I. Standard
[1] We first address the defendant's second assignment of
error, regarding the proper standard for evaluating the evidence.
The standard for determining whether probable cause existed to
conduct a warrantless search of defendant's person and vehicle is
basically the same for information received from either ananonymous tip or a confidential informant. Both situations must be
scrutinized under a “totality of the circumstances” test to
determine “basis of knowledge” and “reliability” or “veracity” of
the information as a basis for probable cause. Illinois v. Gates,
462 U.S. 213, 76 L. Ed. 2d 527, reh'g denied, 463 U.S. 1237, 77 L.
Ed. 2d 1453 (1983); State v. Hughes, 353 N.C. 200, 203, 539 S.E.2d
625, 628 (2000). The difference in evaluating an anonymous tip is
that the overall reliability is more difficult to establish, and
thus some corroboration of the information or greater level of
detail is generally necessary. Compare State v. Arrington, 311
N.C. 633, 319 S.E.2d 254 (1984) (applying the Gates totality of the
circumstances test to an affidavit for a search warrant based on
information given by two confidential informants), with Illinois v.
Gates, 462 U.S. 213, 76 L. Ed. 2d 527 (1983) (establishing the
standard in a case involving a tip sent to the police in an
anonymous letter), and State v. Davis, 66 N.C. App. 98, 311 S.E.2d
19 (1984) (applying the Gates totality of the circumstances to a
tip sent to the police in an anonymous letter).
The standard for finding probable cause based on information
supplied by a reliable informant before Gates was established in
Aguilar v. Texas, 378 U.S. 108, 12 L. Ed. 2d 723 (1964) and later
refined in Spinelli v. United States, 393 U.S. 410, 21 L. Ed. 2d
637 (1969). Those cases required that first, an affidavit for a
search warrant must contain sufficient information as to how the
informant obtained the information (“basis of knowledge”), and
second, that the affidavit must establish the “reliability” of the
informant. Id. We note here that although the standard is the same, more
evidence may be required when the officer is acting without a
warrant. In the State v. Harvey, 281 N.C. 1, 7, 187 S.E.2d 706,
710 (1972), our Supreme Court noted, quoting the Aguilar case:
In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct.
1509, 12 L. ed 2d 723, the Supreme Court of
the United States dealt with questions
concerning the Fourth Amendment requirements
for obtaining a valid state search warrant. It
said:
[W]hen a search is based upon a
magistrate's, rather than a police
officer's, determination of probable
cause, the reviewing court will
accept evidence of a less
“judicially competent or persuasive
character than would have justified
an officer in acting on his own
without a warrant.” * * * and will
sustain the judicial determination
so long as “there was substantial
basis for [the magistrate] to
conclude that [the articles searched
for] were probably present.” * * *
Harvey at 7, 187 S.E.2d at 710.
Under the Aguilar-Spinelli standard, this Court established
the rule that to support the reliability prong of the test, a
confidential informant must satisfy certain standards:
This court has already established the
“irreducible minimum” circumstances that must
be set forth in support of an informant's
reliability to sustain a warrant. State v.
Altman, 15 N.C. App. 257 (filed 12 July 1972).
In Altman, the affiant's statement that the
confidential informant “has proven reliable
and credible in the past” was held to meet the
minimum standards to sustain a warrant. In the
present case, the affiant's statement that the
confidential informant had given “this agent
good and reliable information in the past . .
. that had been checked by the affiant and
found to be true” also meets this minimum
standard.
State v. McCoy, 16 N.C. App. 349, 351-52, 191 S.E.2d 897, 899
(1972), cert. denied, 282 N.C. 584, 193 S.E.2d 744 (1973).
After the Gates case, our Supreme Court adopted the reasoning
of Gates in State v. Arrington, 311 N.C. 633, 319 S.E.2d 254
(1984), replacing the Aguilar-Spinelli standard but noting its
relevance. Applying the Gates totality of the circumstances test
in State v. Hughes, 353 N.C. 200, 539 S.E.2d 625 (2000), our
Supreme Court further explained the effect of Gates by discussing
the case of Alabama v. White, 496 U.S. 325, 110 L. Ed. 2d 301
(1990). In White, the United State Supreme Court concluded that in
a “close” case, an anonymous tip could constitute probable cause if
it could satisfy a “totality of the circumstances” analysis.
