Opinion
No. COA12–754.
2013-06-18
STATE of North Carolina v. Timothy PARKER, Defendant.
Attorney General Roy Cooper, by Associate Attorney General Gayle L. Kemp, for the State. Seth A. Neyhart, for defendant-appellant.
Appeal by defendant from order entered 30 November 2011 by Judge Paul L. Jones in Sampson County Superior Court. Heard in the Court of Appeals 9 January 2013. Attorney General Roy Cooper, by Associate Attorney General Gayle L. Kemp, for the State. Seth A. Neyhart, for defendant-appellant.
CALABRIA, Judge.
Timothy Parker (“defendant”) appeals from an order denying his motion to suppress evidence. Defendant reserved the right to appeal the order suppressing evidence obtained as a result of a stop. We grant a new trial.
On 1 September 2010, Deputy Donald Nicholas Pope (“Deputy Pope”) with the Sampson County Sheriff's Department (“SCSD”), was stationary on patrol along interstate 40 (“I–40”) in Sampson County, North Carolina. Defendant passed Deputy Pope's patrol vehicle on I–40 in Sampson County. Deputy Pope recognized defendant from previous occasions. One of the most significant encounters occurred two to three years earlier when defendant presented a state identification card rather than a driver's license.
Deputy Pope followed defendant's vehicle because he suspected that defendant might be driving with an invalid driver's license. After Deputy Pope contacted 911 communications to determine the status of defendant's driver's license, he learned that defendant possessed a valid driver's license. However, another officer, Deputy Timothy Blake Bass (“Deputy Bass”), informed Deputy Pope that defendant had active, unserved warrants. Since defendant was approaching the Johnston County line, Deputy Pope activated his lights and initiated a stop to prevent defendant from crossing the county line prior to receiving information regarding the validity of the warrants.
Defendant stopped the vehicle immediately. Deputy Pope approached defendant's vehicle, asked defendant to step out of his vehicle and performed a “pat down” to check for weapons. Although Deputy Pope found nothing on defendant's person, he asked defendant to sit in his patrol car while he investigated the status of the unserved warrants. Deputy Pope learned defendant had no active, unserved warrants for arrest. Defendant's only pending offense was a criminal summons for a misdemeanor charge of failure to return rental property which required defendant to go to the Sheriff's Office for service of the summons. Deputy Pope noticed that defendant appeared nervous and exhibited what he considered odd behavior while the status of his warrants was checked. Nevertheless, Deputy Pope returned defendant's driver's license and registration then told defendant that he was free to leave.
As defendant exited the vehicle, Deputy Pope asked defendant if he had any illegal substances in the vehicle. Although defendant responded that he did not, Deputy Pope requested permission to search the vehicle. Defendant stated that since the vehicle was not his, he could not consent to a search. Deputy Pope noticed that defendant had an excessive number of air fresheners in his vehicle. Despite defendant's refusal to consent to a search, Deputy Pope called a K–9 unit and stated “well hold on a minute, I am going to get a dog to run around the car real quick and then you will be on your way.” Defendant complied with Deputy Pope's request.
Approximately seven to seven and a half minutes later, a K9 handler appeared. The K–9 detected the presence of drugs in a duffle bag in the vehicle. Deputy Pope removed the duffle bag, searched it and discovered approximately six pounds of marijuana and drug paraphernalia.
Defendant was arrested and subsequently indicted for possession with intent to sell and deliver marijuana, maintaining a vehicle for a controlled substance and possession of drug paraphernalia. On 21 July 2011, in Sampson County Superior Court, defendant filed a motion to suppress the evidence obtained as a result of an illegal search and seizure. Judge Paul L. Jones (“Judge Jones”) denied defendant's motion in open court on 1 November 2011, and signed the order on 30 November 2011. Judge Jones concluded that Deputy Pope had reasonable suspicion to stop defendant's vehicle based upon defendant's questionable possession of a valid driver's license and upon learning that defendant may have active unserved warrants.
On 13 December 2011, defendant pled guilty to all charges, but reserved his right to appeal the order denying his motion to suppress evidence. Judge Craig Croom (“Judge Croom”) sentenced defendant to a minimum of six months to a maximum of eight months in the North Carolina Department of Correction. The sentence was suspended, and defendant was placed on supervised probation for twenty-four months. Judge Croom noted on his judgment that defendant was appealing the order from the denial of his motion to suppress evidence. Defendant appeals.
