State v. Rosario
| Citation | 93 N.C.App. 627,379 S.E.2d 434 |
| Decision Date | 16 May 1989 |
| Docket Number | No. 8812SC621,8812SC621 |
| Parties | STATE of North Carolina v. Hector ROSARIO, a/k/a Hector L. Rosarion, Defendant. |
| Court | Court of Appeal of North Carolina (US) |
Attorney Gen. Lacy H. Thornburg by Asst. Atty. Gen. Karen E. Long, Raleigh, for the State.
Jones & McGlothlin by Larry J. McGlothlin, Fayetteville, for defendant-appellant.
Defendant contends that the trial court erred in denying his motion to suppress the evidence seized during the search of his house, in denying his motion to dismiss the charges against him, in admitting certain evidence over his objections, and in refusing to instruct the jury on the defense of entrapment.
The State's evidence tended to show the following. On 13 January 1987, Eduardo Stewart discussed obtaining a kilogram of cocaine with defendant, Antonio Suarez, and Guillermo Gomez. The discussion took place in defendant's house in Fayetteville. On 18 January 1987, Stewart flew from Fayetteville to Miami, Florida to pick up the kilogram of cocaine. In Miami, Stewart met Guillermo Gomez and his brother, who were to supply the cocaine. The next day, the Gomez brothers procured the cocaine and gave it to Stewart in exchange for $12,000.00. The cocaine was packaged in a box and the box was gift wrapped. On the morning of 20 January 1987, the Gomez brothers drove Stewart to a train station where he boarded a train to Fayetteville. Upon boarding the train, Stewart was approached by two police officers who asked to search his baggage. Stewart consented to the search, and the officers arrested him upon discovering the cocaine.
Stewart agreed to assist the officers in the hope of obtaining a reduced sentence. He told the officers that he was to deliver the cocaine to defendant's house. Stewart was flown back to Fayetteville in the company of a DEA agent. In Fayetteville, officers gave him a box wrapped exactly like the one that had been confiscated in Florida. The original box and its contents had been retained by the Florida police. The duplicate box contained approximately 900 grams of white powder containing cocaine in a concentration of approximately two percent. The cocaine in the duplicate box had been supplied by the SBI lab in Raleigh.
Police officers in Fayetteville placed a hidden microphone on Stewart's body and drove him to defendant's house in a cab. Stewart entered defendant's house with the duplicate package. Already in the house were defendant, Antonio Suarez, Kisha Fraizer, and Cathy Hendry. They were surprised to see Stewart because they had heard that he had been arrested. Stewart told Kisha Fraizer, who was his sister-in-law, that she should leave. He then gave the package to defendant, who put it in a freezer. Kisha Fraizer left with Suarez. Defendant then received a phone call by which he was informed that police had been seen in the area. Defendant removed the package from the freezer and placed it in a garbage can outside the house. About fifteen minutes after Suarez left, police officers came to the door. Defendant let them in the house and the officers searched the house pursuant to a warrant. In the course of the search, the officers found and seized the duplicate package, two other plastic bags containing cocaine, a cocaine grinder, scales, and several documents. Defendant, Stewart, and Cathy Hendry were all arrested. Defendant did not testify at trial, but he presented several witnesses who testified concerning his good character and reputation in the community.
We first consider defendant's contentions concerning the motion to suppress. The police searched defendant's house pursuant to a warrant which recited that there was probable cause to believe that "papers, handwritings, receipts, travel tickets showing names of Rosario, Gomes [sic], Suarez, and [S]tewart and related items showing activities related to a plan to facilitate, transfer of narcotics, and controlled substances, cocaine" would be found on the premises. Defendant moved to suppress the evidence obtained pursuant to the warrant on the grounds that the affidavits in support of the warrant were insufficient to establish probable cause. The warrant was supported by two affidavits sworn to by Sergeant Maxwell of the Cumberland County Sheriff's Department. The first affidavit contains information supplied by a confidential informant and relayed to Sergeant Maxwell by an agent of the Fort Bragg Drug Suppression Team. The second affidavit contains information supplied by Eduardo Stewart and relates the events leading up to Stewart's entry into defendant's house with the duplicate package.
