The Transcript Reveals That the Trial Began on Tuesday, 23 July 2002, and the Jury Began

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No. 04-1542 DISTRICT 15A

NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA)

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)From Guilford County

v.)01 CRS 77202, 77203

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JORGE RIOS ABONZA,)

a/k/a JORGE ABONZA RIOS)

Defendant.)

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DEFENDANT/APPELLANT’S BRIEF

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QUESTIONS PRESENTED

I.Did the trial court err in denying defendant’s motion to suppress as several findings of fact were not supported by competent evidence, and there was no probable cause to conduct the search, denying defendant’s state and federal constitutional rights?

STATEMENT OF THE CASE

Defendant pled guilty after his motion to suppress was denied at the 19

May 2004 Criminal Session of Superior Court in Guilford County, the Honorable Lindsay R. Davis, Jr., Judge Presiding. The defendant was convicted of trafficking of cocaine by possession and trafficking of cocaine by transport, sentenced to a minimum of 175 months and a maximum of 219 months, and was fined $250,000.00. Defendant gave notice of appeal in open court on 19 May 2004.

GROUNDS FOR APPELLATE REVIEW

An order finally denying a motion to suppress evidence may be reviewed upon an appeal from a judgment of conviction, including a judgment entered upon a plea of guilty. N.C.G.S. § 15A-979 (2003).

STATEMENT OF THE FACTS

The evidence at the motion to suppress tended to show that Sergeant Richard Darren Koonce (“Koonce”) of the Greensboro Police Department had been speaking with an informant around January 20 and 21, 2001 in regards to a possible narcotics transaction.

The informant had been introduced to Koonce by an attorney several months prior to January 2001 (Tp. 10), and had pending charges (Tp. 11). The informant had given Koonce information regarding locations and drug dealers that Koonce knew to be correct (Tp. 11). As to his history with the informant, Koonce testified that this was “probably the second one where we moved into an investigation” (Tp. 33, ll. 4-5) This was the first case Koonce had ever used the informant’s information to completion (Tp. 33). Koonce did not indicate he had ever made any prior arrests based on the informant’s tips.

Koonce testified that the informant told him

. . . that on the 21st, that a Hispanic male, approximately 25 years of age, five-eight, 150 pounds with a mustache and goatee would possibly be transporting three to four kilos of cocaine to Danville, Virginia. And he provided me with the description of a black 2000 Dodge Durango and provided me with a North Carolina registration plate. . . . He also indicated it would be leaving 732 Hammer Avenue in Asheboro (Tp. 12, ll. 4-11, emphasis added)

The informant could not tell Koonce if the Hispanic male would have cocaine on him when he left Hammer Avenue (Tpp. 48-49), and he was unsure if the Hispanic male would go somewhere else first and whether there were drugs in the Hammer Avenue residence (Tp. 49, ll. 10-14).

The informant met Koonce and Detective L.T. Marshall (“Marshall”) in Asheboro in the early morning hours, around two to three in the morning (Tp. 13), on January 21, and located the Durango vehicle (“Durango”) at the Hammer Avenue address (Tp. 47) , which was a two story apartment building. The registration plate came back to Juventina Abonza of Asheboro (Tp 12). Koonce was never able to locate the owner of the vehicle, as it was not the defendant or his wife (Tp. 42, ll. 20-25). The informant never verified to the police that the defendant, Mr. Abonza was the individual to whom he was referring to in his tip (Tp. 67). In fact, he did not know Mr. Abonza’s name (Tp. 35-36).

At about 8:00 a.m. on the morning of January 21, 2001, the Durango left the parking lot being driven by a female, Mrs. Abonza, with the defendant, Mr. Abonza (“Abonza”) on the passenger side, and several children in the rear compartment area. Koonce testified that the defendant became a suspect when the Durango left that location (Tp. 44, ll. 11-13). They traveled to a house at 238 North Main Street, while Koonce and Marshall followed. Mr. and Mrs. Abonza and the children went inside the home (Tp. 19).

A couple of minutes later, Mr. Abonza exited the home with another male. Mr. Abonza went and stood beside the Durango, while the other male went underneath the crawl space of the home (Tp. 20), and retrieved a white grocery bag (Tp. 21). He handed the bag to Mr. Abonza, who put the bag in the rear compartment of the Durango. Mrs. Abonza came back outside, and Mr. and Mrs. Abonza left in the Durango. They got on Highway 220 towards Greensboro, and then onto Highway 29 northbound (Tp. 48).

