State v. Guerrero

• Court: Court of Appeals of North Carolina
• Decided: February 6, 2024
• Docket: 23-377
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA23-377

Filed 6 February 2024

Union County, No. 20CRS54662

STATE OF NORTH CAROLINA

v.

PASTOR EDENILSON GUERRERO, Defendant.

Appeal by defendant from judgments entered 31 August 2022 by Judge Nathan

Hunt Gwyn III in Union County Superior Court. Heard in the Court of Appeals 9

January 2024.

Attorney General Joshua H. Stein, by Assistant Attorney General T. Hill Davis, III, for the State.

Law Office of Mark L. Hayes, by Mark L. Hayes, for defendant-appellant.

FLOOD, Judge.

Pastor Guerrero (“Defendant”) appeals his convictions for one count of

trafficking in heroin by possession and one count of trafficking in heroin by

transportation, arguing the trial court erred (A) in denying his motion to suppress

because the information given by a confidential informant and the canine-alert were

insufficient to establish probable cause, and (B) because possession is a lesser

included offense of trafficking. After careful review, we conclude the canine-alert was

sufficient in itself to establish probable cause, and the trial court did not err in

sentencing Defendant for trafficking by transportation and possession. STATE V. GUERRERO

Opinion of the Court

I. Factual and Procedural Background

On 10 January 2022, Defendant was indicted for one count of trafficking in

heroin by possession, one count of trafficking in heroin by transportation, and one

count of maintaining a vehicle for controlled substances. Based on a traffic stop that

resulted in officers discovering heroin in Defendant’s vehicle, the indictment alleged

Defendant knowingly possessed twenty-eight grams or more of heroin.

On 10 March 2022, Defendant filed a Motion to Suppress the evidence seized

during the search of his vehicle, arguing, in relevant part, that information given by

a confidential informant (“C.I.”) and a positive drug alert by a canine were insufficient

to establish probable cause.

On 13 through 15 July 2022, a suppression hearing was held on Defendant’s

motion. At the hearing, Ben Baker (“Baker”), a lieutenant with the Union County

Sheriff’s Office, testified that on 11 November 2020, he received a call from a C.I.

regarding heroin trafficking in Union County, North Carolina. The C.I. described to

Baker a man in a Honda vehicle who had recently been seen at a known heroin

trafficker’s residence in Union County. According to Baker, the C.I. specifically

described a male wearing a reflective vest whom he had recently seen at a heroin

trafficker’s home, driving a “light – like a goldish maybe Honda Accord,” leaving a

Taco Bell in Indian Trail on Highway 74 East. The C.I. also provided Baker with the

license plate number for the vehicle. When questioned about his history with this

particular C.I., Baker testified that he had received reliable information from this

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C.I. over fifty times in the last seven years.

After receiving this report from the C.I., Baker disseminated the information

to his team of nine narcotics investigators in Union County. One officer who received

the report was Union County Sherriff’s Officer Jonathan Presson (“Presson”).

Presson testified that he received information to “be on the look out for a silver in

color Honda Accord occupied by a single Mexican driver wearing a reflective vest

traveling eastbound on Highway 74 leaving the Taco Bell.” The report further

included information that the driver had “recently” been at a known heroin

trafficker’s house, but there was no timeline given as to when the driver had been at

the trafficker’s house. Based on the information Presson received, he believed there

was a possibility the driver had illegal drugs in the car.

After receiving this information, Presson responded to the described area of

Highway 74 and located a vehicle that matched the description relayed by Baker.

Presson followed behind the vehicle and initiated a traffic stop after he observed the

vehicle run a red light. When Presson approached the passenger side window of the

vehicle, he observed a “single occupant, male Mexican driver” who was “wearing a

neon orange shirt with reflective tape on the left and right shoulders.”

