State v. Perry, COA14–1328.

Decision Date15 September 2015
Docket NumberNo. COA14–1328.,COA14–1328.
Citation243 N.C.App. 156,776 S.E.2d 528
CourtNorth Carolina Court of Appeals
Parties STATE of North Carolina v. Paul Gregory PERRY.

Attorney General, Roy Cooper, by Assistant Attorney General, Elizabeth Jill Weese and Assistant Attorney General, Derrick C. Mertz, for the State.

W. Michael Spivey, Rocky Mount, for defendant-appellant.

Hatch, Little & Bunn, LLP, by Laura E. Beaver, Raleigh, Graebe Hanna & Sullivan, PLLC, Raleigh, by Mark R. Sigmon, and ACLU of North Carolina Legal Foundation, by Christopher A. Brook, for amici curiae American Civil Liberties Union of North Carolina Legal Foundation and American Civil Liberties Union.

TYSON, Judge.

Paul Gregory Perry ("Defendant") appeals from judgment entered after a jury convicted him of: (1) trafficking heroin by possession; (2) trafficking heroin by sale; (3) maintaining a dwelling place for the sale of a controlled substance; (4) trafficking heroin by transportation; and (5) conspiracy to traffic heroin by possession, transportation, and sale. We find no error in Defendant's conviction or judgments entered thereon.

I. Factual Background
A. State's Evidence

The State's evidence tended to show that on 10 December 2012, Raleigh Police Department detective M.K. Mitchell ("Detective Mitchell") arrested Kenneth Holderfield ("Holderfield") for possession of marijuana. Holderfield provided Detective Mitchell with the telephone number of his drug supplier, whom Holderfield referred to as "Sincere." Holderfield also called the number and placed the call on the speaker while in the presence of Detective Mitchell. Detective Mitchell testified he heard Sincere state "he was in Charlotte and would be coming to Raleigh tomorrow." Detective Mitchell also testified Holderfield asked Sincere if he would "front [Holderfield] eight grams." Sincere replied, "We'll talk about it when I get to Raleigh tomorrow."

The following day, Detective Mitchell submitted a sworn application for a phone records production order to access records associated with the telephone number provided by Holderfield, pursuant to 18 U.S.C. § 2703(d) and N.C. Gen.Stat. §§ 15A–261, 15A–262, and 15A–263, to the Wake County Superior Court. The application sought complete account and billing information, and complete call detail records "with cell site information including latitude, longitude, sector azimuth and orientation information for the target telephone number(s)" for the period from 13 November 2012 through 12 December 2012. Detective Mitchell's application also requested "precision location/GPS, E911 locate or Mobile Locate Service if applicable from December 11, 2012 through December 12, 2012."

Detective Mitchell's duly sworn statement stated:

The Raleigh Police Department is conducting an investigation of a Drug Trafficking case that occurred in Raleigh. There is probable cause to believe that records for [Defendant's telephone number] constitute evidence of a crime and/or the identity of a person participating in this crime, to wit:
This cellular telephone number was obtained from a cooperating defendant who was arrested as a result of drug trafficking. The possessor of the phone ... is being investigated as a major drug trafficker in the Raleigh area.
This information has been corroborated by this Detective. It is believed that information received in the records requested in this court order will be crucial in the progression of this investigation.

Superior Court Judge Lucy N. Inman signed the order and Detective Mitchell submitted it to AT & T, the cellular phone service provider and holder of the account associated with the phone number. AT & T provided the records of the location of the cell phone tower "hits" or "pings" whenever a call was made to or from the cell phone. AT & T sent emails of the longitude and latitude coordinates of these historical cell tower "hits" to Detective Mitchell every fifteen minutes. Detective Mitchell testified an approximately five- to seven-minute delay occurred between the time the phone "pinged" a cell phone tower and the time AT & T received and calculated the location and sent the latitude and longitude coordinates to him.

After receiving the emails of the records from AT & T, Detective Mitchell entered the coordinates into a Google Maps search engine to determine the physical location of the last tower "pinged" from Defendant's phone. Detective Mitchell testified "the hits can range from ... [a] five or seven meter hit to a couple hundred meter hit," which alerts law enforcement to the general area of the phone's last "pinged" location.

On 11 December 2012, at approximately 4:00 p.m., Detective Mitchell received a record of a "hit" from one of AT & T's cell towers, which placed the phone within a few meters of the Red Roof Inn, located on South Saunders Street, near Interstate 40 in Raleigh, North Carolina. Detective Mitchell and other law enforcement officers from the Criminal Drug Enterprise Unit of the Raleigh Police Department began conducting surveillance from unmarked vehicles stationed around the Red Roof Inn. Detective Mitchell testified he received a record, which allowed him to further "pinpoint" the phone's location "down to a certain amount of rooms" in the hotel.

Lieutenant Norris Quick ("Lieutenant Quick") received confirmation from the hotel's front desk clerk that "someone had just checked into" one of the rooms located within the block of rooms Detective Mitchell had identified. The front desk clerk gave the officers the key to the room next to the room recently occupied.

