Converted WP file 060707-1

Appeal by Defendant from order entered 23 March 2006 by Judge Richard W. Stone in Forsyth County Superior Court. Heard in the Court of Appeals 24 January 2007.

Attorney General Roy Cooper, by Special Deputy Attorney General Douglas A. Johnston, for the State.

Daniel F. Read for Defendant.

    STEPHENS, Judge.

    On 28 May 2004, Detective C.E. Spain of the Winston-Salem Police Department was investigating suspected drug activity at several Winston-Salem restaurants. Detective Spain arranged for a reliable, confidential informant (“C.I.”) to purchase cocaine inside one of the restaurants (“the Restaurant”). Before the purchase took place, Detective Spain and other law enforcement officers set up surveillance stations. While performing his surveillance responsibilities, Detective Spain observed Defendant arrive at the Restaurant and walk inside. As Defendant walked toward the Restaurant, he was “hunched over” and appeared to be concealing something under his clothes.    Once Defendant and the C.I. were inside the Restaurant, the C.I. confirmed the presence of cocaine, exited the Restaurant, and gave a prearranged signal to the law enforcement officers, informing them of the presence of cocaine in the Restaurant. Fearing that the cocaine would be destroyed or removed from the Restaurant, the officers immediately entered and secured the premises. During an initial sweep of the Restaurant, an officer discovered Defendant standing outside a small office. Inside the office, the officer discovered a parcel wrapped in a manner in which cocaine is normally packaged. This package was lying on top of a desk in plain view.
    When the restaurant was secure, Detective Spain left to obtain a search warrant for the Restaurant. After Detective Spain returned with the warrant, the officers searched the Restaurant, including the package found near Defendant which contained a kilogram of cocaine.   (See footnote 1) Defendant was thereupon arrested. An officer fluent in Spanish advised Defendant of his Miranda rights. Defendant voluntarily waived his rights and gave a statement. Defendant told the officer that “he was contacted by a Hispanic female advising him that there was another Hispanic male that was wanting a kilogram of powder cocaine. . . . He . . . advis[ed] her that he could . . . obtain a kilogram of powder cocaine[.]” Defendant also informed the officer that “once he had a kilogram of powder cocaine in his possession, he responded to the [Restaurant]to make the delivery. He was to expect twenty-three thousand in U.S. currency for payment for the kilogram of powder cocaine.” Defendant then told the officer that when he arrived at the Restaurant, he “had the kilogram of powder cocaine stuffed in his pant waistline . . . [and that inside the Restaurant,] he met with the potential customer . . . [who] advised him that [the customer needed] to exit the business and obtain the currency[.]”
    On 4 April 2005, Defendant was indicted on one count of felonious trafficking in drugs by delivery, one count of felonious trafficking in drugs by transport, and one count of conspiracy to traffic cocaine. On 9 September 2005, Defendant moved to suppress (1) the contents of the package allegedly searched without a valid search warrant, (2) all evidence and statements obtained by the officers that were the product of an allegedly illegal search warrant, and (3) any evidence received from or statements made by Defendant on 28 May 2004. On 22 November 2005, Defendant again moved to suppress any statements he made on 28 May 2004. Following a hearing held 9 February 2006, the Honorable Richard W. Stone denied all of Defendant's motions. That same day, after preserving his right to appeal the denial of his motions to suppress, Defendant pled guilty to all charges. For purposes of sentencing, Judge Stone consolidated the judgments and sentenced Defendant to a minimum term of 175 months and a maximum term of 219 months imprisonment. He also imposed a fine of $250,000.00.
    Defendant brings forward six arguments to this Court. For the reasons stated herein, we affirm the order of the trial court.

    By his first argument, Defendant contends the trial court erred in finding and concluding that he had no Fourth Amendment expectation of privacy in the package of cocaine and no standing to challenge the search warrant. We find his argument without merit.
    As a preliminary matter, we note that nowhere in the trial court's order denying Defendant's motions to suppress did Judge Stone find or conclude that Defendant had no reasonable expectation of privacy in the package searched by the police. On the contrary,review of an exchange between Judge Stone and Defendant's trial attorney reveals that the trial judge did not base his ruling upon Defendant's expectation of privacy in the package.
        MR. BOTCHIN: Your Honor, if I may, briefly. First off, I think -- I didn't understand if the Court had found that my client had an expectation of privacy to the package itself. In an earlier discussion this morning, there was some indication that you felt that he had an expectation of privacy to the package, but because of the general search warrant, you had some questions of whether or not he could prevent them from searching.
        THE COURT: I don't think -- I have -- I don't think my finding -- I'm not finding that he did not have an expectation of privacy in it, in the package; that's not necessary for my ruling. I'm not -- whether he had an expectation of privacy, all of those findings are consistent with him having an expectation of privacy or not having an expectation of privacy.
            I can't think of one where it matters. So, for the purposes of these conclusions and this order, I don't think that I have to address that issue.
        MR. BOTCHIN: Your Honor, with all _- of course, for the record, Your Honor, we disagree with the Court.
        THE COURT: Oh, I know that. I'm used to that. I'm all right with that.