Koonce then had a marked patrol car stop the Durango. Koonce asked Mr. Abonza to exit the vehicle, which he did. Koonce asked Abonza about narcotics, and Abonza denied knowledge of narcotics or cocaine (Tp. 26). Abonza showed Koonce an identification card. Koonce then asked Abonza to consent to search of the vehicle. Koonce testified that Abonza consented, but could not remember the words he used to consent (Tp. 28-29).

Koonce the searched the rear compartment of the Durango and found what he believed to be three kilos of cocaine (Tp. 29). Abonza was taken into custody. Koonce arranged for a translator to be there when he interviewed Mr. and Mrs. Abonza because he knew there was going to be a language barrier (Tp. 66-67).

The trial court denied Abonza’s motion to suppress, finding that consent was not obtained pursuant to statute, but that consent was not necessary as Koonce had “probable cause to arrest the defendant based upon information received from a reliable informant that was sufficiently or minutely identified” (Tp. 96, ll. 12-15).

ARGUMENT

I.The trial court erred in denying defendant’s motion to suppress as several findings of fact were not supported by competent evidence and there was no probable cause to conduct the search, denying defendant’s state and federal constitutional rights.

Assignments of Error 1 and 2, Rp. 26

The trial court determined that the police did not obtain consent to search the vehicle as required by statute (Rp. 96); however, it determined that consent was not necessary because the police had probable cause to arrest the defendant based upon information received “from a reliable informant that was sufficiently or minutely verified or corroborated” (Tp. 96, ll. 14-15). Several of the trial court’s findings of fact are not supported by competent evidence. Further, the findings of fact do not support the conclusion of law that the informant was reliable, therefore, there was no probable cause and defendant’s motion to suppress should have been granted.

A. Standard of Review

The review of a trial court’s ruling on a motion to suppress shall determine whether the findings of fact are supported by competent evidence, and whether the findings support the conclusions of law. State v. Braxton, 344 N.C. 702, 709, 477 S.E.2d 172, 176 (1996) (noting that a trial court's resolution of a conflict in the evidence will not be disturbed on appeal).The trial court’s findings of fact are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting. Id. Once the appellate court concludes that the trial court’s findings of fact are supported by the evidence, its next task “is to determine whether the trial court’s conclusion[s] of law [are] supported by the findings.” State v. Hyde, 352 N.C. 37, 45, 530 S.E.2d 281, 288 (2000), cert. denied, 531 U.S. 1114, 148 L.Ed. 2d 775 (2001). In reviewing the trial court's order following a motion to suppress, an appellate court is bound by the trial court's findings of fact if such findings are supported by competent evidence in the record; but the conclusions of law are fully reviewable on appeal. State v. Mahaley, 332 N.C. 583, 592-93, 423 S.E.2d 58, 64 (1992), cert. denied, 513 U.S. 1089, 130 L. Ed. 2d 649 (1995).

B. Findings of Fact not supported by competent evidence

The court’s findings of fact regarding the informant’s reliability were dictated in the transcript (See Appendix), in toto, as follows:

[1.] On or about January 20, 2001, Corporal Koonce of the Greensboro Police Department Vice and Narcotics division received information from an informant known to him and from whom he had previously received reliable information to the effect that a Hispanic male, approximately 25 years old, approximately 150 pounds, with a mustache was to transport a quantity of cocaine from a location in Asheboro to Danville Virginia, in the early morning of the following day, January 21, 2001. (Tp. 93, ll. 11-20)

[2.] Based thereon, Corporal Koonce and Officer Marshall of the Greensboro Police Department traveled to Asheboro in the very early morning hours of January 21, 2001, where they picked up the informant; drove to an apartment building identified by the informant as the residence of the person to whom he had referred in providing that information to Corporal Koonce. (Tp. 93, ll. 20-25; Tp. 94, l. 1)

[3.] The informant also there identified the vehicle that was to be used for the transportation of the cocaine to which he referred in providing that information. That vehicle being a Dodge Durango. (Tp. 94, ll. 1-5)

[4.] Apparently, through links to ultimately the North Carolina Department of Motor Vehicles, Corporal Koonce determined that the vehicle was registered to on – and I’m not sure I have this absolutely correct, but I believe it was J-U-V-E-N Abonza. (Tp. 94, ll. 5-10).

