Appeal by defendant from judgments dated 22 February 2006 by
Judge C. Philip Ginn in McDowell County Superior Court. Heard in
the Court of Appeals 7 March 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Edwin Lee Gavin II, for the State.
Carol Ann Bauer for defendant.
BRYANT, Judge.
James Edward Casselman (defendant) appeals from judgments
dated 22 February 2006, entered consistent with a jury verdict
finding him guilty of maintaining a vehicle that was used for
keeping or selling a controlled substance; possession of marijuana;
and having attained the status of an habitual felon. For the
reasons below, we reverse defendant's convictions and remand for a
new trial.
Facts
On 2 January 2000, Kimberley Davis, a Patrol Officer with the
Marion Police Department, responded to an anonymous tip phoned in
to the police department dispatcher. The anonymous caller stated
a blue 1992 Chevrolet Corsica with the license plate number LWK-1824 would be driving south on U.S. Highway 221 into the town of
Marion. The caller further stated the car would be driven by
defendant and would be carrying a large amount of marijuana.
Officer Davis drove up U.S. Highway 221 North, and waited for the
car to appear.
When the car appeared, Officer Davis followed it into Marion
and verified that the license plate was registered in defendant's
name to a 1992 Chevrolet Corsica. Upon verifying this information,
Officer Davis stopped the car. Officer Davis identified defendant
as the driver and asked him to get out of the car. As defendant
got out of the car, Officer Davis observed a bag of marijuana in
plain view between the door and the driver's seat. Defendant gave
permission to search his car and was subsequently placed under
arrest. The search revealed eight small bags of marijuana inside
one large bag and a nine-millimeter handgun.
Procedural History
On 24 July 2001, defendant was indicted by the McDowell County
Grand Jury for the offenses of possession with intent to sell and
deliver marijuana, maintaining a vehicle that was used for keeping
or selling a controlled substance; possession of marijuana; and
having attained the status of an habitual felon. Defendant was
subsequently tried before a jury and convicted, however that
decision was appealed to this Court which ordered that he be
granted a new trial.
See State v. Casselman, 172 N.C. App. 172,
616 S.E.2d 30 (2005) (unpublished). Defendant was again tried before a jury on the same charges in
McDowell County Superior Court on 21-22 February 2006, the
Honorable C. Philip Ginn, Judge, presiding. Defendant was found
guilty of maintaining a vehicle that was used for keeping or
selling a controlled substance; possession of marijuana; and having
attained the status of an habitual felon. On 22 February 2006, the
trial court sentenced defendant to a presumptive sentence of 116
months to 149 months imprisonment for the offenses of possession of
marijuana and having attained the status of an habitual felon, and
forty-five days imprisonment for the offense of maintaining a
vehicle that was used for keeping or selling a controlled
substance. Defendant appeals.
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The dispositive issue before this Court is whether the trial
court erred in denying his motion to suppress evidence discovered
as a result of his vehicle stop. “The scope of review of the
denial of a motion to suppress is 'strictly limited to determining
whether the trial judge's underlying findings of fact are supported
by competent evidence, in which event they are conclusively binding
on appeal, and whether those factual findings in turn support the
judge's ultimate conclusions of law.'”
State v. Bone, 354 N.C. 1,
7, 550 S.E.2d 482, 486 (2001) (quoting
State v. Cooke, 306 N.C.
132, 134, 291 S.E.2d 618, 619 (1982)),
cert. denied, 535 U.S. 940,
152 L. Ed. 2d 231 (2002). “The trial court's conclusions of law,
however, are fully reviewable on appeal.”
State v. Hughes, 353
N.C. 200, 208, 539 S.E.2d 625, 631 (2000). In the instant case, after hearing the testimony of Officer
Davis on
voir dire, the trial court found as fact “that there was
nobody else that would fit this description on this particular day
and that the description of the vehicle and the individual, down to
his name, is sufficient to form the articulable suspicion for the
stop.” The trial court denied defendant's motion to suppress the
admission of the evidence found as a result of Officer Davis' stop
of defendant's car. Defendant now does not contest the facts
established by Officer Davis' testimony, only that the trial court
erred in determining that the facts support the trial court's
holding that reasonable suspicion existed for the stop.
This Court has held 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.”
State v. McArn, 159 N.C. App. 209, 212, 582
S.E.2d 371, 374 (2003) (citing
Terry v. Ohio, 392 U.S. 1, 30, 20 L.
Ed. 2d 889, 911 (1968)). “The reasonable suspicion must arise from
the officer's knowledge prior to the time of the stop.”
Hughes,
353 N.C. at 208, 539 S.E.2d at 631. “A court must consider 'the
totality of the circumstances--the whole picture' in determining
whether a reasonable suspicion to make an investigatory stop
exists.”
State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 70
(1994) (citing
United States v. Cortez, 449 U.S. 411, 417, 66 L.
Ed. 2d 621, 629 (1981)).
“An anonymous tip may provide reasonable suspicion if it
exhibits sufficient indicia of reliability and if it does not, thenthere must be sufficient police corroboration of the tip before the
stop can be made.”
McArn, 159 N.C. App. at 213, 582 S.E.2d at 374
(citing
Hughes, 353 N.C. at 207, 539 S.E.2d at 630). However,
“[u]nlike 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) (internal
citations and quotations omitted). Our Supreme Court has further
held that,
“an 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.”
Hughes, 353 N.C. at 209, 539 S.E.2d at 632 (quoting
J.L., 529 U.S.
266 at 272, 146 L. Ed. 2d at 261).
Here, Officer Davis, without any further observations of
illegal or suspicious activity, instigated an investigatory stop of
defendant's vehicle based solely upon the anonymous tip received by
the police department. This tip identified the color, make,
license plate number, driver and location of defendant's car.
Prior to making the stop, Officer Davis was able to corroborate
only that the car she was stopping was registered to defendant and
matched the car described in the anonymous tip. Officer Daviscould not confirm that defendant was the actual driver until after
making the stop.
There was nothing about the tip or defendant's actions at the
time of the stop to indicate any reliability as to the criminal
activity alleged in the anonymous tip. The anonymous tip and
subsequent corroboration merely established the reliability of the
tip to identify a “determinate person.” As there was no sufficient
indicia of reliability as to any criminal activity on the part of
defendant established through the tip or subsequent corroboration
by Officer Davis, the conclusion of the trial court, that the tip
created sufficient reasonable suspicion to justify stopping
defendant's vehicle, was error. Accordingly, we reverse the denial
by the trial court of defendant's motion to suppress and remand the
case for a new trial. As we are remanding this case for a new
trial, we find it unnecessary to address defendant's remaining
assignments of error.
Reversed and remanded.
Judges McCULLOUGH and LEVINSON concur.
Report per Rule 30(e).
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