Furthermore, in a conclusion of law, Judge Stone determined that “Defendant has no standing to contest the Search Warrant because the Defendant has no reasonable expectation of privacy in the premises to be searched, the Restaurant.” The trial court then determined that, based on the search warrant, the police officers had the authority to search the package in question “consistent with how the officers know, based on training and experience, packages containing controlled substances are generally packaged.”     Defendant's standing argument is intertwined with his search warrant argument in that he argues the trial court erred by focusing on the Restaurant as a whole rather than the package itself to determine standing. As discussed below, because the valid search warrant gave the police the authority to search the package, his argument is without merit.
    In United States v. Ross, 456 U.S. 798, 820-22, 72 L. Ed. 2d 572, 591 (1982), the United States Supreme Court opined that a
        lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search. Thus, a warrant that authorizes an officer to search a home for illegal weapons also provides authority to open closets, chests, drawers, and containers in which the weapon might be found. A warrant to open a footlocker to search for marihuana [sic] would also authorize the opening of packages found inside. . . . When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers, and containers, in the case of a home . . . must give way to the interest in the prompt and efficient completion of the task at hand.

In this case, the search warrant permitted the police officers to search the Restaurant for “cocaine, drug paraphernalia, monies, keys, pagers and documents showing ownership and/or control of the premises and/or property[.]” Based on Ross, the warrant permitted the officers also to search any containers they suspected to contain cocaine. Testimony at the suppression hearing demonstrated that the officers observed a parcel which, based on their training and experience, they believed to contain cocaine because it waswrapped in a manner consistent with how a kilo of cocaine is packaged. Therefore, the officers had the authority to open the package and the trial court did not err in so concluding. Accordingly, this argument is overruled.

    Defendant next contends the trial court erred in finding that the confidential informant saw cocaine in the Restaurant. The trial court's findings of fact regarding the informant's observation of cocaine are supported by competent evidence presented at the suppression hearing. Accordingly, this assignment of error lacks merit.
    We preliminarily note that the trial court did not find that the C.I. saw cocaine. Rather, in his order denying Defendant's motions, Judge Stone included the following relevant findings of fact:
        12.    The CI was given instructions . . . to enter the Restaurant, confirm that the cocaine was inside the Restaurant, inform the seller of cocaine that the CI would go to his vehicle and get the money ($23,000) for the cocaine and, upon exiting the Restaurant, give the Officers a pre-arranged signal that the cocaine was inside the Restaurant.

        . . . .

        14.    During the surveillance, the CI went into the Restaurant and, shortly thereafter, exited the Restaurant and gave the pre- arranged signal to Spain and the Officers that a large quantity of cocaine was inside the Restaurant.

        . . . .
        32.    The Court finds . . . that in the Restaurant an item was displayed to the CI which the person displaying the item claimed to be cocaine.

(Emphasis added).
    These findings are supported by the following evidence: Detective J.E. Gomez of the Winston-Salem Police Department testified that “[o]nce [the C.I.] had the substance that was presented to him as cocaine by [Defendant], . . . the informant was to instruct [Defendant] that he was exiting the business to retrieve the money . . . for the kilogram of powder cocaine.” Detective Gomez testified further that the C.I. “stepped out of the business . . . and indicat[ed] to [the law enforcement officers] that . . . a substance was presented to him as cocaine[.]” Since the trial court's findings of fact are supported by competent evidence presented at the suppression hearing, the trial court did not err.
    Furthermore, because Defendant did not assign error to any of the trial court's conclusions of law regarding the C.I.'s observation of cocaine,   (See footnote 2) those conclusions of law are not before this Court on appeal. See N.C. R. App. P. 10(a) (limiting “the scope of review on appeal . . . to a consideration of those assignments of error set out in the record on appeal”). Accordingly, Defendant's argument is overruled.