Affidavits in support of search warrants sufficiently establish probable cause if they provide reasonable grounds to believe that the objects sought will be found on the premises to be searched and will aid in the apprehension or conviction of the offender. State v. Rook, 304 N.C. 201, 220, 283 S.E.2d 732, 744 (1981), cert. denied, 455 U.S. 1038, 102 S.Ct. 1741, 72 L.Ed.2d 155 (1982). Whether probable cause exists for the issuance of a warrant depends upon a practical assessment of the relevant circumstances in each particular case. Id.
The fact that the first affidavit contains information from a confidential informant that was relayed by another officer does not preclude its use to establish probable cause. See State v. Estep, 61 N.C.App. 495, 498, 301 S.E.2d 398, 400, disc. rev. denied, 309 N.C. 463, 307 S.E.2d 368 (1983). The affidavit states that the other agent found that the informant had been reliable in the past, which entitled the affiant to rely on the informant's information. Id. 61 N.C.App. at 499, 301 S.E.2d at 400. The affidavit contains statements to the effect that defendant was involved in an operation whereby the Gomez brothers would procure cocaine in Florida and transport it to defendant, who would distribute it to local dealers in the Fayetteville area. Defendant contends that the affidavit does not establish probable cause because it is conclusory and does not set forth specific facts to implicate the premises to be searched. See State v. Rook, 304 N.C. at 221, 283 S.E.2d at 744-45.
We need not decide whether the first affidavit, standing alone, establishes probable cause to search defendant's house. The second affidavit, based upon information supplied by Stewart, directly implicated the premises as the delivery point for drugs being transported from Florida. The affidavit states that Stewart knew defendant's phone number, knew the location of defendant's house, and was able to describe the house. Before proceeding with the delivery, the police checked Stewart's information and found it to be accurate. The affidavit further states that the officers observed Stewart enter the residence with the package of cocaine. Because the package itself is evidence of the crimes charged, the second affidavit clearly establishes probable cause to search the premises.
Defendant argues that the second affidavit cannot be used to support the warrant because Stewart was acting under police supervision and the package of cocaine was supplied by the police. In effect, he contends that the police created the probable cause to justify the search. We find little merit in this argument.
The present case is analogous to other "controlled delivery" cases in which authorities discover contraband in the mail and, rather than seizing the contraband immediately, allow it to proceed to its destination for the purpose of effecting an arrest of the addressee. See, e.g., United States v. Outland, 476 F.2d 581 (6th Cir.1973). In such cases, warrants to search the addressee's premises have been challenged on the grounds that the warrants are issued before the contraband reaches its destination. See generally 2 W. LaFave, Search and Seizure § 3.7(c) (1987). These "anticipatory" warrants, however, have almost universally been upheld. Id. See, e.g., Outland, supra. In the present case, the warrant was not issued until the package of cocaine was inside the premises, so the warrant cannot be challenged on the grounds that it is anticipatory. The present case differs from a typical controlled delivery case only in that (i) the delivery was accomplished by a courier involved in the crime rather than the postal service or a common carrier and (ii) the police substituted a prepared package for the original contraband.
Neither of these factors preclude the use of the second affidavit to establish probable cause. Although the courier's credibility may be questioned on account of his involvement in the crime and his motive for cooperation with the police, he provided accurate and detailed information which was entirely consistent with the information supplied by the confidential informant. The fact that the package was supplied by the police does not affect the validity of the search because the package was merely a duplicate of the original. The police did not materially alter the transaction, they simply allowed the original plan to be carried out. For purposes of establishing probable cause, the delivery of the package undoubtedly provided reasonable grounds to believe that evidence of the crimes charged would be found on the premises. We note that, even if the package contained no drugs, its delivery would still constitute evidence to support the charges of conspiracy and maintaining a dwelling for the keeping and selling of a controlled substance.
We next consider whether the trial court erred in denying defendant's motion to dismiss the charges against him. Defendant first contends that the charges should have been dismissed because they are based upon possession of cocaine which was supplied by law officers. Only the charge of trafficking by possession of over 400 grams is even arguably subject to dismissal on these grounds. The lesser trafficking by possession charge is based upon possession of cocaine other than the drugs contained in the...
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