State v. ForteÂ, 810 S.E.2d 339

On Nov. 8–12, 2012 Greenville PD learned from a known local dealer (Michael Oliver) that a source called “Roam” would be returning from New York with heroin and would call Oliver from a consistent phone number. Oliver provided the phone number and identifying/travel details.
Detective Cottingham obtained a federal-styled order authorizing a pen register/trap-and-trace and disclosure under 18 U.S.C. § 3123 and the Stored Communications Act, permitting real‑time GPS/cell‑site location information.
SBI monitored the phone, tracked its movement from New York toward North Carolina, and officers located and stopped a small black Honda on Nov. 12, 2012; a canine alerted and heroin was found under the back seat. Defendant was the passenger and possessed the tracked phone.
Defendant moved to suppress, arguing (in essence) that the information from Oliver was insufficient to support issuance of the order and that the stop/search were unlawful; he did not develop a Fourth Amendment argument about real‑time location data or invoke the SCA at the suppression hearing.
The trial court made detailed, unchallenged findings that Oliver’s tip had indicia of reliability and concluded that issuance of the pen register order was proper under N.C. Gen. Stat. § 15A‑263 and 18 U.S.C. § 2703(d).
Defendant was convicted of trafficking (14–28 g) heroin; on appeal he argued the retrieval of real‑time location information without a warrant violated the Fourth Amendment.

Issue	State's Argument	Forte's Argument	Held
Whether defendant’s Fourth Amendment claim (real‑time cell‑site/GPS data obtained via pen‑register/order) was preserved for appeal	State: defendant only argued insufficiency of the informant/evidence to obtain the pen‑register order; did not raise Fourth Amendment challenge at trial, so appellate review is limited	Forte: fourth amendment violated because real‑time location data is a search requiring a probable‑cause warrant; pen‑register/order was insufficient	Waived — court held Fourth Amendment arguments not raised before trial were forfeited; may only review the issue actually argued below (sufficiency under §2703(d)/N.C.G.S.15A‑263).
Whether the pen‑register/trap‑and‑trace order complied with the legal standard for SCA orders (§2703(d)) and N.C.G.S. §15A‑263	State: application contained specific and articulable facts (identified informant, statements against penal interest, travel detail, phone number) supporting reasonable grounds that records/location were relevant to the investigation	Forte: Oliver’s tip was unreliable, unspecific, and insufficient to justify the order	Affirmed — trial court’s findings (unchallenged) supported that the §2703(d) "reasonable grounds" standard was met and the order was properly issued.

Smith v. Maryland, 442 U.S. 735 (1979) (installation/use of pen register is not a Fourth Amendment search)
State v. O'Connor, 222 N.C. App. 235 (2012) (standard of review for suppression rulings: factual findings binding, legal conclusions de novo)
State v. Hernandez, 227 N.C. App. 601 (2013) (issues/theories not raised at trial are waived on appeal)
State v. Edmonds, 212 N.C. App. 575 (2011) (constitutional claims not raised by timely objection at trial are waived)
State v. Jackson, 791 S.E.2d 505 (N.C. Ct. App. 2016) (informant reliability may be shown by statements against penal interest and history of providing reliable tips)