Lieutenant Quick and another officer conducted surveillance from the adjacent room. Lieutenant Quick observed two men enter the adjoining hotel room and leave after approximately five minutes. The officers inside the hotel room transmitted a description of the men leaving the room to officers stationed outside of the hotel. Detective Mitchell and Detective Bruce Richard Bizub ("Detective Bizub") were inside an unmarked patrol car and saw one of the men enter a Toyota Corolla and drive away. The officers followed the vehicle and "started calling on the radio for marked units in the area."

Eventually, a marked patrol vehicle initiated a traffic stop within two miles of the Red Roof Inn. The driver of the Toyota Corolla was identified as Kenneth Wheeler ("Wheeler"). The officers found ten bindles of heroin on Wheeler's person. Wheeler was arrested and told the officers he had obtained the heroin from the Red Roof Inn. Detective Mitchell began preparing an application for a search warrant for Defendant's hotel room.

Before Detective Mitchell could complete the search warrant, Lieutenant Quick transmitted a request for backup at the hotel. Four individuals were leaving the adjoining room in a hurry. Someone had apparently called the occupants to warn them Wheeler had been stopped and arrested. The officers detained three males, including Defendant, and one female in the hallway.

The officers observed two black plastic grocery bags located on the floor near the four individuals. The bags were open to allow the officers to see inside. The bags contained brown boxes, rubber bands, and digital scales. Detective Mitchell testified, based on his training and experience, he recognized the brown boxes as the type used to contain plastic bags of heroin.

While the four individuals were standing in the hallway, the female suspect, Kiara Ledbetter ("Ledbetter"), voluntarily removed a large bag from inside her pants and gave it to Lieutenant Quick. Lieutenant Quick testified Ledbetter told him, "Oh, no, I'm not going down for this. This isn't mine. It's Paul's." The bag appeared to contain heroin.

Defendant, Ledbetter, and the two other individuals, Keyondre Owens ("Owens") and Paul Shell ("Shell"), were taken into custody, advised of their Miranda rights, and searched by Detectives Mitchell and Bizub. Shell possessed ten bindles of a substance believed to be heroin in the front pocket of his jeans. Defendant possessed $1,620 in cash, but no heroin on his person. A forensic drug chemist with the City–County Bureau of Identification subsequently confirmed the identity of the substances as heroin, including the bindles found on Wheeler during the traffic stop.

On 11 March 2013, a grand jury indicted Defendant for: (1) trafficking by possession, 28 grams or more of heroin; (2) trafficking heroin by sale; and (3) maintaining a dwelling used for keeping or selling controlled substances. On 8 July 2013, Defendant was also indicted for: (1) trafficking heroin by transportation; and (2) conspiracy to traffic heroin by possession, transportation, and sale.

B. Defendant's Motion to Suppress

On 13 November 2013, Defendant filed a pretrial motion to suppress the search of telephone records and determination of the location of his cell phone, and any evidence seized as a result of these searches. He argued law enforcement's receipt of the records of the coordinates of the towers his cell phone had "pinged" constituted an unreasonable search without a warrant based upon probable cause in violation of the Fourth, Fifth, and Fourteenth Amendments of the Constitution of the United States, and under Article I, Section 20 of the Constitution of North Carolina. Defendant also moved to suppress statements he made to officers on 11 and 12 December 2012, and to suppress evidence obtained as a result of an unconstitutional search and seizure.

The trial court heard Defendant's motions prior to trial on 3 February 2014 and entered a written order denying Defendant's motions to suppress on 20 February 2014. In its order, the trial court made the following findings of fact:

11. That on December 11, 2012, M.K. Mitchell appeared before the Honorable Lucy N. Inman, Superior Court Judge, and presented to her an Application For Phone Records together with a proposed Order concerning [Defendant's] cell phone number....
.... 20. That Detective Mitchell was possessed of sufficient facts to conclude that violations of the North
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  • Hankston v. State, PD-0887-15
    • United States
    • Texas Court of Criminal Appeals
    • April 12, 2017
    ... ... Perry , 776 S.E.2d 528 (N.C. App. 2015) (holding that the state constitution provision provides the same protections against unreasonable search and ... ...
  • Ford v. State, PD–1396–14
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    • Texas Court of Criminal Appeals
    • December 16, 2015
    ...that wirelessly connected his calls"), cert. denied, ––– U.S. ––––, 136 S.Ct. 479, 193 L.Ed.2d 349 (2015) ; See also State v. Perry, 776 S.E.2d 528, 540 (N.C.Ct.App.2015) ("The facts at bar are consistent with the holdings in In re Application (Third Circuit),In re Application (Fifth Circui......
  • State v. Gore
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    • North Carolina Court of Appeals
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    ... ... See State v. Perry , 243 N.C. App. 156, 776 S.E.2d 528 (2015). 3 In Perry , the panel then made the logical leap that since retrieval of CSLI did not violate the ... ...
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    ... ... "A search occurs when the government invades reasonable expectations of privacy to obtain information." State v. Perry, N.C.App. , , 776 S.E.2d 528, 536 (2015), disc. rev. denied and appeal dismissed, N.C. , 781 S.E.2d 622 (2016) ; see Katz v. 782 S.E.2d 402 ... ...
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