On 22 July 2004, a Guilford County grand jury indicted both
defendants for the offenses of two counts of trafficking in a
controlled substance. On 28 February 2005, defendant Michael
Sellers (“defendant Sellers”) made a motion to suppress evidence
obtained in violation of the Fourth Amendment of the Constitution
of the United States and defendant Kisha Wynn (“defendant Wynn”)subsequently made a motion to adopt the motion to suppress. On 24
May 2005, the trial court conducted a pretrial hearing as to
defendants' motions to suppress. The following testimony was
presented during voir dire:
Officer Pratt testified that John Stokes (“Stokes”), an
untested confidential source, contacted the High Point Police
Department concerning information as to certain individuals who
were possibly getting ready to make a trip to either New Jersey or
Maryland to purchase a large quantity of heroin. Officer Pratt
testified that at the initial meeting with Stokes, Stokes stated
that he was aware of an individual who made frequent trips to New
Jersey and Maryland in order to purchase heroin to bring back to
High Point, North Carolina, for distribution. Stokes described the
man as a heavy-set black man whom he knew as Mike. Stokes was then
shown a picture of defendant Sellers by officers, whom he
identified as the person to whom he was referring. Stokes further
informed the officers that he believed Sellers would be making a
trip to purchase heroin in the next few days and that he usually
takes a “tester” with him to ensure the item purchased was actually
heroin.
Stokes further informed the officers that he would rent a car
from Enterprise Rent-A-Car and that he would subsequently pick up
others and then make the trip to pick up the heroin. On 7 April
2004, detectives noticed a blue Dodge Stratus parked in Stokes'
driveway with the license plate RYW 9797. After running the
license plate, the officers determined that the car was registeredto Enterprise Leasing Company and, thereafter, the officers
confirmed with Enterprise Leasing Company that Stokes had in fact
leased the car. The officers began surveillance of the car, and on
7 April 2004 they observed the car leave Stokes' residence and
drive to 2429 Francis Street. Stokes had informed Officer Pratt
that Denise Smith lived at 2429 Francis Street, and upon further
investigation, Officer Pratt determined that Denise Smith had been
listed on defendant Sellers' prior arrest records as the girlfriend
of Mr. Sellers and her address was further listed in those records
as 2429 Apartment A Francis Street. The vehicle made several other
stops before heading towards Greensboro on Highway 29-70 and the
officers continued surveillance of the vehicle until it exited
Guilford County.
Officer Pratt subsequently returned to the police department
and used MapQuest as a search tool to determine the time it would
take defendants to make a trip to the New Jersey area in order to
estimate the return time. On 9 April 2004, officers received a
call from Stokes in the early morning hours indicating that they
were located at a rest stop near the North Carolina and Virginia
border. Officer Pratt then organized a team of officers to be on
watch for the car and giving instructions that the first to spot
the car was to follow it, and then a marked police car was to make
the stop. He further informed the officers that once the stop was
completed, everyone in the car was to be detained and a drug dog
would survey the car. Around 4:00 a.m. officers spotted the car in Greensboro headed
towards High Point, North Carolina. When the car entered High
Point on Highway 29-70, a marked police car activated its blue
lights in an attempt to stop the car. As the police car activated
its blue lights, defendants' car drove onto the curb in an effort
to get around the officers attempting to block the car, but was
unsuccessful. The officers placed the occupants of the car in
handcuffs and explained it was for detention purposes, rather than
arrest. It was determined at that time that defendant Sellers was
the driver of the car, defendant Wynn was in the front passenger
seat, and Stokes, along with another passenger, Lois McCoy, were in
the back.
As the K-9 unit sniffed the car, the dog indicated that it
detected something in the left passenger area. Upon investigation
by Officer Pratt, two large packages wrapped in paper were
discovered inside a purse. Officer Pratt determined, based on his
experience, that the packages contained heroin. The passengers of
the car were then all placed under arrest and a search of the rest
of the car and their persons was commenced. Officer Pratt
discovered eleven bindles of heroin in a coat pocket hanging over
the driver's seat and an Aleve bottle containing Methadone pills in
the front passenger area. Upon searching the persons of the
occupants of the car, other officers discovered two pieces of what
appeared to be an empty heroin bindle in defendant Wynn's pants
pocket and twenty bindles of heroin in defendant Sellers' rectum
area. The testimony of Officer Pratt was the only evidence offered
at the hearing on the motion to suppress. The trial judge denied
the motion to suppress at the end of the hearing and denied
defendants' request to make findings of fact for the record. The
following day, the case proceeded to trial, and the evidence sought
to be precluded by the motion to suppress was introduced to the
jury. The jury subsequently returned a verdict of guilty on the
offenses of trafficking in heroin by possession and trafficking in
heroin by transportation as to both defendants.
Defendants now appeal.
Defendants contend on appeal that the trial court erred in
failing to state its findings of fact and conclusions of law in
regard to its denial of defendants' motion to suppress. We
disagree.
In ruling on a motion to suppress, a trial judge is generally
required to make a determination after making findings of fact and
must subsequently set forth those findings of fact and the
conclusions of law in the record. N.C. Gen. Stat. § 15A-977(d)-(f)
(2005). However, subsequent case law has recognized an exception to
the general rule:
If there is no material conflict in the
evidence on voir dire, it is not error to
admit the challenged evidence without making
specific findings of fact, although it is
always the better practice to find all facts
upon which the admissibility of the evidence
depends. In that event, the necessary findingsare implied from the admission of the
challenged evidence.
