An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in
accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of
A p p e l l a t e P r o c e d u r e .
NO. COA 13-934
NORTH CAROLINA COURT OF APPEALS
Filed: 18 February 2014
STATE OF NORTH CAROLINA,
v. Guilford County
Nos. 11 CRS 073416, 073417
DONALD SCOTT HENDERSON,
Defendant.
On writ of certiorari to review judgment entered 23 May
2012 by Judge Lindsay R. Davis, Jr. in Guilford County Superior
Court. Heard in the Court of Appeals 3 February 2014.
Roy Cooper, Attorney General, by Benjamin J. Kull,
Assistant Attorney General, for the State.
Gerding Blass, PLLC, by Danielle Blass, for defendant-
appellant.
MARTIN, Chief Judge.
Defendant Donald Scott Henderson was indicted for
conspiracy to deliver cocaine, trafficking by possession of
cocaine, trafficking by transporting cocaine, and maintaining a
vehicle for selling controlled substances. Prior to his trial,
defendant moved to suppress evidence seized by police after
stopping and searching his vehicle on 12 April 2011. After a
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hearing, the trial court denied the motion to suppress.
Defendant then pleaded guilty to all charges, reserving his
right to appeal the denial of his motion to suppress. Although
defendant expressly reserved the right to appeal, defendant
failed to give timely notice of appeal. This Court granted his
subsequent petition for writ of certiorari.
The evidence presented at the suppression hearing tended to
show that on 12 April 2011 Greensboro Police Department
Detective J.B. Blanks and Corporal J.H. Marsh arrested a suspect
on cocaine-trafficking charges. After the arrest, the suspect
agreed to become a confidential informant. He informed the
officers that, on the same day, he had plans to buy one-eighth
of a kilogram of cocaine from a black male named Donnie who had
green eyes and was approximately 40 years old. He also told the
officers that Donnie drove a silver or gray Dodge Magnum. This
transaction was arranged by a black female named Alikii Allen
who was known to the confidential informant. The officers
listened in on several telephone conversations between the
confidential informant and Ms. Allen as they confirmed and
arranged their meeting.
The officers knew that defendant and Ms. Allen would take
I-40 to the Guilford College Road exit to get to the
confidential informant’s residence. As a result, officers were
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stationed in the area around the exit to await the arrival of
the silver or gray Dodge Magnum. Detective Blanks and Detective
Goodykoontz saw the Dodge Magnum take the exit ramp off the
interstate, and Corporal Flynt and his partner Officer C.H.
Peeden followed the car while driving an unmarked police truck.
During this time, Ms. Allen or defendant apparently became aware
that they were being followed by the police because Ms. Allen
called the confidential informant and told him that the police
were following them. Defendant drove past the planned meeting
location and turned left onto Sapp Road. Corporal Flynt then
made the decision to stop the defendant’s car. Detectives
Blanks and Goodykoontz searched the car and found, in the center
console, a Crown Royal bag containing one-eighth of a kilogram
of cocaine.
_________________________
Defendant argues that the trial court should have granted
his motion to suppress evidence obtained during the warrantless
search of his vehicle because neither the stop nor the search
were supported by probable cause. We disagree.
When we review a trial court’s ruling on a motion to
suppress we consider “whether the trial court’s findings of fact
are supported by the evidence and whether the findings of fact
support the conclusions of law.” State v. Haislip, 362 N.C.
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499, 499, 666 S.E.2d 757, 758 (2008). “[T]he trial court’s
findings of fact are conclusive on appeal if supported by
competent evidence, even if the evidence is conflicting.” State
v. Buchanan, 353 N.C. 332, 336, 543 S.E.2d 823, 826 (2001)
(internal quotation marks omitted), appeal after remand, 355
N.C. 264, 559 S.E.2d 785 (2003). “The trial court’s conclusions
of law, however, are reviewable de novo.” State v. Hyatt, 355
N.C. 642, 653, 566 S.E.2d 61, 69 (2002), cert. denied, 537 U.S.
