Appeal by defendant from judgments entered 2 March 2005 by
Judge W. Russell Duke, Jr. in Edgecombe County Superior Court.
Heard in the Court of Appeals 19 April 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Rudy Renfer, for the State.
The Law Office of Gregory B. Thompson, by Gregory B. Thompson,
for defendant-appellant.
GEER, Judge.
Defendant Robert Toby White appeals from his convictions for
failure to heed a light and siren, possession of drug
paraphernalia, and trafficking in cocaine. He argues on appeal
primarily that the trial court erred in denying his motion to
suppress evidence obtained as a result of a search of his residence
pursuant to a search warrant. According to defendant, the
affidavit submitted in support of the application for a search
warrant was inadequate to establish probable cause. We hold that
the magistrate properly concluded that the totality of
circumstances supported a finding of probable cause sufficient to
support a search of defendant's residence. With respect todefendant's second argument that the trial court should have
excluded testimony regarding a prior arrest of defendant, we hold
that any error was harmless in light of other overwhelming evidence
of defendant's guilt.
Facts and Procedural History
The State's evidence tended to show the following facts. On
29 January 2002, Detective William Heath of the Edgecombe County
Sheriff's Department arrested a person in Princeville, North
Carolina for possession of marijuana. Detective Heath was
transporting the individual ("the informant") for processing when
the informant offered to provide information in order "to help
himself out." The informant then identified defendant as being in
the business of selling cocaine. The detective was already
familiar with defendant. The informant indicated that defendant
drove a green Chevrolet Tahoe that he commonly used to deliver
cocaine to a neighborhood known as Southern Terrace. The informant
also gave a physical description of defendant that the detective
knew to be accurate.
The informant agreed to call defendant and order a half ounce
of cocaine to be delivered to Southern Terrace. Detective Heath
spoke with two other detectives, Joe Scott and Steve Bailey, to
inform them of the plan. Detective Heath and the informant then
changed to an unmarked car and proceeded to a service station in
Tarboro, where Detective Heath provided the informant with enough
money to make a pay phone call to defendant. Detective Heath noted
that the number of the pay phone at the service station was641-1589. He watched the informant dial the number 266-3553 and
heard him tell the person who answered, "I need a half," and "I got
five." According to Detective Heath, the informant was asking for
a half an ounce of crack cocaine and promising to pay $500.00. The
informant hung up the phone and told the detective that defendant
would arrive at Southern Terrace with the cocaine at 6:45 p.m.
As it was already 6:40 p.m., Detective Heath and the informant
left immediately for Southern Terrace. On the way, they passed 504
Geddie Avenue, which the informant pointed out to the detective as
defendant's house. A green Chevrolet Tahoe was parked in front.
Based on the detective's prior knowledge of defendant, he was able
to confirm that the informant had accurately identified defendant's
home and that the car belonged to defendant.
Detective Heath concealed his car near the house, waited until
the Tahoe left in the direction of Southern Terrace, and then began
to follow it. He radioed ahead to Detectives Scott and Bailey, who
had already arrived at Southern Terrace, to let them know that the
Tahoe was on its way. Scott and Bailey, who were together in an
unmarked police car, caught sight of the Tahoe as it turned off
Strickland Drive onto Russell Drive in the Southern Terrace
neighborhood. Detective Scott activated his blue lights and pulled
in front of the Tahoe, driven by defendant, in order to stop the
car. Defendant stopped momentarily, but as Detective Bailey
approached the Tahoe and ordered defendant to stop, defendant
pulled around the detectives' car and continued down Russell Drive. Detective Scott activated his siren as well as his blue lights
and chased after the Tahoe. When defendant stopped his car again,
at the end of Russell Drive, Scott and Bailey exited their car with
weapons drawn and shouted at defendant to get out of the car.
After defendant did not obey the order, the detectives pulled
defendant out of the Tahoe and placed him under arrest while
defendant struggled.
Meanwhile, Detective Heath parked several blocks away to
protect the informant's identity and walked up the street to where
defendant was in custody. The officers searched defendant's
vehicle, but found nothing illegal. Detectives Heath and Scott
then walked down Russell Drive for several blocks. After about two
and a half blocks, they found seven plastic bags on the side of the
road, containing an off-white, rock-like substance that was later
determined to be crack cocaine. Detective Heath testified that
between the time defendant first turned onto one end of Russell
Drive and the time he was taken into custody at the other end of
Russell Drive, no other cars had traveled along that stretch of
road.
Although defendant, at the police station, initially orally
consented to a search of 504 Geddie Avenue, where he lived with his
parents, he subsequently refused to sign a written consent form.
The detectives, therefore, proceeded to obtain a search warrant
instead. When they searched the residence, the detectives found
the following items in defendant's bedroom: aluminum foil packaging
containing cocaine, green plastic bags containing cocaine that wereidentical to green bags found on the side of Russell Drive,
electronic scales, a box of sandwich bags, and a razor blade. The
detectives also found a cell phone. The last call received by that
phone was from 641-1589, the phone number of the pay phone at the
service station from which the informant had called defendant.
