STATE OF NORTH CAROLINA
v. Wake County
No. 02 CRS 20301-03
BARTOLA HERRERA HERNANDEZ
Attorney General Roy Cooper, by Assistant Attorney General
Marc X. Sneed, for the State.
Michael J. Reece, for defendant-appellant.
ELMORE, Judge.
While reserving the right to appeal the denial of his motion
to suppress, defendant pled guilty to trafficking in cocaine by
transportation, trafficking in cocaine by possession, and
conspiracy to traffic in cocaine. See N.C. Gen. Stat. § 15A-979(b)
(2006). By judgment entered 24 July 2002, the trial court
consolidated the offenses for judgment and sentenced defendant to
an active prison term of 175 to 219 months. Because the
assignments of error in the instant appeal address only the
suppression issue, we confine our review to the order denying
defendant's motion to suppress entered by Judge Evelyn Werth Hill
on 22 July 2002. Because they are not assigned as error in the record on
appeal, we are bound by the following findings of fact entered by
Judge Hill based upon the evidence adduced at the 24 June 2002
motion hearing:
1. Several days prior to March 11, 2002,
S[ergeant] B.L. Kennon (Kennon), a fifteen-
year veteran of the Raleigh Police Department
and supervisor of one of the drug units within
that department, interviewed [Michael Moore,]
who had been arrested by his squad on drug
trafficking charges. [Moore] stated that he
had obtained the cocaine, which was in his
possession at the time of his arrest[,] from
an individual who[m] he knew as “Hernandez”.
Further, Moore stated it was routine business
for him to order drugs from Hernandez in that
he had done so 65 or 70 times previously.
Moore stated that he knew Hernandez by sight .
. . .
2. Moore agreed to contact Hernandez by phone
for the purpose of arranging for a delivery of
cocaine. With Moore's knowledge and consent,
the calls were monitored and taped by Sgt.
Kennon and his squad. During these
conversations, it was agreed that Hernandez
would deliver 250 grams of cocaine to Pope's
Car Wash in Raleigh around 6:00 pm on March
11, 2002 and that Moore would pay then
Hernandez for the five ounces of cocaine that
he obtained from Hernandez earlier. Although
the parties did not explicitly discuss the
terms of the deal by using words such as
cocaine or ounces, it was clear to Sgt. Kennon
as a result of his training and experience
with those involved in the narcotics trade
that Moore and Hernandez had arranged for a
“drop” or an exchange of cocaine for money at
the car wash.
3. Moore informed Kennon that he expected
Hernandez to be driving a white car and to
have one or two other Hispanic males with him
when he arrived to deliver the drugs. This
information was based on Moore's prior
dealings with Hernandez.
. . .
5. Kennon, Moore, and another detective . . .
were in position at Pope's Car Wash in an
unmarked van at approximately 6:00 pm on March
11, 2002. . . .
6. Shortly after 6:00 pm, a red Honda Prelude
occupied by three Hispanic males arrived at
the car wash. Moroe immediately told Kennon,
“that's them.” Kennon asked “who?” and Moore
replied, “that's Hernandez driving the
vehicle.”
7. . . . [T]he driver of the car, the person
that Moore had identified as Hernandez, got
out of the car. The front seat passenger
(later identified as Perez) and backseat
passenger (later identified as Noyola) also
got out of the car. Hernandez then began
dialing a number on the cellular phone which
he held in his hand. At that instant, Moore's
phone rang. [Kennon] was able to identify the
call as coming from Hernandez by the
information displayed on his phone.
8. Kevin signaled the officers to move in for
the take down. As the officers approached,
Hernandez threw down his phone and ran. The
officers apprehended him a short distance
away. . . .
9. Kennon approached the Honda Prelude and
saw a white Food Lion bag on the front
passenger seat. Inside the bag he discovered
three separate packages wrapped in red or
orange tissue or cellophane. Kennon
recognized this packaging as consistent with
the way that Hispanic drug dealers package
their drugs. These packages were later found
to contain the more than 400 grams of cocaine
that is the subject of the defendant's motion
to suppress.
See Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991)
(“Where no exception is taken to a finding of fact by the trial
court, the finding is presumed to be supported by competent
evidence and is binding on appeal.”) (citations omitted). Judge
Hill expressly found Kennon's testimony at the hearing to be“credible and reliable[,] and the testimony of defendant's co-
defendant Perez to be “unbelievable, evasive[,] inconsistent . . .
[and] patently absurd at best.”
