Opinion
No. COA12–938.
2013-05-21
STATE of North Carolina v. Maurquis WRIGHT and Christian Smith, Defendants.
Roy Cooper, Attorney General, by Derrick C. Mertz, Assistant Attorney General, for the State. Staples Hughes, Appellate Defender, by Daniel Shatz, Assistant Appellate Defender, for defendant-appellee Smith.
Appeal by the State from order entered 17 April 2012, nunc pro tunc 21 February 2012, by Judge Benjamin G. Alford in Pamlico County Superior Court. Heard in the Court of Appeals 28 January 2013. Roy Cooper, Attorney General, by Derrick C. Mertz, Assistant Attorney General, for the State. Staples Hughes, Appellate Defender, by Daniel Shatz, Assistant Appellate Defender, for defendant-appellee Smith.
Geoffrey W. Hosford, for defendant-appellee Wright.
MARTIN, Chief Judge.
Defendants Maurquis Desean Wright and Christian Harris Smith were each charged in bills of indictment with one count of robbery with a dangerous weapon and one count of carrying a concealed weapon. The defendants filed motions to suppress evidence obtained following a traffic stop of their vehicle and a subsequent search. Defendants' motion to suppress was heard on 21 February 2012. At the hearing, the State and defendants agreed to the following stipulation of facts:
On Thursday, April 28, 2011, Deputy Dwayne Cobb went to the Trade Mart in Grantsboro, NC and spoke with Jackie Serrano, a clerk at the Trade Mart. Jackie Serrano told Cobb that Jessica Hardy told her Maurquis Wright planned to rob the Handy Mart in Alliance or the Trade Mart in Grantsboro. Ms. Serrano told Cobb that Jessica Hardy allegedly said she was scared to go to the police. Ms. Serrano said that Hardy told her that Wright had asked if he could borrow Hardy's car to use in the robbery, but Hardy told him he could not use her car. Ms. Serrano said that Hardy told her the robbery was to occur Friday night (April 29, 2011) between 12:00 midnight and 2:00am. Ms. Serrano said that she believes that Wright lives in Greensboro and goes to school there, drives a red Mitsubishi Eclipse and his parents live on Mary's Chapel Church Road in Beaufort County. Ms. Serrano said she knows Wright from high school and knows that at one time he worked at Burger King. Deputy Cobb had a prior encounter about 2–3 years prior to April 28, 2011. Deputy Cobb pulled Wright over for suspicion of driving while impaired. Cobb determined that Wright was not impaired, and Wright stated he was tired from working the late shift at Burger King. Wright asked Cobb to follow him home to be sure he got home safely, which Cobb did. Cobb followed him to a residence on Mary's Chapel Church Road. Ms. Serrano said she didn't know if Wright was going to do the robbery alone, but thought he planned to bring people from Greensboro with him, based on her conversation with Hardy.
Deputy Cobb confirmed with UNC Greensboro Police that Wright had an address in Greensboro. Though he was unable to confirm whether Wright was a student in Greensboro, he confirmed that the Campus Police at UNC Greensboro had a record of contacts with Wright. Cobb obtained the current driver's license photo for Wright, went back to Trade Mart, and Jackie Serrano confirmed that was the person she knew as Maurquis Wright. Cobb did not attempt to speak with Jessica Hardy at any time prior to the arrest of the defendant.
On the day of Friday, April 29, 2011, Cobb observed a red Mitsubishi Eclipse at 4155 Mary's Chapel Church Rd., the residence he knew belonged to Wright's parents which is located in Beaufort County. The registration on the red Eclipse (ACJ 7221) came back as belonging to Edward Wright, Wright's father. Cobb observed that a black male in his early twenties was getting something out of the trunk of the Eclipse.
