State v. Green

JACKSON, Judge

dissenting.

At issue is the propriety of the trial court’s denial of defendant’s motion to suppress evidence obtained as a result of a warrantless search of his vehicle. I would hold that the informant’s tip in the case sub judice was insufficient under the totality of the circumstances to establish probable cause to justify the warrantless search of defendant’s vehicle. Therefore, I dissent.

We review the trial court’s ruling on defendant’s motion to suppress by asking whether the trial court’s findings of fact are sup*631ported by competent evidence and whether those findings support the court’s conclusions of law. See State v. Edwards, 185 N.C. App. 701, 702, 649 S.E.2d 646, 648 (citing State v. McHone, 158 N.C. App. 117, 120, 580 S.E.2d 80, 83 (2003)), disc. rev. denied, 362 N.C. 89, 656 S.E.2d 281 (2007). We review a trial court’s conclusions of law on a motion to suppress de novo. See id. (citing State v. Chadwick, 149 N.C. App. 200, 202, 560 S.E.2d 207, 209, disc. rev. denied, 355 N.C. 752, 565 S.E.2d 672 (2002)).

In the case sub judice, the trial court made the following relevant conclusions of law:

4. The corroboration and verification of this information, together with the monitored phone call gave the detectives, when seeing the defendant’s car and confirming that it was from the Charleston, S.C. area, being driven by an older black male, a brown later model mid-size SUV, with South Carolina registration, arriving at the time which it was expected, and being the only such vehicle to pass along the main route from Charleston to Wilmington on that day during an approximately 1 and 4. The corroboration and verification of this information, together with the monitored phone call gave the detectives, when seeing the defendant’s car and confirming that it was from the Charleston, S.C. area, being driven by an older black male, a brown later model mid-size SUV, with South Carolina registration, arriving at the time which it was expected, and being the only such vehicle to pass along the main route from Charleston to Wilmington on that day during an approximately 1 and lA hour time period, probable.cause to believe that a felony was being committed by the defendant in their presence and that a stop and search of this defendant was justified and not in violation of defendant’s State or Federal constitutional rights.
5. The stop of defendant’s vehicle on February 1, 2006 was supported by probable cause, as was the subsequent search of said vehicle.
Our Supreme Court has explained that
[a] search of a motor vehicle which is on a public roadway or in a public vehicular area is not in violation of the [F]ourth [A]mendment if it is based on probable cause, even though a warrant has not been obtained.

State v. Isleib, 319 N.C. 634, 638, 356 S.E.2d 573, 576 (1987) (citing United States v. Ross, 456 U.S. 798, 809, 72 L. Ed. 2d 572, 584). See also State v. Earhart, 134 N.C. App. 130, 133, 516 S.E.2d 883, 886 (“A search of a vehicle on a public roadway or public vehicular area is properly conducted without a warrant as long as probable cause exists for the search.”), appeal dismissed, 351 N.C. 112, 540 S.E.2d 372 (1999). Probable cause may be established by an informant’s tip. State v. Holmes, 142 N.C. App. 614, 620-21, 544 S.E.2d 18, 22-23, cert. denied, 353 N.C. 731, 551 S.E.2d 116 (2001). Whether the tip is *632received from an anonymous informant or a confidential informant, “a totality of the circumstances test” must be employed “to determine [the] basis of knowledge and reliability or veracity of the information as a basis for probable cause.” State v. Nixon, 160 N.C. App. 31, 34, 584 S.E.2d 820, 822 (2003) (internal quotation marks omitted). See also Illinois v. Gates, 462 U.S. 213, 76 L. Ed. 2d 527, reh’g denied, 463 U.S. 1237, 77 L. Ed. 2d 1453 (1983); State v. Hughes, 353 N.C. 200, 203, 539 S.E.2d 625, 628 (2000). When an informant is without sufficient reliability to be considered a confidential, reliable informant, the informant is treated as an anonymous'informant. Hughes, 353 N.C. at 205, 539 S.E.2d at 629. To the extent that reliability is wanting, independent corroboration by police officers “or [a] greater level of detail” is required. See Hughes, 353 N.C. at 209, 539 S.E.2d at 631; Nixon, 160 N.C. App. at 34, 584 S.E.2d at 822. This Court has indicated that more evidence may be required when the officer is acting without a warrant. See Nixon, 160 N.C. App. at 34, 584 S.E.2d at 823.

