State v. Torres-Gonzalez

• Decision Date: 07 May 2013
• Docket Number: No. COA12–831.,COA12–831.
• Citation: 741 S.E.2d 502
• Parties: STATE of North Carolina v. Jose Joel TORRES–GONZALEZ.
• Court: North Carolina Court of Appeals

741 S.E.2d 502

STATE of North Carolina

v.Jose Joel TORRES–GONZALEZ.

No. COA12–831.

Court of Appeals of North Carolina.

May 7, 2013.

Appeal by Defendant from Judgment entered 24 January 2012 by Judge Stuart Albright in Guilford County Superior Court. Heard in the Court of Appeals 14 February 2013.

Attorney General Roy Cooper, by Special Deputy Attorneys General Lars F. Nance and Valerie Bateman, for the State.

A. Wayne Harrison for Defendant.

STEPHENS, Judge.

Procedural History and Evidence

From 17 to 20 January 2012, Jose ¹ Joel Torres–Gonzalez (“Defendant”) was tried on charges of conspiracy to traffic in cocaine and trafficking by possession of cocaine. The evidence presented at trial tended to show the following:

Detective Mounce,² an officer with the Guilford County Sheriff's Department in the Vice Narcotics Division, was working undercover when he was introduced to Ramone Ramirez Blanco (“Blanco”) on 22 October 2010. At that time, Blanco was a suspected drug dealer, and Detective Mounce was meeting with him to purchase a small amount of cocaine, make sure it was of good quality, and then build a relationship with Blanco in order to buy larger amounts of cocaine.

After the initial meeting, Detective Mounce continued to meet with Blanco and started to inquire about larger quantities of cocaine. Blanco told Detective Mounce that his source was nervous about selling to someone the source did not know. Despite that, Detective Mounce and Blanco eventually set up a deal for 16 November 2010. The deal was for the sale of fifteen ounces, about 425 grams, of cocaine to Detective Mounce for $18,000.

On 16 November 2010, Detective Mounce arrived at the planned meeting location, the Belk Lot at the Four Seasons Mall, around 6:30 p.m. The meeting was set for 7:00 p.m. and Detective Mounce called Blanco at 6:49 p.m. to make sure he was going to arrive at the agreed-upon time. Blanco arrived at 7:07 p.m. Detective Mounce identified Blanco because he was driving the same green F–150 truck that he had driven throughout Detective Mounce's dealings with him.

Blanco arrived at the meeting with Defendant in the passenger seat. This was the first time that Detective Mounce had come in contact with Defendant. Blanco told Detective Mounce that they would get the cocaine once they saw the money. Detective Mounce then waved for undercover Detective Gordon Snaden, who had the money, to drive over. Both Blanco and Defendant observed the money in the car and then nodded their heads. At that point, Blanco informed Detective Mounce that he and Defendant had to go get the cocaine, and all four people left the parking lot.

After leaving the lot, Detective Mounce went to Gander Mountain, a hunting and fishing store, to wait for Blanco to contact him. The plan was to meet back in the same parking lot to complete the transaction. While Detective Mounce waited at Gander Mountain, Blanco and Defendant drove to Blanco's home where Defendant's vehicle was parked. The plan was for Defendant to go to his home, get the drugs, and then meet Blanco at a nearby Food Lion where Blanco would pick up the drugs.

Shortly after, Blanco left his house and went to Food Lion. After waiting for a period of time, Blanco called Defendant, and Defendant told Blanco that there were people at his house and that Blanco needed to come there to pick up the cocaine. Around the same time, the Sheriff's Department—having used a GPS to track Blanco's vehicle to Food Lion—enlisted Captain Anthony Caliendo (“Captain Caliendo”) to follow Blanco. Captain Caliendo arrived at Food Lion around 8:10 p.m. and began surveillance on Blanco's green pickup truck.

After speaking with Defendant, at 8:37 p.m., Blanco left Food Lion and went to Defendant's house to pick up the drugs. Blanco was followed clandestinely by Captain Caliendo, who had been told to keep the vehicle under surveillance. When Blanco retrieved the drugs, Defendant told him to come back with the money and make sure he was not being followed. Captain Caliendo was given instructions to remain at Defendant's home and keep the residence under observation.

At 8:39 p.m., Blanco called Detective Mounce and told him that he would be at the Belk parking lot with the drugs in ten minutes. However, at 9:01 p.m., when Blanco arrived in the green pickup truck, he noticed a Greensboro Police Department (“GPD”) patrol car in the parking lot, which caused him to move the location of the meeting to a nearby Home Depot. The sale of cocaine between Blanco and Detective Mounce was completed in the Home Depot parking lot and Blanco was arrested thereafter.