Defendant was indicted for failure to heed a blue light and
siren, possession of drug paraphernalia, and trafficking in cocaine
by possession. Defendant was convicted of all three charges, and
the trial judge sentenced him to consecutive sentences as follows:
45 days for the failure to heed a light and siren, 45 days for
possession of drug paraphernalia, and 35 to 42 months for
trafficking in cocaine. Defendant has timely appealed to this
Court.
Motion to Suppress
Defendant first assigns error to the trial court's denial of
his motion to suppress the evidence obtained during the search of
his residence on the grounds that the application for the search
warrant failed to establish probable cause.
(See footnote 1)
According to
defendant, (1) facts were improperly omitted from the affidavit,
(2) the assertions in the affidavit were insufficient to support a
finding of probable cause, and (3) the affidavit failed to
establish any nexus between defendant's home and the objectsspecified in the search warrant. We disagree with each of
defendant's contentions.
Specifically, defendant objects that the affidavit submitted
by Detective Heath in support of the search warrant did not contain
underlying facts and circumstances indicating that the informant
was credible and the information supplied reliable.
(See footnote 2)
Defendant
relies upon
State v. Craver, 70 N.C. App. 555, 558, 320 S.E.2d 431,
433 (1984), in which this Court held: "[I]f an unidentified
informant has supplied all or part of the information contained in
the affidavit supplementing the application for a search warrant,
some of the underlying facts and circumstances which show the
informant is credible or that the information is reliable must be
set forth before the issuing officer." This principle, however,
was part of a test that has since been overruled by
Illinois v.
Gates, 462 U.S. 213, 238-39, 76 L. Ed. 2d 527, 548, 103 S. Ct.
2317, 2332 (1983).
Prior to
Gates, courts applied a two-prong test in reviewing
the issuance of a search warrant, the second prong of which
specified in language identical to that of
Craver: "[I]f an
unidentified informant has supplied all or a part of the
information contained in the affidavit, some of the underlying
facts and circumstances which show that the informant is credible
or that the information is reliable must be set forth before theissuing officer."
State v. Hayes, 291 N.C. 293, 299, 230 S.E.2d
146, 150 (1976). In
Gates, however, the Supreme Court rejected the
two-prong approach and adopted instead a totality of the
circumstances test.
462 U.S. at 238, 76 L. Ed. 2d at 548, 103 S.
Ct. at 2332.
See also State v. Arrington, 311 N.C. 633, 637, 319
S.E.2d 254, 257 (1984) ("In [
Gates,] the Court expressly abandoned
the two-pronged test of
Aguilar and
Spinelli and adopted a
'totality of circumstances test.'").
Applying
Gates, our Supreme Court has held that "[u]nder the
totality of circumstances test, the two prongs of
Aguilar and
Spinelli _ veracity and basis of knowledge _ are still relevant,
but are not to be accorded independent status."
Arrington, 311
N.C. at 638, 319 S.E.2d at 257. Instead,
[t]he 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, including the
'veracity' and 'basis of knowledge' of persons
supplying hearsay information, 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 . . . conclud[ing]' that probable
cause existed.
Gates, 462 U.S. at 238-39, 76 L. Ed. 2d at 548, 103 S. Ct. at 2332
(quoting
Jones v. United States, 362 U.S. 257, 271, 4 L. Ed. 2d
697, 708, 80 S. Ct. 725, 736 (1960),
overruled on other grounds by
United States v. Salvucci, 448 U.S. 83, 65 L. Ed. 2d 619, 100 S.
Ct. 2547 (1980)). Our Supreme Court has stressed, regarding the
Gates test, that "great deference should be paid a magistrate's
determination of probable cause and . . . after-the-fact scrutinyshould not take the form of a
de novo review."
Arrington, 311 N.C.
at 638, 319 S.E.2d at 258.
In the affidavit submitted in this case, Detective Heath
stated:
Within the past 48 hours a cooperating source
of infromation [sic], acting under my
direction and supervision, contacted Mr.
White. This source spoke with Mr. White about
the purchase of crack cocaine. During the
course of their conversation[,] Mr. White
agreed to deliver a quantity of crack cocaine
to this source. I observed the source dialing
Mr. White's cell phone number, prior to their
conversation[.] Afterwards I was instructed
that Mr. White was going to deliver the crack
cocaine to the area of Southern Terrace.
Detective Heath then stated that he went to 504 Geddie Street,
where he personally saw Mr. White's vehicle. He explained that he
was "familiar with Mr. White's vehicle after having seen it on
numerous occasions at this residence."