While Presson was conducting the traffic stop, Detective Robillard

(“Robillard”), a canine officer, reported to the scene with her canine, “Yago,” and

conducted a canine narcotics search around the vehicle. Yago was trained to detect

cocaine, methamphetamine, heroin, marijuana, and MDMA, but could not

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differentiate between which substances he detected when he “alerted.” Yago “alerted”

to the vehicle’s passenger side door by sitting, indicating that there was an odor of

narcotics coming from the inside of the vehicle. The entirety of the canine search

lasted less than one minute.

After Yago alerted, Presson and Robillard conducted a search of the vehicle

and found a plastic bag that contained a brownish residue that Presson believed to

be heroin. No other narcotics were found in the vehicle.

On 29 August 2022, the trial court denied Defendant’s Motion to Suppress. In

its order, the trial court made the following, relevant, conclusions of law:

14. That while Yago was trained to detect and alert to the presence of multiple controlled substances, including marijuana, there is no evidence before this [c]ourt to suggest that marijuana was located in . . . Defendant’s vehicle. Accordingly, a canine’s inability to differentiate between legal hemp and illegal marijuana does not appear to be relevant to this inquiry;

15. The evidence before this [c]ourt suggests the only controlled substance located in . . . Defendant’s vehicle was believed to be heroin, one of the substances to which Yago alerts;

16. That the positive alert from Yago provided probable cause to search . . . Defendant’s vehicle;

17. That Det. Presson had probable cause to believe . . . Defendant had drugs in his vehicle when he began searching Defendant’s car based on the totality of the circumstances, including but not limited to:

a. Yago’s positive alert for the presence of narcotics on the suspect vehicle;

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b. The corroboration of shared information provided by a [C.I.] believed to be a reliable source of information;

c. . . . Defendant’s evasive actions in pulling his car off the road to an unsafe location, as well as Defendant’s unusual nervousness under the circumstances.

A jury trial was held from 30 through 31 August 2022. At the conclusion of the

evidence, the jury found Defendant guilty of all three counts in the indictment.

Defendant was sentenced to two consecutive prison terms of 225 to 282 months for

trafficking in heroin by possession and trafficking in heroin by transportation. The

trial court entered an arrested judgment for the maintaining a vehicle charge.

Defendant gave oral notice of appeal.

II. Jurisdiction

This Court has jurisdiction to review this appeal from a final judgment of a

superior court pursuant to N.C. Gen. Stat. § 7A-27(b) (2021).

III. Analysis

Defendant presents two issues on appeal: whether the trial court erred in (A)

denying Defendant’s Motion to Suppress when it based probable cause on an

unreliable canine sniff and a C.I. whose reliability could not be adequately challenged

after the trial court denied Defendant’s Motion to Compel the C.I.’s identity, and (B)

sentencing Defendant for possession of heroin when possession is a lesser included

offense of trafficking.

A. Motion to Suppress

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Defendant argues the trial court erred in denying his Motion to Suppress

because it based probable cause on Yago’s unreliable alert and a C.I. whose reliability

could not be adequately challenged. We disagree.

Our review of a trial court’s denial of a motion to suppress is “strictly limited

to determining whether the trial judge’s underlying findings of fact are supported by

competent evidence, in which event they are conclusively binding on appeal, and

whether those factual findings in turn support the judge’s ultimate conclusions of

law.” State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). Unchallenged

findings of fact “are presumed to be supported by competent evidence and are binding

on appeal.” State v. Baker, 312 N.C. 34, 37, 320 S.E.2d 670, 673 (1984) (citation

omitted). “The trial court’s conclusions of law . . . are fully reviewable on appeal.”

State v. Hughes, 353 N.C. 200, 208, 539 S.E.2d 625, 631 (2000). Conclusions of law

are reviewed de novo. State v. Allen, 197 N.C. App. 208, 210, 676 S.E.2d 519, 521

(2009).

“[I]t is a well-established rule that a search warrant is not required before a

lawful search based on probable cause of a motor vehicle in a public roadway . . . may

take place.” State v. Highsmith, 285 N.C. App. 198, 202, 877 S.E.2d 389, 392 (2022)

(citation omitted). Whether probable cause exists “is a ‘commonsense, practical

question’ that should be answered using a ‘totality-of-the-circumstances approach.’”

