State v. Forte , 810 S.E.2d 339 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-513
Filed: 16 January 2018
Pitt County, No. 12 CRS 060601
STATE OF NORTH CAROLINA
v.
TREVOR WILKS FORTE, Defendant.
Appeal by defendant from judgment entered on or about 12 August 2015 by
Judge Wayland J. Sermons, Jr. in Superior Court, Pitt County. Heard in the Court
of Appeals 6 February 2017.
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,
STATE V. FORTE
Opinion of the 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:
1 According to Det. Cottingham, 10 small bags of heroin make up a “bundle;” a “brick” is five
bundles, or 50 small bags.
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Opinion of the Court
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.
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Opinion of the Court
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
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Opinion of the Court
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
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Opinion of the Court
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
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Opinion of the Court
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 grounds. The State objected to its consideration, since it was filed the
day before trial and the affidavit was provided only that morning. The trial court
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Opinion of the Court
agreed to consider the motion, stating “even though the motion to suppress does not
contain any grounds, . . . I’m not going to penalize the Defendant for his attorney’s
lack of proper form of pleading, and I’m going to hear evidence.”
During the argument of the motion to suppress, the trial court asked defendant
to clarify the legal grounds of the motion as well as the evidence he was seeking to
suppress. Defendant’s argument treated the issue as the sufficiency of the
information to support issuance of a search warrant:
And to get a search warrant, I certainly understand
-- the search warrant should be in the file, but they
essentially go to T-Mobile, get a search warrant, and then
use that telephone number, Judge. The only thing I can
argue, the four corners of that search warrant and those
things have not been properly asserted in the four corners
of that document. I’m not saying what the officers knew
from their experience and training and things like that,
they’re entitled to that, but they didn’t put it in the four
corners of that document how they knew this Oliver fellow
was reliable. He had not been watched go do a transaction
and come back. There’s no evidence of that. It’s not in the
discovery, and it is certainly not in the search warrant.
So, Judge, if the State had a hunch, maybe, had a
probably, maybe, but it takes more than that to get a
search warrant. It takes more than that to stop an
automobile. And in fact, my client was not driving the
automobile. There’s no allegation he was driving the
automobile. In fact, the discovery, as I read it, says that
this other lady, who is in this courtroom, she had the phone
with an address of where they were going; not my client.
The simple sentences that I listed in my affidavit,
10, 11, and 12, it’s not reliable, and it’s not specific, it’s not
credible. There’s no evidence of that, Judge. And as to
that, Judge, I would argue that the stopping of the
automobile and the detention of my client was not lawful
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Opinion of the Court
based on the Fourth Amendment.
But no search warrant was issued in this case. Instead, the order in question
was the trial court’s “Order Authorizing Pen Register/Trap and Trace and Disclosure
of Records and Other Information” entered under 18 U.S.C. § 3123 and the Stored
Communications Act (“SCA”), 18 U.S.C. § 2703(d). Later in the argument,
defendant’s counsel noted that he was actually addressing the order allowing “[t]he
wire tap, telephone trace; sometimes called a trap. They’re traps where the
information is pinged off, where a specific phone number is pinged off of.” Defendant
made no other argument regarding the Fourth Amendment and never mentioned the
Stored Communications Act or North Carolina General Statutes Chapter 15A, Article
12 at the hearing.
Although the trial court heard defendant’s motion to suppress, despite its late
filing and lack of grounds, on appeal we can consider only the grounds actually
presented before the trial court. See, e.g., State v. Hernandez, 227 N.C. App. 601, 608,
742 S.E.2d 825, 829 (2013) (“According to well-established North Carolina law, where
a theory argued on an appeal was not raised before the trial court, the argument is
deemed waived on appeal. . . . Thus, a criminal defendant is not entitled to advance
a particular theory in the course of challenging the denial of a suppression motion on
appeal when the same theory was not advanced in the court below.” (Citation,
quotation marks, and brackets omitted)); State v. Edmonds, 212 N.C. App. 575, 577-
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Opinion of the Court
78, 713 S.E.2d 111, 114 (2011) (“Generally, error may not be asserted upon appellate
review unless the error has been brought to the attention of the trial court by
appropriate and timely objection or motion. Objections must state the specific
grounds for the ruling the party desired the court to make if the specific grounds were
not apparent from the context. Failure to make an appropriate and timely motion or
objection constitutes a waiver of the right to assert the alleged error on appeal.