1133, 154 L. Ed. 2d 823 (2003).
Defendant argues that findings of fact five and eight are
not supported by the evidence from the suppression hearing.
Finding of fact five states:
The “confidential source” provided
identifying information including the
defendant’s first name, a physical
description, his employment, a description
of the vehicle he would deliver the cocaine
in, a description of a second accomplice,
and an account of the informant’s prior drug
dealing relationship with the defendant.
Defendant asserts that the evidence does not support the
findings that the confidential informant provided defendant’s
name, a physical description of defendant, or defendant’s
employment.
Testimony at the hearing disclosed that the confidential
informant told officers that he was going to buy drugs from a
man named Donnie. Defendant contends that this evidence does
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not support the trial court’s finding that the confidential
informant provided defendant’s name because Donnie is not his
“actual name.” While defendant’s legal name is Donald, it
appears that he is also known as Donnie based on the testimony
at the suppression hearing. Therefore, the evidence that the
confidential informant told officers that defendant’s name was
Donnie supports the trial court’s finding that the confidential
informant provided defendant’s first name.
Next, the evidence supports the finding that the
confidential informant provided a physical description of
defendant. Detective Blanks testified that the confidential
informant said he planned to buy drugs from “a black male named
Donnie, with green eyes.” Corporal Marsh also testified that
the confidential informant “described Donnie as a black male,
almost, approximately, 40 years of age.” Detective Blanks’s and
Corporal Marsh’s testimony supports the trial court’s finding
that the confidential informant provided a physical description
of defendant.
Lastly, defendant correctly states that the evidence does
not support the trial court’s finding that the confidential
informant provided information regarding defendant’s employment.
A review of the transcript from the suppression hearing reveals
no mention of defendant’s employment. Thus, there is no
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evidence to support the trial court’s finding that the
confidential informant provided information regarding
defendant’s employment. This error, however, affords defendant
no relief.
“The test for prejudicial error is whether there is a
reasonable possibility that, had the error not been committed, a
different result would have been reached.” State v. Scott, 331
N.C. 39, 46, 413 S.E.2d 787, 791 (1992). In this case, due to
the accuracy of the other information provided, defendant’s
employment is simply irrelevant to the stop or search.
Therefore, a different result would not have been reached at the
suppression hearing if the trial court had not found that the
confidential informant provided information about defendant’s
employment.
Defendant also argues that finding of fact eight is not
supported by the evidence. Finding of fact eight states:
Assisting police officers responded to a
specific highway exit and were able to
identify the described vehicle approach the
meet [sic] location at the agreed time. The
vehicle was occupied by two individuals
matching descriptions already provided by
the “source[.”]
Defendant contends that the evidence does not support this
finding because the vehicle was stopped before it approached the
meeting location, there was no child in the car as had been
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reported by the confidential informant, and the female in the
car did not match the description given by the confidential
informant.
Corporal Flynt testified that he and his partner followed
the Dodge Magnum through the intersection of Guilford College
and Hornaday. They were expecting the car to pull into one of
the parking lots after the intersection but it never did.
Instead, defendant turned down Sapp Road and Ms. Allen called
and told the confidential informant that the police were
following them. Then defendant turned on McClellan Road, and
Corporal Flynt knew that this road was a dead end. At that
point, Corporal Flynt and his partner decided to stop the
vehicle. This testimony supports the trial court’s finding that
police officers identified the described vehicle as it
approached the meeting place. Corporal Flynt testified that he
watched the vehicle as it approached and drove past the meeting
location, after Ms. Allen had telephoned the confidential
informant to tell him that the police were following them.
Next, there is conflicting evidence about whether the
information given to the police included that a child was in the
car. At one point, Corporal Marsh testified that Ms. Allen had
told the confidential informant that defendant had to drop his
son off before meeting the confidential informant. Corporal
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Marsh, however, later testified that there was information that
a child was in the car.
As stated earlier, a trial court’s finding may be supported
by competent evidence even if there is conflicting evidence.