At about 9:00 pm, officers from the Pamlico County Sheriff's Department began surveillance of the Trade Mart in Grantsboro, NC. Investigator Houston and Deputies Beck, Hardison and Griffin were shown a photograph of Wright and were given a description of the red Mitsubishi Eclipse. Shortly after surveillance began, a red Mitsubishi Eclipse was seen turning onto Camping Road, a short dead end road that runs behind the area of the Trade Mart and Burger King. Burger King is located next to the Trade Mart, and they have connecting parking lots. Within a short time, Cobb drove down Camping Road in his personal vehicle, and observed the Eclipse parked along the side of the road with a person sitting in it. He confirmed the registration plate as being ACJ 7221, then left and continued surveillance from a position in Ross Mobile Home Park. After a couple of hours, no one had seen the Eclipse leave Camping Road and no one had seen Wright. Deputy Griffin drove in a marked patrol car down Camping Road and drove past the Eclipse. The Eclipse had moved and was parked further down on the side of Camping Road, and was vacant. As Griffin drove past the Eclipse, Deputy Cobb notice[d] a flash of white in the wood line at the end of the trailer park. Griffin observed Wright walk out of a wooded area toward the Eclipse, wearing a white shirt. Wright approached Griffin's patrol car, stated he was having car trouble, his battery was dead, and asked for a battery jump. Griffin said he didn't have cables and asked Wright why he was coming from the wooded area. Wright said he was using the bathroom. Griffin left Camping Road without further investigating whether the red Eclipse was disabled and without asking Wright whether he had a legitimate reason for being in the area. Thirty seconds to one minute later, Wright left Camping Road in the Eclipse, entered the Trade Mart parking lot, pulled up at the corner of the lot next to the vacuum cleaners (closest to Hwy. 306 and farthest from Burger King) and cut off the vehicle's lights. After 30 seconds to one minute, Wright accelerated at a high rate of speed, went through the Trade Mart parking lot into the Burger King parking lot. He parked behind Burger King for a couple of minutes but did not get out of his vehicle. He then left the parking lot at a high rate of speed. The Eclipse turned onto Highway 55, then onto 306 North toward Beaufort County. He turned the vehicle's lights on when he reached Hwy. 306.
On Saturday, April 30, 2011, Officers conducted surveillance again at the Trade Mart. No suspicious activity occurred. Deputy Beck drove by Wright's residence on Mary's Chapel Church Road and Wright's vehicle was not there. Greensboro Police Department confirmed that the red Mitsubishi Eclipse, registration ACJ 7221 was present at his residence in Greensboro.
On the morning of Friday, May 6, 2011, Deputy Cobb observed a red Eclipse parked at the Law Office of Steve Lacy in Bayboro, and confirmed the registration plate matched the red Mitsubishi Eclipse, ACJ 7221. Cobb told Beck about this, and asked that he keep an eye out for Wright.
At 12:12 a.m. on Sunday, May 8, 2011 (just after midnight on Saturday night), Candy Voliva called 911 and reported that she had just been robbed at gun point at Burger King. She described a black man in an Iron Man mask, with his pants around his knees, yellow underwear and a black shirt. She reported that he ran off on foot behind the trailer park on Camping Road. Deputy Beck left Bayboro and headed west on Hwy 55 toward Burger King, and does not recall any vehicles travelling east away from Burger King. Beck stopped at Burger King, spoke with Ms. Voliva, and received the same description of the robber. Ms. Voliva added that the robber had a silver gun. At 12:22 am, Deputy Beck observed the red Eclipse driving on N.C. Hwy 306 North headed away from Burger King, about 3 1/2 miles from Burger King. Beck confirmed the registration as being ACJ 7221. Defendant was travelling lawfully and about 10 miles under the speed limit. Burger King is located in a rural area at the intersection of NC Hwy. 55 and N.C. Hwy. 306. There are no other primary roads that feed into Hwy. 306 between Burger King and where the defendant was located. There were no other cars headed North on Hwy. 306. Deputy Beck stopped the Eclipse.
At the hearing, the trial court also heard testimony from Deputy Cobb and Deputy Griffin.