White, 496 U.S. 325, 328, 110 L. Ed. 2d 301, 308 (1990). Our
Supreme Court noted in reference to White:
The Court in White emphasized . . . that the
Aguilar and Spinelli standards for determining
an informant's veracity, reliability, and
basis of knowledge were important factors to
consider in the context of an anonymous
informant, as they were when involving a
confidential, reliable informant. The Court
stated that although an anonymous tip by
itself rarely demonstrated the needed
reliability, the tip combined with
corroboration by the police could show indicia
of reliability that would be sufficient to
meet this burden. . . .[White, 496 U.S. 325,
329, 110 L. Ed. 2d 301, 308 (1990).]
Hughes, 353 N.C. 200, 205, 539 S.E.2d 625, 629 (2000) (holding that
under whatever scrutiny is applied, whether the informant was
treated as reliable or anonymous, there was insufficient evidence
to support probable cause when the officer who received the tip did
not give any testimony establishing the informant's reliability,
and there was insufficient detail and corroboration of the tip). So our appellate courts have applied the Gates standard,
acknowledging the importance of the Aguilar-Spinelli factors and
the heightened need for corroboration when evaluating an anonymous
tip.
The trial court in the case sub judice made careful and
thorough findings of fact and considered the totality of the
circumstances. The trial court made findings that “Deputy Stevens
personally knew the informant for the past two years and
information provided by this informant had proven in the past to be
reliable and had led to numerous narcotics arrests and
convictions.” Deputy Stevens had testified at the suppression
hearing before the trial court:
Q [Mr. Askins:] And the informant that you
mentioned, is that someone that you are
familiar with, that you have worked with
before?
A [Deputy Stevens:] Yes, sir, several times.
Q Has this informant proven to be reliable to
you?
A Every time.
Q And given you information that led to
arrests before?
A Yes, sir, numerous.
Q On any occasion has the informant given you
information that was proven not to be reliable
and was false?
A No, sir.
Q How -- how long have you known this
informant?
A Approximately two years.
Q Have you used this informant on a number of
occasions?
A Yes, I have.
The trial court's findings are thus supported by the competent
evidence of the officer's testimony. Because the standard is
basically the same for both a confidential informant and ananonymous tip, and because the trial court applied the correct
standard, we dismiss this assignment of error.
II. Probable Cause
[2] Defendant also assigns error to the finding that there was
probable cause to support the search and arrest.
A search of a motor vehicle which is on a public roadway or in
a public vehicular area is not in violation of the Fourth Amendment
if it is based on probable cause, even though a warrant has not
been obtained.
State v. Isleib, 319 N.C. 634, 638, 356 S.E.2d 573,
576 (1987). Information from a CRI can form the probable cause to
justify a search.
State v. Holmes, 142 N.C. App. 614, 544 S.E.2d
18,
cert. denied, 353 N.C. 731, 551 S.E.2d 116 (2001). “In
utilizing an informant's tip, probable cause is determined using a
'totality-of-the circumstances' analysis which 'permits a balanced
assessment of the relative weights of all the various indicia of
reliability (and unreliability) attending an informant's tip.'”
Holmes, 142 N.C. App. 614, 621, 544 S.E.2d 18, 22 (2001) (
quoting
State v. Earhart, 134 N.C. App. 130, 133, 516 S.E.2d 883, 886
(1999)). This standard was established in
Gates, 462 U.S. 213, 76
L. Ed. 2d 527 (1983).
When information from an informant is passed from the first
officer to another officer or through several officers, it is still
necessary that the arresting officer at the time of the stop and
search have probable cause. Probable cause may not be established
by the testimony of only the arresting officer that he or she was
told by another officer that the information was reliable.
