Opinion
No. COA09-964
Filed 20 April 2010 This case not for publication
Appeal by defendant from judgement entered 10 February 2009 by Judge Charles H. Henry in Onslow County Superior Court. Heard in the Court of Appeals 25 January 2010.
Attorney General Roy Cooper, III, by Assistant Attorney General Catherine F. Jordan, for the State. Paul F. Herzog for defendant-appellant.
Onslow County No. 08 CRS 54648.
Larry Dean Smith ("defendant") appeals from a judgment entered 10 February 2009 by Judge Charles H. Henry in Onslow County Superior Court after a jury convicted him of one count of possession of cocaine and one count of trafficking in cocaine by possession. After careful review, we find no error in the trial court's denial of defendant's motion to suppress; however, we find prejudicial error in the admission of NarTest evidence. Accordingly, we reverse and remand for a new trial.
Facts
On 16 June 2008, the Onslow County Sheriff's department received an anonymous tip concerning drug activity. The female tipster stated that defendant would be delivering cocaine, arriving at the Jacksonville, North Carolina bus station on a bus from New Orleans, Louisiana between the hours of 5:00 p.m. and 6:00 p.m. the following day, 17 June 2008. The tipster stated that defendant would be picked up by Johnny Hatten ("Hatten"), driving either a black Ford Taurus or a red Ford Mustang. The tipster did not give her name but did provide a phone number where she could be reached. On 17 June 2008, when Captain John Lewis ("Captain Lewis") of the narcotics division of the Sheriff's department called the tipster back, no one answered, and Captain Lewis left a message. The tipster returned Captain Lewis's call, reconfirming the previous tip and supplying descriptions of defendant and Hatten. Defendant was described as "a black male, approximately 53 years of age, dark skin, approximately 5'8" tall, 160 to 170 pounds in weight, with short hair." Hatten was described as "a black male, approximately 28 years of age, six feet tall, approximately 210 pounds, with short hair, almost shaven."
Detective Sergeant Jack Springs ("Detective Springs") located the official Greyhound bus schedule and confirmed that a bus was scheduled to arrive from New Orleans between 3:00 p.m. and 4:00 p.m. on 17 June 2008. Detective Springs confirmed in the Sheriff's records that Hatten lived at 221 North Cambridge Road in Hubert. Detective Springs had previously received a tip concerning "a lot of traffic in and out of [Hatten's] residence, and . . . they were selling narcotics out of that residence." Deputy Marc Holden ("Deputy Holden") arrived at Hatten's residence at 2:30 p.m. on 17 June 2008 to begin surveillance on Hatten, where he saw a red Ford Mustang and a black Ford Taurus parked. Around 3:30 p.m. the two cars left, with a woman driving the Mustang and a man driving the Taurus. Deputy Holden followed the man in the Taurus, and it proceeded towards the bus station. Captain Lewis, Detective Springs, and probation officer Clay Taylor ("Taylor"), who had parked near the bus station before 4:00 p.m., continued the observation of the Taurus. The Taurus parked at the bus station.
A bus arrived at 5:25 p.m., and a man later identified as defendant exited the bus and got directly into the Taurus, carrying a bag. At the time, defendant was 54 years old, six feet tall, and 210 pounds. He had a medium to dark complexion and his hair was braided in "corn rows." The car left the parking lot and soon pulled into a fast food drive through lane. Captain Lewis decided to stop the car and the officers used their cars to block in the Taurus. Detective Springs approached the driver side of the car where Hatten was sitting. Taylor approached the passenger side, where defendant was sitting. Defendant was asked to get out of the vehicle and he complied with the request. Defendant was asked if he had "anything on [him] . . . any weapons or drugs or anything such as that." Defendant looked down and did not answer. Taylor told defendant that he was going to pat defendant down, and defendant raised his arms to facilitate the pat down. Taylor felt a hard object with jagged edges in defendant's pocket. He asked defendant what the object was, but defendant again did not answer. Taylor then pulled the object out of defendant's pocket and found it to be a vacuum bag containing several rocks, later identified as cocaine.
