Wednesday, December 8, 2021

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Court of Appeals upholds Durham drug dealer’s convictions in Alamance County

The state’s second-highest court has upheld the convictions of a drug dealer who claimed he never should’ve been arrested – though he didn’t dispute that he had nearly 5 grams of heroin in his possession when he was arrested during an undercover investigation in Burlington in 2016.

Yaw Harrison, black male, 39, formerly of 412 Hidden Springs Drive in Durham, had been living in Durham when he was arrested while trying to deliver heroin to an informant in Burlington in September 2016, the case background states. At the close of his trial in Alamance County superior court in November 2019, Harrison was convicted of felony trafficking and possession of heroin but found not guilty of resisting a public officer and possession with intent to sell.

Harrison unsuccessfully argued on appeal that investigators with the Alamance Narcotics Enforcement Team (ANET) had improperly relied on hearsay evidence from an informant to arrest him and conducted an unlawful, warrantless search of his Mercedes Benz SUV in September 2016. The case background, cited in the opinion issued Tuesday by the Court of Appeals, identifies the informant as Frank Buero.

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The informant told Graham police detective Rodney King, now the department’s assistant chief, who was working the investigation for ANET, that he had purchased heroin from Harrison. That tip provided the basis to conduct surveillance at Buero’s home and at Harrison’s home in Durham and, later, to arrange a “controlled” drug buy in Burlington that ultimately led to Harrison’s arrest, according to the case background. Investigators from multiple law enforcement agencies participated in the undercover operation, including the Burlington police department; Alamance County sheriff’s department; and the State Bureau of Investigation.

On the day of Harrison’s arrest, a Burlington police investigator attempted to follow him from his home in Durham to Buero’s residence, but eventually lost him in traffic. He was later spotted exiting I-85/40, onto Maple Avenue in Burlington, proceeding toward Buero’s residence, and stopped by a Burlington police officer and Alamance County sheriff’s deputy near 1206 Maple Avenue at 2:14 p.m. on September 2, 2016, based on the Alamance County court file and case background outlined in the opinion for the Court of Appeals.

After they pulled Harrison over, the Burlington police officer and sheriff’s deputy witnessed him “trying to tear open a plastic bag” that was believed to contain heroin, according to the case background. They instructed him to exit his SUV, and when he didn’t, the sheriff’s deputy used handcuffs to break the passenger side window; and Harrison was promptly arrested. During a search of Harrison’s SUV, investigators recovered the plastic bag, described as containing “a tan rock-like” substance and other evidence, based on his Alamance County court file. Other evidence collected during the search of Harrison’s Mercedes SUV included $3,140 in cash, as well as a credit card and cell phone, according to an inventory of evidence that is included in Harrison’s Alamance County court file.

Forensic testing by the State Crime Lab later confirmed that approximately 4.81 grams of heroin had been in the plastic bag collected during the vehicle search.

Prior to his trial in Alamance County, Harrison filed a motion to suppress hearsay statements that were used as the basis to arrest him in 2016 as well as evidence obtained during the search of his vehicle.

Harrison alleged the investigators never told him why they had stopped him on Maple Avenue; never asked him for identification; never asked him to drop any item in his hands; nor did they suggest he had anything in his hands, according to a copy of the affidavit. Rather than ask to search his vehicle, Harrison alleged, the police officer and sheriff’s deputy pulled him from his vehicle, “slammed [him] on the ground, placed him in handcuffs,” and stood him up beside a patrol car, while they proceeded to conduct what he contended was a warrantless search of his Mercedes SUV.

He also contended that ANET investigators had relied on hearsay statements made by Traci Buero, who is identified as the wife of Frank Buero, as the basis for his arrest in September 2016 – and that those statements would be deemed inadmissible in court.

In rejecting Harrison’s motion to suppress evidence recovered during the search of Mercedes SUV, Alamance County senior resident superior court judge Tom Lambeth, Jr. concluded that there was reasonable suspicion to stop his vehicle and arrest him in September 2016.

For his appeal, Harrison contended that the “search of his vehicle incident to arrest” was improper due to what he claimed was the absence of probable cause.

The Appeals Court disagreed. Noting that warrantless searches are prohibited by the Fourth Amendment to the U.S. Constitution, a three-judge panel for the Court of Appeals cited an exception to the Fourth Amendment that provides for “a search incident to a lawful arrest,” which is deemed permissible when reasonable to believe that evidence of the crime might be found in a vehicle or to prevent a suspect’s potential flight.

The Appeals Court also noted that numerous state and federal courts have upheld the use of informant tips to establish probable cause. Multiple investigators collaborated to arrange the controlled buy; knew Harrison had been to Buero’s residence and had sold heroin to the informant; and confirmed that Harrison was en route to deliver heroin at the time of his arrest, based on the opinion issued Tuesday.

The appellate court did not address Harrison’s claim of ineffective assistance by his attorney, Alvin L. Hudson, II of Charlotte, during his trial in Alamance County. Lambeth had properly denied the motion to suppress evidence seized incident to the arrest, eliminating any “reasonable probability” that had it not been for “deficient representation,” the result would have been different, judge April Wood wrote in her opinion for the Court of Appeals.

Judges John M. Tyson and Allegra Collins concurred with Wood’s opinion.

Harrison was sentenced to approximately seven years and nine months in prison and is currently incarcerated at Pender Correctional Institution in Burgaw.

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