In an order filed 17 April 2012, nunc pro tunc 21 February 2012, the trial court allowed defendants' motion to suppress. The trial court concluded the vehicle stop was made without reasonable articulable suspicion of criminal activity because:
a. [Defendant] Wright's vehicle was, at all times observed by [D]eputy Beck prior to the stop of said vehicle, operated in a lawful manner without any unusual or suspicious movement.
b. The tip about [defendant] Wright received by Cobb from Serrano was obtained from sources of unknown reliability.
c. The tip received by Cobb from Serrano, was neither investigated back to Hardy nor corroborated by any other investigation.
d. The information was incongruent with the facts and circumstances of the instant case in that it identified a different date and a different location, and had in fact been investigated, surveilled, and shown to be inaccurate.
e. All subsequent investigation failed to corroborate the original tip received by Cobb from Serrano.
The trial court incorporated the stipulations of fact into the order and enumerated several findings of fact that it deemed “relevant and pertinent” to the order. These findings included, inter alia, that “[n]either Serrano nor Hardy had ever acted as an informant to, or provided reliable information to, any member of the Pamlico County Sheriff's Department.”
The State appeals from the order allowing the motion to suppress. After careful consideration, we affirm.
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The State's argument on appeal is the trial court erred in allowing defendants' motion to suppress because, based on the totality of the circumstances, there was reasonable suspicion to stop Wright's vehicle.
When this Court reviews “an order granting a motion to suppress, we are ‘strictly limited to determining whether the trial judge's underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge's ultimate conclusions of law.’ “ State v. Carrouthers, 200 N.C.App. 415, 418, 683 S.E.2d 781, 784 (2009) (quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)). If, as here, the findings of fact are unchallenged, they are deemed to be supported by competent evidence and are binding on appeal. State v. Osterhoudt, ––– N.C.App. ––––, ––––, 731 S.E.2d 454, 458 (2012) (quoting State v. Roberson, 163 N.C.App. 129, 132, 592 S.E.2d 733, 735–36 (2004)). “The trial court's conclusions of law are subject to full review, and will be sustained if they are correct in light of its findings of fact.” State v. Foy, 208 N.C.App. 562, 564, 703 S.E.2d 741, 742 (2010) (citing State v. McCollum, 334 N.C. 208, 237, 433 S.E.2d 144, 160 (1993)), appeal dismissed and disc. review denied,365 N.C. 196, 710 S.E.2d 22 (2011).
“Before 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, 254–55, 590 S.E.2d 437, 440 (2004) (citing State v. McArn, 159 N.C.App. 209, 212, 582 S.E.2d 371, 374 (2003)). Reasonable suspicion must 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.” State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 70 (1994). To determine if there was reasonable suspicion to justify a stop, a court must consider the totality of the circumstances. Id. (citing United States v. Cortez, 449 U.S. 411, 417, 66 L.Ed.2d 621, 629 (1981)).
Tips to law enforcement may provide reasonable suspicion to conduct a stop. See State v. Johnson, 204 N.C.App. 259, 263, 693 S.E.2d 711, 715 (2010). Tips are analyzed differently based on whether the tip was from a “confidential and reliable informant” or an “anonymous informant.” See State v. Hughes, 353 N.C. 200, 203, 539 S.E.2d 625, 628 (2000). “[A] tip from a reliable, confidential informant may supply probable cause—a standard higher than reasonable suspicion.” State v. McRae, 203 N.C.App. 319, 324, 691 S.E.2d 56, 60 (2010). However, an informant whose identity is known may, nonetheless, be treated as an anonymous informant if there is not sufficient evidence of the informant's reliability. See Hughes, 353 N.C. at 205, 539 S.E.2d at 629 (“Without more than the evidence presented, we cannot say there was sufficient indicia of reliability to warrant use of the confidential and reliable informant standard. Accordingly, we analyze the anonymous tip standard in evaluating this case.”). “The difference in evaluating an anonymous tip [as opposed to a tip by a confidential and reliable informant] is that the overall reliability is more difficult to establish, and thus some corroboration of the information or greater level of detail is generally necessary.” State v. Nixon, 160 N.C.App. 31, 34, 584 S.E.2d 820, 822 (2003).
