Opinion
No. 07-857.
Filed February 5, 2008.
Guilford County No. 04 CRS 100436.
Appeal by defendant from judgment entered 11 October 2006 by Judge James E. Hardin, Jr., in Superior Court, Guilford County. Heard in the Court of Appeals 14 January 2008.
Attorney General Roy A. Cooper III, by Special Deputy Attorney General Douglas A. Johnston, for the State. D. Tucker Charns, attorney for defendant-appellant.
On 21 March 2006, defendant was indicted for trafficking by possession of heroin, trafficking by transporting heroin, conspiracy to traffic heroin, and possession of heroin with the intent to sell or deliver. On or about 20 July 2006, defendant moved to suppress certain physical evidence obtained as a result of a search of defendant following a traffic stop. Following a suppression hearing on 3 October 2006, the trial court denied the motion.
Thereafter, defendant pled guilty to trafficking by possession of heroin and trafficking by transporting heroin. The State dismissed the remaining charges. The trial court sentenced defendant to a minimum term of imprisonment of 90 months and a maximum term of 117 months. Having reserved his right to appeal the trial court's order denying his motion to suppress, defendant now appeals.
Evidence presented by the State at the suppression hearing tended to show that on 24 November 2004, the Crime Stoppers hotline received two calls, approximately five minutes apart, relating information about drug activities. Both of the callers reported that a 40-year-old black male with the name Charles Fuller was traveling to New York to obtain heroin and returning to 2700 Florida Street. The callers also reported that Fuller lived at 1908 East Russell Avenue and drove an Envoy. One caller also reported Fuller carried a firearm and that 2700 Florida Street was rented by LaToya Lovelace, Fuller's girlfriend. The written reports which were prepared for these calls indicated that the information was assessed to be reliable.
On 28 November 2004, Officer John W. Ryan, a member of the Greensboro, North Carolina Police Department's Tactical Special Enforcement Team, which focuses on street level narcotics crimes, received the two Crime Stoppers reports. After reviewing the reports, Officer Ryan performed a background check on the names provided in the reports. The results of this and a DMV check revealed that a person with the name Charles Anthony Fuller resided at 1908 East Russell Avenue in High Point, North Carolina and that he was a 40-year old black male with a height of 5'7" who had a suspended license. Officer Ryan found no vehicles registered to Fuller.
On this same day, Officer Ryan drove to 2700 West Florida Street in an unmarked patrol car to conduct surveillance. After several hours of surveillance, Officer Ryan observed no activity. On 3 December 2004, Officer Ryan returned to the area around 10:00 a.m. At the rear of the residence, Officer Ryan observed a GMC Envoy. Officer Ryan also observed a black male arrive at the house in a Lincoln Town Car. The driver went to the rear of the residence and left after a few minutes. An attempt by other police officers to conduct surveillance of this car was unsuccessful.
Officer Ryan also observed another black man, defendant, in the backyard of the house. This man generally matched the description of Charles Fuller from the DMV and police databases. Officer Ryan then observed defendant leave the house in the Envoy. After following the car, Officer Ryan stopped the vehicle. After the vehicle stopped, Officer Ryan observed defendant lean into the passenger seat out of sight. As a result, Officer Ryan approached the vehicle and ordered defendant to show his hands. Defendant, who has only one arm, held up his single arm. When defendant failed to show both hands, Officer Ryan opened the car door and attempted to remove defendant from the vehicle. When Officer Ryan reached for defendant's right arm, he found an empty sleeve and realized that defendant did not have a right arm.
Officer Ryan then removed defendant from the vehicle and asked him if he was Charles Fuller. Defendant confirmed his name and that his driver's license was suspended. Officer Ryan then placed him under arrest for driving with a suspended license. Officer Ryan frisked defendant. As Officer Ryan began to search defendant's vehicle, other officers on the scene notified Officer Ryan that defendant appeared to have something in his mouth. At Officer Ryan's request, defendant spit out a small plastic bag which was later determined to contain heroin. Officer Ryan and the other officers then returned to the residence at 2700 West Florida Street. After receiving consent from LaToya Lovelace to search the residence, they discovered 26.3 grams of heroin.
Before turning to the merits of the appeal, we note that the trial court did not make specific findings of facts at the suppression hearing, nor did it subsequently enter a written order containing specific findings related to its decision to deny the motion to suppress. N.C. Gen. Stat. § 15A-977(f) requires the trial court to make findings of fact and conclusions of law in the record. N.C. Gen. Stat. § 15A-977(f) (2003). However, when there is no material conflict in the evidence, the omission of findings is not prejudicial error. State v. Earhart, 134 N.C. App. 130, 135, 516 S.E.2d 883, 887 (1999). In the present case, the parties do not dispute the facts regarding how the police obtained the challenged evidence, but rather, the defendant contends that such facts do not justify the stop of his vehicle. Accordingly, we find no prejudicial error. See id.
When the trial court announced its ruling denying defendant's motion, the judge stated that he was going "to prepare specific findings of fact and a detailed order relating to the conclusions of law" regarding "the stop, search, and seizure of the defendant, his vehicle and contraband found near or around the defendant at the time of his stop, search and seizure." However, if any such order was ever prepared, it is not in the record on appeal.
In his sole assignment of error, defendant contends that the heroin found on his person and at the residence was the result of an unlawful stop of his vehicle. Defendant contends that Officer Ryan did not have sufficient, reliable information to justify either a traffic stop or an investigatory stop of his vehicle. The trial court's determination that the seized evidence was lawfully obtained through a lawful stop is fully reviewable by this Court. See State v. Mahatha, 157 N.C. App. 183, 191, 578 S.E.2d 617, 622, disc. rev. denied, 357 N.C. 466, 586 S.E.2d 773 (2003) (holding that the trial court's conclusions of law in an order on a motion to suppress are fully reviewable by the Court).
