Appeal by defendant from judgment dated 25 September 2006 by
Judge W. Osmond Smith, III, in Alamance County Superior Court.
Heard in the Court of Appeals 13 September 2007.
Attorney General Roy Cooper, by Assistant Attorney General
John F. Oates, Jr., for the State.
Mary March W. Exum for defendant-appellant.
BRYANT, Judge.
Jessie Ray Garner (defendant) appeals from the trial court's
pre-trial denial of his motion to suppress evidence. For the
reasons stated herein, we affirm the order of the trial court.
Facts
On 15 August 2006, Officer Robert Parks of the Graham Police
Department responded to a call from the desk clerk of a local motel
indicating there was ongoing drug activity in Room 114 of the
motel. Officer Parks was familiar with the motel, having
previously conducted investigations there. Officer Parks, along
with Sergeant Duane Flood and Officer Sisk, investigated the
complaint. Ms. Terry Lynn Flack responded to the officers' knock at the
door of Room 114. Ms. Flack allowed the officers into the room.
Ms. Flack was the only person in the room at the time and she
informed the officers that there was drug activity going on in and
out of the room and that she was in possession of a single
marijuana cigarette. Ms. Flack told the officers there were two
other people occupying the room, a white female named Jamie Hicks
and a black male called “Juice”, but they had borrowed her truck
some time earlier and should return shortly. Ms. Flack further
stated that Ms. Hicks and “Juice” had drugs with them and that any
time “Juice” left the room, he took his narcotics with him.
The officers waited for “Juice” and Hicks to return in Ms.
Flack's truck, a red 1995 Ford Ranger. Officers Parks and Sisk
stayed inside the motel room, while Sergeant Flood waited outside
in his patrol car. The officers had waited approximately an hour
and fifteen minutes before Hicks and “Juice” returned in Flack's
truck. During the time they waited, one unknown person called the
room and advised Flack that she needed to leave because the “police
were all around the room,” and three unknown persons came and
knocked on the door of the room.
When Sergeant Flood observed a red 1995 Ford Ranger
approaching the motel, he notified Officer Parks by radio. A white
female, later identified as Ms. Hicks, was driving the truck and
there was a black male, later identified as defendant, in the
passenger seat. As the truck stopped in front of Room 114,
Sergeant Flood pulled his patrol car behind the truck, at whichpoint Officer Parks stepped out of the motel room. Officer Parks
then approached the driver's side of the truck while Sergeant Flood
approached the passenger's side and told the occupants to get out
and put up their hands. Ms. Hicks and defendant were taken into
custody. After handcuffing Hicks and defendant, the officers found
money in the parking lot beside the truck, and marijuana on the
floor board of the passenger side of the truck, where defendant had
been sitting. The officers later received consent from Ms. Flack
to search the motel room where they found numerous items of drug
paraphernalia.
Procedural History
On 19 September 2005, defendant was indicted for possession
with intent to sell or deliver cocaine; manufacturing cocaine;
possession of drug paraphernalia; possession with intent to sell or
deliver marijuana; manufacture of marijuana; resisting a public
officer; attaining the status of an habitual felon; and possession
of a firearm by a felon. Defendant filed a motion to suppress
evidence on 26 May 2006, and the trial court held a hearing and
denied this motion on 25 September 2006.
Defendant subsequently pleaded guilty to all charges, except
the charge of possession of a firearm by a felon, which the State
dismissed in exchange for the plea. Defendant expressly reserved
his right to appeal the denial of the motion to suppress during
plea negotiations. The trial court sentenced defendant in the
presumptive range to an active term of a minimum of 108 and a
maximum of 139 months imprisonment with the North CarolinaDepartment of Correction. Defendant now appeals the trial court's
denial of his motion to suppress evidence.
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Defendant's sole issue on appeal is whether the trial court
erred in denying his pre-trial motion to suppress evidence.
Defendant challenges the investigatory stop as unreasonable,
asserting that information officers received from an informant was
not sufficiently reliable to meet the requirements of the Fourth
Amendment. “[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)). However, the trial court's conclusions of law are
reviewable
de novo, and must support the order denying the motion.
State v. Barnhill, 166 N.C. App. 228, 230, 601 S.E.2d 215, 217,
appeal dismissed and disc. review denied, 359 N.C. 191, 607 S.E.2d
646 (2004).
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.”
State v.Hughes, 353 N.C. 200, 208, 539 S.E.2d 625, 631 (2000). Where there
is insufficient indicia as to why an informant is reliable and
credible, we review the legality of a stop under the anonymous tip
standard as opposed to the confidential and reliable informant
standard.
Id. at 204-05, 539 S.E.2d 628-29.
“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.”
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, to
provide reasonable suspicion, an anonymous tip must “'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
Florida v. J.L., 529 U.S. 266, 272, 146 L.
Ed. 2d 254, 261 (2000)). “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) (quoting
United States v. Cortez, 449 U.S. 411, 417, 66 L. Ed. 2d 621, 629
(1981)).
Here, defendant's initial detention was based upon information
given to the investigating officers by Ms. Flack during questioning
at the motel. The officers had no prior contact or dealings with
Ms. Flack, and there are no indicia as to why she should be
considered credible or reliable. We thus review whether Ms.Flack's information is sufficient to support the stop based upon
the anonymous tip standard.
The investigating officers initially went to Room 114 after
receiving information of drug activity occurring in the room. Upon
their arrival, Ms. Flack informed the officers that she was staying
in Room 114 with two others, a white female and a black male. She
stated these two associates had left prior to the officer's
arrival, but they were due back shortly. Ms. Flack also informed
the officers that these associates had narcotics with them, and
gave a detailed description of the truck they were using. While
waiting for the two associates to return, Ms. Flack received one
phone call warning her to leave the room because of the visible
police presence around the motel, and three individuals came to the
room, knocked on the door, and left. The officers subsequently
observed a truck matching the description given by Ms. Flack pull
into the parking lot of the motel. The occupants of the truck
matched the description of Ms. Flack's associates and the truck
came to a stop in front of Room 114. We hold the foregoing facts,
when considered under the totality of the circumstances, provide
sufficient indicia of reliability to provide reasonable suspicion
to make the investigatory stop. This assignment of error is
overruled.
Affirmed.
Judges STEELMAN and GEER concur.
Report per Rule 30(e).
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