Defendant was indicted for possession with intent to manufacture, sell, or distribute cocaine, conspiracy to traffic in cocaine, possession of drug paraphernalia, and three counts of trafficking in cocaine. On 20 November 2008, defendant filed a motion to suppress evidence of the drugs found during the search, which was denied by the trial court on 6 February 2009. The trial court allowed defendant's motion to dismiss the charge of trafficking by way of manufacture, and the state voluntarily dismissed the charge of conspiracy to traffic in cocaine. The charges of possession of drug paraphernalia, possession of cocaine with intent to manufacture, sell, or deliver, trafficking in cocaine by possession, and trafficking in cocaine by transportation were presented to the jury at trial. The jury found defendant guilty of possession of cocaine and trafficking in cocaine by possession. Defendant was sentenced to 70 to 84 months imprisonment. Defendant timely appealed to this Court.
Discussion I. Motion to Suppress
Defendant alleged in his motion to suppress that his Fourth Amendment rights were violated by the stop of the vehicle, the subsequent pat down of his person, and the removal of the package from his pocket. "The right of the people to be secure in their persons . . . against unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV. "This mandate is applicable to the states through the Fourteenth Amendment. Evidence obtained by an unlawful search or seizure is inadmissible at trial." State v. Milien, 144 N.C. App. 335, 339, 548 S.E.2d 768, 771 (2001) (internal citation omitted).
After a hearing on defendant's motion, the trial court in this case made findings of fact and conclusions of law to support its ultimate determination that the stop and frisk were justified under the totality of circumstances.
Review of a trial court's denial of a motion to suppress is limited to a determination [as to] whether the trial court's findings of fact are supported by competent evidence and whether those findings support the trial court's ultimate conclusions of law. The trial court's findings are conclusive if supported by competent evidence, even if the evidence is conflicting.
State v. Sutton, 167 N.C. App. 242, 244, 605 S.E.2d 483, 484-85 (2004) (internal citations omitted), disc. rev. denied, 359 N.C. 326, 611 S.E.2d 847 (2005). "Where . . . the trial court's findings of fact are not challenged on appeal, they are deemed to be supported by competent evidence and are binding on appeal." State v. Robinson, 163 N.C. App. 129, 132, 592 S.E.2d 733, 735-36, disc. review denied, 358 N.C. 240, 594 S.E.2d 199 (2004). "Our review of a trial court's conclusions of law on a motion to suppress is de novo." State v. Smith, 192 N.C. App. 690, 692, 666 S.E.2d 191, 193 (2008), disc. review denied, 363 N.C. 380, 680 S.E.2d 206 (2009).
A. Finding of Fact
First, defendant argues that the trial court's finding of fact three was not supported by the evidence presented at the hearing. We disagree. Finding of fact three states:
Detective Sargeant [sic] Jack Springs reviewed the Greyhound bus schedule for Jacksonville on the internet which revealed that a bus was scheduled to arrive from New Orleans between 3 p.m. and 4 p.m. Springs was also familiar with Hatten as he had received complaints about a lot of traffic in and out of his residence with drugs being sold. Sheriff records showed that Hatten lived at 221 North Cambridge Road in Hubert.
Defendant claims that this finding of fact is unsupported by the evidence because it does not fully explain that the tip was anonymous, remote in time, or uncorroborated; however, defendant fails to specify any portion of the finding of fact which is not supported by the evidence. At the suppression hearing, Captain Lewis testified that Detective Springs researched the Greyhound bus schedule and confirmed that a bus was scheduled to arrive in Jacksonville, North Carolina from New Orleans, Louisiana between 3:00 and 4:00 p.m. Captain Lewis further testified that "Detective Springs advised [him] that he had received a complaint that there was a lot of traffic in and out of [Hatten's] residence, and the complaint he received indicated . . . that they were selling narcotics out of that residence." Detective Springs pulled Hatten's picture from "booking information[,]" which listed Hatten's address as 221 North Cambridge Road. Accordingly, we find that competent evidence existed to support the trial court's finding of fact.
