Appeal by defendant from judgments entered 6 November 2002 by
Judge Michael E. Helms in Wilkes County Superior Court. Heard in
the Court of Appeals 28 January 2004.
Roy A. Cooper, III, Attorney General, by Robert T. Hargett,
Special Deputy Attorney General, for the State.
Bryan Gates, for defendant-appellant.
MARTIN, Judge.
Defendant was charged with possession of a firearm by a felon,
misdemeanor possession of drug paraphernalia, and misdemeanor
possession of a Schedule VI controlled substance. He entered pleas
of not guilty. At trial, he moved to suppress evidence seized from
his vehicle after he was stopped by Wilkesboro police officer
Ronnie Shane Cleary on 14 May 2001. Evidence presented upon the
hearing of defendant's motion to suppress tended to show that on
the afternoon of 14 May 2001, Officer Cleary was on patrol when he
received a call from the police dispatcher. The dispatcher told
Officer Cleary that an anonymous telephone tip had just been
received into the call center. The tipster stated that a pearl-colored Cadillac would be driving west on Main Street; the driver
of the vehicle would have a revoked driver's license and there
would be drugs and a gun in the vehicle. Immediately upon
receiving the dispatch, Officer Cleary noticed a pearl-colored
Cadillac traveling west on Main Street. Without any further
observation, Officer Cleary initiated a stop of the vehicle.
During the stop, it was discovered that the driver of the vehicle,
the defendant, was driving with an expired license, and that he had
drug paraphernalia, less than one-half ounce of marijuana, and a
gun on his person.
The trial court found facts generally as summarized above and
denied the motion to suppress. Defendant then withdrew his pleas
of not guilty and entered pleas of guilty, reserving his right to
appeal the trial court's denial of his motion to suppress pursuant
to N.C. Gen. Stat. § 15A-979(b). Defendant also entered a plea of
guilty to an unrelated charge of felonious possession of a Schedule
II controlled substance, which is not the subject of this appeal.
The trial court sentenced defendant to an active term of
imprisonment on the charge of possession of a firearm by a felon;
the remaining charges of possession of a Schedule II controlled
substance, possession of a Schedule VI controlled substance, and
possession of drug paraphernalia were consolidated for judgment and
defendant was sentenced to a consecutive term of imprisonment.
Defendant appeals.
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The sole question presented by this appeal is whether the
trial court erred when it denied defendant's motion to suppress the
fruits of the investigatory stop. When reviewing a trial court's
ruling on a motion to suppress, the trial court's findings of fact
are deemed conclusive if they are supported by competent evidence;
the trial court's conclusions of law reached upon those findings
are fully reviewable.
State v. McArn, 159 N.C. App. 209, 211-12,
582 S.E.2d 371, 373-74 (2003).
As the facts in this case are uncontested, defendant
challenges only the trial court's conclusion of law that an
anonymous tip received by police describing a pearl-colored
Cadillac traveling west on Main Street carrying a driver with a
revoked driver's license, a gun, and illegal drugs was sufficient,
without more, to provide the officer with a reasonable suspicion
that the vehicle and its occupant were involved in criminal
activity. This Court's decision in
State v. McArn, 159 N.C. App.
209, 582 S.E.2d 371 (2003) is dispositive and requires that we
reverse the order denying defendant's motion to suppress.
The Fourth Amendment to the United States Constitution
requires that police have reasonable, articulate suspicion of
criminal activity before they conduct warrantless investigatory
stops of vehicles and their occupants.
Terry v. Ohio, 392 U.S. 1,
21, 20 L. Ed. 2d 889, 906 (1968);
State v. Watkins, 337 N.C. 437,
441, 446 S.E.2d 67, 70 (1994). The United State Supreme Court has
stated that anonymous tips alone seldom demonstrate sufficient
indicia of reliability to satisfy the reasonable suspicionstandard.
Florida v. J.L., 529 U.S. 266, 270, 146 L. Ed. 2d 254,
261 (2000).
In
McArn, an anonymous caller reported to Lumberton police
that a white Nissan vehicle on Franklin and Sessoms Street was
involved in the sale of illegal drugs. Police proceeded to the
reported location and observed a white Nissan leaving the area.
Based o
n these observations alone, police made an investigatory
stop of the vehicle.
This Court held the anonymous tip and the
location of the vehicle as reported by the tipster insufficient to
provide “the indicia of reliability necessary to provide reasonable
suspicion to make an investigatory stop.”
McArn, 159 N.C. App.
at
214, 582 S.E. 2d at 375.
In the present case, the anonymous tipster reported that a
pearl-colored Cadillac traveling west on Main Street would contain
a driver with a revoked driver's license, drugs, and a gun. After
observing a pearl-colored Cadillac traveling west on Main Street,
Officer Cleary, without any further observations of illegal or
suspicious activity, initiated an investigatory stop of the
vehicle. For the reasons set forth in
State v. McArn, we find
these facts similarly insufficient to support a finding of
reasonable suspicion to conduct an investigatory stop.
The State argues, and the trial court concluded, that the
report alleging that the driver had a revoked driver's license,
drugs, and a gun constituted exigent circumstances justifying the
stop even without a showing of reasonable suspicion. The United
States Supreme Court suggested in
Florida v. J.L. that there couldbe “circumstances under which the danger alleged in an anonymous
tip might be so great as to justify a search even without a showing
of reliability.” 529 U.S. at 273, 146 L. Ed. 2d at 262. However,
the Court expressly held in
J.L. that a mere allegation that a
person is carrying a firearm, without more, is not sufficient to
justify such an exception to the rule that investigatory stops must
be accompanied by reasonable suspicion.
Id. at 272-73, 146 L. Ed.
2d at 261-62. In the present case, the tip alleged only that the
driver of a pearl-colored Cadillac possessed a gun, drugs, and a
revoked driver's license and provided no other circumstances to
suggest a danger of imminent harm or threat sufficient to set aside
the requirement that an officer have reasonable suspicion before he
or she makes an investigatory stop of a vehicle. Thus, we reverse
the trial court's denial of defendant's motion to suppress the
fruits of the investigatory stop, and remand this matter for a new
trial. Because the defendant's convictions of possession of a
Schedule VI controlled substance and possession of drug
paraphernalia were consolidated for judgment with his conviction of
felonious possession of a Schedule II controlled substance, which
is not the subject of this appeal, he must also be resentenced for
felonious possession of a Schedule II controlled substance.
Reversed and remanded.
Judges STEELMAN and GEER concur.
Report per Rule 30(e).
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