    By his next argument, Defendant contends the trial court erred in finding that there were no material misstatements in the search warrant because the warrant failed (1) to describe the package, (2) to rely on fresh information, and (3) to mention that suspects were detained in the Restaurant. Defendant asserts that because of these material misstatements, there was no probable cause for the magistrate to issue the search warrant, and thus the warrant violated the Fourth Amendment. This argument is without merit.
    “A search warrant must contain a 'designation sufficient to establish with reasonable certainty the premises, vehicles, or persons to be searched,' and a 'description or a designation of the items constituting the object of the search and authorized to be seized.'” State v. Moore, 152 N.C. App. 156, 159-60, 566 S.E.2d 713, 715 (2002) (quoting N.C. Gen. Stat. §§ 15A-246(4) and 15A-246(5)).
        [A]n affidavit [for a search warrant] is sufficient if it establishes “reasonable cause to believe that the proposed search . . . probably will reveal the presence upon the described premises of the items sought and that those items will aid in the apprehension or conviction of the offender. Probable cause does not mean actual and positive cause nor import absolute certainty.

State v. Sinapi, 359 N.C. 394, 398, 610 S.E.2d 362, 365 (2005) (quoting State v. Arrington, 311 N.C. 633, 636, 319 S.E.2d 254, 256 (1984)).
    A review of Defendant's assignments of error and the record and transcript citations he provides to support those assignmentsreveals that he appears to be challenging the trial court's conclusion of law that “[t]here are no misstatements or falsehoods in the affidavit for the Search Warrant and the Search Warrant is valid.”
    Defendant argues that there are material misstatements or falsehoods in the warrant because, when Detective Spain applied for the warrant, he knew about the package in question, but his affidavit for the warrant failed to specifically describe the package. This argument is without merit. While Defendant is correct that the police officers were aware of the presence of the package when the application for the warrant was made, the warrant sufficiently described the premises to be searched and the items sought. The warrant did not need to describe each potential hiding place or container on the premises with particularity. Defendant fails to recognize that this particular search was conducted as a result of an ongoing investigation regarding suspected drug activities at the Restaurant, and thus, the police had reason to believe that more than the package in question would be discovered.
    Furthermore, with regard to the ongoing nature of the investigation, Defendant is also correct that the warrant application relied on information outside the scope of the events of 28 May 2004. However, Defendant's argument fails to acknowledge the additional information Detective Spain presented, stating that he recently
        observed a Hispanic male subject arrive at the business . . . [and] as the subject entered the business, the stride of his walk was uneven. It appeared . . . that something wasconcealed in the front of the subject's pants, due to the fact that a bulge was visible and his manner of walk appeared to indicate that something was preventing him from taking a full step.

Given the inclusion of this information in Detective Spain's affidavit, Defendant's argument that the warrant was issued on stale information is without merit.
    Finally, we find no merit to Defendant's argument that the failure of Detective Spain's affidavit to state that suspects were being detained at the Restaurant renders the search warrant invalid. Defendant offers no authority, and our research reveals none, which would require such information in an affidavit or application for a search warrant. Accordingly, Defendant's argument is overruled.

    By his fourth argument, Defendant asserts the trial court erred in finding and concluding that exigent circumstances existed to search the Restaurant and to detain Defendant inside the Restaurant. This argument is also without merit.
    In Judge Stone's order denying Defendant's motions to suppress, he made the following conclusion of law regarding the police officers' warrantless entry of the Restaurant and the subsequent detention of Defendant:
        3.    Exigent circumstances existed to enter the Restaurant due to the fact that the officers were concerned that the cocaine may be destroyed or removed from the premises. The officer's concern that the cocaine may be destroyed or removed from the premises is supported by the fact that (a) the Defendant had limited contact with the Restaurant, (b) if theDefendant were to leave the Restaurant, unlike a home, the Defendant would likely take any items brought by the Defendant with him or destroy the items before he left, (c) the CI did not have money to go back into the Restaurant to complete the purchase which increased the likelihood that the Defendant would get suspicious if a delay ensued and increased the likelihood that the Defendant would either destroy the cocaine or remove himself from the Restaurant.