B. Conclusions of Law
Defendant assigns error to three of the trial court's conclusions of law pertaining to the stop of the vehicle, the pat down of defendant, and the removal of contraband from defendant's pocket. First, the trial court concluded as a matter of law:
The officers, based on the above [findings of fact], had reasonable and articulable suspicion of criminal activity to warrant their investigatory stop of the motor vehicle driven by defendant Johnny Hatten and occupied by defendant Larry Smith.
Pursuant to Fourth Amendment protections, "[b]efore a police officer may stop a vehicle and detain its occupants without a warrant, the officer must have a reasonable suspicion that criminal activity may be occurring." State v. Jacobs, 162 N.C. App. 251, 254, 590 S.E.2d 437, 440 (2004).
"[R]easonable suspicion" requires that "[t]he stop . . . 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." All that is required is a "minimal level of objective justification, something more than an `unparticularized suspicion or hunch.'" A court must consider the totality of the circumstances in determining whether reasonable suspicion to make an investigatory stop existed. This Court reviews de novo the trial court's conclusion of law that a reasonable, articulable suspicion existed to justify a stop.
Id. at 255, 590 S.E.2d at 440 (quoting State v. Watkins, 337 N.C. 437, 441-42, 446 S.E.2d 67, 70 (1994)). "[T]he ultimate issue before the trial court in a case involving the validity of an investigatory detention is the extent to which the investigating officer has a reasonable articulable suspicion that the defendant might be engaged in criminal activity." State v. Mello, ___ N.C. App., ___, 684 S.E.2d 483, 488 (2009).
"An anonymous tip can provide reasonable suspicion as long as it exhibits sufficient indicia of reliability." On the other hand, "a tip that is somewhat lacking in reliability may still provide a basis for reasonable suspicion if it is buttressed by sufficient police corroboration." In sum, to provide the justification for a warrantless stop, an anonymous tip "must have sufficient indicia of reliability, and if it does not, then there must be sufficient police corroboration of the tip before the stop may be made."
State v. Peele, ___ N.C. App. ___, ___, 675 S.E.2d 682, 685 (2009) (quoting State v. Hughes, 353 N.C. 200, 207, 539 S.E.2d 625, 630 (2000)).
The present case is factually similar, yet ultimately distinguishable, from our Supreme Court's holding in Hughes. In Hughes, the police conducted an investigatory stop based on a tip that an individual nicknamed "Markie" "might" be arriving on a bus around 5:30 p.m.; that he "sometimes" carried a duffle bag; that he "sometimes" would take a taxi; and that he would have drugs with him. 353 N.C. at 201-03, 539 S.E.2d at 627-28. The tipster also descried "Markie" as dark skinned, 6'1" or taller, over 300 pounds, between 20 and 30 years of age, clean-cut with short hair, and wearing baggy pants. Id. An officer went to the bus stop and saw a person matching the description exit a bus at 3:50 p.m. and get into a taxi with a duffle bag. The officer stopped the suspect, asked permission to search him, and found drugs on his person. Id. The officer who conducted the search was previously told by another officer that the tip came from a "confidential, reliable informant." Id. However, the officer had no information to corroborate this tip, no knowledge of the informant's identity, no corroboration of the suspect's identity, and no corroboration as to where the suspect would go or who he would meet. Id. The description of "Markie" was vague enough that it could have applied to a number of bus passengers. The tipster's claims that "Markie" "sometimes" had a bag and that he "sometimes" took a taxi, were held to be of little worth in judging the reliability of the tip. Id. at 208-09, 539 S.E.2d at 631-32. Lacking more specific details and predictions of the suspect's actions, the tip was not sufficient alone to warrant an investigatory stop. Id. The Court held that the tip did not contain the necessary indicia of reliability and had not been sufficiently corroborated by the police before the stop was made. Id.