Defendant argues that the trial court erred by denying his motion to suppress evidence. Specifically, defendant contends that the trial court erred in finding fact number nine, because the finding was not supported by competent evidence in the record. Defendant also contends that Deputy Pope did not have reasonable suspicion to stop the vehicle. We agree.
As an initial matter, Deputy Pope's stop was an investigatory stop since defendant had not violated any traffic laws. The evidence presented at the suppression hearing included the license inquiry, the status of unserved warrants and defendant's detention after the conclusion of the investigatory stop.
Our review of a trial court's 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. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). “ ‘[A] trial court's conclusions of law regarding whether the officer had reasonable suspicion ... to detain a defendant is reviewable de novo.’ “ State v. Young, 148 N.C.App. 462, 466, 559 S.E.2d 814, 818 (2002) (citation omitted).
Finding of fact number nine states: “[t]hat [Deputy] Pope initiated the traffic stop on the defendant's vehicle prior to receiving the information that his license was valid.” However, Deputy Pope's testimony repeatedly conflicts with the trial court's finding. Deputy Pope confirmed that he knew that defendant had a valid license prior to the stop. When Deputy Pope observed defendant he contacted the dispatch operator and provided defendant's name and the street he lived on. Based on this information, the dispatch operator indicated that defendant's license appeared valid. At the suppression hearing, on cross-examination, Deputy Pope testified that he learned from dispatch that defendant's license was valid prior to activating his lights. Furthermore, he indicated that prior to activating his lights, his concern was resolved regarding the validity of defendant's driver's license.
According to the trial court's finding of fact number nine, the stop was initiated prior to receiving the information that defendant's license was valid. However, the finding in the order directly conflicts with the evidence presented at the hearing. Therefore, defendant is correct that there was no competent evidence to support the trial court's finding that Deputy Pope “initiated the traffic stop on the defendant's vehicle prior to receiving the information that his license was valid.” This finding is not binding and does not support the trial court's conclusion of law.
Our analysis would end here if the license was the only basis for the stop. It was not. The evidence presented at the suppression hearing also included information regarding the status of the unserved warrants. The issue we must determine is whether the trial court erred by concluding that Deputy Pope had reasonable suspicion for an investigatory stop of defendant's vehicle on the basis of information from another deputy regarding the status of unserved warrants. “[I]n order to conduct a warrantless, investigatory stop, an officer must have reasonable and articulable suspicion of criminal activity.” State v. Sutton, 167 N.C.App. 242, 246, 605 S.E.2d 483, 486 (2004) (citation omitted).
The 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. The only requirement is a minimal level of objective justification, something more than an unparticularized suspicion or hunch.
State v. Washington, 193 N.C.App. 670, 676, 668 S.E.2d 622, 626 (2008)(internal quotations and citations omitted). When a law enforcement officer conducts a search under one of the exceptions to the warrant requirements, he is permitted to make a mistake, but the officer must act reasonably. State v. Williams, 209 N.C.App. 255, 264–65, 703 S.E.2d 905, 911–12,review denied,365 N.C. 188, 707 S.E.2d 237 (2011). “In determining whether there exists the requisite reasonable suspicion, the court must view the totality of the circumstances through the eyes of a reasonable and cautious police officer at the scene.” State v. Battle, 109 N.C.App. 367, 370, 427 S.E.2d 156, 158 (1993).
An officer may rely on information from another officer to make an investigatory stop, even without the necessary reasonable suspicion and such a stop is constitutional only if:
(1) the officer making the stop has a reasonable suspicion, based on his personal observations, that criminal conduct has occurred, is occurring, or is about to occur; (2) the officer making the stop has received a request to stop the defendant from another officer, if that other officer had, prior to the issuance of the request, the necessary reasonable suspicion; (3) the officer making the stop received, prior to the stop, information from another officer, which, when combined with the observations made by the stopping officer, constitute the necessary reasonable suspicion.