Detective Heath reported that he observed defendant's vehicle
leave the residence, travel toward Southern Terrace, and then turn
onto a road in Southern Terrace. According to the affidavit,
Detective Heath ordered other officers to perform a traffic stop,
but defendant refused to stop, resulting in a chase. When
defendant's car finally stopped, defendant had to be forcefully
taken to the ground and placed in handcuffs. The affidavit then
stated that Detective Heath and a second detective "walked back in
the direction in which Mr. White had driven" and "located a
quantity of crack cocaine" along that route. The affidavit not
only noted that defendant was, at that time, placed under arrest
for possession with intent to sell and deliver crack cocaine, butalso reported that defendant had previously been arrested for drug-
related charges, although he had not been convicted.
In arguing that this affidavit was insufficient, defendant
focuses primarily on the reliability of the informant and the lack
of any "track record" for that informant. In
State v. Riggs, 328
N.C. 213, 219, 400 S.E.2d 429, 433 (1991), however, our Supreme
Court stressed that "[w]hat is popularly termed a 'track record' is
only one method by which a confidential source of information can
be shown to be reliable for purposes of establishing probable
cause." Here, the magistrate had before him information indicating
that a controlled purchase had been arranged under the supervision
of the detective, although not completed, and the informant's
information that the cocaine would be delivered to Southern Terrace
was corroborated by the detective's own observations of defendant's
movements.
See State v. Collins, 160 N.C. App. 310, 315, 585
S.E.2d 481, 485 (2003) (informant's tip is more reliable if it
contains "'a range of details relating not just to easily obtained
facts and conditions existing at the time of the tip, but to future
actions of third parties ordinarily not easily predicted'" (quoting
Alabama v. White, 496 U.S. 325, 332, 110 L. Ed. 2d 301, 310, 110 S.
Ct. 2412, 2417 (1990))),
aff'd per curiam, 358 N.C. 135, 591 S.E.2d
518 (2004).
A magistrate "is entitled to draw reasonable inferences from
the material supplied to him by an applicant for a warrant" and may
base his or her determination of probable cause on practical
considerations of everyday life.
State v. Sinapi, 359 N.C. 394,399, 610 S.E.2d 362, 365 (2005). Here, the magistrate could
reasonably infer based on the informant's supervised telephone call
seeking to buy crack cocaine for delivery at Southern Terrace,
defendant's immediate departure for Southern Terrace, his attempt
to evade the police, and the discovery of cocaine along his escape
route that there was probable cause to believe defendant was
essentially operating a cocaine delivery service.
See Riggs, 328
N.C. at 221, 400 S.E.2d at 434 (concluding that when "information
before a magistrate indicates that suspects are operating, in
essence, a short-order marijuana drive-through," probable cause
existed for a warrant to search the premises);
State v. Robinson,
148 N.C. App. 422, 427, 560 S.E.2d 154, 158 (2002) (probable cause
existed when affidavit stated that suspect had previous arrest on
drug charges, an anonymous tip connected the suspect with a
marijuana growing operation, the suspect refused consent to search,
and officers detected the odor of marijuana emanating from the
house).
Defendant argues, however, that the affidavit established no
nexus between the house and the objects sought by the search
warrant, including cocaine, packing materials, and proceeds from
illegal controlled substances. Detective Heath's affidavit stated
that he believed that there was a fair probability that those
objects were being stored at defendant's residence. In
Riggs, our
Supreme Court observed that "many other decisions of this Court and
the Court of Appeals have found expressly that it is reasonable to
infer that readily mobile contraband is kept at hand, whether in adwelling, an outbuilding, or a vehicle." 328 N.C. at 221, 400
S.E.2d at 434. The Court in
Riggs held that the fact that the
suspects were "operating, in essence, a short-order marijuana
drive-through" in their driveway led to the "logical inference . .
. that a cache of marijuana is located somewhere on those
premises," which in turn supported a warrant to search the house.
Id.
Here, since defendant left from his home to deliver drugs to
Southern Terrace, the magistrate could logically infer that
defendant was likely storing cocaine and packaging materials in his
home, especially since nothing was found in his car.
See State v.
Rodgers, 161 N.C. App. 311, 315, 588 S.E.2d 481, 484 (2003)
("Further, not finding the cocaine in the vehicle, as reported by
the informant, provided probable cause to believe that it was still
in defendant's home."). The magistrate, therefore, had "reasonable
cause to believe that" a search of defendant's home would "probably
. . . reveal the presence upon the described premises of the items
sought."
State v. Taylor, __ N.C. App. __, __, 632 S.E.2d 218,
224-25 (2006).
See also State v. Boyd, __ N.C. App. __, __, 628
S.E.2d 796, 801 (2006) (totality of the circumstances showed
probable cause to search defendant's house when informant made
controlled buy and was able to identify defendant to the police).
In sum, we hold that the affidavit was sufficient to support
issuance of the search warrant, and therefore the trial court did
not err in denying defendant's motion to suppress.