Hughes,
353 N.C. 200, 204, 539 S.E.2d 625, 628 (2000). In the
Hughes case, the first officer claimed to have received
a tip from a CRI which he passed on to a detective, who passed the
information on to the arresting officer. The first officer did not
testify at the suppression hearing or give any other information to
the detective about the informant. The tip was that the suspect
would arrive on the 5:30 p.m. bus coming from New York City. The
tip gave a personal description of the suspect and said that he
would have marijuana and cocaine in his possession, and that he
“sometimes” took a taxi from the bus station and “sometimes”
carried an overnight bag, and that he would be headed to North
Topsail Beach. The arresting officer and his partner waited at the
bus station, and observed a man fitting the suspect's description
step from behind a bus carrying an overnight bag and get into a
taxi. The taxi traveled south on a highway that would eventually
split into two directions, one of which was toward Topsail Beach.
The officers apprehended the suspect in the taxi, and a subsequent
search revealed cocaine and marijuana in the suspect's shoes. The
trial court in
Hughes granted the defendant's motion to suppress
the evidence, and this Court reversed. Our Supreme Court reversed
the Court of Appeals, and upheld the trial court's order allowing
the motion to suppress, stating as follows:
In applying the test used in
Gates, this Court
also found the principles underlying
Aguilar
and
Spinelli, mainly that evidence is needed
to show indicia of reliability, to be
important components in determining the
totality of the circumstances.
Turning to the case before us, the evidence
shows that [the detective] had never spoken
with the informant and knew nothing about the
informant other than [the first officer's]
claim that he was a confidential and reliableinformant. There was no indication that the
informant had been previously used and had
given accurate information or that his
statement was against his penal interest nor,
as will be discussed later, was there any
other indication of reliability. Some
objective proof as to why this informant was
reliable and credible, other than just [the
first officer's] assertion passed to [the
detective], and by him to [the arresting
officers], must support [the arresting
officers'] decision to conduct a search. To
hold otherwise would be to ignore the
protections contained in the Fourth Amendment.
Hughes, 353 N.C. 200, 204, 539 S.E.2d 625, 628-29 (2000).
The present case is distinguished from
Hughes in at least one
significant aspect. The “first officer” in the present case, who
received the tip from the informant, testified at the suppression
hearing that this informant had given him information several times
over the previous two years, that the information given had been
correct every time and never been false or unreliable and had led
to several arrests.
This distinction is brought out in federal case law, notably
United States v. Hensley, 469 U.S. 221, 83 L. Ed. 2d 604 (1985).
In
Hensley, the U.S. Supreme Court reversed the Court of Appeals
for the Sixth Circuit, holding that police officers who had relied
on a “wanted flyer” issued from another law enforcement department
based on information from an informant, were justified to stop the
defendant while attempting to obtain further information. While
the appellant argues that the
Hughes case requires the arresting
officer to have sufficient probable cause to stop and search a
suspect where the probable cause relied on by the first officer is
never established, the case before us is different in that the
original officer's probable cause was established. In
Hensley, theCourt addressed the extent to which police officers may rely on one
another for grounds to stop and search suspects. The
Hensley Court
discussed
Whiteley v. Warden, 401 U.S. 560 (1971) in its analysis.
The officers in
Whiteley relied on a radio bulletin to justify a
stop and search of the suspect. The
Hensley Court noted, quoting
Whiteley:
“We do not, of course, question that the
Laramie police were entitled to act on the
strength of the radio bulletin.
Certainly
police officers called upon to aid other
officers in executing arrest warrants are
entitled to assume that the officers
requesting aid offered the magistrate the
information requisite to support an
independent judicial assessment of probable
cause. Where, however, the contrary turns out
to be true, an otherwise illegal arrest cannot
be insulated from challenge by the decision of
the instigating officer to rely on fellow
officers to make the arrest.” [
Whiteley], at
568. . . .