Based on these findings, Judge Hill concluded, inter alia,
that “Kennon had probable cause to arrest Hernandez for violations
of the Controlled Substances Act based on [Kennon']s observations,
his experience and training . . . to detain Hernandez[,]” and that
the officers had probable cause to search the Prelude that
defendant drove to the car wash. Judge Hill further concluded that
defendant's arrest and the search of the vehicle were “lawful and
without any violation of any statute or constitution, Federal or
State.”
On appeal, defendant claims the trial court erred in
concluding that the officers had probable cause to search the
vehicle in which the cocaine was found. Specifically, he asserts
that “[t]he officers placed too much weight on what Moore said
without taking any steps to confirm his information.” Absent
independent corroboration of Moore's claimed drug transactions with
defendant, police had no reasonable basis to conclude that
defendant had probably committed a crime. Defendant further avers
that there was no probable cause to arrest him and, alternatively,
that the search of the red Prelude exceeded the scope of a valid
search incident to arrest, since he “had left the vehicle even
prior to being confronted by police and was almost thirty feet away
from it” when apprehended.
This Court reviews the denial of a motion to suppress todetermine if (1) the trial court's findings of fact are supported
by competent evidence, and (2) its findings support its conclusions
of law. See State v. Nixon, 160 N.C. App. 31, 33, 584 S.E.2d 820,
822 (2003). As noted above, “[w]here no exception is taken to a
finding of fact by the trial court, the finding is presumed to be
supported by competent evidence and is binding on appeal.”
Koufman, 330 N.C. at 97, 408 S.E.2d at 731 (citations omitted). We
review the trial court's ultimate conclusions of law de novo.
State v. Fernandez, 346 N.C. 1, 11, 484 S.E.2d 350, 357 (1997)
(citing State v. Payne, 327 N.C. 194, 208-09, 394 S.E.2d 158, 166
(1990), cert. denied, 498 U.S. 1092, 112 L. Ed. 2d 1062 (1991)).
The trial court concluded that police had probable cause to
arrest defendant at the car wash. “Police officers may arrest
without a warrant any person who they have probable cause to
believe has committed a felony.” State v. Martinez, 150 N.C. App.
364, 368, 562 S.E.2d 914, 916 (quoting State v. Hunter, 299 N.C.
29, 34, 261 S.E.2d 189, 193 (1980)), appeal dismissed and disc.
review denied, 356 N.C. 172, 568 S.E.2d 859 (2002). “'A
warrantless arrest is based on probable cause if the facts and
circumstances known to the arresting officer warrant a prudent man
in believing that a felony has been committed and the person to be
arrested is the felon.'” State v. Mathis, 295 N.C. 623, 247 S.E.2d
919 (1978) (quoting State v. Shore, 285 N.C. 328, 335, 204 S.E.2d
682, 686 (1974)). “'Probable cause is a flexible, common-sense
standard. It does not demand any showing that such a belief be
correct or more likely true than false. A practical, nontechnicalprobability is all that is required.'” State v. Sinapi, 359 N.C.
394, 399, 610 S.E.2d 362, 365 (2005) (quoting State v. Zuniga, 312
N.C. 251, 262, 322 S.E.2d 140, 146 (1984)).
Where probable cause is grounded in information provided by an
informant, we must consider the totality of the circumstances,
assessing “the relative weights of all the various indicia of
reliability (and unreliability) attending an informant's tip.”
State v. Collins, 160 N.C. App. 310, 315, 585 S.E.2d 481, 485
(2003) (quotations omitted). Reliability is gauged, inter alia, by
the informant's history of providing correct information to police,
the specificity and accuracy of the informant's information about
the instant defendant, and the degree of independent corroboration
of the informant's claims about the defendant by police. Id.
(citations omitted).
In Martinez, sheriff's department officers found illegal drugs
and other contraband in the residence of Michael Goff. Martinez,
150 N.C. App. at 367, 562 S.E.2d at 916. Although he had not
previously served as an informant, Goff told an officer “that
normally he purchased his marijuana from two Hispanic males . . .
[and] that the two Mexican males were currently en route to deliver
a twenty-five pound shipment of marijuana to his house.” See id.
Goff further stated that the two men would arrive at his residence
within an hour in a small white four-door car, “which would 'come
right to [his] door.'” Id. An officer witnessed Goff's receipt of
a cellular phone call, “overheard the conversation and verified
that two Hispanic men would be arriving at Goff's residence inapproximately twenty minutes.” Id. Approximately twenty minutes
later, Martinez and Zavala arrived at Goff's residence in a white
four-door car and “parked next to Goff's front door.” Id. Officers
took the men into custody, searched the vehicle, and found bags of
marijuana in the trunk. See id. In denying Martinez's motion to
suppress the marijuana, this Court found the information provided
by Goff to be sufficiently reliable to support a finding of
probable cause:
Although Goff was not a known informant, the
officers independently verified the
information that he provided to them. Based on
Goff's information and the officers'
independent verification of that information,
the officers had probable cause to believe
that defendant and Zavala were committing a
felony in their presence.