Id. at 371, 427 S.E.2d at 159. In Battle, an officer encountered the defendant seated in the driver's seat of a vehicle in a parking lot. Id. at 372, 427 S.E.2d at 159. Based on an odor of alcohol emanating from the defendant and field sobriety tests, the officer believed the defendant was impaired and radioed a “be on the lookout” (“BOLO”) for the vehicle to other officers. Id. When defendant drove out of the parking lot, he was stopped by another officer. Id. at 369, 427 S.E.2d at 158. This Court held that the stop was constitutional because the first officer had “the requisite reasonable suspicion that criminal activity was about to occur,” a BOLO is “tantamount to a request ‘to stop’ the vehicle” and the second officer stopped defendant based on the first officer's communication. Id. at 372, 427 S.E.2d at 160.
This Court has also examined situations where the information was passed through several individuals prior to reaching the arresting officer. The arresting officer must have a valid basis for the stop, which “may not be established by the testimony of only the arresting officer that he or she was told by another officer that the information was reliable.” State v. Nixon, 160 N.C.App. 31, 37, 584 S.E.2d 820, 824 (2003) (citation omitted). “[W]hen the first officer's [basis for the stop] is not established, the arresting officer's reliance on his fellow officer cannot insulate the otherwise illegal search.” Id. at 40, 584 S.E.2d at 826.
In State v. Hughes, a confidential informant provided a tip to an officer, who then passed along the tip to a detective. 353 N.C. 200, 201–02, 539 S.E.2d 625, 627 (2000). The detective informed a different detective about the tip, and that detective ultimately arrested the defendant. Id. at 202, 539 S.E.2d at 627. The Court held that the stop was unconstitutional because the anonymous tip combined with the detectives' corroboration did not provide the requisite reasonable suspicion. Id. at 210, 539 S.E .2d at 632. The Court stated that the detective had never spoken with the informant, nor knew of his reliability and there needed to be “[s]ome objective proof as to why this informant was reliable and credible, other than just [the first officer's] assertion passed to [the detective], and by him to [the arresting detectives] ... [to] support [the arresting detectives'] decision to conduct a search.” Id. at 204, 539 S.E.2d at 628–29. In Nixon, this Court distinguished Hughes because in Nixon the officer who received the tip testified at the motion to suppress hearing. Nixon, 160 N.C.App. at 38, 584 S.E.2d at 825. Therefore, the Court concluded that “based on the testimony of the officers, the arresting officer had probable cause because the first officer's probable cause was established, and the evidence was therefore legally obtained.” Id. at 41, 584 S.E.2d at 827.
In the instant case, when Deputy Pope contacted the dispatcher to determine the status of defendant's license, Deputy Bass informed Deputy Pope that defendant had active, unserved warrants. Deputy Pope then initiated a traffic stop to investigate the status of the active, unserved warrants. After the stop, Deputy Pope's investigation revealed that there were no warrants for defendant's arrest at the time of the stop. The only information available was that defendant had a pending misdemeanor charge for failure to return rental property which required defendant to go to the Sheriff's Office for service of the summons.
The State presented evidence that Deputy Pope received the information from Deputy Bass regarding defendant's outstanding active warrants. Initially, Deputy Pope testified that he “confirmed with Deputy Bass he was certain there had been warrants on [defendant in] days previous[.]” However, on cross-examination Deputy Pope indicated that Deputy Bass “said he was pretty sure there had been warrants out for [defendant's] arrest just days prior .” (emphasis added). Therefore, since Deputy Pope did not personally observe criminal conduct, he had no independent knowledge and did not confirm that defendant had criminal warrants prior to the stop. Since Deputy Pope did not have a valid basis for the stop, his conduct cannot be characterized as “a reasonable suspicion, based on his personal observations, that criminal conduct ha[d] occurred, [wa]s occurring, or [wa]s about to occur....” Battle, 109 N.C.App. at 371, 427 S.E.2d at 159.
Although Deputy Pope, as the arresting officer, did not have reasonable suspicion of criminal activity to stop defendant, the investigatory stop could still be constitutional if Deputy Bass had requested the stop and prior to the request, Deputy Bass had reasonable suspicion based on specific and articulable facts. See id. However, there is no evidence that Deputy Bass requested Deputy Pope to stop defendant or had reasonable suspicion. Rather, both he and Deputy Pope testified that Deputy Bass simply communicated the information that defendant previously had active warrants and he was unsure whether or not they had been served.
