{ "id": 8896515, "name": "STATE OF NORTH CAROLINA v. JOSE FELIX SANTIAGO CARRILLO", "name_abbreviation": "State v. Carrillo", "decision_date": "2004-05-04", "docket_number": "No. COA03-725", "first_page": "204", "last_page": "211", "citations": [ { "type": "official", "cite": "164 N.C. App. 204" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "324 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "248" } ], "opinion_index": 0 }, { "cite": "312 N.C. 553", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4753359 ], "year": 1985, "pin_cites": [ { "page": "562" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0553-01" ] }, { "cite": "406 S.E.2d 579", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "585", "parenthetical": "\"Rule 704 provides that '[testimony in the form of an opinion or inference is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.' N.C.G.S. \u00a7 8C-1, Rule 704 (1988).\"" } ], "opinion_index": 0 }, { "cite": "329 N.C. 466", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2557180 ], "year": 1991, "pin_cites": [ { "page": "477", "parenthetical": "\"Rule 704 provides that '[testimony in the form of an opinion or inference is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.' N.C.G.S. \u00a7 8C-1, Rule 704 (1988).\"" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0466-01" ] }, { "cite": "145 L. Ed. 2d 264", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1999, "pin_cites": [ { "parenthetical": "\"The trial judge . . . has the duty to supervise and control a defendant's trial... to ensure fair and impartial justice for both parties.\"" } ], "opinion_index": 0 }, { "cite": "528 U.S. 941", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9531459, 9532036, 9531683, 9531419, 9531977, 9531531, 9531499, 9531631, 9531926, 9531799, 9531384, 9531739, 9531868, 9531582 ], "year": 1999, "pin_cites": [ { "parenthetical": "\"The trial judge . . . has the duty to supervise and control a defendant's trial... to ensure fair and impartial justice for both parties.\"" } ], "opinion_index": 0, "case_paths": [ "/us/528/0941-03", "/us/528/0941-14", "/us/528/0941-08", "/us/528/0941-02", "/us/528/0941-13", "/us/528/0941-05", "/us/528/0941-04", "/us/528/0941-07", "/us/528/0941-12", "/us/528/0941-10", "/us/528/0941-01", "/us/528/0941-09", "/us/528/0941-11", "/us/528/0941-06" ] }, { "cite": "512 S.E.2d 720", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "732", "parenthetical": "\"The trial judge . . . has the duty to supervise and control a defendant's trial... to ensure fair and impartial justice for both parties.\"" } ], "opinion_index": 0 }, { "cite": "350 N.C. 109", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132015 ], "year": 1999, "pin_cites": [ { "page": "126", "parenthetical": "\"The trial judge . . . has the duty to supervise and control a defendant's trial... to ensure fair and impartial justice for both parties.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0109-01" ] }, { "cite": "558 S.E.2d 97", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2002, "pin_cites": [ { "page": "103" }, { "page": "103" } ], "opinion_index": 0 }, { "cite": "355 N.C. 117", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 219899 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "125" }, { "page": "125" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0117-01" ] }, { "cite": "370 S.E.2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "558" } ], "opinion_index": 0 }, { "cite": "322 N.C. 709", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2515352 ], "year": 1988, "pin_cites": [ { "page": "718" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0709-01" ] }, { "cite": "184 S.E.2d 885", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 728", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572456, 8572556, 8572493, 8572526, 8572469 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0728-01", "/nc/279/0728-05", "/nc/279/0728-03", "/nc/279/0728-04", "/nc/279/0728-02" ] }, { "cite": "98 S.E.2d 329", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1957, "opinion_index": 0 }, { "cite": "246 N.C. 237", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625774 ], "year": 1957, "opinion_index": 0, "case_paths": [ "/nc/246/0237-01" ] }, { "cite": "183 S.E.2d 820", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "822" } ], "opinion_index": 0 }, { "cite": "12 N.C. App. 487", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550571 ], "pin_cites": [ { "page": "491" } ], "opinion_index": 0, "case_paths": [ "/nc-app/12/0487-01" ] }, { "cite": "157 L. Ed. 2d 1078", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "540 U.S. 551", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8897610 