State v. Henderson

• Court: Court of Appeals of North Carolina
• Decided: February 18, 2014
• Docket: 13-934
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 A p p e l l a t e P r o c e d u r e .

NO. COA 13-934 NORTH CAROLINA COURT OF APPEALS

Filed: 18 February 2014

STATE OF NORTH CAROLINA,

v. Guilford County Nos. 11 CRS 073416, 073417 DONALD SCOTT HENDERSON, Defendant.

On writ of certiorari to review judgment entered 23 May

2012 by Judge Lindsay R. Davis, Jr. in Guilford County Superior

Court. Heard in the Court of Appeals 3 February 2014.

Roy Cooper, Attorney General, by Benjamin J. Kull, Assistant Attorney General, for the State.

Gerding Blass, PLLC, by Danielle Blass, for defendant- appellant.

MARTIN, Chief Judge.

Defendant Donald Scott Henderson was indicted for

conspiracy to deliver cocaine, trafficking by possession of

cocaine, trafficking by transporting cocaine, and maintaining a

vehicle for selling controlled substances. Prior to his trial,

defendant moved to suppress evidence seized by police after

stopping and searching his vehicle on 12 April 2011. After a -2- hearing, the trial court denied the motion to suppress.

Defendant then pleaded guilty to all charges, reserving his

right to appeal the denial of his motion to suppress. Although

defendant expressly reserved the right to appeal, defendant

failed to give timely notice of appeal. This Court granted his

subsequent petition for writ of certiorari.

The evidence presented at the suppression hearing tended to

show that on 12 April 2011 Greensboro Police Department

Detective J.B. Blanks and Corporal J.H. Marsh arrested a suspect

on cocaine-trafficking charges. After the arrest, the suspect

agreed to become a confidential informant. He informed the

officers that, on the same day, he had plans to buy one-eighth

of a kilogram of cocaine from a black male named Donnie who had

green eyes and was approximately 40 years old. He also told the

officers that Donnie drove a silver or gray Dodge Magnum. This

transaction was arranged by a black female named Alikii Allen

who was known to the confidential informant. The officers

listened in on several telephone conversations between the

confidential informant and Ms. Allen as they confirmed and

arranged their meeting.

The officers knew that defendant and Ms. Allen would take

I-40 to the Guilford College Road exit to get to the

confidential informant’s residence. As a result, officers were -3- stationed in the area around the exit to await the arrival of

the silver or gray Dodge Magnum. Detective Blanks and Detective

Goodykoontz saw the Dodge Magnum take the exit ramp off the

interstate, and Corporal Flynt and his partner Officer C.H.

Peeden followed the car while driving an unmarked police truck.

During this time, Ms. Allen or defendant apparently became aware

that they were being followed by the police because Ms. Allen

called the confidential informant and told him that the police

were following them. Defendant drove past the planned meeting

location and turned left onto Sapp Road. Corporal Flynt then

made the decision to stop the defendant’s car. Detectives

Blanks and Goodykoontz searched the car and found, in the center

console, a Crown Royal bag containing one-eighth of a kilogram

of cocaine.

_________________________

Defendant argues that the trial court should have granted

his motion to suppress evidence obtained during the warrantless

search of his vehicle because neither the stop nor the search

were supported by probable cause. We disagree.

When we review a trial court’s ruling on a motion to

suppress we consider “whether the trial court’s findings of fact

are supported by the evidence and whether the findings of fact

support the conclusions of law.” State v. Haislip, 362 N.C. -4- 499, 499, 666 S.E.2d 757, 758 (2008). “[T]he trial court’s

findings of fact are conclusive on appeal if supported by

competent evidence, even if the evidence is conflicting.” State

v. Buchanan, 353 N.C. 332, 336, 543 S.E.2d 823, 826 (2001)

(internal quotation marks omitted), appeal after remand, 355

N.C. 264, 559 S.E.2d 785 (2003). “The trial court’s conclusions

of law, however, are reviewable de novo.” State v. Hyatt, 355

N.C. 642, 653, 566 S.E.2d 61, 69 (2002), cert. denied, 537 U.S.

