Statev. Arciniega
| Decision Date | 17 April 2012 |
| Docket Number | No. COA11–1271.,COA11–1271. |
| Parties | STATE of North Carolina v. Jose Alejandro M. ARCINIEGA, Defendant. |
| Court | North Carolina Court of Appeals |
On writ of certiorari to review judgments entered on 16 September 2009 by Judge Arnold O. Jones, II in Superior Court, Wayne County. Heard in the Court of Appeals 8 March 2012.
Attorney General Roy A. Cooper, III, by Assistant Attorney General M. Elizabeth Guzman, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Charlesena Elliott Walker, for defendant-appellant.
Jose Alejandro M. Arciniega (“defendant”) appeals from his convictions for one count of trafficking in methamphetamine by possession and one count of trafficking in methamphetamine by transportation. For the following reasons, we find no error in defendant's trial.
On 6 April 2009, defendant was indicted on one count of trafficking in methamphetamine by possession and one count of trafficking in methamphetamine by transportation. Defendant was tried on these charges at the 14 September 2009 Criminal Session of Superior Court, Wayne County. The State's evidence presented at trial tended to show the following: In December of 2007, Lance Anthony, an investigator with the Wake County Sheriff's Office assigned to the United States Drug Enforcement Administration as part of an interagency Drug Task Force (“the task force”), began investigating a large Mexican-based drug trafficking organization which had ties to a drug cartel known as “La Familia.” This organization was suspected of bringing large amounts of methamphetamine, cocaine, and, sometimes, marijuana into the United States through California, and Texas, and moving those drugs to final destinations in states such as North Carolina and Ohio. During the course of the investigation, Investigator Anthony identified and obtained an order to wiretap the cell phone of an individual named Daniel Rios and learned on 18 August 2008 that Mr. Rios would be receiving a large amount of cocaine and methamphetamine from Riverside, California in an “eighteen-wheeler”. Investigators began surveillance on Mr. Rios' house in Duplin County just outside of Wayne County and on several occasions noticed a white Chevy Suburban and a blue Dodge Neon parked behind his residence. On August 20th Mr. Rios drove to the RDU Airport and picked up an individual named Jaime Navarrette and Investigator Anthony learned that this individual was to act as transportation coordinator to make sure that Mr. Rios met the truck carrying the drugs. Investigators subsequently learned that the shipment was to arrive on August 23rd and it would be coming from the western part of the State. Investigator Anthony testified that in his experience when there was a large shipment of drugs, payment for the drugs was made separately from the receipt of the drugs. This was done to prevent the organization from taking a “double hit” by having both the drugs and money confiscated by law enforcement at the same time. On August 23, investigators observed a red truck going to Mr. Rios' residence and they intercepted a call by Mr. Rios' brother telling Mr. Rios that he had left money in the center console of the Suburban. At around 11 a.m. that same day, investigators observed the Suburban leaving Mr. Rios' residence and it started traveling west towards Raleigh on Highway 70. As the investigators followed the Suburban, they noticed the red truck and the blue Dodge Neon driving around the Suburban almost like they were doing counter surveillance, looking for law enforcement. Investigator Anthony did not know where Mr. Rios planned to meet the truck. Investigator Anthony observed Mr. Rios and Mr. Navarrette in the Neon but could not tell who was in the Suburban because the windows were tinted; the red truck had at least three individuals in it. Investigator Anthony and other members of the task force followed the three vehicles westbound on I–40. The Neon and the Suburban exited off of the interstate near Burlington. The Neon met up with a semi-truck parked on an adjacent service road. The driver of the Neon motioned to the semi-truck to follow it and the truck followed the Neon down the interstate to the next exit to a truck stop. The semi-truck parked at the truck stop in line with the other trucks but investigators did not follow it because they did not want to compromise their surveillance. The semi-truck then left the first truck stop and drove to the Petro truck stop across from the Hispanic flea market in Burlington. Sergeant Brian Dawson, a sergeant with the Wayne County Sheriff's Office assigned to the task force, explained that they could not continue to follow or observe the truck without compromising their investigation because the flea market was down a “desolate road[,]” the road had only one way in and out, and there were several hundred or thousand Hispanics at the flea market.
