An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 2 January 2007
STATE OF NORTH CAROLINA
No. 04CRS61159 & 61160
FLORENCIO ALONSO VELAZQUEZ,
Appeal by Defendant from judgment entered 13 September 2005 by
Judge Judson D. DeRamus, Jr. in Superior Court, Forsyth County.
Heard in the Court of Appeals 31 October 2006.
Attorney General Roy Cooper, by Special Deputy Attorney
General, Fred C. Lamar, for the State.
Grace, Holton, Tisdale & Clifton, P.A., by Michelle B. Clifton
and Christopher R. Clifton, for defendant-appellant.
Based on his pleas of guilty, Defendant Florencio Alonso
Velazquez was convicted of Trafficking in Cocaine by
Transportation, Trafficking in Cocaine by Possession, Possession
with Intent to Sell or Distribute Cocaine, Carrying a Concealed
Gun, and two counts of Maintaining a Vehicle, Dwelling, or Place
for keeping or selling a controlled substance. Defendant properly
preserved for our review, the trial court's denial of his motion to
On appeal, Defendant argues that the trial court erred by (I)
denying him access to the confidential information and (II) findingthat there was probable cause to conduct a search of his vehicle.
(See footnote 1)
We find no merit to Defendant's appeal and discuss herein the facts
pertinent to our decision.
Defendant first contends the trial court erred when it denied
the defendant an adequate opportunity to reliably litigate his
motion to suppress by denying him access to the confidential
informant. We disagree.
It is well established that where the disclosure of an
informer's identity, or of the contents of his communications, is
relevant and helpful to the defense of an accused, or is essential
to a fair determination of a cause, the privilege must give way.
Roviaro v. United States, 353 U.S. 53, 60, 77 S. Ct. 623, 628
(1957). Interpreting Roviaro, our Supreme Court later held that
disclosure is required where the informer directly participates in
the alleged crime so as to make him a material witness on the issue
of guilt or innocence. State v. Ketchie, 286 N.C. 387, 390, 211
S.E.2d 207, 209 (1975).
Ultimately, in determining whether the identity of a
confidential informer who is a material witness must be disclosed,
the trial court must balance the public's interest in not revealing
the identity with the defendant's right to present his case. State
v. Newkirk, 73 N.C. App. 83, 325 S.E. 2d 518 (1985). In Newkirk,this Court stated that factors weighing in favor of disclosure
included whether (1) the informer was an actual participant in the
crime compared to a mere informant, and (2) the state's evidence
and defendant's evidence contradict on material facts that the
informant could clarify. Id. at 86, 325 S.E.2d at 520 (Internal
citations omitted). In contrast, the Court noted that factors
against disclosure included whether the defendant admits
culpability, offers no defense on the merits, or the evidence
independent of the informer's testimony establishes the accused's
guilt. Id. at 86, 325 S.E.2d at 520-21.
In this case, Winston-Salem Detective Jose Emanuel Gomez
testified that a confidential informer, whose information had
previously led him along with Detective Chris Spain to more than
fifteen to twenty individual arrests, came to him with information
about an individual who was distributing large quantities of powder
cocaine. Thereafter, the informer obtained the phone number of the
individual (later identified as Defendant), and in a conversation
overheard by Detective Gomez, arranged for Defendant to deliver
one-half kilo of cocaine the next day, between 1:30 and 1:45 p.m.,
at a pre-arranged location. The informer stated to Detective Gomez
that Defendant would be driving a grey Dodge Avenger and gave the
license plate number. Just before the appointment, Detectives
Gomez and Spain met with the informer, searched his vehicle and
person, and found neither drugs nor currency. The detectives then
observed as the confidential informer waited at the pre-arranged
location. At approximately 1:40 p.m., a grey Dodge Avenger enteredand circled the pre-arranged location. The informer exited his
vehicle, entered the passenger side of Defendant's vehicle and
remained in the vehicle for a few minutes. According to Detective
Gomez, the informer was to observe the contraband, then exit the
vehicle - under the guise of retrieving money - and signal police.
Upon exiting, the informer signaled to officers who responded by
approaching the vehicle. Detective Spain testified that upon his
approach, he observed through the driver's side open window what
appeared to be a one-half kilo of cocaine on the driver's seat.
Although the informer in this case was a participant in the
criminal acts, nothing in the record shows that the testimony of
the informer, or disclosure of his identity, would provide any
material contradictions between the State's evidence and the
evidence of Defendant. Detective Gomez testified he was present
during the investigation which included listening to the telephone
contact with Defendant as the buy was set up; meeting with the
informer at the pre-arranged location; conducting a search of the
informer and his vehicle; and observing Defendant's arrival to the
pre-arranged location, and the informer entering and exiting the
vehicle. Additionally, Detective Spain testified that upon
approaching the vehicle, he observed contraband in plain view on
the driver's seat.
Nothing in the record before this Court indicates that the
testimony of the informer would materially differ from the
testimony of the Detectives. Moreover, Defendant admitted to the
offenses and consented to the search of his vehicle and residenceafter being advised of his rights. Accordingly, we uphold the
trial court's denial of Defendant's motion to reveal the identity
of the informer.
Defendant next contends that the trial court erred by finding
that there was probable cause to conduct the search of Defendant's
At trial, Detective Gomez testified that based on his
experience, his informer was one of the most reliable informers to
date - his information led to more than fifteen to twenty arrests.
Detective Gomez listened while the informer setup a drug buy and
observed while the informer met Defendant under the pretense of
buying drugs. This evidence was sufficient to show that the
officers had established the reliability of the informant. But it
is dispositive to point out that the record indicates that when
Detective Spain approached the vehicle, he saw in plain view
through the driver's side window, contraband appearing to be one-
half kilo of cocaine in the driver's seat. Under the plain view
doctrine, the officers then had probable cause to conduct a search
of the vehicle, which revealed a .9mm handgun. E.g., State v.
, 61 N.C. App. 106, 300 S.E.2d 248 (1983). Upon arrest,
Detective Gomez mirandized Defendant, after which Defendant
confessed to possession of cocaine, his intent to sell the one-half
kilo for $11,000, and possession of more drugs at his house - which
he gave police permission to search. In light of this evidence, we hold the trial court had
sufficient evidence to substantiate the detectives' probable cause
needed to search Defendant's vehicle, and thus deny Defendant's
motion to suppress evidence found as a result of the search.
Judges HUDSON and STEPHENS concur.
Report per rule 30(e).
The judges participated and submitted this opinion for filing
prior to 1 January 2007.
Defendant also argues that the trial court erred by denying
his constitutional right to confront the confidential informer. We
summarily reject this argument as no testimonial statements of
guilt by the informer were offered at trial. See Crawford v.
541 U.S. 36, 158 L. Ed 2d 177 (2004).
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