State v. Degraphenreed, 261 N.C. App. 235, 241, 820 S.E.2d 331, 335 (2018) (citation

omitted). “Probable cause does not mean actual and positive cause nor [does it]

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import absolute certainty.” State v. Johnson, 288 N.C. App. 441, 456, 886 S.E.2d 620,

631 (2023) (citation omitted).

1. Reliability of Yago’s Alert

First, Defendant argues Yago’s alert did not establish probable cause because,

since the legalization of hemp in North Carolina, a positive canine alert does not

necessarily indicate the presence of illegal drugs; therefore, the alert here did not

provide sufficiently reliable information that drugs were present. This argument is

unsupported by the facts of this case and the jurisprudence of this State.

“[A] positive alert for drugs by a specially trained drug dog gives probable cause

to search the area or item where the dog alerts.” Degraphenreed, 261 N.C. App. at

246, 820 S.E.2d at 338 (alteration in original) (citation omitted) (concluding a canine’s

positive alert for illegal drugs was “sufficient to support a reasonable belief that the

automobile carrie[d] contraband materials”). The legalization of hemp does not alter

this well-established general principle. See State v. Walters, 286 N.C. App. 746, 758,

881 S.E.2d 730, 739 (2022) (“The legalization of hemp has no bearing on the continued

illegality of methamphetamine, and the Fourth Amendment does not protect against

the discovery of contraband, detectable by [a] drug-sniffing dog . . . .”). Moreover, “we

have repeatedly applied precedent established before the legalization of hemp, even

while acknowledging the difficulties in distinguishing hemp and marijuana in situ.”

Id. at 758, 881 S.E.2d at 739.

In this case, the State and Defendant place heavy emphasis on why our

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analyses in State v. Teague, 286 N.C. App. 160, 179, 879 S.E.2d 881, 896 (2022), disc.

rev. denied, 891 S.E.2d 281 (N.C. 2023) (reasoning the legalization of hemp does not

alter the principle that the smell of marijuana is sufficient to show probable cause),

and Johnson, 288 N.C. App. at 457–58, 886 S.E.2d at 632–33 (declining to reach the

issue of whether the smell of marijuana alone is sufficient to give rise to probable

cause for the issuance of a search warrant while acknowledging the Industrial Hemp

Act does not modify the State’s burden of proof), do or do not apply to the facts of this

case. Neither party cited to Walters, which we conclude is dispositive. See Walters,

286 N.C. App. at 758, 881 S.E.2d at 739 (concluding the defendant’s argument that

the legalization of hemp altered a canine’s reliability was “simply not presented by

the facts of [the] case, where . . . methamphetamine and hemp were in the same bag,

and the canine was trained to detect both substances”).

Here, when Presson conducted the traffic stop of Defendant, he believed, based

on the C.I.’s information, that Defendant may have had heroin in his vehicle. Neither

Presson nor any of the responding officers smelled marijuana on Defendant nor had

any suspicions he may have had marijuana. After Yago alerted to the presence of

narcotics, Presson and Robillard discovered heroin in Defendant’s vehicle, not

marijuana or hemp. Not only has our case law made it clear the legalization of hemp

has no bearing on our Fourth Amendment jurisprudence, but the argument also does

not comport with the facts of this case. See Teague, 286 N.C. App. at 179, 879 S.E.2d

at 896 (“Assuming, arguendo, hemp and marijuana smell ‘identical,’ then the

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presence of hemp does not make all police probable cause searches based on the odor

unreasonable.”) (citation omitted); see also Johnson, 288 N.C. App. at 457–58, 886

S.E.2d at 632 (“The smell of marijuana ‘alone . . . supports a determination of probable

cause, even if some use of industrial hemp products is legal under North Carolina

law. This is because only the probability, and not a prima facie showing, of criminal

activity is the standard of probable cause.’”) (citation omitted).