Therefore, the investigatory stop can only be constitutional if the information Deputy Pope received from Deputy Bass, combined with Deputy Pope's observations, constituted reasonable and articulable suspicion. Id. Deputy Bass testified that several days before Deputy Pope stopped defendant, he became aware that defendant had outstanding warrants. Deputy Bass received a call to report to a home on defendant's street and another unnamed officer told Deputy Bass that if he ran into defendant, there were active warrants that needed to be personally served. There was no evidence that Deputy Bass prepared to serve the warrants prior to going to defendant's street. Deputy Bass did not encounter defendant while responding to the call, or anytime thereafter, and did not serve the warrants. Deputy Bass further testified that he had no contact or exposure to defendant, had not looked at defendant's criminal record and his only basis for the statement that defendant potentially had active, outstanding warrants was the statement of another unnamed officer. The unnamed officer who informed Deputy Bass about defendant's warrants did not testify at the suppression hearing.
The only proof offered at the suppression hearing regarding defendant's outstanding warrants was the unnamed officer's communication to Deputy Bass, which was then relayed to Deputy Pope. Although Deputy Bass testified at the hearing, his testimony established that he had no independent knowledge regarding defendant's outstanding warrants. Unlike the officer in Nixon, here the unnamed officer's basis for the stop was never established. See Nixon, 160 N.C.App. at 41, 584 S.E.2d at 827. According to Nixon, an arresting officer's reliance on his fellow officer cannot insulate an otherwise illegal search. Id. at 40, 584 S.E .2d at 826. Since the State never presented evidence that Deputy Bass had reasonable suspicion regarding defendant's active warrants, Deputy Pope could not rely on Deputy Bass's information to insulate an otherwise illegal search.
While Battle recognized that the information received from another officer could be used in combination with the arresting officer's observations, here there was insufficient evidence to combine Deputy Pope's personal observations with information received through Officer Bass and an unnamed officer. Deputy Pope testified that when defendant's vehicle passed by his post, defendant and the passenger in the vehicle displayed suspicious behavior. Specifically, they avoided eye contact, looked straight ahead and maintained a rigid posture, “almost as if two mannequins were occupying the vehicle.” At this point, Deputy Pope recognized defendant, and followed him while communicating with dispatch regarding the status of his driver's license. This behavior was the only suspicious behavior that Deputy Pope observed prior to the investigatory stop and did not constitute behavior that would justify such a stop. See State v. Canty, ––– N.C.App. ––––, ––––, 736 S.E.2d 532, 536–37 (2012), writ denied, review denied,––– N.C.––––, 739 S.E.2d 850 (2013) (where this Court found there was no reasonable suspicion even though the officers testified that the defendant failed to make eye contact, appeared nervous and that the driver crossed the fog line).
Finally, according to Battle, we must look at the “totality of the circumstances through the eyes of a reasonable and cautious police officer at the scene.” Battle, 109 N.C.App. at 370, 427 S.E.2d at 158. Defendant's behavior of looking straight ahead, maintaining a rigid posture, failing to make eye contact and appearing nervous was the only suspicious behavior Deputy Pope personally observed prior to the stop. Deputy Pope recognized defendant and discovered that defendant had a valid license but may have had unserved warrants. Deputy Pope did not testify that he stopped defendant because of defendant's suspicious behavior, rather he testified that he stopped him to check the status of the warrants. However, the information regarding the unserved warrants came from an unnamed officer and was communicated to Deputy Bass. Deputy Bass did not request Deputy Pope to stop or arrest defendant, but simply provided the information to Deputy Pope. Nevertheless, Deputy Pope initiated an investigatory stop of defendant's vehicle. Even the totality of the circumstances does not give Deputy Pope reasonable, articulable suspicion to stop defendant's vehicle. Since Deputy Pope conducted a warrantless investigatory stop, any evidence seized as a result of the stop should be suppressed. Furthermore, as we determined that defendant is entitled to a new trial because the trial court erred by denying his motion to suppress evidence, we find it unnecessary to discuss the remaining issues.
Deputy Pope had no reasonable suspicion and the information Deputy Bass provided Deputy Pope was not sufficiently reliable evidence to justify an investigatory stop. Therefore, Deputy Pope's warrantless investigatory stop was not based on independent reasonable, articulable suspicion and any evidence seized as a result of the stop should be suppressed. We hold that the trial court erred in denying defendant's motion to suppress evidence. Therefore, we grant defendant a new trial.
New trial. Judges BRYANT and GEER concur.
Report per Rule 30(e).