Initially, in the case sub judice, Detective Hart vouched for the informant’s reliability to Detective Wyatt. Detective Hart had worked with the informant before. Detective Wyatt, however, had not worked with the informant, and he relied solely upon Detective Hart’s endorsement that the informant had provided reliable information in an earlier drug arrest. Detective Hart did not testify in the hearing on defendant’s motion to suppress. We have held that when probable cause is based upon an informant’s tip, “[p]robable cause 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.” Nixon, 160 N.C. App. at 37, 584 S.E.2d at 824. See also Hughes, 353 N.C. at 204, 539 S.E.2d at 628-29. Accordingly, on these facts, I would hold that the informant’s tip could not have established probable cause to justify the warrantless search. Because Detective Wyatt acted without a warrant and because he had no independent basis upon which to classify the informant as reliable, Detective Wyatt bore a heavier burden to corroborate independently the informant’s information to justify the warrantless search and seizure. See Hughes, 353 N.C. at 205, 539 S.E.2d at 629; Nixon, 160 N.C. App. at 34, 584 S.E.2d at 823.

Next, the informant’s tip was comparatively nonspecific in view of precedent established by the United States Supreme Court, the North Carolina Supreme Court, and this Court. In Hughes, our Supreme Court analyzed precedent from the United States Supreme Court by explaining that

*633[i]n Alabama v. White, 496 U.S. 325, 110 L. Ed. 2d 301 (1990), the United States Supreme Court concluded that an anonymous tip could, under the totality of the circumstances, be sufficiently reliable to pass constitutional muster. Id. at 332, 110 L. Ed. 2d at 310. In White, a case described by the Court as “close,” the anonymous caller indicated that an individual, Vanessa White, would have in her possession an ounce of cocaine in a brown attaché case. During the call, the informant told the police the precise apartment building and apartment number from which White would be leaving and the particular time she would leave, and also gave detailed information as to White’s car and her final destination, Dobey’s Motel. The police then observed White leave the specified apartment building, get into the car described in detail by the informant, and take the most direct route to the motel before they finally stopped White just short of her destination. Id. at 327, 110 L. Ed. 2d 306-07.

Hughes, 353 N.C. at 205, 539 S.E.2d at 629. In Hughes, the Court held that the anonymous informant’s tip failed to provide reasonable suspicion — “a less demanding standard than probable cause.” White, 496 U.S. at 330, 110 L. Ed. 2d at 309; Hughes, 353 N.C. at 209, 539 S.E.2d at 632. In pertinent part, the Court provided that

[i]n this case, a review of the facts shows that Detectives Bryan and McAvoy had a physical description of a dark skinned Jamaican whose name and clothing description could not be recalled, who was going to North Topsail Beach, who “sometimes” came to Jacksonville on weekends before dark, who “sometimes” took a taxi, and who “sometimes” carried an overnight bag. The only other information the officers had was that defendant might be arriving on the 5:30 p.m. bus.
Even more important for purposes of its reliability, the information provided did not contain the “range of details” required by White and Gates to sufficiently predict defendant’s specific future action, but was instead peppered with uncertainties and generalities. The tipster stated that “Markie” “sometimes” came to Jacksonville on weekends, “sometimes” took a taxi from the bus station, “sometimes” carried an overnight bag, and would be headed to North Topsail Beach. As well as being vague, these statements are broad enough to be applied to many of the bus station patrons. It is highly likely that any number of weekend *634travelers to Jacksonville, where a large military base is located, would take a bus; that they might bring an overnight bag; and that unless they had someone pick them up from the station, they would take a taxi to their final destination, which could include North Topsail Beach. Because we find that the tip taken as a whole was insufficient to create a reasonable suspicion, we next look to see if it was made sufficient by independent police corroboration.
It appears from the record that the only items of the informant’s statement actually confirmed by the officers before the stop were that they saw a man meeting the suspect’s description come from around a bus that had arrived in Jacksonville at approximately 3:50 p.m., that he was carrying an overnight bag, and that he left the station by taxi. Without more, these details are insufficient corroboration because they could apply to many individuals. . . .
Likewise, reasonable suspicion does not arise merely from the fact that the individual met the description given to the officers.. . .
Here, before stopping the taxi, the officers did not seek to establish the reliability of the assertion of illegality. They did not confirm the suspect’s name, the fact that he was Jamaican, or whether the bus from Rocky Mount had originated in New York City. Moreover, because the officers stopped the taxi before it reached the Triangle area,1 they failed to corroborate whether the individual might be headed to North Topsail Beach, as the informant had stated, or to Wilmington, Richlands, Kinston, or some other destination.

