State v. Forte

810 S.E.2d 339

STATE of North Carolina

v.Trevor Wilks FORTE, Defendant.

No. COA 16-513

Court of Appeals of North Carolina.

Filed: January 16, 2018

Attorney General Joshua H. Stein, by Assistant Attorney General Joseph A. Newsome, for the State.

Ward, Smith & Norris, P.A., by Kirby H. Smith, III, for defendant-appellant.

STROUD, Judge.

Defendant Trevor Wilks Forte ("defendant") appeals from his conviction of trafficking more than 14 grams, but less than 28 grams, of heroin by possession and of trafficking more than 14 grams, but less than 28 grams, of heroin by transportation. On appeal, defendant argues that his Fourth Amendment right against unreasonable searches was violated because the trial court allowed the State to retrieve location information from his cell phone without a search warrant. Because defendant did not present any constitutional argument before the trial court, he has waived review of this issue on appeal. The trial court correctly determined that issuance of the pen register and trap and trace order was proper under N.C. Gen. Stat. § 15A-263, so we affirm the trial court's denial of defendant's motion to suppress.

Facts

In addressing the suppression motion before trial, the trial court heard these facts. On 8 November 2012, Officer Charlie Espinoza ("Officer Espinoza") of the Greenville Police Department contacted Detective Steven Cottingham ("Detective Cottingham") of the Greenville Police Department and told him that a known drug dealer—Mr. Oliver—was in custody for a narcotics investigation. Detective Cottingham spoke with Mr. Oliver, who said that he "had been selling bundles of heroin in the New Town housing project" for approximately two or three months he bought from a black man from New York he only knew by the nickname "Roam."¹ Mr. Oliver did not know Roam's real name but said "he was a shorter brown-skinned male that wears fitted baseball caps."

Mr. Oliver explained to Detective Cottingham that "over two months, he was buying two bricks of heroin from the subject known as Roam every two or three days, and he said maybe thirty bricks over that time period." Mr. Oliver would pay $300.00 per brick of heroin and made the purchases randomly, not as part of any consistent schedule. Mr. Oliver then explained to Detective Cottingham in more detail that:

Roam always comes to [Mr. Oliver] before he travels to New York in order to purchase heroin, and ... [Mr. Oliver admitted] to giving Roam $2,500.00 to put in on the heroin, and even helped him purchase a rental car. And ... the first of the month Roam traveled to New York to purchase a large quantity of heroin, but only stayed in New York a couple of days; and ... Roam purchased a rental car ... in Greenville[.]

On 10 November 2012, Mr. Oliver called Detective Cottingham and informed him he spoke with Roam on the same phone number he had previously used and Roam "advised he was going to be in New York and will be returning soon with some heroin." Mr. Oliver told Detective Cottingham that Roam said he would be driving a car that belonged to a local white female heroin user with the last name "Hamilton" who was possibly under arrest in Pitt County Detention Center. Mr. Oliver explained that the vehicle was a small black Hyundai or Honda hatchback vehicle with a small rope holding down the hood and said that Roam would be a passenger in the vehicle with a female driving because Roam had no driver's license. Mr. Oliver noted that Roam owed him $1,000.00 worth of heroin, so part of the heroin Roam was supposed to be bringing from New York would be for Mr. Oliver. Roam would typically call Mr. Oliver right before he got on the road headed to North Carolina. Mr. Oliver further stated that when Roam got to Greenville from New York, it would probably be early morning and he would take the heroin to a local hotel room and distribute the heroin from there, and Roam would probably call Mr. Oliver before arriving at this hotel.

Mr. Oliver gave Detective Cottingham Roam's phone number, and Detective Cottingham applied for and obtained a court order titled "Order Authorizing Pen Register/Trap and Trace and Disclosure of Records and Other Information Pursuant to 18 USC § 3123 and 2703(d)" signed by a superior court judge, which enabled the SBI to receive GPS location information of the cell phone, monitor it, and then notify Detective Cottingham of the phone's location and the direction of travel. The order was signed and registered on 11 November 2012.