“Where the justification for a warrantless stop is information provided by an anonymous informant, a reviewing court must assess whether the tip at issue possessed sufficient indicia of reliability to support the police intrusion on a detainee's constitutional rights.” State v. Harwood, –––N.C.App. ––––, ––––, 727 S.E.2d 891, 898 (2012) (internal quotation marks omitted). “ ‘[I]f 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.’ “ Hughes, 353 N.C. at 206, 539 S.E.2d at 630 (quoting Alabama v.. White, 496 U.S. 325, 330, 110 L.Ed.2d 301, 309 (1990)). “[A]lthough an anonymous tip by itself rarely demonstrate[s] the needed reliability, the tip combined with corroboration by the police could show indicia of reliability that would be sufficient to meet this burden.” Id. at 205,539 S.E.2d at 629. Thus, if a tip lacks sufficient indicia of reliability on its own, “it must be buttressed by sufficient police corroboration.” Johnson, 204 N .C.App. at 264, 693 S.E.2d at 715 (internal quotation marks omitted).
It is not sufficiently corroborative for law enforcement to simply determine whom the informant intends to accuse:
An accurate description of a subject's readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.
Florida v. J.L., 529 U.S. 266, 272, 146 L.Ed.2d 254, 261 (2000). Thus, sufficient corroboration is typically based upon the informant's demonstrated knowledge of “future actions of third parties ordinarily not easily predicted.” Hughes, 353 N.C. at 206, 539 S.E.2d at 629–30 (internal quotation marks omitted). Such predictions of future behavior demonstrate “a special familiarity with [the accused's] affairs” and give “reason to believe that the [informant] was honest and well informed, [imparting] some degree of reliability to [the informant's] allegation that [the accused] was engaged in criminal activity.” White, 496 U.S. at 326, 110 L.Ed.2d at 306.
In this case, the informant, Serrano, was not anonymous, but rather provided Deputy Cobb with the tip during a face-to-face encounter. However, the tip was not based on Serrano's personal knowledge, but rather involved multiple levels of hearsay: Wright's alleged statements to Hardy, Hardy's alleged statements to Serrano, and Serrano's tip to Deputy Cobb. The trial court found as fact that “[n]either Serrano nor Hardy had ever acted as an informant to, or provided reliable information to, any member of the Pamlico County Sheriff's Department.” As the State does not challenge this—or any other—finding of fact, it is deemed to be supported by competent evidence and is binding on appeal. See Osterhoudt, ––– N.C.App. at ––––, 731 S.E.2d at 458. Additionally, the stipulated facts indicate “[Deputy] Cobb did not attempt to speak with Jessica Hardy at any time prior to the arrest of the defendant” to ascertain the veracity of her alleged account to Serrano. Based on these facts, the trial court concluded “[t]he tip about [defendant] Wright received by Cobb from Serrano was obtained from sources of unknown reliability.” We agree with the trial court's assessment. On “the evidence presented, we cannot say there was sufficient indicia of reliability to warrant use of the confidential and reliable informant standard,” and therefore “we analyze the anonymous tip standard in evaluating this case.” See Hughes, 353 N.C. at 205, 539 S.E.2d at 629.
In its order, the trial court noted that the “information [supplied by Serrano] was incongruent with the facts and circumstances of the instant case in that it identified a different date and a different location, and had in fact been investigated, surveilled, and shown to be inaccurate.” The court thus concluded that “[a]ll subsequent investigation failed to corroborate the original tip received by Cobb from Serrano.” The State argues that the tip “was both corroborated by the information known to, and the conduct subsequently witnessed by, the officers,” making the trial court's conclusion erroneous. We disagree.
The original tip claimed: (1) “Wright planned to rob the Handy Mart in Alliance or the Trade Mart in Grantsboro”; (2) “the robbery was to occur Friday night (April 29, 2011) between 12:00 midnight and 2:00am”; (3) “that Wright lives in Greensboro and goes to school there, drives a red Mitsubishi Eclipse and his parents live on Mary's Chapel Church Road in Beaufort County”; (4) that “at one time he worked at Burger King”; and (5) the informant “didn't know if Wright was going to do the robbery alone, but thought he planned to bring people from Greensboro with him[.]” Deputy Cobb did confirm “that Wright had an address in Greensboro,” though “he was unable to confirm whether Wright was a student in Greensboro.” He confirmed, by showing to Serrano a “current driver's license photo for Wright,” that Wright was the individual of whom Serrano spoke. He also confirmed that Wright drove his father's red Mitsubishi Eclipse and his parents lived on Mary's Chapel Church Road. Deputy Cobb was also personally aware that Wright had previously worked at Burger King. However, each of these facts only demonstrate reliability in the limited sense of correctly identifying the person whom Serrano intended to accuse. See J.L., 529 U.S. at 272, 146 L.Ed.2d at 261. These facts do not, however, corroborate that Serrano had knowledge of concealed criminal activity. See id.
