An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1355 NORTH CAROLINA COURT OF APPEALS Filed: 15 July 2014 STATE OF NORTH CAROLINA
Mecklenburg County v. No. 10 CRS 256238
LUCAS A. NELSON
Appeal by defendant from judgment entered 2 August 2013 by
Judge Richard D. Boner in Mecklenburg County Superior Court.
Heard in the Court of Appeals 9 April 2014.
Attorney General Roy Cooper, by Special Deputy Attorney General Angel E. Gray, for the State.
Law Office of Christopher W. Shelburn, PLLC, by Christopher W. Shelburn, for Defendant.
ERVIN, Judge.
Defendant Lucas Nelson appeals from a judgment sentencing
him to a term of 6 months imprisonment based upon his conviction
for driving while impaired, with this sentence having been
suspended and with Defendant having been placed on supervised
probation for a period of 24 months on the condition that he
serve an active term of 30 days imprisonment, pay a fine of $500
and the costs, surrender his driver’s license and not operate a -2- motor vehicle until properly licensed to do so, and comply with
the usual terms and conditions of probation. On appeal,
Defendant contends that the trial court erred by denying his
motion to suppress evidence seized as the result of the stopping
of his motor vehicle on the grounds that the trial court’s
findings of fact did not support its conclusion that the
challenged seizure was supported by the necessary reasonable
articulable suspicion. After careful consideration of
Defendant’s challenge to the trial court’s judgment in light of
the record and the applicable law, we conclude that the trial
court’s judgment should remain undisturbed.
I. Factual Background
A. Substantive Facts
At approximately 1:35 a.m. on 21 November 2010, Officer
B.J. Lambe of the Charlotte-Mecklenburg Police Department was
dispatched to investigate a report concerning a possibly
impaired driver. According to a call placed to 911, an
individual determined to be a Mr. Crossland reported having
observed the driver of a pickup truck bearing Pennsylvania
license plate number YXW-6415 in the parking lot of the Walmart
located at 8180 South Tryon Street in Charlotte stumbling and
appearing to be impaired. According to the caller, the
individual in question had walked into the Walmart, remained -3- inside for about ten minutes, and then returned to his pickup
truck.
About ten minutes after receiving this report, Officer
Lambe reached the Walmart parking lot. As Officer Lambe entered
the parking lot, the caller flagged him down and directed his
attention to the pickup truck, which was exiting the parking
lot. As a result, Officer Lambe followed the pickup truck out
of the parking lot and into the adjoining street. After
following the pickup truck for approximately one-half mile,
Officer Lambe caught up to the truck at an intersection and
activated his blue lights and siren. The driver of the pickup
truck, who turned out to be Defendant, continued driving for
approximately 50 seconds after Officer Lambe activated his blue
lights and siren before pulling into an apartment complex and
stopping. After he stopped Defendant’s pickup truck, Officer
Lambe asked the dispatcher to have the caller come to the
location at which the stop had occurred. As a result, Mr.
Crossland came to the scene and spoke with Officer Lambe.
B. Procedural History
On 21 November 2010, a citation charging Defendant with
driving while impaired was issued. On 14 April 2011, Defendant
entered a plea of guilty to driving while impaired before Judge
Matthew J. Osman in the Mecklenburg County District Court. -4- Based upon Defendant’s plea, Judge Osman entered a judgment
sentencing Defendant to a term of 12 months imprisonment, with
this sentence being suspended and Defendant being placed on
supervised probation for 18 months on the condition that
Defendant serve an active term of 15 days imprisonment, pay a
fine of $200.00 and the costs, obtain a substance abuse
assessment and comply with any treatment recommendations, and
comply with the usual terms and conditions of probation.
Defendant noted an appeal from Judge Osman’s judgment to the
Mecklenburg County Superior Court for a trial de novo.