The Hughes Court distinguished the facts of that case from the United States Supreme Court's ruling in Alabama v. White, 496 U.S. 325, 110 L. Ed. 2d 301 (1990). Hughes, 353 N.C. at 205-07, 539 S.E.2d 629-31. In White, an anonymous caller stated that the suspect would be carrying drugs in a brown attaché case, the apartment address and room number where the suspect would be coming from, the specific time at which the suspect would leave her apartment, a detailed description of the suspect's car which she would take, and the destination to which she would travel. 496 U.S. at 327, 110 L. Ed. 2d at 306-07. All of these details were confirmed by the officers through surveillance. Id. The Supreme Court held that the investigatory stop was reasonable because the tip itself contained numerous indicia of reliability and the police conducted additional corroboration of the tip. Id. We find the present case to be analogous to White in that the information provided by the tipster was specific and substantially corroborated.
In this case, the tip contained many indicia of reliability. Most significantly, the caller identified defendant and Hatten by name. Additionally, the caller gave an accurate physical description of Hatten and the location of Hatten's home; an accurate description of the cars which Hatten had available to him; and a specific statement that Hatten would be driving to the bus stop to pick up defendant between 5:00 p.m. and 6:00 p.m. on 17 June 2008. See State v. Collins, 160 N.C. App. 310, 315, 585 S.E.2d 481, 485 (2003) ("An informant's tip is more reliable if it contains a range of details relating . . . to future actions of third parties not easily predicted." (internal citation and quotation marks omitted)). The caller, though anonymous, gave a working phone number at which she could be reached. See State v. Maready, 362 N.C. 614, 619-20, 669 S.E.2d 564, 567-68 (2008) (stating that, when an informant willingly places her anonymity at risk, it weighs in favor of deeming her tip reliable). The identity of Hatten, his home address, and the cars described by the informant were corroborated by police prior to the investigatory stop. See State v. Smith, 118 N.C. App. 106, 113, 454 S.E.2d 680, 684 (informant provided "detailed predictions of defendant's future actions ordinarily not easily predicted"), reversed on other grounds, 342 N.C. 407, 464 S.E.2d 45-46 (1995), cert. denied, 517 U.S. 1189, 134 L. Ed. 2d 779 (1996); State v. Chadwick, 149 N.C. App. 200, 204, 560 S.E.2d 207, 210 (informant deemed reliable where informant gave detailed information, including physical description of the driver, the car, and the location of the alleged drug transaction, all of which were verified by police surveillance), disc. review denied, 355 N.C. 752, 565 S.E.2d 672 (2002).
The inaccuracies, which were not significant, in the informant's description of defendant count against the tips' credibility, as does the fact that the tipster remained anonymous. The uncertain status of the previous tip concerning Hatten, which we here assume from a lack of contrary evidence was anonymous and uncorroborated, cuts against the strength of the police's corroboration. However, under the totality of the circumstances, we hold that there were sufficient indicia of reliability to establish a reasonable suspicion that criminal activity was afoot. Accordingly, we find no error in the trial court's conclusion of law that the investigatory stop was proper.
Defendant next argues that the trial court erred in concluding as a matter of law that:
Based on the information received, corroborated by the actions of the defendants, and the facts and circumstances confronting Taylor, it was manifestly reasonable to ask defendant Smith to step out of the vehicle and frisk him for weapons to ensure the safety of the officers involved in the operation.
An officer may perform a cursory search of a person in the course of an investigatory stop for officer safety. State v. Robinson, 189 N.C. App. 454, 458, 658 S.E.2d 501, 504 (2008) (citing Terry v. Ohio, 392 U.S. 1, 30, 20 L. Ed. 2d 889, 911 (1968)).