The principle that the legalization of hemp has no bearing on our Fourth

Amendment jurisprudence is even more clear in this case than it was in Walters,

where officers discovered both illegal methamphetamine and legal hemp. In this

case, there was no marijuana or hemp discovered on Defendant’s person, nor did

officers have any suspicions that it would be.

Accordingly, Yago’s alert was reliable and gave law enforcement officers the

required probable cause to search Defendant’s vehicle for illegal contraband. See

Degraphenreed, 261 N.C. App. at 246, 820 S.E.2d at 338.

2. Certification of Yago

Second, Defendant argues Yago’s alert was unreliable because there was

insufficient evidence of Yago’s training, experience, and certifications. This

argument, however, was not preserved for our review. In his reply brief, Defendant

asserts that this issue was preserved because he “vigorously” pursued this line of

questioning at the hearing when he asked Robillard extensive questions about Yago’s

training and certification. Despite Defendant’s argument, questioning witnesses is

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insufficient to comply with our preservation rules.

“In order to preserve an issue for appellate review, a party must have

presented to the trial court a timely request, objection, or motion, stating the specific

grounds for the ruling the party desired the court to make . . . .” N.C.R. App. 10(a)(1).

“This Court has long held that where a theory argued on appeal was not raised before

the trial court, ‘the law does not permit parties to swap horses between courts in order

to get a better mount . . . .’” State v. Sharpe, 344 N.C. 190, 194, 473 S.E.2d 3, 5 (1996)

(citation omitted).

Defendant did not argue to the trial court that Yago’s alert was unreliable

because of her certification and training. He did not raise this argument in his

written Motion to Suppress nor did he raise it in front of the trial court at the hearing.

While the suppression order details Yago’s training, the order specifically notes that

Defendant did not challenge “any aspect of Yago’s training[.]” Moreover, Defendant

challenges the use of the term “bona fide” organization as insufficient to establish

Yago’s credentials; however, Defendant did not object to any of the State’s questioning

or Robillard’s testimony that Yago was certified by a “bonda fide” organization.

Accordingly, this issue was not preserved, and we decline to reach it on the

merits. See Sharpe, 344 N.C. at 194, 473 S.E.2d at 5.

3. Identity of the Confidential Informant

Third, Defendant argues it would be a violation of his due process rights if this

Court considered the C.I.’s information in its probable cause analysis because

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Defendant did not have the information he needed to attack the credibility of the C.I.

evidence. Further, the same standard applied to motions to compel a C.I.’s identity

cannot be applied to whether the C.I.’s identity should be released for purposes of the

motion to suppress. Given that Yago’s alert alone was sufficient to establish probable

cause, however, we do not need to reach this argument.

B. Possession as a Lesser Included Offense

Finally, Defendant argues the trial court erred in sentencing him for

possession of heroin and trafficking in heroin when possession is a lesser included

offense of trafficking. This argument is likewise unsupported by the facts of this case

and our Supreme Court’s jurisprudence.

Defendant was sentenced for trafficking in heroin by transportation and

possession, not trafficking and possession. Moreover, “possessing, manufacturing,

and transporting heroin are separate and distinct offenses[,]” and a defendant may

be “convicted and punished separately” for trafficking in heroin by possession and

trafficking in heroin by transporting “even when the contraband material in each

separate offense is the same . . . .” State v. Perry, 316 N.C. 87, 103–04, 340 S.E.2d

450, 461 (1986). While Defendant seemingly challenges the validity of this holding,

it is not our prerogative to ignore Supreme Court precedent. We further decline

Defendant’s “challenge” to devise a hypothetical where a defendant transports drugs

without possessing drugs.

The trial court, therefore, did not err in sentencing Defendant for each count.

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IV. Conclusion

We conclude the trial court did not err in denying Defendant’s Motion to

Suppress because Yago’s alert established the prerequisite probable cause to conduct

the search. We further conclude the trial court did not err in sentencing Defendant

for trafficking in heroin by transportation and trafficking in heroin by possession.

NO ERROR.

Judges WOOD and STADING concur.

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