing Terry v. Ohio, 392 U.S. 1, 19, 20 L. Ed. 2d 889, 904 (1968)). As a general rule, a search is unreasonable unless it has been authorized by a valid search warrant. State v. Bone, 354 N.C. 1, 9, 550 S.E.2d 482, 487 (2001). There are, however, several exceptions. Id. An officer may search a person where the officer reasonably suspects that "criminal activity may be afoot and that the [person] with whom he is dealing may be armed and presently dangerous[.]" Terry, 392 U.S. at 30, 20 L. Ed. 2d at 911. Such a search is a reasonable search under the Fourth Amendment. Id. "When determining whether an officer had 'a reasonable suspicion to make an investigatory stop' or had reason to believe that a defendant was armed and dangerous, trial courts must consider the totality of the circumstances." Shearin, ___ N.C. App. at ___, 612 S.E.2d at 376 (quoting State v. Willis, 125 N.C. App. 537, 541, 481 S.E.2d 407, 410(1997)).
    In the present case, Brown told the officers that she had been engaged in an ongoing criminal venture with defendant, and that defendant had been selling large quantities of marijuana. When the officers searched Brown's apartment with her consent, they found marijuana, a scale, a knife, and a shotgun. In addition, the officers searched Department of Motor Vehicle records regarding defendant and discovered that defendant's driver's license had been revoked. The officers had previously observed defendant driving a vehicle and they observed defendant get back into his vehicle and begin to drive, again without a license. Detective Anders therefore had reasonable grounds to believe that criminal activity might be afoot. These reasonable grounds justified his stop and search of defendant. Moreover, Detective Anders had just spoken to Detective Melton, who had informed Detective Anders that he had obtained a search warrant authorizing a search of defendant's person and defendant's residence, and that Detective Melton was only five minutes away. Detective Anders' search of defendant was not unreasonable under the circumstances and did not violate defendant's Fourth Amendment rights. The trial court did not err in denying defendant's motion to suppress.
    Second, defendant argues that the trial court erred in admitting the evidence found in his residence because the search warrant was not supported by probable cause and that "much of the information in the affidavit was stale and subject to evaporation." As stated above, generally, a warrant is required for a search to be reasonableunder the Fourth Amendment. Bone, 354 N.C. at 9, 550 S.E.2d at 487. Warrants must be supported by probable cause. U.S. Const. amend. IV. Defendant, in the present case, contends that Brown was an unreliable informant, and that Detective Melton's affidavit used to obtain the warrant, was insufficient to establish probable cause because the affidavit was partly based on Brown's statements. We disagree.
    The United States Supreme Court has stated:
        The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, 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.
Illinois v. Gates, 462 U.S. 213, 238, 76 L. Ed. 2d 527, 548 (1983) (emphasis added). If an officer's affidavit of probable cause used to obtain a search warrant is based on information from informants, its sufficiency is determined by the totality of the circumstances. Gates, 462 U.S. 213 at 230-31, 76 L. Ed. at 543-44. "[E]ven if we entertain some doubt as to an informant's motives, his explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed firsthand, entitles his tip to greater weight than might otherwise be the case." Gates, 462 U.S. at 234, 76 L. Ed. 2d at 545. Furthermore, "[s]tatements against penal interest carry their own indicia of credibility sufficient to support a finding of probable cause to search." State v. Beam, 325 N.C. 217, 221, 381 S.E.2d 327, 330 (1989) (citing State v. Arrington, 311 N.C. 633, 642, 319 S.E.2d 254, 260 (1984)).     In the present case, the evidence shows that the magistrate had a substantial basis to support the magistrate's finding of probable cause for the issuance of the search warrant. Although Officer Melton's affidavit is not included in the record, a substantial basis is reflected in his sworn statements included in the search warrant, and these statements are sufficient to establish probable cause. Specifically, the search warrant includes Officer Melton's statements that: (1) Brown had been caught intercepting a package containing marijuana; (2) Brown had informed the officers that she was employed by defendant to intercept packages containing marijuana; (3) Brown told the officers that defendant would come to her apartment to pick up the intercepted packages; (4) Brown detailed her ongoing involvement in criminal activities with defendant to the officers; (5) a check of criminal records revealed that defendant had been charged with conspiracy to traffic in marijuana in 1999. These statements support the magistrate's conclusion that the proposed search would probably reveal contraband or evidence of a crime at defendant's residence. See State v. Sinapi, 359 N.C. 394, 610 S.E.2d 362 (2005).
    Furthermore, Brown's statements to officers can be viewed as reliable because the statements were against her penal interest. Brown's statements included a detailed, firsthand account of defendant's criminal acts. When she was stopped by the officers, Brown was only in possession of one package of marijuana. Brown could have attempted to limit her criminal liability by insisting that she had only intercepted the single package, but instead shetold the officers of her ongoing, three-month criminal enterprise with defendant. Brown's statements clearly increased her exposure to criminal liability and ran counter to her penal interests, and therefore her credibility is heightened. See Beam, 325 N.C. at 221, 381 S.E.2d at 330.
    Brown also gave Officer Melton an explicit and detailed account of her involvement in criminal activities with defendant, and told Officer Melton that she personally observed defendant's criminal behavior. Brown told Officer Melton that she had intercepted about ten packages for defendant in the last three months, that she and defendant would cut up and repackage the marijuana in her apartment, and that the packages each weighed at least ten pounds. Brown also pointed out defendant's residence to the officers, and stated that she was last at defendant's residence two days earlier, and had seen marijuana there. Brown's reliable statements add to the totality of circumstances, which show that the evidence presented to the magistrate was sufficient to support a determination of probable cause to search defendant's home.
    No error.
    Judges BRYANT and STEELMAN concur.
    Report per Rule 30(e).                                

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