Constitutional errors not raised by objection at trial are deemed waived on appeal. A
thorough review of the record in this case gives us no indication that defendant raised
any constitutional grounds or argument as to any of the issues which the defendant
now argues on appeal. Since those constitutional arguments were not raised by a
specific objection at trial, those arguments are waived.” (Citations, quotation marks,
brackets, and ellipses omitted)).
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?” Specifically, defendant now contends that the
“Trial Court violated the Defendant’s Constitutional Right against Unreasonable
Searches by allowing the State to retrieve Real Time Location Information from his
Cell Phone Without a Search Warrant.” Most of defendant’s brief is devoted to
discussion of the Stored Communications Act’s requirements, cases interpreting the
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Opinion of the Court
Stored Communications Act as it applies to real-time location information, the
application of the Fourth Amendment to these “real time” searches, and the lack of
probable cause to support issuance of a search warrant. Defendant made none of
these arguments to the trial court. The trial court ruled on the only issue defendant
argued, and concluded that “pursuant to N.C.G.S. 15A-263, the Order authorizing
the pen register was properly issued.” Defendant’s only argument before the trial
court was that law enforcement did not have sufficient evidence to support issuance
of the pen register order. The trial court ruled on this issue only, and this is the only
argument we may consider on appeal.
I. Standard of Review
It is well established that the standard of review in
evaluating a trial court’s ruling on a motion to suppress is
that the trial court’s findings of fact are conclusive on
appeal if supported by competent evidence, even if the
evidence is conflicting. However, conclusions of law are
reviewed de novo and are subject to full review. Under a
de novo review, the court considers the matter anew and
freely substitutes its own judgment for that of the lower
tribunal.
State v. O’Connor, 222 N.C. App. 235, 238-39, 730 S.E.2d 248, 251 (2012) (citations,
quotation marks, and brackets omitted). Defendant has challenged none of the trial
court’s findings of fact, so they are binding on appeal. See, e.g., State v. Medina, 205
N.C. App. 683, 685, 697 S.E.2d 401, 403 (2010) (“If a defendant does not challenge a
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Opinion of the Court
particular finding of fact, such findings are presumed to be supported by competent
evidence and are binding on appeal.” (Citation and quotation marks omitted)).
II. Stored Communications Act
Here, Detective Cottingham applied for -- and the trial court entered -- an order
authorizing a pen register for defendant’s phone. This order differs from a search
warrant, as the trial court’s “Order Authorizing Pen Register/Trap and Trace and
Disclosure of Records and Other Information” was entered under 18 U.S.C. § 3123
and the Stored Communications Act (“SCA”), 18 U.S.C. § 2703(d). The order allowing
the pen register authorized, in relevant part, the disclosure of:
all published and non published subscriber records, call
detail and data detail records, text or short message service
records, IP addresses, telephone toll records, direct connect
records, cellular tower and originating, handover and
terminating cell site and sector information to include
towers, switches, Global Positioning Location (GPS)
without geographical limitations within the United States,
timing advance, geolocation service, triangulation, E911,
real time call detail records with coordinating real time cell
site location information, historical call detail records to
include cell site location information, IP address
history. . . .
Under the SCA, the government is authorized to require disclosure under
specific circumstances, including when the government gets a court order for such
disclosure under 18 U.S.C. § 2703(d):
A governmental entity may require a provider of electronic
communication service or remote computing service to
disclose a record or other information pertaining to a
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Opinion of the Court
subscriber to or customer of such service (not including the
contents of communications) only when the governmental
entity--
(A) obtains a warrant issued using the procedures
described in the Federal Rules of Criminal Procedure (or,
in the case of a State court, issued using State warrant
procedures) by a court of competent jurisdiction;
(B) obtains a court order for such disclosure under
subsection (d) of this section; [or]
(C) has the consent of the subscriber or customer to such
disclosure[.]
18 U.S.C. § 2703(c)(1)(A)-(C) (emphasis added).
The SCA requires less than probable cause and essentially only requires
reasonable suspicion for issuance of an order for disclosure. See 18 U.S.C. § 2703(d)
(“A court order for disclosure under subsection (b) or (c) may be issued by any court
that is a court of competent jurisdiction and shall issue only if the government entity
offers specific and articulable facts showing that there are reasonable grounds to
believe that the contents of a wire or electronic communication, or the records or other
information sought, are relevant and material to an ongoing criminal investigation.”
(Emphasis added)). See also N.C. Gen. Stat. § 15A-263 (2015) (“Issuance of order for
pen register or trap and trace device”). Thus, a pen register order differs from a
search warrant in that the standard to grant such an order is lower than probable
cause; these orders authorize use of surveillance that does not require a search
warrant. See Smith v. Maryland, 442 U.S. 735, 745-46, 61 L. Ed. 2d 220, 230, 99 S.