“The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.” Id. The tip's assertion of illegality and potentially predictive components—that “Wright planned to rob the Handy Mart in Alliance or the Trade Mart in Grantsboro” and “the robbery was to occur Friday night (April 29, 2011) between 12:00 midnight and 2:00am”—did not occur. According to the unchallenged facts, a robbery occurred at a Burger King—rather than the Trade Mart or Handy Mart—eight days later than predicted.
The potentially predictive element that Wright may have an accomplice with him was also not corroborated. Wright was alone when he was observed by law enforcement near the Trade Mart on the night of 29 April 2011. The fact that Wright had Smith with him when he was later stopped on 8 May 2011, does not add corroboration to the tip. The 911 call and subsequent conversation with the victim indicated there was one perpetrator. The trial court's findings of fact indicate that “[Deputy] Cobb instructed [Deputy] Beck to stop the red Eclipse and, after doing so, Beck found both Defendants' [sic] therein, Wright driving and Defendant Smith in the passenger seat.” (Emphasis added.) “[R]easonable suspicion must arise from the officer's knowledge prior to the time of the stop.” Hughes, 353 N.C. at 208, 539 S.E.2d at 631 (emphasis added). Therefore, this prediction was not properly corroborated, either.
It is true defendant Wright was seen near the Trade Mart, on Camping Road, the night the tip predicted a robbery of either the Trade Mart or Handy Mart would occur. However, in light of the other uncorroborated predictions and the tip's “relatively low degree of reliability,” see id. at 206, 539 S.E.2d at 630, the information contained in the tip did not demonstrate that the informant had “a special familiarity with [the accused's] affairs” nor did it show the informant was sufficiently well informed, such that “some degree of reliability [should be imparted to her] allegation that [the accused] was engaged in criminal activity.” See White, 496 U.S. at 326, 110 L.Ed.2d at 306. Therefore, we hold the trial court did not err when it concluded the tip had not been sufficiently corroborated.
The State also argues that even without the tip from Serrano, based on the totality of the circumstances there was reasonable suspicion to stop defendants' vehicle. Advancing this argument, the State contends that certain actions by defendant Wright are analogous to other cases where reasonable suspicion has been found to exist. The State argues that: (1) “defendant Wright's conduct and behavior on 29 April ... was consistent with his ‘casing’ the Trade Mart or Burger King location”; (2) “defendant Wright had no apparent purpose in the area”; (3) “when confronted by police, defendant Wright lied or gave inconsistent stories”; (4) “defendant fled” from Camping Road; and (5) “defendant Wright's return to the vicinity” contemporaneously with a “report of a robbery” supplied reasonable suspicion.
We initially note the events relied upon by the State in its first four arguments as supplying reasonable suspicion for the stop of defendant's vehicle took place eight days before the actual stop, unlike the cases cited by the State. See, e.g., State v. Thompson, 296 N.C. 703, 707, 252 S.E.2d 776, 779 (justifying a stop based upon facts observed by the officers just prior to approaching the vehicle), cert. denied,444 U.S. 907, 62 L.Ed.2d 143 (1979). In addition, the State argues facts, characterizations, and inferences not found by the trial court, also unlike the cases cited by the State in support of its argument. See, e.g., State v. Blackstock, 165 N.C.App. 50, 56–57, 598 S.E.2d 412, 416–17 (2004) (reciting, inter alia, the trial court's finding of fact that “the two slowly walked by the buildings near the windows, looking into the businesses as if casing them”), disc. review denied and appeal dismissed,359 N.C. 283, 610 S.E.2d 208 (2005).