See Buchanan, 353 N.C. at 336, 543 S.E.2d at 826. There was
competent evidence to support the trial court’s finding that
there were two people in the vehicle, despite Corporal Marsh’s
conflicting testimony, because Corporal Flynt’s and Detective
Blanks’s testimony suggested that there should have been only
two people in the car.
Finally, defendant argues that Ms. Allen’s race did not
match the description given by the confidential informant.
Defendant contends that because Corporal Marsh testified that
Ms. Allen was described as a “Dominican girl,” the officers
should have been looking for an Hispanic female. Defendant’s
argument, however, confuses race and nationality.1 While there
is no evidence in the suppression hearing transcript of Ms.
Allen’s nationality, there is competent evidence, based on
Corporal Flynt’s and Detective Blanks’s testimony, to support
the trial court’s finding that Ms. Allen matched the description
1
We note that Hispanic is not considered a race in the United
States, but defendant argues that it is a race so we treat it as
a race. Race, U.S. Census Bureau
http://www.census.gov/population/race/ (last updated Nov. 28,
2012).
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because she was black and the confidential informant described
her as black.
Having determined that the trial court’s findings of fact
are supported by competent evidence, we review de novo the trial
court’s conclusion of law that the warrantless search of
defendant’s car was supported by probable cause.
The United States Constitution and the North Carolina
Constitution protect citizens from unreasonable searches and
seizures. State v. Garner, 331 N.C. 491, 506, 417 S.E.2d 502,
510 (1992). As a general rule, a warrant is required for every
search and seizure; however, there are exceptions. State v.
Trull, 153 N.C. App. 630, 638–39, 571 S.E.2d 592, 598 (2002),
appeal dismissed and disc. review denied, 356 N.C. 691, 578
S.E.2d 596–97 (2003). For example, a motor vehicle that is on a
public road may be searched without a warrant if the search is
based on probable cause. State v. Isleib, 319 N.C. 634, 638,
356 S.E.2d 573, 576 (1987). Probable cause exists when an
officer has knowledge based on reasonably trustworthy
information about facts or circumstances that are sufficient “to
warrant a man of reasonable caution to belie[ve] that an offense
has or is being committed.” State v. Zuniga, 312 N.C. 251, 261,
322 S.E.2d 140, 146 (1984) (internal quotation marks omitted).
When a confidential informant’s tip is the basis for a
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warrantless search, a court must consider the totality of the
circumstances to determine if probable cause exists. State v.
Earhart, 134 N.C. App. 130, 133, 516 S.E.2d 883, 886, appeal
dismissed, 351 N.C. 112, 540 S.E.2d 372 (1999). Under the
totality-of-the-circumstances test a court weighs all of the
indications of reliability and unreliability surrounding an
informant’s tip. Id. at 133–34, 516 S.E.2d at 886. Some of the
factors a court considers when conducting the totality-of-the-
circumstances test are the informant’s basis of knowledge for
the tip, the reliability of the informant’s tip, and whether
there is independent police corroboration of the facts relevant
to the informant’s tip. Id. at 134, 516 S.E.2d at 886.
In this case, the confidential informant had previously
bought drugs from defendant and had arranged to buy more drugs
from defendant before agreeing to become a confidential
informant. Thus, he had personal knowledge of the information
he shared with the police. In addition, officers were able to
listen to the confidential informant’s telephone conversations
with Ms. Allen as they confirmed and coordinated their meeting.
From these conversations, officers knew the route that defendant
and Ms. Allen would take to reach the confidential informant’s
residence and were able to place a surveillance team in the
area. As a result, officers observed a car with occupants
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matching the descriptions provided approach the meeting
location. Officers also knew, from monitoring the confidential
informant’s telephone calls, that Ms. Allen and defendant drove
past the meeting location out of concern that the police were
following them. Therefore, based on the confidential
informant’s knowledge and the officers’ ability to confirm the
details of the tip, a man of reasonable caution, having such
information, would have reason to believe that an offense was
being committed.
Affirmed.
Judges ELMORE and HUNTER, JR. concur.
Report per Rule 30(e).