Opinion
No. COA03-369
Filed March 2, 2004 This case not for publication
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.
Wilkes County Nos. 01 CRS 53626, 01 CRS 54893, 01 CRS 51819.
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.
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 on 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).