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Opinion of the Court
Ct. 2577, 2583 (1979) (“The installation and use of a pen register, consequently, was
not a ‘search,’ and no warrant was required.”).
As noted above, the trial court’s detailed findings of fact are not challenged on
appeal. Detective Cottingham’s application requesting the pen register and trap and
trace order set forth detailed and extensive supporting facts. Detective Cottingham
received information not from an anonymous source, but from an identified and
known drug dealer, Mr. Oliver. “In evaluating the reliability of an informant’s tip,
due weight must be given to the informant’s veracity, reliability, and basis of
knowledge as highly relevant factors in determining whether an informant’s tip is
sufficient from the totality of circumstances.” State v. Sanchez, 147 N.C. App. 619,
624, 556 S.E.2d 602, 606-07 (2001). There are multiple indications of reliability in
Mr. Oliver’s statements, including that Mr. Oliver made substantial admissions
against his penal interest. See, e.g., State v. Jackson, __ N.C. App. __, __, 791 S.E.2d
505, 511 (2016) (“In order for a reviewing court to weigh an informant’s tip as
confidential and reliable, evidence is needed to show indicia of reliability. Indicia of
reliability may include statements against the informant’s penal interests and
statements from an informant with a history of providing reliable information.”
(Citations, quotation marks, and brackets omitted)), aff’d per curiam, __ N.C. __, 807
S.E.2d 141 (2017). Mr. Oliver admitted to buying and selling a large amount of heroin
from Roam regularly, an admission against his penal interest. He also provided a
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Opinion of the Court
nickname, general description of defendant, background information from dealing
with him previously, and current travel information of the suspect. Mr. Oliver spoke
with Detective Cottingham in person, after having been identified and brought in to
custody, and they spoke more than once, adding to the reliability of his tip. See, e.g.,
State v. Allison, 148 N.C. App. 702, 705, 559 S.E.2d 828, 830 (2002) (“Foremost, the
tip in this case came through a ‘face-to-face’ encounter rather than by an anonymous
telephone call. Under this scenario [the officer] had an opportunity to observe the
demeanor of the female informant in an effort to assess the reliability of her tip.
Furthermore, by engaging [the officer] directly, the female informant significantly
increased the likelihood that she would be held accountable if her tip proved to be
false.”). These facts, which are evident in the application for the order, lend sufficient
reliability and credibility to the information Detective Cottingham received from Mr.
Oliver. And defendant’s phone number and where he would most likely be traveling
in Greenville, North Carolina, was also identified in the application. Under the
totality of the circumstances, the trial court had the necessary specific and articulable
facts to show reasonable grounds to believe the records sought from the pen register
order were relevant and material to an ongoing investigation. See 18 U.S.C. §
2703(d).
III. Fourth Amendment
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Opinion of the Court
Defendant acknowledges that the evidence may have been enough to meet the
lesser “reasonable grounds” standard in 18 U.S.C. § 2703(d), but argues that the
Fourth Amendment ultimately controls the issue, because the trial court’s order
allowed officers to collect real-time location information from defendant’s cell phone,
constituting a search under the Fourth Amendment for which a search warrant based
upon probable cause is required. But as noted above, defendant failed to present this
argument to the trial court. “Constitutional arguments not made at trial are
generally not preserved on appeal.” State v. Canty, 224 N.C. App. 514, 516, 736
S.E.2d 532, 535 (2012). See also Edmonds, 212 N.C. App. at 578, 713 S.E.2d at 114
(“A thorough review of the record in this case gives us no indication that defendant
raised any constitutional grounds or argument as to any of the issues which the
defendant now argues on appeal. Since those constitutional arguments were not
raised by a specific objection at trial, those arguments are waived.” (Citation
omitted)). Although defendant mentioned the Fourth Amendment -- briefly -- before
the trial court, he presented no argument regarding the distinction between real-time
and historical data collection and the constitutional issues raised by potentially real-
time information. His argument focused only on the reliability and sufficiency of the
evidence supporting issuance of the pen register order, and the trial court correctly
ruled only on that issue.
Conclusion
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Opinion of the Court
For the reasons stated above, we hold that the trial court did not err when it
denied defendant’s motion to suppress the evidence resulting from the pen
register/trap and trace order. We therefore affirm the denial of the motion to
suppress.
AFFIRMED.
Chief Judge McGEE and Judge TYSON concur.
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