Hughes, 353 N.C. at 208-09, 539 S.E.2d at 631-32 (emphasis added) (internal citation omitted). See also Earhart, 134 N.C. App. at 134, 516 S.E.2d at 887 (concluding that probable cause existed upon an anonymous tip that a white Trans Am carrying marijuana would arrive at a specific residence on 27 or 28 April and might be accompanied by a blue Subaru coupled with a tip from an agent of the State Bureau of Investigation “that a person whose name sounded like ‘Airhart’ was *635selling cocaine and marijuana from his home on North Spot Road and that he drove a white Trans Am, a blue Chevrolet Cavalier, and a rust Jeep”); State v. Collins, 160 N.C. App. 310, 318, 585 S.E.2d 481, 487 (2003) (concluding that probable cause existed upon an informant’s tip that directed police to a scheduled meeting at a particular time at a local convenience store with “Doug,” a black man in his thirties who drove a late 1980’s model, white, four-door Cadillac Brougham with spoke or wire hubcaps).

In the case sub judice, the informant provided that a man he knew as “Junior” would come that afternoon to a RFC restaurant located at the intersection of 16th Street and Dawson Street in Wilmington, North Carolina. “Junior” was described as an older black man, probably in his fifties, who “possibly would be driving an older model Mercedes or newer model mid size SUV, both possibly brown in color and both having South Carolina registrations.” (Emphasis added). The informant’s description of “Junior” and his “possible” vehicles was vague, and served to cast too-wide a net of potential suspects. “Junior’s” route of travel also was unknown. Furthermore, Charleston is a substantial city, and must necessarily include many older black males, older model Mercedes, and newer mid-size SUV’s — likely including some which are “possibly” brown in color. From Detective Wyatt’s testimony, the State proved only that — • according to the anonymous tipster — the make, model, and color of “Junior’s” vehicles, and whether “Junior” actually would be driving either an older model Mercedes or a newer model mid-size SUV were only “possibilities.” Thus, it is possible that “Junior” would be driving an entirely different vehicle.

At the suppression hearing, the following exchange took place between defense counsel and Detective Wyatt:

Q: So it would be fair to say you all were looking for an older black man driving a dark-colored SUV or a Mercedes with South Carolina tags going through Wilmington. That would be all of the information, a summary of all of the information that you had in hand?
A: Correct.

Furthermore, even though Detective Wyatt had obtained a specific location — the RFC at 16th Street and Dawson Street in Wilmington — for the arranged transaction,- he decided not to place any of his officers at that location. Instead, Detective Wyatt stopped *636defendant at 3rd Street, not 16th Street. Allowing defendant to arrive at the predetermined location or else stopping defendant just short of the predetermined location would have provided significantly more corroboration of the informant’s tip. Compare Hughes, 353 N.C. at 209, 539 S.E.2d at 632 (“[B]ecause the officers [prematurely] stopped the taxi before it reached the Triangle area, they failed to corroborate whether the individual might be headed to North Topsail Beach, as the informant had stated, or to Wilmington, Richlands, Kinston, or some other destination.”) with White, 496 U.S. at 326-28, 110 L. Ed. 2d at 306-07 (holding that an officer had reasonable suspicion when he stopped defendant “just short” of a predicted motel after an anonymous tipster provided specific details regarding the apartment from which defendant would depart, defendant’s time of departure, defendant’s brown attaché case containing cocaine, and defendant’s brown Plymouth station wagon with a broken right taillight, in addition to police observations of defendant leaving the specified apartment at the designated time in a car matching the tipster’s description).

I believe the informant’s reliability in the case sub judice pales in comparison to that of the informant in White — a “close” case in which only reasonable suspicion was found upon a tip from an anonymous tipster who provided a host of specific facts. I believe this case is much closer to Hughes — a case in which reasonable suspicion, and, therefore, probable cause, was lacking. Accordingly, without any better information as to (1) “Junior’s” real name; (2) “Junior’s” distinguishing physical features; (3) the make, model, color, year, or other identifying features of “Junior’s” vehicle — beyond mere, “possibilities;” or (4) “Junior’s” course of travel, and without sufficient independent, pre-stop corroboration of the informant’s tip, I would hold that the trial court erred in concluding that the detectives had probable cause in the case sub judice.

. In Hughes, the Court described the Triangle area as an area where “Highway 17 [South] splits in two directions — towards Wilmington and Topsail Beach, North Carolina, or towards Richlands, North Carolina. A person must pass through the Triangle before it can be determined in which of these directions he or she is going.” Hughes, 353 N.C. at 202, 539 S.E.2d at 628.