State v. Degraphenreed

CourtCourt of Appeals of North Carolina
DecidedSeptember 4, 2018
Docket17-1377
StatusPublished

This text of State v. Degraphenreed (State v. Degraphenreed) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Degraphenreed, (N.C. Ct. App. 2018).

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA17-1377

Filed: 4 September 2018

Forsyth County, No. 15 CRS 52293-96

STATE OF NORTH CAROLINA

v.

DEMARKO DONIVAN DEGRAPHENREED

Appeal by defendant from judgment entered 21 March 2017 by Judge Susan

E. Bray in Forsyth County Superior Court. Heard in the Court of Appeals 9 August

2018.

Attorney General Joshua H. Stein, by Special Deputy Attorney General John A. Payne, for the State.

Allegra Collins for defendant-appellant.

TYSON, Judge.

Demarko Donivan Degraphenreed (“Defendant”) appeals the trial court’s

denial of his motion to suppress evidence seized from a search of a vehicle. We affirm.

I. Background

Between January and March 2015, Winston-Salem police officers conducted a

drug investigation of Defendant, including surveillance of Defendant’s residence

located at 301 South Spring Street Unit-A, which is situated at the end of a dead-end

street. During January 2015, a confidential police informant arranged over the STATE V. DEGRAPHENREED

Opinion of the Court

telephone to meet with Defendant for the purpose of purchasing heroin. The

confidential informant and Defendant purportedly agreed to meet at Defendant’s

residence. Law enforcement officers provided the confidential informant with an

unspecified amount of money to conduct a controlled purchase and observed the

confidential informant enter Defendant’s residence. Afterwards, the confidential

informant surrendered a quantity of heroin to the law enforcement officers, which the

informant indicated he had purchased from Defendant.

A couple of months later, in March 2015, the same confidential informant

conducted another controlled purchase of heroin at Defendant’s residence on behalf

of law enforcement. The informant obtained a quantity of heroin, which he advised

the law enforcement officers he had purchased from Defendant. During the course of

the three month surveillance of Defendant’s residence, law enforcement officers

observed the confidential informant purchase narcotics from Defendant at the trunk

of a vehicle parked on the other side of the road from Defendant’s residence. The

vehicle was a black 1985 Mercury Grand Marquis (the “Grand Marquis”). Law

enforcement officers had observed the vehicle being regularly parked across from

Defendant’s residence during the course of the three-month investigation.

Based upon the information obtained from the confidential informant,

Winston-Salem Police Investigator Ashley Kimel applied for and was issued a search

warrant for Defendant’s residence at 301 South Spring Street Unit-A on 13 March

-2- STATE V. DEGRAPHENREED

2015. Neither Officer Kimel’s search warrant application nor the search warrant

referenced the Grand Marquis vehicle.

Later on 13 March 2015, Officer Kimel, Officer Patrick McKaughan, and other

law enforcement officers executed the search warrant for Defendant’s residence.

Upon arriving at Defendant’s residence, Officer Kimel observed the Grand Marquis

parked “adjacent from the residence, across the street.” Officer Kimel observed that

two of the tires of the Grand Marquis were partially on the road way and the vehicle

was parked parallel to Defendant’s residence. There was no other residence on the

side of the street the Grand Marquis was parked upon, but a parking lot and a

commercial building is located there. Surrounding Defendant’s residence was a

seven-to-eight-foot-high chain link fence around the sides and back of Defendant’s

yard and a short wooden fence in the front of the residence.

When the officers executed the search warrant, Officer McKaughan entered

Defendant’s residence while Officer Kimel crossed the street and approached the

Grand Marquis. Officer Kimel requested Officer McKaughan bring his police K-9,

named Sassy, outside to sniff the Grand Marquis. Officer McKaughan had Sassy

sniff the outside of the Grand Marquis, and the K-9 gave a positive alert for narcotics.

Officer Kimel then went inside Defendant’s residence to obtain the keys to the Grand

Marquis. Another officer inside the residence, Detective Luper, informed Officer

Kimel that Defendant had requested a key ring be placed inside his pocket. Officer

-3- STATE V. DEGRAPHENREED

Kimel retrieved the key ring from Defendant’s pocket and found one of the keys

located on the key ring unlocked the Grand Marquis.

Upon searching the Grand Marquis, the officers discovered inside the trunk a

backpack containing Defendant’s wallet, which contained Defendant’s social security

card and bank cards. Inside the backpack, officers also found a Smith & Wesson .38

caliber revolver, a Raven Arms .25 caliber handgun, a Taurus Millennium PT111 Pro

9mm handgun, two orange prescription pill bottles, one of which contained a plastic

bag containing a substance that tested positive for heroin.

The backpack also contained a box of Browning .25 caliber auto ammunition,

a digital scale, and a plastic bag containing MDMA and 30 tablets of oxycodone. After

searching the VIN number of the Grand Marquis, Officer Kimel discovered the

vehicle was registered to Defendant’s girlfriend. The officers then arrested

Defendant.

On 6 July 2015, Defendant was indicted for trafficking opium or heroin by

possession, possession with intent to sell and deliver heroin, possession with intent

to sell and deliver oxycodone, possession of a firearm by a felon, possession of

marijuana, and possession of drug paraphernalia. On 27 January 2016, Defendant

filed a motion to suppress the evidence seized from the search of the Grand Marquis.

In his motion to suppress, Defendant asserted the evidence obtained from the Grand

Marquis should be suppressed because no probable cause existed to search the vehicle

-4- STATE V. DEGRAPHENREED

and the search warrant for Defendant’s residence did not refer to a vehicle. Following

a hearing on Defendant’s motion to suppress, the trial court orally denied Defendant’s

motion on 21 March 2016.

The trial court filed a written order (the “Order”) denying Defendant’s motion

to suppress on 23 March 2017. Based upon its findings of fact, the trial court

concluded “there was probable cause to search the trunk of the 1985 Grand Marquis.”

On 21 March 2017, Defendant pled guilty to all charges, while expressly

reserving the right to appeal the denial of his motion to suppress. Defendant was

sentenced for trafficking opium or heroin by possession from 70 to 93 months

imprisonment and ordered to pay a $50,000 fine. On the charges for possession with

intent to sell and deliver heroin, possession with intent to sell and deliver oxycodone,

possession of a firearm by a felon, possession of marijuana, and possession of drug

paraphernalia, Defendant was sentenced to 10 to 21 months imprisonment, to run

concurrently with his sentence for trafficking opium or heroin by possession.

Defendant filed timely notice of appeal.

II. Jurisdiction

Jurisdiction lies with this Court pursuant to N.C Gen. Stat. §§ 15A-1444(e)

(2017) and 15A-979(b) (2017).

III. Issues

-5- STATE V. DEGRAPHENREED

Defendant asserts the trial court erred by denying his motion to suppress. He

argues the police officers searched the Grand Marquis vehicle without a search

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