An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1693


Filed: 6 April 2004


v .                         Hyde County
                            No. 00 CRS 0188


    Appeal by the State from order granting the defendant's Motion to Suppress by Judge James R. Vosburgh entered 10 June 2002 in Hyde County Superior Court. Heard in the Court of Appeals 17 September 2003.

    Attorney General Roy G. Cooper, by Special Assistant Attorney General Isaac T. Avery, III, and Assistant Attorney General Patricia A. Duffy, for the State.

    Alexy, Merrell, Wills & Wills, by James R. Wills, III for the defendant-appellee.

    ELMORE, Judge.

    The State appealed from an order entered by the trial court granting Jesse Scott Warren's (defendant) motion to suppress evidence, and this Court reversed and remanded on the basis that the trial court's order did not make findings of ultimate facts. State v. Warren, 148 N.C. App. 716, 562 S.E.2d 117 (2002). The trial court entered a new order granting defendant's motion to suppress, and the State appeals from that order. After careful consideration of the briefs and record, we reverse the trial court.    The facts of the case were reported in the previous unpublished opinion cited above. On 25 March 2000, the Hyde County Sheriff's Department received an anonymous telephone call. The caller reported a red, four-door Jeep Cherokee being driven recklessly while bottles were being thrown from inside the vehicle. Deputy Sheriff Daniel Cahoon (Cahoon) was parked “at Joyce's of Ocracoke parking lot” when he saw a red Jeep Cherokee turn from British Cemetery Road onto N.C. 12. Cahoon saw the vehicle accelerate rapidly and heard “the engine whining very, very high . . . .” Cahoon could then no longer see the vehicle. He pulled out of the parking lot and proceeded in the direction taken by the Jeep Cherokee.
    The State's evidence tends to show that Cahoon then saw the Jeep Cherokee parked in Sweet Tooth's parking lot. Cahoon pulled in behind the vehicle and activated his blue lights.
    Defendant's evidence tends to show that at approximately 11:30 p.m. defendant was driving north on Highway 12 when Cahoon “pulled behind [him] and then put his lights on and pulled me over.” Defendant then pulled his vehicle into a parking lot and stopped.
    Cahoon approached the vehicle and asked for defendant's license and registration. Cahoon issued defendant a citation for driving while impaired in violation of Section 20-138.1 of our General Statutes and transporting an open container of alcoholic beverage after consuming alcohol in violation of N.C. Gen. Stat. § 20-138.7. The citation indicated it was issued at 11:28 p.m. on 25 March 2000. Defendant was arrested and charged on these offenses.    A hearing on defendant's motion to suppress was held on 23 October 2000 before Judge James R. Vosburgh in Hyde County Superior Court. The trial court granted defendant's motion to suppress “any testimony and/or evidence obtained from [sic] the Officer during the stop forward . . . .” The State appealed, and the case was remanded for the trial court to enter findings of ultimate fact. In a written order, dated 4 June 2002, the trial court again allowed defendant's motion to suppress. The State brings this appeal.
    The standard of review in evaluating a trial court's ruling on a motion to suppress has been established:
        [t]he trial court's findings of fact are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting. Additionally, the trial court's determination of whether an interrogation is conducted while a person is in custody involves reaching a conclusion of law, which is fully reviewable on appeal. [T]he trial court's conclusions of law must be legally correct, reflecting a correct application of applicable legal principles to the facts found.

State v. Buchanan, 353 N.C. 332, 336, 543 S.E.2d 823, 826 (2001)

(internal citations and quotation marks omitted).

    The State's first argument on appeal is that the trial court erred in allowing defendant's motion to suppress the evidence resulting from the interaction between defendant and Cahoon. The State argues that the findings of fact do not support the conclusions of law, and that the conclusions of law are in error. In the alternative, the State argues that no reasonable articulable suspicion was required by Cahoon to approach defendant, and ifneeded, Cahoon had a reasonable articulable suspicion to support a stop.
    The trial court concluded as a matter of law that “[t]here was no stop of the defendant's vehicle” and that “an anonymous tip without more does not provide reasonable articulable suspicion to either initiate a traffic stop or interrogate a driver.” The State assigns error to these conclusions.
    The trial court also concluded that “there was no probable cause for the officer to approach the vehicle[,]” “[t]he officer had observed no traffic violation for which he would have issued a citation[,]” and “[t]he officer did not observe the vehicle sufficiently for him to have an articulable suspicion to stop or interrogate the driver of the vehicle.”
    The State argues that the trial court's conclusions relating to whether there was a stop of defendant's car are irrelevant since the officer merely approached the vehicle after it was already voluntarily stopped. If the officer was merely approaching a stopped vehicle, the State argues, no reasonable articulable suspicion was required, and the evidence was suppressed in error.
    If there is not a stop, but the encounter between an officer and a suspect is consensual so that a reasonable person would understand that he or she could refuse to cooperate, then no reasonable suspicion is required by the Constitution. State v. Brooks, 337 N.C. 132, 142, 446 S.E.2d 579, 586 (1994). However, In order to conduct a warrantless, investigatory stop, an officer must have reasonable and articulable suspicion of criminal activity. Ananonymous tip can provide reasonable suspicion as long as it exhibits sufficient indicia of reliability. A tip that is somewhat lacking in reliability may still provide a basis for reasonable suspicion if it is buttressed by sufficient police corroboration. State v. Hughes, 353 N.C. 200, 206-07, 539 S.E.2d 625, 630 (2000).
    The trial court's conclusions are inconsistent in that the trial court concluded that there was no stop, and that there was no reasonable articulable suspicion. These conclusions are legally inconsistent because no reasonable articulable suspicion would be required for the officer to approach the vehicle if he was not conducting an investigatory stop or otherwise acting in a manner that indicated a “seizure.” Brooks, 337 N.C. 132, 142, 446 S.E.2d 579, 586.
    A “stop” has occurred when, taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business. Florida v. Bostick, 501 U.S. 429, 437, 115 L. Ed. 2d 389, 400 (1991). In this case, the trial court found as fact that the officer “pulled up behind” defendant's Jeep. No other facts are found concerning the interaction between the officer and defendant. Although the parties assert that the officer activated his blue lights, this was not found by the trial court, and the trial court's findings are conclusive on appeal. Buchanan, 353 N.C. 332, 543 S.E.2d 823. Simply pulling up behind a parked car is not a stop within the meaning of Florida v. Bostick. We do not determine what effect theblue lights would have had because that issue is not before us. The facts found by the trial court support its conclusion that there was no stop. Further, none of the findings would support a conclusion that the officer's approach and interrogation amounted to a “seizure” for which reasonable articulable suspicion was required.
    Because the trial court concluded that there was no stop, no reasonable articulable suspicion was required. For that reason, the order allowing the motion to suppress is in error, and is reversed.
    Judges TIMMONS-GOODSON and HUDSON concur.
    Report per Rule 30(e).

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