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "557", "parenthetical": "citation omitted" }, { "page": "1078", "parenthetical": "citation omitted" }, { "page": "557-58" } ], "opinion_index": 0, "case_paths": [ "/us/540/0551-01" ] }, { "cite": "998 F.2d 8", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10507449 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "12" }, { "page": "12" } ], "opinion_index": 0, "case_paths": [ "/f2d/998/0008-01" ] }, { "cite": "478 S.E.2d 237", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1996, "pin_cites": [ { "page": "241" }, { "page": "242" }, { "page": "242" }, { "page": "239" }, { "page": "240" } ], "opinion_index": 0 }, { "cite": "124 N.C. App. 565", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11890161 ], "weight": 4, "year": 1996, "pin_cites": [ { "page": "571" }, { "page": "572" }, { "page": "572" }, { "page": "568" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0565-01" ] }, { "cite": "588 S.E.2d 497", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "502", "parenthetical": "quoting State v. Smith, 124 N.C. App. 565, 571, 478 S.E.2d 237, 241 (1996)" } ], "opinion_index": 0 }, { "cite": "161 N.C. App. 382", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8957951 ], "year": 2003, "pin_cites": [ { "page": "387", "parenthetical": "quoting State v. Smith, 124 N.C. App. 565, 571, 478 S.E.2d 237, 241 (1996)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/161/0382-01" ] } ], "analysis": { "cardinality": 794, "char_count": 16342, "ocr_confidence": 0.757, "pagerank": { "raw": 1.2389027956024126e-07, "percentile": 0.6074029798648493 }, "sha256": "201e196a9c8d394593dd8985efdbd5d6488c4597176c0c99d2c42b256b8eb555", "simhash": "1:867aa424a32f0d4e", "word_count": 2641 }, "last_updated": "2023-07-14T17:15:16.246957+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge WYNN and HUNTER concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JOSE FELIX SANTIAGO CARRILLO" ], "opinions": [ { "text": "TYSON, Judge.\nJose Felix Santiago Carrillo (\u201cdefendant\u201d) appeals from a judgment entered following a jury\u2019s verdict finding him guilty of trafficking in cocaine by possession of 400 grams or more of cocaine. We hold that defendant received a trial free from prejudicial error.\nI. Background\nDefendant is a Mexican national and an illegal alien who had resided within the United States for three years prior to his arrest. For six months prior to his arrest, defendant lived in an apartment in Pitt County, North Carolina, and worked as a drywall installer. The United States Customs Service (\u201cU.S. Customs\u201d) intercepted a package mailed from an address in Mexico and addressed to defendant at his residence in Pitt County. The package was mailed from a location in Mexico, which the U.S. Customs had identified as a drug origination point for transporting drugs into the United States. U.S. Customs Inspector Richard Rice determined that the package contained a large amount of cocaine concealed inside three ceramic turtles.\nU.S. Customs agents notified the City of Greenville Police of the package and its contents. An affidavit was prepared, and an anticipatory search warrant was obtained. The magistrate issued a search warrant consisting of generic language. The affidavit attached to the search warrant detailed the circumstances under which the package was intercepted, the exact address to where the package was being delivered, the person to whom the package was being delivered, and the specific events- expected to happen in the future, which would, upon their occurrence, establish probable cause to suspect that defendant was in possession of and trafficking in cocaine.\nDefendant had lived at the address appearing on the package for some time, and telephone service at that address was listed in defendant\u2019s name. An officer with the Greenville Police Department, disguised as a delivery man, carried the package to the address. Defendant accepted delivery of the package, signed for it, and carried the package inside the apartment. Police waited approximately ten minutes before proceeding to execute the anticipatory warrant. Police went to the door, spoke with defendant, read him portions of the search warrant in Spanish, and searched his apartment. Police found the package inside the apartment by the front door. Officers also found broken pieces of glass turtles similar to the glass turtles found inside the package delivered to and accepted by defendant. The broken pieces contained trace amounts of cocaine.\nDefendant was arrested and charged with trafficking in cocaine. Defendant did not offer any evidence. The jury convicted defendant, and the trial court sentenced him to a minimum term of 175 months and a maximum term of 219 months. Defendant appeals.