While there are instances in which a traffic stop is also an investigatory stop, warranting the use of the lower standard of reasonable suspicion, the two are not always synonymous. A traffic stop made on the basis of a readily observed traffic violation such as speeding or running a red light is governed by probable cause. Probable cause is a suspicion produced by such facts as indicate a fair probability that the person seized has engaged in or is engaged in criminal activity. On the other hand, a traffic stop based on an officer's reasonable suspicion that a traffic violation is being committed, but which can only be verified by stopping the vehicle, such as drunk driving or driving with a revoked license, is classified as an investigatory stop, also known as a Terry stop. Such an investigatory-type traffic stop is justified if the totality of circumstances affords an officer reasonable grounds to believe that criminal activity may be afoot.
State v. Wilson, 155 N.C. App. 89, 94-95, 574 S.E.2d 93, 97-98 (2002), disc. rev. denied, 356 N.C. 693, 579 S.E.2d 98, cert. denied, 540 U.S. 843, 157 L.Ed. 2d 78 (2003) (quoting State v. Young, 148 N.C. App. 462, 470-71, 559 S.E.2d 814, 820-21) (2002) (Greene, J., concurring) (internal citation and internal quotations omitted) (emphasis omitted)).
As an initial matter, the stop made by Officer Ryan was not a traffic stop as it was not made on the basis of Officer Ryan's observation of the commission of a traffic violation. See Wilson at 94, 574 S.E.2d at 97. Rather, it was an investigatory stop "based on an officer's reasonable suspicion that a traffic violation [was] being committed, but which [could] only be verified by stopping the vehicle[.]" Id. at 94, 574 S.E.2d at 98. Consequently, we review Officer Ryan's stop to determine if "the totality of circumstances afford[ed] [the] officer reasonable grounds to believe that criminal activity may be afoot." Id. at 95, 574 S.E.2d at 98.
We first address defendant's contention that the information received from the Crime Stoppers callers was unreliable. As our Supreme Court has held, "[a]n anonymous tip can provide reasonable suspicion as long as it exhibits sufficient indicia of reliability." State v. Hughes, 353 N.C. 200, 207, 539 S.E.2d 625, 630 (2000) (citing Florida v. J.L., 529 U.S. 266, 270, 146 L.Ed. 2d 254, 260 (2000); Alabama v. White, 496 U.S. 325, 330, 110 L.Ed. 2d 305, 309 (1990)). Even where an anonymous tip lacks sufficient reliability it "may still provide a basis for reasonable suspicion if it is buttressed by sufficient police corroboration." Id. (citing Florida v. J.L., 529 U.S. 266, 270, 146 L.Ed. 2d 254, 260 (2000)). "[T]here are situations in which an anonymous tip, suitably corroborated, exhibits `sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.'" Florida v. J.L., 529 U.S. 266, 270, 146 L.Ed. 2d 254, 260 ( quoting Alabama v. White, 496 U.S. 325, 327, 110 L.Ed. 2d 301, 306 (1990) (internal quotations omitted).
In this case, the Crime Stoppers' reports received by Officer Ryan indicated that the two callers had been assessed by the Crime Stoppers liaison as reliable. This assessment of reliability is made by providing callers with a unique identifying number that they can provide each time they call with a tip. The liaison uses this identifying number to determine if information provided previously by the caller resulted in arrests or otherwise proved reliable.
Not only was the information deemed reliable by Crime Stoppers, Officer Ryan was able to confirm much of the information through independent means. Officer Ryan's search of the police database confirmed that a black male named Charles Anthony Fuller, age 40, resided at 1908 Russell Street in High Point, North Carolina. The police database further described Fuller as 5'7". Officer Ryan next searched the DMV database and learned that defendant's driver's license was suspended. The DMV database again confirmed the physical description of Fuller provided by the police database and the callers. Officer Ryan also was able to further corroborate certain facts during his surveillance of the 2700 West Florida Street address. On 3 December 2004, five days after the tips were received, Officer Ryan observed a GMC Envoy parked in the driveway. Officer Ryan observed a man who fit the physical description of Charles Fuller in the backyard and then saw the man drive away in the Envoy. These observations further corroborated the informant information. Accordingly, we conclude that the information upon which Officer Ryan acted was sufficiently reliable.
We further conclude that the information was sufficient to give Officer Ryan a reasonable suspicion that the person driving the car was Charles Fuller and that he was driving with a suspended license. The man observed by Officer Ryan matched defendant's physical description from multiple sources, was driving the model car described by the informants, and had appeared at the address as predicted by the informants. See State v. Young, 148 N.C. App. 462, 467-68, 559 S.E.2d, 814, 818-19 (2002) (determining that an officer was justified in initiating an investigatory stop of a defendant based on a general description of the defendant and the car he was driving).
Finally, we hold that Officer Ryan had additional reasonable suspicion for the subsequent detention and search of defendant after the lawful stop. Upon confirming that Charles Fuller was driving the car, the information provided by the Crime Stoppers callers about defendant's involvement in drug activity as well as defendant's suspicious behavior in the vehicle after he was stopped provided Officer Ryan with a sufficient basis to conduct the search of defendant that resulted in the discovery of the bag of heroin in defendant's mouth. See State v. McClendon, 350 N.C. 630, 636-37, 517 S.E.2d 128, 132-33 (1999) (determining that an officer may further detain an individual after a lawful stop where there is a reasonable suspicion of criminal activity).
For the foregoing reasons, we affirm the trial court's denial of defendant's motion to suppress.
Affirmed.
Judges McGEE and ARROWOOD concur.
Report per Rule 30(e).