State v. Watkins

Judge Eagles

dissenting.

I respectfully dissent and yote to reverse and remand for trial. Since there was brief radio communication between officers, we look to the “collective knowledge” of both officers in assessing whether a reasonable articulable suspicion existed for the stop here. United States v. Kreimes, 649 F.2d 1185 (5th Cir. 1981); see State v. Zuniga, 312 N.C. 251, 322 S.E.2d 140 (1984); State v. Tilley, 44 N.C. App. 313, 260 S.E.2d 794 (1979). The circumstances known by the law enforcement officers before approaching defendant were:

*773(1) The time was around 3:00 a.m.;
(2) Deputy Knight of the Rockingham County Sheriff’s Department was informed by the dispatcher that there was a suspicious vehicle in the vicinity of the Virginia-Carolina Well Company (hereinafter “Company”);
(3) Deputy Knight, who had been a law enforcement officer for five arid one-half years, normally went by the Company’s ■ premises ten times each night while patrolling;
(4) Based on his experience patrolling the area, Deputy Knight observed that by 1 a.m., all of the buildings on that side of the county are closed and the people are gone;
(5) Having checked the buildings of the Company on prior occasions, Deputy Knight had never found anyone at the recreation room as late as 3:00 a.m.;
(6) Officer Harbor, the responding officer with ten years experience, was from a neighboring jurisdiction and did not normally patrol the area;
(7) Officer Harbor observed that the businesses were closed and that defendant’s vehicle did not have its headlights on until it reached the highway;
(8) Officer Harbor pulled over defendant’s vehicle based upon Deputy Knight’s request.

In our review of investigatory stops, it is clear that “[a] police officer ... is not constitutionally required to be certain that a crime has occurred when he makes a stop.” United States v. Moore, 817 F.2d 1105, 1107 (4th Cir. 1987), cert. denied, 484 U.S. 965, 98 L.Ed.2d 396 (1987) (citations omitted). Alabama v. White, 496 U.S. 325, 110 L.Ed.2d 301 (1990), is not inapposite to upholding the constitutionality of the investigatory stop presented here:

Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause. . . . Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police *774and its degree of reliability. Both factors — quantity and quality — are considered in the “totality of the circumstances — the whole picture,” that must be taken into account when evaluating whether there is reasonable suspicion. Thus, if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable.

Id. at 325, 110 L.Ed.2d at 309.

It should be particularly noted that this is simply not a case where “there was nothing other than the vehicle coming out from the parking lot that made [the officer] follow the car” as the majority suggests. Here, there was an anonymous tip transmitted by the radio dispatcher which led the officer to the parking lot. Granted, the tip was not detailed, but as the United States Supreme Court recognized in White, “ordinary citizens generally do not provide extensive recitations of the basis of their everyday observations.” Id., at 329, 110 L.Ed.2d at 308 (citing Illinois v. Gates, 462 U.S. 213, 237, 76 L.Ed.2d 527, 548 (1983)). However, the existence of the “suspicious vehicle” described by the anonymous tip was corroborated when the investigating officer observed that defendant was driving his vehicle from behind and beside closed business premises in the wee hours of the morning with its headlights off. See White, 496 U.S. at 330-31, 110 L.Ed.2d at 309 (corroboration of anonymous tip can furnish reasonable suspicion); United States v. Cutchin, 956 F.2d 1216 (D.C. Cir. 1992). Additionally, common sense dictates that driving an automobile at night without illuminated headlights, even in a parking lot as here, places pedestrians at risk, and Officer Harbor was walking in the parking lot on foot when defendant’s unlighted vehicle drove by him. See generally, Reeves v. Campbell, 264 N.C. 224, 227, 141 S.E.2d 296, 298 (1965). While we need not decide whether these circumstances are sufficient for the higher standard of probable cause for an arrest, it is alarming that the majority suggests that a “reasonable and cautious police officer on the scene, guided by his experience and training,” State v. Thompson, 296 N.C. 703, 706, 252 S.E.2d 776, 779, cert. denied, 444 U.S. 907, 62 L.Ed.2d 143 (1979) (citation omitted), in this factual setting would not have a reasonable suspicion of criminal activity sufficient to justify a brief investigatory stop. Although Officer Harbor testified that defendant’s weaving was not the cause of his decision for the investigatory stop, it is noteworthy that other cases have held that merely weaving within one’s own lane *775of traffic can present a reasonable articulable suspicion for an investigatory stop. State v. Jones, 96 N.C. App. 389, 395, 386 S.E.2d 217, 221 (1989), disc. review denied, appeal dismissed, 326 N.C. 366, 389 S.E.2d 809 (1990).

Fleming, 106 N.C. App. 165, 415 S.E.2d 782 (1992), relied upon by the majority, is readily distinguishable. The defendants in Fleming were on foot the entire time and merely “chose to walk in a direction which led away from the group of officers.” Id. at 170-71, 415 S.E.2d at 785. Here, defendant was driving late at night with his headlights off in a parking lot behind and next to closed business premises. Under the requisite “totality of the circumstances” test, the circumstances here created a reasonable suspicion of criminal activity and sufficient justification for a brief investigatory stop. See United States v. Kreimes, 649 F.2d 1185 (5th Cir. 1981) (upon issuance of bulletin describing a plane which had landed nearby, post-midnight seizure of truck travelling with headlights off on a rural road was based on reasonable suspicion; no description of any vehicle was given in the bulletin); State v. Fox, 58 N.C. App. 692, 695, 294 S.E.2d 410, 412-13 (1982), aff’d, 307 N.C. 460, 298 S.E.2d 388 (1983) (seizure of defendant who was driving slowly down a dead-end street of locked businesses at 12:50 a.m. and where the officer did not observe any traffic or equipment violations); State v. Tillet and State v. Smith, 50 N.C. App. 520, 274 S.E.2d 361, appeal dismissed, 302 N.C. 633, 280 S.E.2d 448 (1981).