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Criminal Practice – Search & Seizure – Probable Cause – Drug Dog – Failure to Alert – Other Evidence

The fact that a drug dog failed to alert on defendant’s car did not require law enforcement officers or the trial court to ignore all the other circumstances giving rise to the officers’ probable cause to search defendant’s car.

We affirm the trial court’s denial of defendant’s motion to suppress the heroin found in his car.

The trial court’s binding findings of fact reveal several circumstances that, even in the absence of a positive alert from the canine, support a reasonable belief that defendant’s vehicle carried contraband materials. The evidence showed (i) a credible confidential source provided reliable information that Robert Storc, who was under investigation for the sale of narcotics, was going to a Monroe Burger King to get heroin; (ii) Storc met a grey Honda with paper tags driven by a man matching defendant’s description at the Burger King parking lot; (iii) neither Storc nor the other driver went into Burger King and instead had a one to two minute interaction in the car that Sheriff’s Detective Ian Gross testified as being consistent with a drug transaction; (iv) when law enforcement stopped Storc shortly after leaving Burger King, they found heroin in his pocket; (v) at the same time, another credible confidential source provided reliable information that Mike Moreno, a known drug trafficker, was being supplied with heroin by a male in a grey Honda with paper tags; (vi) law enforcement immediately went to Moreno’s house and saw what they believed to be the same grey Honda with paper tags parked that was driven by the same white or Hispanic man they saw at Burger King; (vii) law enforcement followed and stopped the grey Honda driven by defendant, which was the same vehicle at the Burger King and Moreno’s house; and (viii) defendant is a bald Hispanic male. Based on these facts regarding reliable information from confidential sources confirmed by observations of experienced narcotics investigators, it was objectively reasonable to believe that defendant’s vehicle contained contraband materials such as the heroin found on Storc.

Although the conclusions of law in the trial court’s written order did not mention the dog’s failure to alert, the transcript shows that this was the trial court’s focus when it took the matter under advisement.

Affirmed.

State v. Aguilar (Lawyers Weekly No. 011-251-22, 30 pp.) (Hunter Murphy, J.) Appealed from Union County Superior Court (Nathan Gwyn, J.) Scott Slusser for the state; Gilda Rodriguez for defendant. 2022-NCCOA-903


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