\nII. Issues\nDefendant contends the trial court erred in: (1) denying his motion to suppress the fruits of a search conducted under color of an invalid search warrant; and (2) allowing law enforcement officers to testify to their opinions of whether defendant knew the package contained illegal drugs.\nIII. Anticipatory Search Warrant\nDefendant argues the anticipatory search warrant is facially invalid because the issuing magistrate failed to indicate that it was conditioned upon a specific, narrowly drawn triggering event. We disagree.\n\u201cAn anticipatory search warrant, by definition, is \u2018not based on present probable cause, but on the expectancy that, at some point in the future probable cause will exist.\u2019 \u201d State v. Baldwin, 161 N.C. App. 382, 387, 588 S.E.2d 497, 502 (2003) (quoting State v. Smith, 124 N.C. App. 565, 571, 478 S.E.2d 237, 241 (1996)). \u201cAn anticipatory warrant must set out, on its face, conditions that are \u2018explicit, clear, and narrowly drawn so as to avoid misunderstanding or manipulation by government agents.\u2019 The magistrate must ensure that the \u2018triggering events\u2019 \u2014 those events which form the basis for probable cause \u2014 are \u2018both ascertainable and preordained.\u2019 \u201d Smith, 124 N.C. App. at 572, 478 S.E.2d at 242 (quoting U.S. v. Ricciardelli, 998 F.2d 8, 12 (1st Cir. 1993)).\nThe United States Supreme Court recently held, \u201c[t]he fact that the application adequately described the \u2018things to be seized\u2019 does not save the warrant from its facial invalidity. The Fourth Amendment by its terms requires particularity in the warrant, not in the supporting documents.\u201d Groh v. Ramirez, 540 U.S. 551, 557, 157 L. Ed. 2d 1068, 1078 (2004) (citation omitted). The Supreme Court, however, limited this holding:\nWe do not say that the Fourth Amendment forbids a warrant from cross-referencing other documents. Indeed, most Courts of Appeals have held that a court may construe a warrant with reference to a supporting application or affidavit if the warrant uses appropriate words of incorporation, and if the supporting document accompanies the warrant.\nId. at 557-58, 157 L. Ed. 2d 1078.\nN.C. Gen. Stat. \u00a7 15A-246 (2003) sets forth the form and content requirements of a search warrant. This Court has held that these requirements may appear either on the face of the warrant or in the supporting affidavits. \u201cIt is permissible to incorporate the description of the items to be searched for and the place to be searched in the warrant by reference to the affidavit.\u201d State v. Flowers, 12 N.C. App. 487, 491, 183 S.E.2d 820, 822 (citing State v. Mills, 246 N.C. 237, 98 S.E.2d 329 (1957), cert. denied, 279 N.C. 728, 184 S.E.2d 885 (1971).\nDefendant argues the \u201ctriggering event\u201d was not set forth on the face of the anticipatory search warrant. The State responds that the affidavit and warrant can be read together to provide the specificity and particularity required under the United States and North Carolina Constitutions and N.C. Gen. Stat. \u00a7 15A-246. The search warrant referenced the affidavit several times and incorporated the document by stating on the face of the warrant, \u201cthere is probable cause to believe that the property and person described in the application on the reverse side and related to the commission of a crime is located as described in the application.\u201d Additionally, the warrant stated on its face, \u201c[y]ou are commanded to search the premises, vehicle, person and other place or item described in the application for the property and person in question.\u201d The attached affidavit, which applied for issuance of the warrant, clearly stated:\nOn 20 June 2001, your applicant and other officers will attempt to deliver the . . . package to [defendant] at [defendant\u2019s address]. If deliver [sic] of the package is accepted a search will be conducted of [defendant\u2019s address] after giving the occupants time to open the package. If delivery of the package is not accepted the search warrant will be returned unserved.\n(emphasis supplied).\nIn Smith, we recognized that an anticipatory search warrant \u201cmust minimize the officer\u2019s discretion in deciding whether or not the \u2018triggering event\u2019 has occurred to \u2018almost ministerial proportions.\u2019 This means the events which trigger probable cause must be specified in the warrant to a point \u2018similar to a search party\u2019s discretion in locating the place to be searched.\u2019 \u201d 124 N.C. App. at 572, 478 S.E.2d at 242 (quoting Ricciardelli, 998 F.2d at 12). We granted the defendant in Smith a new trial because \u201c[t]he affidavit was written in the present or past tense, and in no way expresses that it is \u2018contingent,\u2019 or in \u2018anticipation\u2019 of future events.