Martinez, 150 N.C. App. at 369 562 S.E.2d at 917. In support of
our ruling, we emphasized the officer's independent verification of
Goff's “(1) description of the transporting automobile, (2) a
description of the two occupants, (3) the proximity of the
automobile's position to the front door, and (4) the arrival time
of the automobile.” Id.
The informant in this case, Moore, was arrested while in
possession of five ounces of cocaine. He had not previously served
as an informant but told Officer Kennon that his supplier was named
“Hernandez” and that they had transacted on dozens of prior
occasions. Moore allowed Kennon to record his telephone
conversations with the supplier in which they arranged to meet at
a car wash at a specific date and time. The recorded conversations
revealed that the purpose of the meeting was for Moore to pay hissupplier for the cocaine found in his possession by Kennon and to
receive additional cocaine from the supplier. Moore predicted that
Hernandez would arrive at the car wash with one or two Hispanic
males in a white car. Defendant arrived at the car wash at the
appointed time driving a red car and accompanied by two Hispanic
males. Moore immediately identified defendant to police as his
supplier. Defendant exited the vehicle and placed a call to
Moore's cellular phone, which Kennon had in his possession. When
police appeared, defendant threw the phone in the air and ran.
We conclude that the totality of the circumstances surrounding
Moore's tip to Kennon established probable cause to arrest
defendant for the possession with intent to sell or deliver
cocaine, a felony. See N.C. Gen. Stat. § 90-95(a), (d)(2) (2006).
Here, as in Martinez, the informant had no track record with police
but was arrested in possession of drugs and provided accurate
predictive information regarding a future meeting with his
supplier. Although the description of each supplier was general,
both Moore and Goff provided specific and accurate information
regarding the time and place of the future meeting. Defendant
notes that he arrived at the car wash in a red car, rather than a
white car as Moore predicted. However, Moore immediately
identified defendant by sight as his supplier. Moreover, any
inaccuracy as to the color of defendant's vehicle was outweighed by
Kennon's independent verification of the purpose of Moore's
rendezvous with “Hernandez” at the car wash. By monitoring their
telephone calls, Kennon learned that the two men were meeting inorder for Moore to pay Hernandez for the cocaine which Moore
possessed at the time of his arrest, and for Moore to receive an
additional quantity of cocaine from Hernandez. In light of the
independent verification of the illicit purpose of the meeting, a
fact not shown in Martinez, police had probable cause to believe
defendant would be delivering cocaine to Moore at the car wash.
Defendant's sudden flight when police appeared provided additional
support for this conclusion. See State v. Whitted, 112 N.C. App.
640, 642, 436 S.E.2d 275, 276 (1993) (citing State v. Mills, 104
N.C. App. 724, 729-30, 411 S.E.2d 193, 196 (1991)); State v.
Harrington, 17 N.C. App. 221, 225, 193 S.E.2d 294, 297 (1972).
Because police had probable cause to arrest defendant for a
felony drug offense, we further conclude that the search of the red
Prelude that he drove to the car wash was a lawful search incident
to his arrest. In New York v. Belton, the United States Supreme
Court held that police who undertake a lawful arrest of a driver or
passenger of a vehicle may search incident to the arrest “inside
the passenger compartment of the car in which the respondent had
been a passenger just before he was arrested.” Belton, 453 U.S.
454, 462, 69 L. Ed. 2d 768, 776 (1981). Addressing the
circumstance presented here, the Supreme Court subsequently upheld
the search of a vehicle's passenger compartment incident to the
arrest of a “recent occupant” of the vehicle. Thornton v. United
States, 541 U.S. 615, 617, 158 L. Ed. 2d 905, 911 (2004)
(“conclud[ing] that Belton governs even when an officer does not
make contact until the person arrested has left the vehicle”). Thus, the fact that defendant ran from the red Prelude before his
arrest does not affect the constitutionality of the search of the
car's interior. Moreover, the scope of a search incident to arrest
under Belton extends to “all containers found within the interior”
of the vehicle, including the plastic grocery bag full of cocaine
found by Kennon on the Prelude's front passenger seat. State v.
Brooks, 337 N.C. 132, 144, 446 S.E.2d 579, 587 (1994) (citations
omitted). Accordingly, we hold that the trial court properly
denied defendant's motion to suppress. The judgment entered upon
defendant's guilty plea is affirmed.
Affirmed
Judges WYNN and GEER concur.
Report per Rule 30(e).
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