[5.] Corporal Koonce and Officer Marshall set up surveillance at the apartment. At approximately 8:00 a.m., on the morning of January 21, 2001 they observed a male matching the informant’s description, a female, and several children enter the Durango, the female driving, and exit the parking area. (Tp. 94, ll. 10-15)

[6.] The police officers followed the Durango a short distance to a white house. Officer Koonce – Corporal Koonce observed the vehicle pull to the side and rear of the white house. He observed the occupants of the vehicle enter the house. Within a few minutes, he observed the male who had been an occupant of the vehicle and another male exit the house. The latter entered the crawl space at the rear of the house and emerged with a white plastic bag that appeared to contain one or more square or rectangular objects which, according to the training and experience of doctor – of Corporal Koonce, appeared to be consistent with the size and shape of a kilo of cocaine. (Tp. 94, ll. 15-25; Tp. 95, ll. 1-2)

[7.] They observed the male who had entered the crawl space had the white plastic bag to the other male who had been an occupant of the vehicle. That individual then opened the rear hatch of the Durango and placed the bag in an interior compartment. (Tp. 95, ll. 3-7)

[8.] Shortly thereafter, a female, being the one who had previously occupied and driven the Durango, emerged from the house. And she and the male who had been an occupant of the vehicle entered the vehicle again, the female driving, and left the premises. (Tp. 95, ll. 7-12).

[9.] Corporal Koonce and Officer Marshall followed the Durango eventually north on U.S. 220 to Interstate 40/85, in or around Greensboro, to U.S. Highway 29 North in Greensboro. At that time, Office Koonce radioed for a marked patrol car of Greensboro Police Department to execute a stop of the Durango which was accomplished. (Tp. 95, ll. 12-17)

The court made no other findings regarding the reliability of the informant.

There were several findings of the court that was not supported by competent evidence. First, there was no evidence that the informant told the police that the drugs would be transported on January 21, as found by the court in paragraph [1] above. The testimony indicated that the informant said drugs would be possibly be transported on January 21st (Tp. 12, ll. 4-11). Therefore, the word “possibly” should be added to the finding in paragraph [1].

There was also no evidence that the informant said that the Hispanic male lived at the Hammer Street address, as indicated in paragraph [2] of the findings, only that the Dodge and/or drugs would be leaving the Hammer Street address. The informant never indicated the suspect’s name or where he lived, only gave a physical description and said drugs would be transported from a Durango at the Hammer Street address. Therefore, it was error for the court to find that the informant said the Hispanic male lived at the Hammer Street address, and the finding that the apartment building was “the residence of the person to whom [the informant] had referred in providing that information” should be stricken.

Most importantly, there was no testimony that defendant matched the informant’s description (Tp. 12, ll. 4-11), as stated in paragraph [5] above, beyond being a Hispanic male. There was no evidence or testimony from the state’s witness as to defendant’s age, height, weight, or whether he had a mustache or goatee at the time defendant was trailed and stopped by the police. The only part of the description that was corroborated with the informant was that defendant looked Hispanic. The evidence shows that the officers noticed the defendant only after he was in the car, and testified he became a suspect at the moment, although the description was not corroborated beyond the color of defendant’s skin (Tp. 17, ll. 4-9; Tp. 44, ll. 1-13).

Based on the foregoing, defendant respectfully requests that the court reverse the abovementioned portions of the trial court’s findings as there is no competent evidence to support them. State v. Braxton, 344 N.C. 702, 477 S.E.2d 172 (1996).

C. Conclusions of Law in error

The trial court’s findings of fact do not support its conclusion of law that the officer had “probable cause to arrest the defendant based upon information received from a reliable informant that was sufficiently or minutely identified” (Tp. 96, ll. 12-15). Were the court to find the findings of fact do support this conclusion, it must conclude that the conclusions are in error based on established precedent.