Because Defendant failed to assign error to the trial court's findings of fact,   (See footnote 3) “our review is limited to the question of whether the trial court's findings of fact, which are presumed to be supported by competent evidence, support its conclusions of law[.]” Pickard, ___ N.C. App. at ___, 631 S.E.2d at 206 (citations omitted). The trial court's conclusions of law, however, are reviewed de novo to determine if they are legally correct. Fernandez, supra.
    In his order, Judge Stone made the following relevant findings of fact:
        3.     Spain had information that . . . cocaine [was being sold] out of two restaurants one of which was named Tacqueria y Roticeria and was located at 1477 New Walkertown Road in Winston-Salem, North Carolina . . . .

        . . . .
        7.     On May 28, 2004, the Defendant was unknown to Spain and the other officers involved in the investigation.

        . . . .

9. As the Defendant walked towards the entrance of the Restaurant, the Officers noticed that the Defendant appeared to be concealing something in his pants.

. . . .

        13.     Neither the CI nor the Officers involved in the investigation had the money for the cocaine at the Restaurant.
        14.     During the surveillance, the CI went into the Restaurant and, shortly thereafter, exited the Restaurant and gave the pre- arranged signal to Spain and the Officers that a large quantity of cocaine was inside the Restaurant.

These uncontested findings of fact are sufficient to support the trial court's conclusion of law that exigent circumstances existed for the officers to enter the restaurant and detain Defendant.
    Furthermore, we hold that the trial court's conclusion of law was correct as a matter of law. In State v. Nowell, 144 N.C. App. 636, 643, 550 S.E.2d 807, 812 (2001) (citation omitted), aff'd per curiam, 355 N.C. 273, 559 S.E.2d 787 (2002), this Court recognized that “[e]xigent circumstances sufficient to make a search without a warrant [proper] include, but are not limited to, the probable destruction or disappearance of a controlled substance.” Generally, “the existence of exigent circumstances are factual determinations that must be made on a case by case basis.” State v. Johnson, 64 N.C. App. 256, 262, 307 S.E.2d 188, 191 (1983), remanded on other grounds, 310 N.C. 581, 313 S.E.2d 580 (1984).    In this case, based on (1) the alleged presence of cocaine in the Restaurant, (2) the likelihood that Defendant would quickly realize that the C.I. was not returning to the Restaurant to complete the sale, and (3) the ease with which the contraband could have been destroyed or removed from the Restaurant, we hold that exigent circumstances existed for the police to enter the Restaurant. Accordingly, Defendant's argument is overruled.

    Defendant next argues the trial court erred in concluding that the detention of Defendant before he was arrested, which lasted approximately two hours,   (See footnote 4) was reasonable.
    As with his fourth argument supra, Defendant directs our attention to a conclusion of law made by the trial court and fails to assign error to the court's findings of fact. Accordingly, we must determine only whether the conclusion of law in question is supported by the findings of fact, and whether the contested conclusion is correct as a matter of law. Pickard, supra. The challenged conclusion of law states:
        8.     The detention of the Defendant, who was found in close proximity to the drugs, was reasonable especially since the Defendant appeared to enter the Restaurant carrying an item of similar size and that the Defendant's actions were consistent with the information given by the CI concerning the deal that had been set up in advance.

Judge Stone made the following findings of fact:        9.     As the Defendant walked towards the entrance of the Restaurant, the Officers noticed that the Defendant appeared to be concealing something in his pants.

        . . . .

        16.    The Officers detained . . . Defendant after making entry into the Restaurant.
        17.    The Officers made a sweep of the Restaurant and the Officers located, in the office area of the Restaurant and in plain view, a package that was slightly bigger than the courtroom bible and wrapped in duct tape (the “Package”).
        18.     Based on the Officer[]s['] training and experience, the officers believed the Package to be consistent with how a kilo of cocaine is packaged.

        . . . .

24. . . . [T]he Officers[] detained the Defendant at the Restaurant.

. . . .

        28.    Upon . . . entry into the Restaurant, [an officer] observed the Defendant coming out of the office area of the Restaurant and detained the Defendant.
        29.     [The officer] also saw the Package laying in plain view on the desk in the office and informed Spain of his findings.
        30.     The Defendant was located and detained by [an officer] in close proximity to where the Package was found.

