Appeal by defendant from judgment entered 5 September 2001 by
Judge James Floyd Ammons, Jr. in Robeson County Superior Court.
Heard in the Court of Appeals 26 March 2003.
Attorney General Roy Cooper, by Special Deputy Attorney
General Douglas A. Johnston, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Janet Moore, for defendant appellant.
TIMMONS-GOODSON, Judge.
Jermaine McArn (“defendant”) appeals the trial court's denial
of his motion to suppress cocaine discovered following a stop of
his vehicle. For the reasons discussed herein, we reverse the
trial court's denial of defendant's motion to suppress and remand
the case for a new trial.
The facts pertinent to the instant appeal are as follows: On
4 August 2001, Officer Thomas Lee Hall (“Officer Hall”) and Officer
Smith of the Lumberton Police Department received a police radio
communication dispatching the officers to investigate possible drug
activity. An anonymous caller reported to the police departmentthat a white Nissan vehicle on Franklin and Sessoms Street was
involved in the sale of illegal drugs. Neither the record nor the
trial court's findings of fact reveal any information about the
tipster. Upon receiving the police communication, Officer Hall
proceeded to the dispatched location and observed a white Nissan
vehicle leaving the area. Officer Hall stopped the vehicle, which
was operated by defendant and occupied by passengers, Marcus
McKinna (“McKinna”) and defendant's children. Officer Hall had no
reason to suspect the vehicle's driver or occupants of illegal
conduct apart from the anonymous tip.
Upon approaching defendant's vehicle, Officer Hall ordered
defendant to produce his driver's license and vehicle registration.
Defendant informed Officer Hall that his driver's license was
revoked. Defendant was ordered to exit his vehicle. Officer Hall
patted down defendant for weapons, placed him in a patrol vehicle,
issued him a citation, and asked for consent to search the vehicle.
Defendant consented to a search of his vehicle; however, the search
revealed no illegal substances or contraband. Subsequently,
McKinna was placed under arrest based on outstanding warrants.
Prior to Officer Hall searching the vehicle, defendant was
removed from the patrol vehicle and ordered to stand at the rear of
the patrol vehicle. As Officer Hall searched defendant's vehicle,
Detective Harold Jackson (“Detective Jackson”) engaged in
conversation with defendant. According to testimony from Detective
Jackson, while talking to defendant he noticed that defendant
appeared to have an object in his mouth. As a result, Detective
Jackson asked defendant to “open his mouth and let [him] look[inside];” however, defendant did not respond to the request.
Detective Jackson continued to talk with defendant and informed him
that his children did not “need to see [him] going to jail for
drugs,” and that if he had drugs in his mouth he “needed to place
them on the vehicle.” On direct examination, defendant testified
that Detective Jackson asked him if he had drugs in his mouth and
that he did not respond. Defendant further testified that
Detective Jackson continued to talk to him and stated “do not make
us do this out here in front of the kids” and again requested to
look inside of defendant's mouth. Subsequently, defendant removed
a packet of cocaine from his mouth and placed the drugs on the rear
of Officer Hall's patrol vehicle. Defendant was arrested and
indicted for possession of a controlled substance.
At the close of the evidence, defendant's motion to suppress
was denied and he entered a guilty plea to possession of cocaine;
however, defendant reserved the right to appeal, pursuant to North
Carolina General Statutes § 15A-979(b), from an order denying a
motion to suppress. Defendant was sentenced to a suspended
sentence of minimum five months' and a maximum of six months'
imprisonment and twelve months of supervised probation. Defendant
now appeals the trial court's denial of his motion to suppress.
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The dispositive issue presented by this appeal is whether an
anonymous tip received by police that a vehicle is involved in
illegal drug sales is sufficient, without more, to justify an
investigatory stop of the driver of the vehicle. For the reasonsstated herein, we hold that it is not and reverse the judgment of
the trial court.
“[T]he standard of review in evaluating a trial court's ruling
on a motion to suppress is that the trial court's findings of fact
'are conclusive on appeal if supported by competent evidence, even
if the evidence is conflicting.'”
State v. Buchanan, 353 N.C. 332,
336, 543 S.E.2d 823, 826 (2001) (quoting
State v. Brewington, 352
N.C. 489, 498, 532 S.E.2d 496, 501 (2000) (citations omitted),
cert. denied,
Brewington v. North Carolina, 531 U.S. 1165, 148 L.
Ed. 2d 992 (2001)). This Court must not disturb the trial court's
conclusions if they are supported by the court's factual findings.
State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982).
However, the trial court's conclusions of law are fully reviewable
on appeal.
See State v. Hughes, 353 N.C. 200, 208, 539 S.E.2d 625,
631 (2000). At a suppression hearing, conflicts in the evidence
are to be resolved by the trial court.
See State v. Johnson, 322
N.C. 288, 295, 367 S.E.2d 660, 664 (1988). The trial court must
make findings of fact resolving any material conflict in the
evidence.
See State v. Aubin, 100 N.C. App. 628, 634, 397 S.E.2d
653, 657 (1990),
cert. denied, 502 U.S. 842, 116 L. Ed. 2d 101
(1991).
Here, defendant challenges the following findings of fact by
the trial court:
. . . .
