Opinion
No. COA02-822
Filed 18 February 2003 This case not for publication.
On writ of certiorari to review the judgment entered 9 November 2000 by Judge W. Robert Bell in Mecklenburg County Superior Court. Heard in the Court of Appeals 20 January 2003.
Attorney General Roy Cooper, by Assistant Attorney General Marvin R. Waters, for the State. Margaret Creasy Ciardella for defendant-appellant.
Mecklenburg County Nos. 99 CRS 42251-52.
I. Background
On 25 October 1999, Officer W. D. Carey of the Charlotte-Mecklenburg Police Department received information from a confidential informant. The informant was known to Officer Carey for two or three months, and had previously provided information to Officer Carey that led to two arrests involving controlled substances. The informant was working with the police so that someone else would get credit for the informant's efforts. The informant told Officer Carey that a subject known as Terry, also known as "Fuzz," was: (1) going to be at a parking lot of an Eckerd's store at 3740 East Independence Boulevard; (2) would arrive between 4 and 4:15 in the afternoon; and (3) would be driving a silver Buick. Officer Carey testified that the informant also informed him of the subject's race, height, and weight. The subject was to complete a drug deal previously arranged.
After receiving the information, Officer Carey was discussing the case with Officer R. T. Melton when a third officer overheard their conversation. The third officer identified the subject as Terry Bernard McManus ("defendant"). The officers retrieved a photograph of the defendant.
Officer Carey set up a surveillance in the parking lot for the Eckerd's store. The confidential informant was seated upon the back seat of Officer Carey's vehicle. Shortly after 4 p.m., defendant pulled into the parking lot in a silver Buick. As he drove by Officer Carey's car, the informant stuck his head up and identified the defendant. The informant then hid in the back of the car because he was concerned for his safety if defendant recognized him.
After arriving at the parking lot, defendant remained in his car for five to ten minutes. Eventually, defendant exited the vehicle and headed towards the Eckerd's store. Officers then approached defendant and asked him for consent to search. Defendant denied consent. Officer Melton then approached the defendant. Officer Melton asked defendant where he had come from, and defendant said he had just gotten off the city bus and was going inside the store to buy a Coke. Officer Melton noticed that defendant appeared nervous and fidgety, and decided to pat the defendant down for weapons. As Officer Melton was patting the defendant down, he felt a hard substance in his right front pocket. Officer Melton believed the object to be cocaine. Officer Melton searched defendant's pocket and retrieved the item, which was in fact cocaine. Defendant was arrested.
On 15 November 1999, defendant was indicted for two counts of trafficking in cocaine. The case was tried at the 8 November 2000 Criminal Session of the Mecklenburg County Superior Court.
Prior to trial, defendant moved to suppress the evidence, arguing that it was the product of an unlawful search and seizure. The trial court denied the motion, finding that the police had reasonable suspicion to stop the defendant based on the informant's tip which was independently verified by the police. The trial court further found that once the police had reasonable suspicion to stop defendant, they had a right to frisk the defendant for a weapon. During the course of the frisk, the police felt the drugs and thus had probable cause to arrest the defendant.
On 9 November 2000, defendant pled guilty to two counts of trafficking in cocaine and was sentenced to one term of thirty-five to forty-two months imprisonment. On 3 August 2001, this Court allowed defendant's petition for writ of certiorari.
II. Issue
Defendant's sole argument on appeal is that the trial court erred by denying his motion to suppress because the reliability of the confidential informant was not established.
III. Reliability of Informant
Defendant argues that Officer Carey's experience with the informant was limited to information which led to two arrests. Defendant further notes that there is no evidence in the record that the arrests were valid or led to convictions. Defendant further argues that (1) the record does not show that the officers did any independent investigation to corroborate the informant's information, and (2) the information offered by the informant did not indicate the source of his information, or that he even knew the defendant. Defendant contends these factors show that the informant lacked any indicia of reliability, and that the police lacked any reasonable suspicion to suspect defendant of any wrongdoing.
After careful review of the record, briefs and contentions of the parties, we affirm. "The scope of review on appeal of the denial of a defendant's motion to suppress is strictly limited to determining whether the trial court's findings of fact are supported by competent evidence, in which case they are binding on appeal, and in turn, whether those findings support the trial court's conclusions of law." State v. Corpening, 109 N.C. App. 586, 587-88, 427 S.E.2d 892, 893 (1993). This Court has further stated that:
In utilizing an informant's tip, probable cause is determined using a "totality-of-the-circumstances" analysis which "permits a balanced assessment of the relative weights of all the various indicia of reliability (and unreliability) attending an informant's tip." . . . Further, in making the probable cause determination, independent police corroboration of the facts given by the informant are important in evaluating there liability of the informant's tip.
State v. Earhart, 134 N.C. App. 130, 133-34, 516 S.E.2d 883, 886, appeal dismissed, 351 N.C. 112, 540 S.E.2d 372 (1999) (quoting Illinois v. Gates, 462 U.S. 213, 234, 76 L.Ed.2d 527, 545, rehearing denied, 463 U.S. 1237, 77 L.Ed.2d 1453 (1983)).
Here, the trial court found that the informant:
predicted that a silver Buick automobile would arrive at a fifteen minute window, more or less, at a certain time and at a certain location in the City of Charlotte, and the passenger would be a light skinned heavy set black male, and he would have a large amount of contraband on him.
The trial court further found that:
The officers in this case did not rely merely upon the informant's veracity even though the informant had in fact set up at least two other deals or two other situations where arrest had been made, so they had some indication of reliability from that, nonetheless the officers independently verified the information by being on the scene — the officers independently were able to verify that in fact it was a silver Buick driven by a person matching the description at the location indicated and at the time indicated.
Based upon these findings of fact, the trial court concluded that police had reasonable suspicion to stop the defendant and pat him down for weapons. Once the officers felt the drugs, the court determined that they had probable cause to seize the drugs and arrest the defendant.
IV. Conclusion
We conclude that there is substantial evidence in the record to support the trial court's findings of fact, and that the trial court's findings of fact supports its conclusions of law. Defendant argues that the State did not establish that the informant was reliable because Officer Carey had used him only twice prior to these events. This Court has previously found probable cause existed where police received a tip from an informant they had used on two prior occasions that had led to arrests, and the tip was independently corroborated by the police. See State v. Smith, 118 N.C. App. 106, 454 S.E.2d 680, reversed on other grounds, 342 N.C. 407, 464 S.E.2d 45-46 (1995), cert. denied, 517 U.S. 1189, 134 L.Ed.2d 779 (1996). In Smith, and here, the informant provided "detailed predictions of defendant's future actions ordinarily not easily predicted." Id. at 113, 454 S.E.2d at 684; see also State v. Chadwick, 149 N.C. App. 200, 204, 560 S.E.2d 207, 210, disc. review denied, 355 N.C. 752, 565 S.E.2d 672 (2002) (informant deemed reliable where informant provided detailed information including physical description of the driver, the car and location of the drug transaction, all of which were verified by police surveillance). We affirm the trial court's denial of defendant's motion to suppress.
Affirmed.
Judges TIMMONS-GOODSON and BRYANT concur.
Report per Rule 30(e).