1133, 154 L. Ed. 2d 823 (2003).

Defendant argues that findings of fact five and eight are

not supported by the evidence from the suppression hearing.

Finding of fact five states:

The “confidential source” provided identifying information including the defendant’s first name, a physical description, his employment, a description of the vehicle he would deliver the cocaine in, a description of a second accomplice, and an account of the informant’s prior drug dealing relationship with the defendant.

Defendant asserts that the evidence does not support the

findings that the confidential informant provided defendant’s

name, a physical description of defendant, or defendant’s

employment.

Testimony at the hearing disclosed that the confidential

informant told officers that he was going to buy drugs from a

man named Donnie. Defendant contends that this evidence does -5- not support the trial court’s finding that the confidential

informant provided defendant’s name because Donnie is not his

“actual name.” While defendant’s legal name is Donald, it

appears that he is also known as Donnie based on the testimony

at the suppression hearing. Therefore, the evidence that the

confidential informant told officers that defendant’s name was

Donnie supports the trial court’s finding that the confidential

informant provided defendant’s first name.

Next, the evidence supports the finding that the

confidential informant provided a physical description of

defendant. Detective Blanks testified that the confidential

informant said he planned to buy drugs from “a black male named

Donnie, with green eyes.” Corporal Marsh also testified that

the confidential informant “described Donnie as a black male,

almost, approximately, 40 years of age.” Detective Blanks’s and

Corporal Marsh’s testimony supports the trial court’s finding

that the confidential informant provided a physical description

of defendant.

Lastly, defendant correctly states that the evidence does

not support the trial court’s finding that the confidential

informant provided information regarding defendant’s employment.

A review of the transcript from the suppression hearing reveals

no mention of defendant’s employment. Thus, there is no -6- evidence to support the trial court’s finding that the

confidential informant provided information regarding

defendant’s employment. This error, however, affords defendant

no relief.

“The test for prejudicial error is whether there is a

reasonable possibility that, had the error not been committed, a

different result would have been reached.” State v. Scott, 331

N.C. 39, 46, 413 S.E.2d 787, 791 (1992). In this case, due to

the accuracy of the other information provided, defendant’s

employment is simply irrelevant to the stop or search.

Therefore, a different result would not have been reached at the

suppression hearing if the trial court had not found that the

confidential informant provided information about defendant’s

Defendant also argues that finding of fact eight is not

supported by the evidence. Finding of fact eight states:

Assisting police officers responded to a specific highway exit and were able to identify the described vehicle approach the meet [sic] location at the agreed time. The vehicle was occupied by two individuals matching descriptions already provided by the “source[.”]

Defendant contends that the evidence does not support this

finding because the vehicle was stopped before it approached the

meeting location, there was no child in the car as had been -7- reported by the confidential informant, and the female in the

car did not match the description given by the confidential

informant.

Corporal Flynt testified that he and his partner followed

the Dodge Magnum through the intersection of Guilford College

and Hornaday. They were expecting the car to pull into one of

the parking lots after the intersection but it never did.

Instead, defendant turned down Sapp Road and Ms. Allen called

and told the confidential informant that the police were

following them. Then defendant turned on McClellan Road, and

Corporal Flynt knew that this road was a dead end. At that

point, Corporal Flynt and his partner decided to stop the

vehicle. This testimony supports the trial court’s finding that

police officers identified the described vehicle as it

approached the meeting place. Corporal Flynt testified that he

watched the vehicle as it approached and drove past the meeting

location, after Ms. Allen had telephoned the confidential

informant to tell him that the police were following them.

Next, there is conflicting evidence about whether the

information given to the police included that a child was in the

car. At one point, Corporal Marsh testified that Ms. Allen had

told the confidential informant that defendant had to drop his

son off before meeting the confidential informant. Corporal -8- Marsh, however, later testified that there was information that

a child was in the car.

As stated earlier, a trial court’s finding may be supported

by competent evidence even if there is conflicting evidence.