At the same time, the Suburban was observed meeting up with the red truck at a McDonald's restaurant near the interstate. When all of the individuals exited their vehicles to go into the McDonald's, defendant was not identified as being with them. After leaving McDonald's, the driver of the Suburban got back on I–40/85 eastbound and followed I–85 into Durham, exiting off the interstate and circling back in the opposite direction then traveling for about 10 miles westbound then exiting off the interstate and circling back eastbound, repeating this process several times as if the driver was waiting on something. At one point the driver of the Suburban stopped at a drug store parking lot and got out of the vehicle. Chris Dawson, an agent with the North Carolina State Bureau of Investigation assigned to the task force, noted that the driver was not defendant. Eventually, the Suburban got back on I–85 westbound and traveled to Mebane and took an exit at the flea market. The Suburban entered the road to the flea market. None of the task force members entered the road to the flea market in order not to compromise their investigation.
At around 4 p.m., investigators observed the Neon and the Suburban leave the flea market and head eastbound on the interstate towards Wayne County; defendant was the driver and the only person in the Suburban. After the Suburban left the flea market, Sergeant Dawson approached the semi-truck and was given consent by the driver to search the truck but did not find anything significant. As the Suburban traveled eastbound on the interstate, Agent Dawson kept visual contact with it. He observed the Suburban travel eastbound on I–40/85, following I–40 toward Raleigh. Near Raleigh, the Suburban took an exit towards the airport but drove past the airport. The Suburban continued down I–40 eastbound then exited onto Highway 70 towards Goldsboro. Investigator Anthony testified that drug deals usually occurred in very concealed locations where individuals feel safe and there are parts of the investigation that police will not see. He believed that the drug transaction occurred at the flea market or the side of the road.
Michael Cox, a sergeant with the Goldsboro/Wayne County Drug Squad as part of the Wayne County Sheriff's Office, testified that he was part of the investigation and on 23 August 2008 Sergeant Cox received a call from Agent Dawson for assistance in pulling over the Suburban and a blue Dodge Neon when they entered Wayne County, as it was likely they were carrying drugs. Sergeant Cox observed the Suburban followed by the blue Neon on Highway 70 and initiated a stop of the Suburban for a window tint violation. He also instructed another sheriff's deputy to stop the Neon. Sergeant Cox testified that in his experience that higher level drug dealers will not want to be associated with a “mass quantity” of drugs but would still want to be present or near the driver carrying the drugs in a “tag-along vehicle[.]” After the Suburban was stopped, Sergeant Cox approached the passenger's side and defendant rolled down the window. Sergeant Cox immediately noticed two cans of Red Bull Energy Drinks in the console and the “overwhelming odor of air freshener coming from the vehicle.” When asked, defendant told Sergeant Cox that he borrowed the Suburban from a man named “Jose” but the vehicle was registered to a “Vanessa Munoz [.]” Sergeant Cox testified that in his experience drug smugglers would attempt to make long trips using energy drinks to keep them alert; use overwhelming air fresheners to hide the scent of drugs from police or dog searches; and drive a vehicle owned by a third party. Sergeant Cox noted that defendant was the only person in the vehicle. When Sergeant Cox asked him for his license, defendant handed him a photocopy of an Oregon driver's license. Sergeant Cox noted that defendant was very nervous when he was stopped and his nervousness increased as the stop continued. When asked where he was going, defendant told Sergeant Cox that he had taken a friend to the airport in Raleigh and was on his way back home to a residence in Wayne County. But defendant could not give Sergeant Cox the name of the friend that he took to the airport.
Detective Matthew Miller, with the Wayne County Sheriff's Office, testified that he assisted Sergeant Cox with the traffic stop of defendant on August 23rd. When he arrived on the scene, Sergeant Cox had already made the stop and Detective Miller approached the Suburban on the driver's side. He noticed that defendant was very nervous, as he was breathing heavily, shaking, and his voice was breaking. Detective Miller wrote defendant a warning ticket for the window tint violation and defendant gave consent to search the Suburban. Detective Miller looked in the jack compartment in the rear cargo area and discovered several duct-taped packages. They also recovered $354 from defendant's person. Sergeant Cox used a field test kit which confirmed that the substance in the packages was...
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