\u201d Smith, 124 N.C. App. at 568, 478 S.E.2d at 239. Here, the language used in the supporting affidavit not only identifies the triggering events as occurring in the future, but also states the future condition upon which the warrant will not be executed.\nWe previously recognized, \u201c[t]he framers of our constitution sought to check the tendency of government to overreach by placing a constitutional mantle around the right to privacy in one\u2019s person, home and effects.\u201d Id. at 570, 478 S.E.2d at 240 (quoting State v. Carter, 322 N.C. 709, 718, 370 S.E.2d 553, 558 (1988)). Here, the anticipatory search warrant sufficiently incorporated by reference the attached affidavit, which clearly identified the triggering events required to execute the warrant. This assignment of error is overruled.\nIV. Opinion Testimony\nDefendant contends the trial court committed plain error in allowing law enforcement officers to testify to their opinions regarding defendant\u2019s knowledge that the package contained illegal drugs and that defendant realized he had been caught. Defendant argues he received ineffective assistance of counsel because his attorney did not object to the testimony he now assigns as erroneous. We disagree.\nA. Plain Error\nBecause defense counsel did not object to the testimony now assigned as error our review is limited to a consideration of plain error. See N.C.R. App. P. 10(b)(1) (2004); N.C.R. App. P. 10(c)(4) (2004). \u201c [Defendant is entitled to a new trial only if the error was so fundamental that, absent the error, the jury probably would have reached a different result.\u201d State v. Jones, 355 N.C. 117, 125, 558 S.E.2d 97, 103 (2002).\nSergeant A.P. White (\u201cSergeant White\u201d) testified regarding the habits of drug traffickers, Defense counsel specifically asked Sergeant White, \u201cIs it safe to say that somewhere along the lines, somebody in that situation could be an unwilling participant in the transfer of drugs?\u201d Sergeant White responded, \u201cAre you asking my opinion?\u201d When defense counsel responded affirmatively, Sergeant White testified,\nNo, because you\u2019re talking about $28,000.00 street value worth of cocaine. People that ship cocaine .. . know who they\u2019re shipping it to, and those people on the other unit or on the receiving end are expecting that package within a certain time period, and that was the main reason for our urgency trying to get that package delivered because we knew that they were expecting it.\nI think your client knew what was in that package.\nDefendant made no objection or motion to strike this testimony.\nU.S. Customs Agent Michael Doherty (\u201cAgent Doherty\u201d) testified on direct examination, without objection, that defendant dropped his head, stared at the ground, and \u201cwould not answer\u201d when asked if the turtles belonged to him and who had provided him with a fictitious Social Security Card. On cross-examination, defense counsel asked, \u201cAnd he puts his head down and you bring that up now, for what reason do you bring that up?\u201d Agent Doherty testified, \u201cHis reaction. . . . I think if I can give my opinion, I think he realized he had been caught.\u201d When asked by defense counsel whether defendant\u2019s reluctance to answer questions was possibly due to the fact he had no answer, Agent Doherty testified:\nMy opinion is that he realized he was caught and that he couldn\u2019t bluff or lie his way out of it. To answer your question, a very remote possibility. That\u2019s not a normal reaction from what I\u2019ve seen from other individuals that I\u2019ve arrested that were in his situation. When someone is cooperating with you and talking to you and all of a sudden, they quit talking and drop their eyes to the ground and they say they want to speak to an attorney, 99.9 percent of the people that have done that to me, a hundred percent of the people that have done that to me, have been guilty.\nIn response, defense counsel asked, \u201cEverybody who wants to talk to an attorney is not guilty, are they?\u201d Agent Doherty stated, \u201cNo sir. I didn\u2019t say that. . . . they realize that right then and there they are caught. ...\u201d As with Sergeant White\u2019s testimony, defendant made no objection or motion to strike this testimony\nSergeant White\u2019s and Agent Doherty\u2019s testimony informed the jury how drugs are sent through a chain of drug handlers. We hold that the trial court erred in allowing the officers to offer their opinions of whether defendant was guilty. See State v. Fleming, 350 N.C. 109, 126, 512 S.E.2d 720, 732, cert. denied, 528 U.S. 941, 145 L. Ed. 2d 264 (1999) (\u201cThe trial judge . . . has the duty to supervise and control a defendant\u2019s trial... to ensure fair and impartial justice for both parties.