Opinion
No. 06-219.
Filed January 2, 2007.
Appeal by Defendant from judgment entered 13 September 2005 by Judge Judson D. DeRamus, Jr. in Superior Court, Forsyth County. Heard in the Court of Appeals 31 October 2006.
Attorney General Roy Cooper, by Special Deputy Attorney General, Fred C. Lamar, for the State. Grace, Holton, Tisdale Clifton, P.A., by Michelle B. Clifton and Christopher R. Clifton, for defendant-appellant.
Forsyth County No. 04CRS61159, 61160.
Based on his pleas of guilty, Defendant Florencio Alonso Velazquez was convicted of Trafficking in Cocaine by Transportation, Trafficking in Cocaine by Possession, Possession with Intent to Sell or Distribute Cocaine, Carrying a Concealed Gun, and two counts of Maintaining a Vehicle, Dwelling, or Place for keeping or selling a controlled substance. Defendant properly preserved for our review, the trial court's denial of his motion to suppress evidence.
On appeal, Defendant argues that the trial court erred by (I) denying him access to the confidential information and (II) finding that there was probable cause to conduct a search of his vehicle. We find no merit to Defendant's appeal and discuss herein the facts pertinent to our decision.
Defendant also argues that the trial court erred by denying his constitutional right to confront the confidential informer. We summarily reject this argument as no testimonial statements of guilt by the informer were offered at trial. See Crawford v. Washington, 541 U.S. 36, 158 L. Ed 2d 177 (2004).
I.
Defendant first contends the trial court erred "when it denied the defendant an adequate opportunity to reliably litigate his motion to suppress by denying him access to the confidential informant." We disagree.
It is well established that where "the disclosure of an informer's identity, or of the contents of his communications, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way." Roviaro v. United States, 353 U.S. 53, 60, 77 S. Ct. 623, 628 (1957). Interpreting Roviaro, our Supreme Court later held that "disclosure is required where the informer directly participates in the alleged crime so as to make him a material witness on the issue of guilt or innocence." State v. Ketchie, 286 N.C. 387, 390, 211 S.E.2d 207, 209 (1975).
Ultimately, in determining whether the identity of a confidential informer who is a material witness must be disclosed, the trial court must balance the public's interest in not revealing the identity with the defendant's right to present his case. State v. Newkirk, 73 N.C. App. 83, 325 S.E. 2d 518 (1985). In Newkirk, this Court stated that factors weighing in favor of disclosure included whether "(1) the informer was an actual participant in the crime compared to a mere informant, and (2) the state's evidence and defendant's evidence contradict on material facts that the informant could clarify." Id. at 86, 325 S.E.2d at 520 (Internal citations omitted). In contrast, the Court noted that factors against disclosure included "whether the defendant admits culpability, offers no defense on the merits, or the evidence independent of the informer's testimony establishes the accused's guilt." Id. at 86, 325 S.E.2d at 520-21.
In this case, Winston-Salem Detective Jose Emanuel Gomez testified that a confidential informer, whose information had previously led him along with Detective Chris Spain to more than fifteen to twenty individual arrests, came to him with information about an individual who was distributing large quantities of powder cocaine. Thereafter, the informer obtained the phone number of the individual (later identified as Defendant), and in a conversation overheard by Detective Gomez, arranged for Defendant to deliver one-half kilo of cocaine the next day, between 1:30 and 1:45 p.m., at a pre-arranged location. The informer stated to Detective Gomez that Defendant would be driving a grey Dodge Avenger and gave the license plate number. Just before the appointment, Detectives Gomez and Spain met with the informer, searched his vehicle and person, and found neither drugs nor currency. The detectives then observed as the confidential informer waited at the pre-arranged location. At approximately 1:40 p.m., a grey Dodge Avenger entered and circled the pre-arranged location. The informer exited his vehicle, entered the passenger side of Defendant's vehicle and remained in the vehicle for a few minutes. According to Detective Gomez, the informer was to observe the contraband, then exit the vehicle — under the guise of retrieving money — and signal police. Upon exiting, the informer signaled to officers who responded by approaching the vehicle. Detective Spain testified that upon his approach, he observed through the driver's side open window what appeared to be a one-half kilo of cocaine on the driver's seat.
Although the informer in this case was a participant in the criminal acts, nothing in the record shows that the testimony of the informer, or disclosure of his identity, would provide any material contradictions between the State's evidence and the evidence of Defendant. Detective Gomez testified he was present during the investigation which included listening to the telephone contact with Defendant as the buy was set up; meeting with the informer at the pre-arranged location; conducting a search of the informer and his vehicle; and observing Defendant's arrival to the pre-arranged location, and the informer entering and exiting the vehicle. Additionally, Detective Spain testified that upon approaching the vehicle, he observed contraband in plain view on the driver's seat.
Nothing in the record before this Court indicates that the testimony of the informer would materially differ from the testimony of the Detectives. Moreover, Defendant admitted to the offenses and consented to the search of his vehicle and residence after being advised of his rights. Accordingly, we uphold the trial court's denial of Defendant's motion to reveal the identity of the informer.
II.
Defendant next contends that the trial court erred by finding that there was probable cause to conduct the search of Defendant's vehicle.
At trial, Detective Gomez testified that based on his experience, his informer was one of the most reliable informers to date — his information led to more than fifteen to twenty arrests. Detective Gomez listened while the informer setup a drug buy and observed while the informer met Defendant under the pretense of buying drugs. This evidence was sufficient to show that the officers had established the reliability of the informant. But it is dispositive to point out that the record indicates that when Detective Spain approached the vehicle, he saw in plain view through the driver's side window, contraband appearing to be one-half kilo of cocaine in the driver's seat. Under the plain view doctrine, the officers then had probable cause to conduct a search of the vehicle, which revealed a .9mm handgun. E.g., State v. Sugg, 61 N.C. App. 106, 300 S.E.2d 248 (1983). Upon arrest, Detective Gomez "mirandized" Defendant, after which Defendant confessed to possession of cocaine, his intent to sell the one-half kilo for $11,000, and possession of more drugs at his house — which he gave police permission to search. In light of this evidence, we hold the trial court had sufficient evidence to substantiate the detectives' probable cause needed to search Defendant's vehicle, and thus deny Defendant's motion to suppress evidence found as a result of the search.
Affirmed.
Judges HUDSON and STEPHENS concur.
Report per rule 30(e).
The judges participated and submitted this opinion for filing prior to 1 January 2007.