See Buchanan, 353 N.C. at 336, 543 S.E.2d at 826. There was

competent evidence to support the trial court’s finding that

there were two people in the vehicle, despite Corporal Marsh’s

conflicting testimony, because Corporal Flynt’s and Detective

Blanks’s testimony suggested that there should have been only

two people in the car.

Finally, defendant argues that Ms. Allen’s race did not

match the description given by the confidential informant.

Defendant contends that because Corporal Marsh testified that

Ms. Allen was described as a “Dominican girl,” the officers

should have been looking for an Hispanic female. Defendant’s

argument, however, confuses race and nationality.1 While there

is no evidence in the suppression hearing transcript of Ms.

Allen’s nationality, there is competent evidence, based on

Corporal Flynt’s and Detective Blanks’s testimony, to support

the trial court’s finding that Ms. Allen matched the description

1 We note that Hispanic is not considered a race in the United States, but defendant argues that it is a race so we treat it as a race. Race, U.S. Census Bureau http://www.census.gov/population/race/ (last updated Nov. 28, 2012). -9- because she was black and the confidential informant described

her as black.

Having determined that the trial court’s findings of fact

are supported by competent evidence, we review de novo the trial

court’s conclusion of law that the warrantless search of

defendant’s car was supported by probable cause.

The United States Constitution and the North Carolina

Constitution protect citizens from unreasonable searches and

seizures. State v. Garner, 331 N.C. 491, 506, 417 S.E.2d 502,

510 (1992). As a general rule, a warrant is required for every

search and seizure; however, there are exceptions. State v.

Trull, 153 N.C. App. 630, 638–39, 571 S.E.2d 592, 598 (2002),

appeal dismissed and disc. review denied, 356 N.C. 691, 578

S.E.2d 596–97 (2003). For example, a motor vehicle that is on a

public road may be searched without a warrant if the search is

based on probable cause. State v. Isleib, 319 N.C. 634, 638,

356 S.E.2d 573, 576 (1987). Probable cause exists when an

officer has knowledge based on reasonably trustworthy

information about facts or circumstances that are sufficient “to

warrant a man of reasonable caution to belie[ve] that an offense

has or is being committed.” State v. Zuniga, 312 N.C. 251, 261,

322 S.E.2d 140, 146 (1984) (internal quotation marks omitted).

When a confidential informant’s tip is the basis for a -10- warrantless search, a court must consider the totality of the

circumstances to determine if probable cause exists. State v.

Earhart, 134 N.C. App. 130, 133, 516 S.E.2d 883, 886, appeal

dismissed, 351 N.C. 112, 540 S.E.2d 372 (1999). Under the

totality-of-the-circumstances test a court weighs all of the

indications of reliability and unreliability surrounding an

informant’s tip. Id. at 133–34, 516 S.E.2d at 886. Some of the

factors a court considers when conducting the totality-of-the-

circumstances test are the informant’s basis of knowledge for

the tip, the reliability of the informant’s tip, and whether

there is independent police corroboration of the facts relevant

to the informant’s tip. Id. at 134, 516 S.E.2d at 886.

In this case, the confidential informant had previously

bought drugs from defendant and had arranged to buy more drugs

from defendant before agreeing to become a confidential

informant. Thus, he had personal knowledge of the information

he shared with the police. In addition, officers were able to

listen to the confidential informant’s telephone conversations

with Ms. Allen as they confirmed and coordinated their meeting.

From these conversations, officers knew the route that defendant

and Ms. Allen would take to reach the confidential informant’s

residence and were able to place a surveillance team in the

area. As a result, officers observed a car with occupants -11- matching the descriptions provided approach the meeting

location. Officers also knew, from monitoring the confidential

informant’s telephone calls, that Ms. Allen and defendant drove

past the meeting location out of concern that the police were

following them. Therefore, based on the confidential

informant’s knowledge and the officers’ ability to confirm the

details of the tip, a man of reasonable caution, having such

information, would have reason to believe that an offense was

being committed.

Affirmed.

Judges ELMORE and HUNTER, JR. concur.

Report per Rule 30(e).