\u201d); but see State v. Crawford, 329 N.C. 466, 477, 406 S.E.2d 579, 585 (1991) (\u201cRule 704 provides that \u2018[testimony in the form of an opinion or inference is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.\u2019 N.C.G.S. \u00a7 8C-1, Rule 704 (1988).\u201d). Defendant did not object to or move to strike any of this testimony. Defense counsel elicited much of the testimony defendant now assigns as error. Under plain error review, we must consider whether the jury would have reached a different result had the error not occurred. Jones, 355 N.C. at 125, 558 S.E.2d at 103.\nEvidence at trial showed that the package was intercepted by the U.S. Customs agents and contained three ceramic turtles with a substantial amount of cocaine concealed inside. The package was mailed from a location in Mexico that U.S. Customs agents had identified as a mail origination point for cocaine sent to the United States. The package was addressed to defendant at his residence. Defendant accepted the package. It was found inside his residence minutes after he had taken possession of it. Broken pieces of similar turtles containing traces of cocaine were also found inside his apartment.\nAlthough it was error to allow the law enforcement officers to provide their opinions regarding defendant\u2019s guilt, defendant has failed to show that without this testimony the jury would have reached a different verdict. Id. This assignment of error is overruled.\nB. Ineffective Assistance of Counsel\nIn reviewing an appeal based on ineffective assistance of counsel, this Court must first determine whether there was a reasonable probability that without counsel\u2019s alleged errors, the outcome of the trial would have been different. State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985). If we were to conclude there was a reasonable probability that the outcome would have been different, this Court must consider whether counsel\u2019s actions were in fact deficient. Id. As we have already determined, defendant has failed to show that a different outcome at trial would have occurred if defense counsel had objected to this testimony. This assignment of error is overruled.\nV. Conclusion\nThe anticipatory search warrant was not facially invalid. The trial court did not err in denying defendant\u2019s motion to suppress the evidence seized under a search conducted pursuant to this warrant. The trial court erred in allowing Sergeant White and Agent Doherty to offer their opinions of whether defendant was guilty. This error does not require a new trial under plain error review. Considering the totality of the evidence presented at trial, we hold defendant received a trial free from prejudicial error.\nNo prejudicial error.\nJudge WYNN and HUNTER concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Richard L. Harrison, for the State.", "Paul M. Green, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JOSE FELIX SANTIAGO CARRILLO\nNo. COA03-725\n(Filed 4 May 2004)\n1. Searches and Seizures\u2014 anticipatory warrant \u2014 description of triggering event \u2014 sufficiency\nAn anticipatory search warrant was valid in a cocaine case where the warrant sufficiently incorporated the supporting affidavit, and the affidavit identified both the event which would trigger execution of the warrant (acceptance of a package) and the condition upon which the warrant would not be executed (refusal of the package).\n2. Evidence\u2014 opinion \u2014 law enforcement officers \u2014 not plain error\nThere was no plain error in a cocaine prosecution where law enforcement officers were erroneously allowed to give their opinion that defendant knew that a package shipped to him contained cocaine and knew that he had been caught. Defendant failed to show that the jury would have reached a different verdict without this testimony.\n3. Constitutional Law\u2014 effective assistance of counsel\u2014 effect on outcome \u2014 not shown\nDefendant did not receive ineffective assistance of counsel in a cocaine prosecution where he did not show that a different result would have been obtained without counsel\u2019s alleged errors.\nAppeal by defendant from judgment entered 20 November 2002 by Judge W. Russell Duke, Jr., in Pitt County Superior Court. Heard in the Court of Appeals 16 March 2004.\nAttorney General Roy Cooper, by Assistant Attorney General Richard L. Harrison, for the State.\nPaul M. Green, for defendant-appellant." }, "file_name": "0204-01", "first_page_order": 236, "last_page_order": 243 }