State v. Phillips, 300 N.C. 678, 685, 268 S.E.2d 452, 457 (1980)
(citation omitted). Where, as in the instant case, a defendant
fails to present any testimony during the hearing regarding the
motion to suppress which refutes the testimony of the officer
establishing the admissibility of the evidence, the findings of
fact can be inferred from the subsequent admission of testimony.
See State v. Tate, 58 N.C. App. 494, 499, 294 S.E.2d 16, 19, appeal
dismissed, disc. review denied, 306 N.C. 750, 295 S.E.2d 386
(1982), aff'd, 307 N.C. 464, 298 S.E.2d 386 (1983). Therefore, the
corresponding assignments of error are overruled.
Defendants further contend on appeal that the trial court
erred in denying their joint motion to suppress. We disagree.
Defendants concede in their brief to this Court that at the
time of the stop, the officers only needed reasonable suspicion to
warrant the stop; however, they contend that their detention in
handcuffs transformed the stop into a formal arrest requiring
probable cause.
The Fourth Amendment to the United States Constitution, as
applied to the states by the Due Process Clause of the Fourteenth
Amendment, prohibits only unreasonable searches and seizures.
State
v. Grooms, 353 N.C. 50, 73, 540 S.E.2d 713, 727-28 (2000),
cert.
denied, 534 U.S. 838, 151 L. Ed. 2d 54 (2001). It is well settled
that a brief investigatory stop of an individual is permissibleunder the Fourth and Fourteenth Amendments if there exists
reasonable, articulable suspicion to show that criminal activity is
afoot.
State v. Milien, 144 N.C. App. 335, 339, 548 S.E.2d 768, 771
(2001). Reasonable suspicion is to be determined by the totality of
the circumstances, viewed through the eyes of a reasonable,
cautious police officer.
However, a more intrusive search and seizure requires probable
cause.
See id. at 340, 548 S.E.2d at 772 (“Where the duration or
nature of the intrusion exceeds the permissible scope, a court may
determine that the seizure constituted a
de facto arrest that must
be justified by probable cause, even in the absence of a formal
arrest.”). “The existence of probable cause depends upon 'whether
at that moment the facts and circumstances within [the officers']
knowledge and of which they had reasonably trustworthy information
were sufficient to warrant a prudent man in believing that the
[suspect] had committed or was committing an offense.'”
Id. at 341,
548 S.E.2d at 772 (quoting
State v. Bright, 301 N.C. 243, 255, 271
S.E.2d 368, 376 (1980) (alterations in original)).
Probable cause can be established through the use of
informants.
Illinois v. Gates, 462 U.S. 213, 243 n.13, 76 L. Ed.
2d 527, 552 n.13,
reh'g denied, 463 U.S. 1237, 77 L. Ed. 2d 1453
(1983). “'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, 544S.E.2d 18, 22,
cert. denied, 353 N.C. 731, 551 S.E.2d 116 (2001)
(citation omitted). 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).
In the instant case, the informant, Stokes, was neither an
informant with a reliable track record nor an anonymous informant;
however, the information provided was independently verified by
officers in turn ensuring that the information was sufficiently
trustworthy. Stokes alerted the officers that a known heroine
dealer, Mike, would be making a trip to Maryland or New Jersey in
the following days to obtain heroin for distribution in High Point,
North Carolina. He further informed officers that this known heroin
dealer was usually accompanied by a tester used to determine the
authenticity of the drug. Police verified the identification of
Mike by showing Stokes a photograph of defendant Sellers, who
Stokes in turn affirmed was in fact the person who would be making
the trip to obtain the heroin for distribution.
Stokes further informed the police of certain details
surrounding the trip, including: that Stokes would get a rental car
from Enterprise Rent-A-Car in High Point, North Carolina and
provided the residence of Denise Smith, 2429 Francis Street, as a
residence where he would stop. Police officers subsequently
conducted surveillance of Stokes' residence and noticed a vehicle
located in the driveway. Upon running the tags of the vehicle, theyverified that the car was registered to Enterprise Leasing Company
and thereafter confirmed with Enterprise Leasing Company that
Stokes' had in fact leased the car.
Thereafter, officers continued to conduct surveillance of the
vehicle and verified that it made several stops as it left town,
one of those stops being 2429 Francis Street. Officer Pratt,
seeking independent verification of the address, looked at previous
arrest records of defendant Sellers and found that Denise Smith was
listed as defendant Sellers' girlfriend and her residence was
listed as 2429 Francis Street. Officers followed the car until it
left Guilford County headed on Highway 29-70 towards Greensboro.
Officer Pratt then returned to the police station and
determined through the use of MapQuest the length of time it would
take to make a trip to the New Jersey area. Based on the
information received, he determined that it would take
approximately 9 hours and 10 minutes to make the trip and
approximated that the vehicle would be returning in the early
morning hours of the next day. In the early morning hours of the
day after departure, officers received a call from Stokes
indicating that they were located at a rest stop near the Virginia
and North Carolina border, headed back for High Point, North
Carolina. Around 4:00 a.m., officers spotted the vehicle and
attempted to stop it. Upon activation of the blue lights,
defendants attempted to evade the officers by running up on the
curb, but were unsuccessful. Upon review of the independent verification of details
provided by the untested informant, it appears that there existed
facts and circumstances, known to the officers, which provided
reasonably trustworthy information sufficient to warrant a prudent
man in believing that defendants committed the offense.
Further, where this Court finds that the officers had
sufficient probable cause to warrant the search and seizure, then
certainly reasonable suspicion which meets the test of the totality
of the circumstances is also present. Therefore, the corresponding
assignments of error are overruled.
Accordingly, we affirm the trial court's denial of defendants'
motion to suppress and find no error in the judgments appealed
therefrom.
No error.
Judges HUDSON and TYSON concur.
Report per Rule 30(e).
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