On 20 February 2012, Defendant filed a motion to suppress
any evidence obtained as the result of the stopping of his
vehicle. The charges against Defendant came on for hearing
before the trial court at the 29 July 2013 criminal session of
the Mecklenburg County Superior Court. After the trial court
held a hearing concerning the merits of Defendant’s suppression
motion on 2 August 2013 and announced its intention to deny
Defendant’s motion and after Defendant properly preserved his
right to challenge the denial of his suppression motion on
appeal by providing the required notice to the State and to the
trial court, Defendant entered a plea of guilty to driving while
impaired. After accepting Defendant’s guilty plea and
conducting the required sentencing hearing, the trial court -5- entered a judgment sentencing Defendant to a term of 6 months
imprisonment, suspended that sentence, and placed Defendant on
supervised probation for 24 months on the condition that he
serve an active term of 30 days imprisonment, pay a fine of
$500.00 and the costs, obtain a substance abuse assessment and
complete all recommended treatment, surrender his driver’s
license and not operate a motor vehicle until properly licensed
to do so, and comply with the usual terms and conditions of
probation. Defendant noted an appeal to this Court from the
trial court’s judgment.
II. Legal Analysis
In his sole challenge to the trial court’s judgment,
motion to suppress the evidence seized as a result of the
stopping of his vehicle. More specifically, Defendant contends
that Officer Lambe did not have any basis for determining that
the informant was credible and that the information contained in
the informant’s tip did not suffice to establish the reasonable
articulable suspicion necessary to support the stopping of
Defendant’s vehicle. We do not find Defendant’s argument
persuasive.
A. Standard of Review -6- The standard of review utilized in evaluating the validity
of a challenge to an order granting or denying a suppression
motion is well-established.
Review of a trial court’s denial of a motion to suppress is limited to a determination 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. review denied, 359
N.C. 326, 611 S.E.2d 847 (2005). In the event that the
defendant, as is the case in this instance, fails to challenge
the sufficiency of the evidentiary support for the trial court’s
findings of fact, “those findings are conclusive and binding on
appeal.” State v. Robinson, 187 N.C. App. 795, 797, 653 S.E.2d
889, 891 (2007). As a result, the sole question presented for
our consideration in this case “is whether the trial court’s
findings support its conclusions of law,” State v. Euceda-Valle,
182 N.C. App. 268, 272, 641 S.E.2d 858, 862, disc. review
denied, 361 N.C. 698, 652 S.E.2d 923 (2007), a decision which is
subject to de novo review on appeal. State v. Munoz, 141 N.C.
App. 675, 682, 541 S.E.2d 218, 222, cert. denied, 353 N.C. 454,
548 S.E.2d 534 (2001). -7- B. Validity of the Traffic Stop
1. Applicable Legal Standard
A police officer may conduct an investigatory stop when he
“has a reasonable, articulable suspicion that criminal activity
is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123, 120 S. Ct.
673, 675, 145 L. Ed. 2d 570, 576 (2000) (citing Terry v. Ohio,
392 U.S. 1, 30, 88 S. Ct. 1868, 1879-80, 20 L. Ed. 2d 889, 911
(1968)). “Reasonable suspicion is a ‘less demanding standard
than probable cause and requires a showing considerably less
than preponderance of the evidence.’” State v. Barnard, 362
N.C. 244, 247, 658 S.E.2d 643, 645 (quoting Wardlow, 528 U.S. at
123, 120 S. Ct. at 675-76, 145 L. Ed. 2d at 576), cert. denied,
555 U.S. 914, 129 S. Ct. 264, 172 L. Ed. 2d 198 (2008). The
extent to which the reasonable suspicion necessary to justify
the stopping of a vehicle exists must be determined based upon
an analysis of the totality of the circumstances known to the
officer, State v. Hughes, 353 N.C. 200, 203, 539 S.E.2d 625, 628
(2000), with the validity of the stop resting upon the extent to
which “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, -8- 70 (1994) (citing Terry, 392 U.S. at 21-22, 88 S. Ct. at 1880,