While the police were processing Blanco's possessions, they confiscated two cell phones, one of which had been ringing repeatedly. The number listed by caller ID was later matched to Defendant. By tracing the caller's phone number, the police were able to determine Defendant's address. This was the same address Blanco had visited to pick up the cocaine.

The police obtained a search warrant for Defendant's address around 11:20 p.m. Captain Caliendo had been watching the house throughout the application process. The search warrant identified the house and address to be searched and the applicant—Detective J.D. Murphy. The first paragraph of the attached affidavit stated the facts concerning Detective Mounce's dealings with Blanco and a then-unidentified “Hispanic male,” who was later determined to be Defendant. It stated that Blanco and Defendant met with Detective Mounce, that Blanco went to Defendant's address to get the drugs, and that Blanco delivered the drugs to Detective Mounce. The affidavit also identified the cell phone that was confiscated from Blanco as registered to Defendant, who lived at the address that was the subject of the search.

The additional paragraphs of the affidavit laid out the items that could be found during the search and why such items, in the applicant's experience, were related to the dealing of narcotics. Some of the items identified in the application were drugs, guns, jewelry, U.S. currency, and paraphernalia used to measure or weigh various controlled substances.

The warrant was issued, and, during the search, police found two $100 bills, two cardboard boxes containing a total of fifteen bundles of money, a paper bag with seven envelopes of money, two individual envelopes containing more cash, and Defendant's wallet, which contained $342. The cash found at the scene totaled $115,371. The police also found triple-beam scales and a business card with Defendant's name and a phone number. The number on the card matched the number that had repeatedly appeared on Blanco's caller ID. Further, the mail found at the address was directed to Defendant. Based on that evidence, Defendant was arrested and taken into custody.

At the close of the State's evidence, Defendant moved to dismiss both counts, and the trial court denied that motion. Defendant did not put on any evidence, and, following the trial, the jury returned a verdict of guilty on the felony charge of conspiracy to traffic in cocaine and not guilty on the felony charge of trafficking by possession of cocaine. Defendant was sentenced to a minimum of 70 months and a maximum of 84 months in prison, with credit for seven days served. Defendant appeals, and we find no error.

Discussion

I. Motion to Suppress the Evidence Obtained Pursuant to the Search Warrant

Defendant first argues that the search warrant was not supported by probable cause and the trial court erred in denying his motion to suppress the evidence obtained through execution of the search warrant. We disagree.

Our review of a trial court's denial of a motion to suppress is “strictly limited to determining whether the trial judge's underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge's ultimate conclusions of law.” State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). “The trial court's conclusions of law ... are fully reviewable on appeal.” State v. Hughes, 353 N.C. 200, 208, 539 S.E.2d 625, 631 (2000). “The standard for a court reviewing the issuance of a search warrant is whether there is substantial evidence in the record supporting the magistrate's decision to issue the warrant.” State v. Ledbetter, 120 N.C.App. 117, 121, 461 S.E.2d 341, 343 (1995) (citation and quotation marks omitted). “[T]he duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for ... conclud[ing] that probable cause existed.” State v. Edwards, 185 N.C.App. 701, 703, 649 S.E.2d 646, 648 (citation and quotation marks omitted), disc. review denied,362 N.C. 89, 656 S.E.2d 281 (2007).

An application for a search warrant must contain “[a]llegations of fact supporting the statement. The statements must be supported by one or more affidavits particularly setting forth the facts and circumstances establishing probable cause to believe that the items are in the places or in the possession of the individuals to be searched[.]” N.C. Gen.Stat. § 15A–244(3) (2011). “Probable cause need not be shown by proof beyond a reasonable doubt, but rather [by] whether it is more probable than not that drugs or other contraband will be found at a specifically described location.” Edwards, 185 N.C.App. at 704, 649 S.E.2d at 649 (2007). “Probable cause cannot be shown by affidavits which are purely conclusory, stating only the affiant's or an informer's belief that probable cause exists without detailing any of the underlying circumstances upon which that belief is based[.]” State v. Campbell, 282 N.C. 125, 130–31, 191 S.E.2d 752, 756 (1972) (citation and quotation marks omitted).

In Campbell, our Supreme Court held that a search warrant lacked probable cause when the affidavit failed to provide any underlying details and merely stated that the affiant had arrest warrants for different subjects who...