The Fourth Amendment, applied to the states through the Fourteenth Amendment, protects individuals from unreasonable searches and seizures. State v. Smith, 346 N.C. 794, 798, 488 S.E.2d 210, 213 (1997). A warrantless search may be conducted incident to a lawful arrest if probable cause to arrest exists prior to the search and the arrest is permitted by law. State v. Mills, 104 N.C. App. 724, 728, 411 S.E.2d 193, 195 (1991). Probable cause to arrest exists where “’the facts and circumstances within their [the officers’] knowledge, and of which they had reasonable trustworthy information [are] sufficient in themselves to warrant

a man of reasonable caution in the belief that’ an offense has been or is being committed.” Id. (citations omitted). “’In the course of a search [incident to arrest], the officer may lawfully take from the person arrested any property which such person has about him and which is connected with the crime charged or which may be required as evidence thereof.’” State v. Harris, 279 N.C. 307, 310, 182 S.E.2d 364, 366-67 (1971)(citation omitted). “Further, a searchmay be made before an actual arrest and still be justified as a search incident to arrest, if, as here, the arrest is made contemporaneously with the search.” State v. Brooks, 337 N.C. 132, 145, 446 S.E.2d 579, 587 (1994)(citation omitted). Accordingly, the question before this court is whether the officer had probable cause to arrest the defendant prior to the time he searched the vehicle. This court has held that where a search of a suspect's person occurs before, instead of after, formal arrest, such search can be equally justified as “incident to the arrest” provided probable cause to arrest existed prior to the search and provided it is clear that the evidence seized was in no way necessary to establish the probable cause. State v. Wooten, 34 N.C. App. 85, 237 S.E.2d 301 (1977)(emphasis added). Our Supreme Court has defined probable cause as follows:

"Probable cause and ‘reasonable ground to believe' are substantially equivalent terms. 'Probable cause for an arrest has been defined to be a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty . . . . To establish probable cause the evidence need not amount to proof of guilt, or even to prima facie evidence of guilty, but it must be such as would actuate a reasonable man acting in good faith. One does not have probable cause unless he has information of facts which, if submitted to a magistrate, would require the issuance of an arrest warrant.'"

State v. Harris, 279 N.C. 307, 311, 182 S.E.2d 364, 367 (1971).

In the present case, the State failed to show that Officer Koonce had enough information to satisfy a magistrate that a warrant should be issued. In making an arrest, an officer “may rely upon information received through an informant, rather than upon his direct observations, so long as the informant’s statement is reasonably corroborated by other matters within the officer’s knowledge.” Jones v. United States, 362 U.S. 257, 269, 4 L. Ed. 2d 697, 707, 80 S. Ct. 725 (1960),overruled on other grounds by United States v. Salvucci, 448 U.S. 83, 65 L. Ed. 2d 619, 100 S. Ct. 2547 (1980).

Probable cause to arrest and probable cause to search are not always identical, but precedent in the area of probable cause to search is instructive. In regards to information obtained from an informant, a two-pronged test for probable cause to search was formulated by the United States Supreme Court in Aguilar v. Texas, 378 U.S. 108, 12 L. Ed. 2d 723 (1964), and later refined in Spinelli v. United States, 393 U.S. 410, 21 L. Ed. 2d 637 (1969), and required first that an affidavit must contain information to allow a magistrate to understand how the informant obtained the information and, second, that the affidavit must establish the reliability of the informant. State v. Hughes, 353 N.C. 200, 539 S.E.2d 625 (2000). Reliability could be established by showing that the informant: (1) had been used previously and had given reliable information; (2) gave information that was against the informant’s penal interest; (3) demonstrated personal knowledge by giving clear and precise details in the tip; or (4) was a member of a reliable group such as the clergy. Id.

The Court abandoned the Aguilar-Spinelli test in favor of the “totality of the circumstances” test established in Illinois v. Gates, 462 U.S. 213, 76 L. Ed. 2d 527, reh'g denied, 463 U.S. 1237, 77 L. Ed. 2d 1453 (1983). Under the Gates test, the “basis of knowledge” and “reliability” or “veracity” prongs of the Aguilar-Spinelli test are still relevant, but instead of being independent of each other, they are “closely intertwined issues,” where “a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.” Hughes at 203, 539 S.E.2d at 628, quoting Gates at 233, 76 L. Ed. 2d at 545.

The Unites States Supreme Court emphasized that “our decisions applying the totality-of-the- circumstances analysis . . . have consistently recognized the value of corroboration of details of an informant’s tip by independent police work.” Gates, 462 U.S. at 241, 76 L. Ed. 2d at 550. The Court emphasized that “probable cause does not demand the certainty we associate with formal trials.” Id. at 246, 76 L. Ed. 2d at 553. Therefore, it is enough if there is a “fair probability” that a confidential informant obtained his entire story either straight from a defendant or from someone he trusted, and corroboration of “major portions of the [informant’s] predictions provides just this probability.” Id.