This language in
Whiteley suggests that, had
the sheriff who issued the radio bulletin
possessed probable cause for arrest, then the
Laramie police could have properly arrested
the defendant even though they were unaware of
the specific facts that established probable
cause. See
United States v. Maryland, 479 F2d
566, 569 (CA5 1973). Thus
Whiteley supports
the proposition that, when evidence is
uncovered during a search incident to an
arrest in reliance merely on a flyer or
bulletin,
its admissibility turns on whether
the officers who issued the flyer possessed
probable cause to make the arrest. It does
not turn on whether those relying on the flyer
were themselves aware of the specific facts
which led their colleagues to seek their
assistance. In an era when criminal suspects
are increasingly mobile and increasingly
likely to flee across jurisdictional
boundaries, this rule is a matter of common
sense: it minimizes the volume of information
concerning suspects that must be transmitted
to other jurisdictions and enables police in
one jurisdiction to act promptly in reliance
on information from another jurisdiction.
United States v. Hensley, 469 U.S. 221, 230-31, 83 L. Ed. 2d 604,
613-14 (1985) (emphasis added).
Although the present case involves direct officer-to-officer
communication instead of a printed flyer, it is analogous to the
Hensley facts where the probable cause of the first officer was
established, in both cases through the testimony before the trial
court of the officer who received information from the informant.
That testimony was lacking in the
Hughes case, and both
Hensley and
Hughes stand for the proposition that when the first officer's
probable cause is not established, the arresting officer's reliance
on his fellow officer cannot insulate the otherwise illegal search.
However, when the first officer does have probable cause, that
reliance is justified and often necessary in the execution of a
police officer's duty.
See also State v. Zuniga, 312 N.C. 251,
260, 322 S.E.2d 140, 145 (1984) (“it is well established that one
law enforcement officer may rely upon bulletins from other officers
as the basis for an arrest, but only so long as the originating
officer himself had probable cause.”);
State v. Battle, 109 N.C.
App. 367, 427 S.E.2d 156 (1993) (reasonable suspicion was
established from the collective knowledge of the first officer and
the arresting officer);
State v. Tilley, 44 N.C. App. 313, 317, 260
S.E.2d 794, 797 (1979)
(“. . . probable cause for an arrest can be
imputed from one officer to others acting at his request. The
officers receiving the request are entitled to assume that the
officer requesting aid had probable cause to believe that a crime
had been committed. If the transmitting officer did not have
probable cause, the arrest would be illegal.”). Once the officer corroborated the description of the defendant
and his presence at the named location, he had reasonable grounds
to believe a felony was being committed in his presence which in
turn created probable cause to stop and search defendant.
See
State v. Wooten, 34 N.C. App. 85, 88, 237 S.E.2d 301, 304 (1977).
In the case at bar, the learned trial judge, who observed the
witnesses at the suppression hearing, made findings that Deputy
Stevens received information from a confidential, reliable
informant whom Deputy Stevens knew personally for two years and
whose information had proven reliable in the past and led to
numerous arrests. The trial judge found that the informant told
Deputy Stevens that an individual named “Corn” was purchasing or
had purchased controlled substances from a person by the name of
Feanel at the Hardee's restaurant in Belulaville and that “Corn”
was en route to the Brynn Marr Village area of Jacksonville driving
a burgundy colored sport utility vehicle, and in possession of the
controlled substances. The trial judge found that Deputy Stevens,
based on previous information given by the informant, believed
“Corn” to be the defendant, Cornelius Nixon, and relayed the
information to Detective Bryan of the Jacksonville Police
Department, who relayed the information to Sergeant Howard.
Sergeant Howard, the trial judge found, knew that the defendant
went by the name “Corn” and remembered his address from a prior
investigation, and proceeded to Brynn Marr Village to intercept
defendant's vehicle. The trial judge found that the defendant's
vehicle matched the description given and arrived at a time that
would be consistent with normal travel time from Beulaville to thedefendant's home. The trial judge found that the officer did have
probable cause to stop and search the defendant's vehicle for
controlled substances.
After examining the transcript and the record, we agree with
the trial court that based on the testimony of the officers, the
arresting officer had probable cause because the first officer's
probable cause was established, and the evidence was therefore
legally obtained.
No error.
Judges HUNTER and BRYANT concur.
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