In this case, the trial court did not find that Wright was casing any establishments. It simply found that “Wright was observed by both Cobb and Pamlico Deputy Eric Griffin (Griffin) in the area of Camping Road which runs near the back property lines of Trade Mart and Burger King.” Nor did the trial court find that Wright had no apparent purpose in the area. Rather, the trial court adopted the stipulation of facts which indicated “[Deputy] Griffin left Camping Road without further investigating whether the red Eclipse was disabled and without asking Wright whether he had a legitimate reason for being in the area.” (Emphasis added.) Similarly, the trial court's findings of fact do not specify that Wright lied to officers. Instead, the trial court's findings actually note that Deputy Griffin “declined Wright's request for aid and left the area without any further investigation or interrogation of Wright.”
Nor did the trial court find that defendant Wright's conduct constituted “flight.” The State contends that “although defendant had remained stationary on Camping Road for over two hours, the very moment he was confronted by police he fled.” This argument not only ignores the fact that the trial court did not find that defendant Wright fled the scene, it also ignores the fact that Wright did not attempt to leave when he saw law enforcement officers. Rather, as found by the trial court, “Wright approached [Deputy] Griffin's car and asked for a jump start for his car,” effectively inviting greater scrutiny from the deputy, which is quite the opposite of flight. (Emphasis added.)
We have previously cautioned appellants against arguing facts not contained in the record. See State v. Campbell, 188 N.C.App. 701, 708 n. 4, 656 S.E.2d 721, 726 n. 4,appeal dismissed, 362 N.C. 364, 664 S.E.2d 311 (2008). Moreover, “this Court's task is not to review the record de novo for every fact that may tend to support or defeat a showing of reasonable suspicion.” Id. at 706,656 S.E.2d at 725 (addressing defendant's contention that various factors tended to diminish the State's assertion of reasonable suspicion). The standard is not whether the evidence presented could potentially support a different finding of fact or whether hypothetical findings of fact could support different conclusions of law. “Instead, our role is simply to determine whether the trial court's [actual] findings of fact are supported by the evidence and whether those findings support the court's conclusions of law.” Id. We hold that based upon this standard, the trial court did not err. Therefore, the State's argument with respect to these issues is overruled.
Finally, we address the State's arguments that “defendant Wright's return to the vicinity” contemporaneously with a “report of a robbery” supplied reasonable suspicion for the stop. The State argues “officers knew a crime had occurred, and that the party or parties responsible were likely in flight at that very moment.” The State also argues the “robbery suspect ran on foot to the very area Wright had parked his vehicle the weekend before, and his vehicle, the Eclipse, just happened to be the only vehicle encountered on the road after the robbery occurred, headed away from the scene of the crime.” In support of its argument, the State cites Campbell.
This argument is a close one. We opined in Campbell, that “proximity to a crime scene, time of day, and the absence of other persons in the vicinity of a crime scene are insufficient, in and of themselves, to establish reasonable suspicion.” Campbell, 188 N.C.App. at 706, 656 S.E.2d at 725. However, the standard requires considering all the facts together—the totality of the circumstances approach—to determine reasonable suspicion. Id. Therefore, a suspect's “proximity to the scene of the crime,” when combined with coming from the vicinity of the crime scene when no one else was around, and stopping a bicycle on a highway on-ramp at 3:40 in the morning, amounted to reasonable suspicion. Id. at 706–08, 656 S.E.2d at 725–27.
The deputies in this case could not account for whether there were other vehicles in two of the four cardinal directions leading away from the crime scene. And the trial court did not find as fact that there were “no other persons in the vicinity.” Additionally, the stop occurred shortly after midnight, not nearly as late as the stop in Campbell. Id. Nor was the vehicle in this case, which the trial court found was “being operated in a lawful manner,” doing anything suspicious, as opposed to a person attempting to ride a bicycle onto a highway on-ramp. Therefore, even taking each of the State's contentions that are supported by the record together, as we must, we do not agree that the trial court erred by concluding the officers lacked reasonable suspicion to make the stop.
The ruling of the trial court is affirmed.
Affirmed. Judges McGEE and CALABRIA concur.
Report per Rule 30(e).