These uncontested findings of fact clearly support the trial court's contested conclusion of law. Therefore, we must now determine whether the detention of Defendant was reasonable as a matter of law. We believe it was.
    “Acts which constitute 'seizures' of a person . . . may very generally be divided into two categories: (1) arrests and (2) investigatory stops.” State v. Milien, 144 N.C. App. 335, 339, 548S.E.2d 768, 771 (2001) (citing Graham v. Connor, 490 U.S. 386, 104 L. Ed. 2d 443 (1989)). “It is well established that a formal arrest always requires a showing of 'probable cause.'” Milien, 144 N.C. App. at 339, 548 S.E.2d at 771 (citation omitted). “Probable cause is 'a suspicion produced by such facts as indicate a fair probability that the person seized has engaged in or is engaged in criminal activity.'” State v. Wilson, 155 N.C. App. 89, 94, 574 S.E.2d 93, 97-98 (2002) (quoting State v. Schiffer, 132 N.C. App. 22, 26, 510 S.E.2d 165, 167, appeal dismissed and disc. review denied, 350 N.C. 847, 539 S.E.2d 5 (1999)), appeal dismissed and disc. review denied, 356 N.C. 693, 579 S.E.2d 98, cert. denied, 540 U.S. 843, 157 L. Ed. 2d 78 (2003).
    “An investigatory stop, on the other hand, at least at its inception, does not require probable cause; rather, it is only necessary that, given the totality of the circumstances, 'the detaining officers [] have a particularized and objective basis for suspecting the particular person stopped of criminal activity.'” Milien, 144 N.C. App. at 339-40, 548 S.E.2d at 771 (quoting United States v. Cortez, 449 U.S. 411, 417-18, 66 L. Ed. 2d 621, 629 (1981)).
    When police officers make an investigatory stop, the “detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time.” Florida v. Royer, 460 U.S. 491, 500, 75L. Ed. 2d 229, 238 (1983). However, “[w]here 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.” Milien, 144 N.C. App. at 340, 548 S.E.2d at 772 (citations omitted).
    Defendant argues that his detention by the police constituted an investigatory stop which lasted for an unreasonable amount of time, and thus violated his rights under the Fourth Amendment to the United States Constitution. In his order denying Defendant's motions to suppress, Judge Stone did not conclude that Defendant's detention by the police constituted a de facto arrest. However, based on the evidence presented, we hold that because there was probable cause to detain Defendant, the trial court did not err. See Milien, 144 N.C. App. at 342, 548 S.E.2d at 773 (holding that “[b]ecause there was probable cause, the seizure of defendant, whether a de facto arrest requiring probable cause or merely an investigatory detention requiring a reasonable suspicion of criminal activity, was not unreasonable”).
    In this case, the evidence established that (1) the police, utilizing the assistance of a reliable C.I., set up a drug buy at the Restaurant, (2) the police observed Defendant walking into the Restaurant and noticed that he appeared to be carrying something concealed under his clothing, (3) shortly after the C.I. and Defendant entered the Restaurant, the C.I. exited the Restaurant and indicated to the officers that a large quantity of cocaine wasinside, (4) fearing that the cocaine would be destroyed or removed from the Restaurant, the police entered and secured the premises while a search warrant was obtained, and (5) once inside the Restaurant, the police observed Defendant near a package that, based on training and experience, they believed was wrapped in a manner consistent with how a kilo of cocaine is typically packaged. Based on this evidence, the police had probable cause to detain Defendant, and thus, his detention was not unreasonable. Milien, supra. Accordingly, this argument is overruled.

    By his final argument, Defendant contends the trial court committed reversible error by finding that he voluntarily waived his rights and gave voluntary statements to the police, as the statements were the fruit of an illegal search and detention.
    Generally, “[a]ny incriminating statements obtained as a result of [an] illegal search must be suppressed.” State v. Graves, 135 N.C. App. 216, 221, 519 S.E.2d 770, 773 (1999). However, because we conclude that the search of the Restaurant and the package of cocaine, as well as the detention of Defendant, did not violate his constitutional rights, the statements that he subsequently made to law enforcement officers while in their custody were not the fruit of any poisonous tree. See State v. Trull, 153 N.C. App. 630, 639, 571 S.E.2d 592, 599 (2002) (holding that where a “search was reasonable and not a violation of defendant's Fourth Amendment rights, statements or actions made by defendant . . . cannot be 'fruit of the poisonous tree'”) (citingGraves, supra), disc. review denied, 356 N.C. 691, 578 S.E.2d 596 (2003). Accordingly, Defendant's argument is overruled.
    For the reasons stated, the order of the trial court denying Defendant's motions to suppress is affirmed.
    AFFIRMED.
    Judges TYSON and STROUD concur.
    Report per Rule 30(e).

Footnote: 1