That on August 4th, 2000, Officer Hall of
the Lumberton Police Department received
information through the dispatch from an
anonymous tip that there was a white Nissan,
in the area of Franklin and Sessoms Streets,engaged in the sale of illegal narcotics or
illegal drugs;
That the officer had been a police
officer, at that time, for approximately 5
years and knew the area and knew that it had
some reputation for being a crime area,
although it was not the highest crime area of
the city;
That, within 3 to 5 minutes of receiving
this report, he proceeded to the area and saw
a white Nissan [S]entra;
That he stopped the Nissan [S]entra
primarily because of the information that the
officer received from a citizen or informant
via the communications from the anonymous
call;
That, based on the officer's training,
observation, experience, the area, and the
details provided by the call and upon him
finding a car that exactly matched the
description of white Nissan [S]entra, he had
reasonable suspicion to briefly stop the car;
The case before us involves the investigatory stop of
defendant's automobile.
We first note that before the police can
conduct a brief investigatory stop of a vehicle and detain its
occupants without a warrant, the officer must have a reasonable
suspicion of criminal activity.
See Terry v. Ohio, 392 U.S. 1, 30,
20 L. Ed. 2d 889, 911 (1968);
See also State v. Watkins, 337 N.C.
437, 441, 446 S.E.2d 67, 70 (1994) (holding that a seizure of a
person includes a brief investigatory detention such as those
involved in the stopping of a vehicle);
See State v. Bonds, 139
N.C. App. 627, 628, 533 S.E.2d 855, 856 (2000)
. “Unlike a tip from
a known informant whose reputation can be assessed and who can be
held responsible if [the] allegations turn out to be fabricated,
'an anonymous tip alone seldom demonstrates the informant's basis
of knowledge or veracity.'”
Florida v. J.L., 529 U.S. 266, 270,146 L. Ed. 2d 254, 260 (2000) (quoting
Alabama v. White, 496 U.S.
325, 329, 110 L. Ed. 2d 301, 308 (1990))
(citations omitted). An
anonymous tip may provide reasonable suspicion if it exhibits
sufficient indicia of reliability and if it does not, then there
must be sufficient police corroboration of the tip before the stop
can be made.
Hughes, 353 N.C. at 207, 539 S.E.2d at 630. When a
tip is somewhat lacking in reliability it may still provide a basis
for reasonable suspicion if it is buttressed by sufficient police
corroboration.
Id. “The reasonable suspicion must arise from the
officer's knowledge prior to the time of the stop.”
Id. at 208,
539 S.E.2d at 631. An investigative stop “must be based on
specific and articulable facts, as well as the rational inferences
from those facts, as viewed through the eyes of a reasonable,
cautious officer, guided by his experience and training.”
State v.
Kincaid, 147 N.C. App. 94, 98, 555 S.E.2d 294, 298 (2001). The
police officer must have something more than an “unparticularized
suspicion or hunch before” stopping a vehicle.
Id. In determining
whether reasonable suspicion exists, a court must consider the
totality of the circumstances.
Watkins, 337 N.C. at 441, 446
S.E.2d at 70.
In the present case, Officer Hall testified that based on an
anonymous tip he was dispatched to a specific location to
“investigate possible drug activity . . . involving a white Nissan
car.” Officer Hall testified that the area was residential and did
not have a reputation for crime, although there had been prior
complaints of drug activity in the area. Upon arriving at the
scene, Officer Hall identified a white Nissan vehicle that wouldfit the description in the area as given by the anonymous tipster.
He stopped the vehicle as it was leaving the area. Testimony from
Officer Hall reveals that he stopped defendant based only on the
description of the vehicle communicated by the dispatcher. Officer
Hall had neither attempted nor made any independent observations or
assessments regarding the operation of the Nissan vehicle, the
activity of the occupants, or any illegal conduct.
In
Hughes, our Supreme Court stated that:
“[a]n accurate description of a subject's
readily observable location and appearance is
of course reliable in this limited sense: It
will help the police correctly identify the
person whom the tipster means to accuse. Such
a tip, however, does not show that the tipster
has knowledge of concealed criminal activity.
The reasonable suspicion here at issue
requires that a tip be reliable in its
assertion of illegality, not just in its
tendency to identify a determinate person.”
Id. at 209, 539 S.E.2d at 632 (quoting
Florida, 529 U.S. 266, 272,
146 L. Ed. 2d at 261).
Here, the fact that the anonymous tipster provided the
location and description of the vehicle may have offered some
limited indicia of reliability in that it assisted the police in
identifying the vehicle the tipster referenced. It has not gone
unnoticed by this Court, however, that the tipster never identified
or in any way described an individual. Therefore, the tip upon
which Officer Hall relied did not possess the indicia of
reliability necessary to provide reasonable suspicion to make an
investigatory stop. The anonymous tipster in no way predicted
defendant's actions. The police were thus unable to test the
tipster's knowledge or credibility. Moreover, the tipster failedto explain on what basis he knew about the white Nissan vehicle and
related drug activity.
Officer Hall stopped defendant based solely on the anonymous
tip and we hold that the tip, on its own, was not sufficiently
reliable to create a reasonable suspicion of criminal activity.
Accordingly, we conclude that the conclusion of the trial court,
that the tip created a sufficient reasonable suspicion to justify
stopping defendant's vehicle, was error. Thus, we reverse the
denial by the trial court of defendant's motion to suppress and
remand the case for a new trial.
Reversed and remanded for a new trial.
Judges BRYANT and GEER concur.
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