When there are reasonable grounds to order an occupant out of the car, then he may be subjected to a limited search for weapons when the facts available to the officer justify the belief that such an action is appropriate. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.
State v. Beveridge, 112 N.C. App. 688, 694, 436 S.E.2d 912, 915 (1993) (citations and quotation marks omitted), aff'd per curiam, 336 N.C. 601, 444 S.E.2d 223 (1994). "`The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence.'" Id. at 693, 436 S.E.2d at 915 (quoting Adams v. Williams, 407 U.S. 143, 145, 32 L. Ed. 2d 612, 617 (1972)). Here, both Hatten and defendant were suspected of dealing drugs. The officers had a reasonable suspicion that the men were transporting drugs at the time of the investigatory stop. The tipster who alerted the officers to this transaction specifically named Hatten and defendant and claimed that defendant would be delivering cocaine that day. The officers then observed Hatten picking up defendant at the bus station at the predicted time. Under these facts, we find no error in the trial court's conclusion of law that a pat down was "manifestly reasonable" to ensure the officers' safety during their questioning of the two men.
Defendant argues in a footnote in his brief that Taylor, a probation officer, had no authority to conduct the pat down because he was not a "sworn law officer." Defendant did not raise this issue in his motion to suppress, or at the hearing, and we decline to address the issue on appeal. N.C. R. App. P. 10(a)(1) ("In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context."); See State v. Sharpe, 344 N.C. 190, 194, 473 S.E.2d 3, 5 (1996) ("[W]here a theory argued on appeal was not raised before the trial court, `the law does not permit parties to swap horses between courts in order to get a better mount[.]'") (quoting Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934)).
Finally, defendant assigns error to the following conclusion of law:
It was also objectively reasonable for the officer under the circumstances, given the shape and rigidity of the object in question and the defendant's observable response to Taylor's inquiries, to remove the contents of Smith's pants pocket. Removing the object was within the legitimate scope of a Terry frisk. A reasonable officer under these circumstances could justifiably believe[] that the object was a weapon.
One of the trial court's undisputed findings of fact states that, "[f]or officer safety, Taylor patted down Smith. In his left rear pants pocket he felt a bag which contained a hard shaped object with jagged edges. He asked Smith what it was but he did not answer. Not knowing what it was, he pulled it out." It is significant that defendant, though physically compliant with the police, refused to answer questions and hung his head rather than explain himself or the object in his pocket. See State v. Rivens, ___ N.C. App. ___, ___, 679 S.E.2d 145, 149 (2009) (using nervousness as a factor supporting a reasonable suspicion of criminal activity).
"Having detected the presence of an unknown, potentially dangerous object on a suspect during a frisk, the test for whether an officer may search farther and seize the item is an objective one. . . . That is, would a reasonable officer in those circumstances have believed that the item could likely be a weapon?" United States v. Swann, 149 F.3d 271, 275 (4th Cir. 1998). The trial court in this case concluded that, under an objective standard, "[a] reasonable officer under these circumstances could justifiably believe[] that the object was a weapon." We agree. "Given all the circumstances, it was objectively reasonable for the officer to believe that this particular hard object could likely be a weapon and to seize the item to satisfy himself that it was not something that could be used to inflict harm." Id. at 276. The hard object contained in the bag could have been a knife, a box cutter, or something else designed to be used as a weapon. Accordingly, we find no error in the trial court's conclusion that, based on the dimensions of the object felt and defendant's suspicious behavior, Taylor was justified in removing the object from defendant's pocket.
We note that the trial court did not find that Taylor believed the object he felt to be contraband. Had that been the case, probable cause would have been required to justify seizure of the object. State v. Williams, ___ N.C. App. ___, ___, 673 S.E.2d 394, 398 (2009).
In sum, based on the totality of the circumstances, a reasonable suspicion of criminal activity existed to justify an investigatory stop of defendant and a subsequent pat down for officer safety. We further find no intrusion beyond the permitted bounds of a Terry pat down when Taylor removed the bag from defendant's pocket. Accordingly, we hold that the trial court did not err in denying defendant's motion to suppress the evidence.