Early in the morning on 12 November 2012, an SBI agent informed Detective Cottingham that the phone was in New York traveling south. Detective Cottingham and other officers knew a couple of potential routes to Greenville from the north, so they went to those areas to try to intercept the vehicle. At 6:01 a.m., an SBI agent told Detective Cottingham that the phone was in Virginia traveling towards North Carolina. Mr. Oliver called Detective Cottingham around 6:45 a.m. and said that Roam had called him from the same number as usual and said that he was about 30 minutes from Greenville. Officers spotted the vehicle, a small black four-door Honda, at 7:50 a.m. on Highway 11. It was traveling south into Greenville on Memorial Drive; a black female was driving and a black male was in the passenger seat. Officers followed the vehicle southbound on Memorial Drive into Greenville until Officer Espinoza and another office conducted a traffic stop on the vehicle just before 8:00 a.m. "on North Memorial Drive near Airport[.]" One of the officers conducting the stop called Detective Cottingham at 8:05 a.m. and said that "both subjects were extremely nervous" and stated that "the female driver consented to the search of the vehicle[.]" A canine alerted on the vehicle and the heroin was located during a later search under the back seat. Defendant was identified as the passenger in the car and had a cell phone matching the pen register number.

Defendant was arrested on 12 November 2012 on charges of trafficking more than 28 grams of heroin by possession and trafficking more than 28 grams of heroin by transportation. Then on or about 29 September 2014, defendant was indicted on the offenses of trafficking more than 14 grams, but less than 28 grams of heroin by possession and trafficking more than 14 grams, but less than 28 grams of heroin by transportation. Before a jury was impaneled, the trial court heard various pretrial motions, including defendant's 11 August 2015 motion to suppress all evidence of "any seizures, arrest, detentions, and wire taps of [defendant] based on information provided by Michael Oliver."

On 11 August 2015, after hearing arguments on defendant's motion to suppress, the court orally stated that defendant's motion to quash the search warrant and order was denied and then entered two written orders, which were file stamped on 25 August 2015: one regarding the stop of the vehicle and one on the search of the vehicle. In the order on the stop of the vehicle, the trial court made detailed findings of fact, essentially as summarized in the facts above, and denied defendant's motion to suppress the application and order authorizing a pen register/trap and trace and his motion to suppress the stop of the vehicle defendant was riding in on 12 November 2012. The trial court's only conclusions of law relevant to the arguments on appeal are:

2. That Officer Espinoza had reasonable suspicion based on articulable facts that the vehicle was carrying a controlled substance, and further that the vehicle was following another vehicle too closely in violation of Chapter 20 of North Carolina General Statutes.

3. That pursuant to N.C.G.S. 15A-263, the Order authorizing the pen register was properly issued.

Defendant's trial began later that same day, 11 August 2015. At the close of the State's evidence, defendant moved to dismiss the charges against him, but his motion was denied. Defendant was ultimately found guilty of both trafficking charges. Defendant timely appealed to this Court.

Discussion

On appeal, defendant presents the issue as whether "Defendant-Appellant's Fourth Amendment right against unreasonable searches [was] violated by the issuance of a Pen Register/Trap and Trace Device Order for real time location information from his cell phone?" He argues that the trial court violated his constitutional right against unreasonable searches by denying defendant's motion to suppress and allowing the State to present evidence of real-time location information from his cell phone, which was retrieved without a search warrant. But we must first determine whether defendant has preserved his arguments on appeal by presenting them first before the trial court.

On the day trial was to begin, defendant filed a motion to suppress. The entire substance of the motion is one sentence: "The state shall be ordered to suppress any seizures, arrest, detentions, and wire taps of [defendant] based on information provided by Michael Oliver." The motion is accompanied by his counsel's affidavit, which avers:

2. That Officer D. S. Cottingham and C. Espinoza, Greenville Police Department interviewed Michael Oliver on November 8, 2012 after arresting Oliver for possession of crack cocaine.

3. The officers in the discovery provided to the defendant in this case ... detail that NO promises were made for Oliver's assistance.

4. The officers provide there was only one meeting on November 8, 2012 with Oliver.

5. Oliver never provides an actual name of anyone.

6. Oliver only uses a nickname for someone.

7. Oliver has only known the person for 2 or 3 months.

8. Oliver states he is unsure of when this person will arrive in North Carolina.

9. The information provided by Oliver is insufficient to allow the issuance of a search warrant.

10. The information is not proven reliable.

11. The information is not shown to be specific.

12. The information is not shown to be credible.

When the case was called for trial, the trial court noted that the motion itself set forth no...