II. NarTest Evidence
Defendant further argues that the trial court erred in accepting Captain Lewis as an expert witness and allowing him to testify as to the results of the NarTest analysis of the substance seized from defendant. We agree. This issue has been previously addressed in State v. Meadows, ___ N.C. App. ___, ___, 687 S.E.2d 305, temp. stay allowed, ___ N.C. ___, ___ S.E.2d ___ (2010). Because this case is factually analogous to Meadows, we are bound by its holding. In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989).
Captain Lewis was the same officer who was recognized by the trial court in Meadows as a "certified chemical analyst in the use of the NarTest" machine. Meadows, ___ N.C. App. at ___, 687 S.E.2d at 307. In reviewing the admissibility of Captain Lewis's testimony under the test set out in Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 458, 597 S.E.2d 674, 686 (2004), this Court determined that it could not "base any conclusions as to reliability of the NarTest machine upon Captain Lewis's testimony or judicial notice." Meadows, ___ N.C. App. at ___, 687 S.E.2d at 307. In analyzing the evidence presented by Captain Lewis, this Court made, inter alia, the following observations: (1) "Captain Lewis did not testify as to the reliability of the NarTest machine beyond his own experience with it; in other words, Captain Lewis did not testify about the methodology used by the NarTest machine to perform its analysis, but only about how it is used"; (2) "Captain Lewis did not testify as to any `established techniques'"; (3) Captain Lewis did not have a permit from the North Carolina Department of Health and Human Services certifying him as a "chemical analyst"; (4) "[t]he State did not present any evidence which would indicate that the NarTest machine uses an `established technique' for analysis of controlled substances or that the NarTest machine has been recognized by experts in the field of chemical analysis of controlled substances as a reliable testing method"; (5) no visual aids were presented; (6) Captain Lewis did not testify as to any "`independent research'"; and (7) "[t]he State did not present any evidence of the reliability of the NarTest machine beyond Captain Lewis's opinion that it was reliable based upon his personal experience of using the machine and the fact that some of the test results had been confirmed by the NarTest manufacturer. Indeed, the State's evidence does not even describe the method of analysis the NarTest machine uses or how it works." Id. at ___, 687 S.E.2d at 307-08.
The Court concluded:
As the State failed to proffer evidence to support any of the "indices of reliability" under Howerton or any alternative indicia of reliability, we conclude that "the expert's proffered method of proof [is not] sufficiently reliable as an area for expert testimony[.]" Without a "sufficiently reliable" method of proof, expert testimony was not properly admissible, and we need not address whether "the witness testifying at trial qualified as an expert in that area of testimony" and whether "the expert's testimony [was] relevant[.]" Accordingly, allowing Captain Lewis to testify as to the results of the NarTest machine was an abuse of discretion.
Id. at ___, 687 S.E.2d at 308-09 (quoting Howerton, 358 N.C. at 458-60, 597 S.E.2d at 686-87). The Court further determined that a visual observation of the substance as cocaine was insufficient to establish that the substance was, in fact, cocaine. Id. at ___, 687 S.E.2d at 309. The Court held that the error was prejudicial to defendant and ordered a new trial. Id.
In the present case, Captain Lewis's testimony concerning his experience with the NarTest machine and the test results is almost identical in substance to his testimony in Meadows. As in Meadows, the State failed to offer a "sufficiently reliable method of proof." Accordingly, we must hold in this case that defendant was prejudiced by the trial court's error and order a new trial.
Conclusion
For the reasons set forth above, we affirm the trial court's denial of defendant's motion to suppress and we conclude that the trial court committed prejudicial error in allowing Captain Lewis to testify as to the results of the NarTest machine.
New Trial.
Chief Judge MARTIN and Judge ERVIN concur.
Report per Rule 30(e).