20 L. Ed. 2d at 906), justify that action.
“An informant’s tip may provide the reasonable suspicion
necessary for an investigative stop.” State v. Hudgins, 195
N.C. App. 430, 434, 672 S.E.2d 717, 719 (2009). A critical
portion of the analysis that must be conducted in determining
whether actions resulting from information provided by others is
assessing the reliability of that information, with a showing
“that the informant had been used previously and had given
reliable information, that the information given was against the
informant’s penal interest, that the informant demonstrated
personal knowledge by giving clear and precise details in the
tip, or that the informant was a member of a reliable group” all
being relevant to the required constitutional analysis. Hughes,
353 N.C. at 203, 539 S.E.2d at 628. Thus, where an informant
comes forward “personally to give information that was
immediately verifiable at the scene,” the reliability of that
tip is enhanced, Adams v. Williams, 407 U.S. 143, 146-47, 92 S.
Ct. 1921, 1923-24, 32 L. Ed. 2d 612, 617 (1972), since “an
officer can judge the credibility of the tipster firsthand and
thus confirm whether the tip is sufficiently reliable to support
reasonable suspicion” in situations in which “the informant
relays information to an officer face-to-face.” Hudgins, 195 -9- N.C. App. at 434, 672 S.E.2d at 719. The informant’s proximity
to the scene or the alleged criminal activity is also relevant
to an evaluation of the credibility of information provided by
an informant. United States v. Christmas, 222 F.3d 141, 144
(4th Cir. 2000), cert. denied, 531 U.S. 1098, 121 S. Ct. 830,
148 L. Ed. 2d 712 (2001). On the other hand, “[w]here a tip is
anonymous, it must be accompanied by some corroborative elements
that establish the tip’s reliability.” Hudgins, 195 N.C. App.
at 434, 672 S.E.2d at 720.
2. Nature of the Informant’s Tip
As an initial matter, Defendant argues that the information
provided by Mr. Crossland should be treated as an anonymous tip
given that the 911 operator had no way to verify Mr. Crossland’s
identity and that Mr. Crossland’s identity was not known to
Officer Lambe at the time that he stopped Defendant. As we have
already suggested, tips from known and reliable informants, tips
provided directly to law enforcement officers, and anonymous
tips are evaluated differently. State v. Maready, 362 N.C. 614,
619-20, 669 S.E.2d 564, 567-68 (2008) (emphasizing the fact that
the informant voluntarily approached law enforcement officers
and “gave them information at a time and place near to the scene
of the alleged traffic violations,” noting that the informant
had “little time to fabricate her allegations against -10- defendant,” and emphasizing that the informant “willingly placed
her anonymity at risk” in determining that the tip was
sufficiently reliable to justify an investigative detention);
Hudgins, 195 N.C. App. at 434, 672 S.E.2d 719-20 (citing Adams
at 146-47, 92 S. Ct. at 1923-24, 32 L. Ed. 2d at 617 (tip from a
previously known informant); Christmas, 222 F.3d at 144 (face-
to-face tip provided by a previously unknown source); Florida v.
J.L., 529 U.S. 266, 270, 120 S. Ct. 1375, 1378, 146 L. Ed. 2d
254, 260 (2000) (anonymous tip); Alabama v. White, 496 U.S. 325,
329-31, 110 S. Ct. 2412, 2416-17, 110 L. Ed. 2d 301, 308-09
(1990) (analysis of the reliability of various types of tips)).
In view of the fact that “[r]easonable suspicion, like probable
cause, is dependent upon both the content of the information
possessed by police and its degree of reliability” and the fact
that “[b]oth 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,” the United States Supreme Court has clearly stated
that, “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.” White, 496 U.S. at 330, 110 S. Ct. at 2416, 110 L.
Ed. 2d at 309 (quoting United States v. Cortez, 449 U.S. 411, -11- 417, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621, 629 (1981)). For
that reason, “a tip that is somewhat lacking in reliability may
still provide a basis for reasonable suspicion if it is
buttressed by sufficient police corroboration.” Hughes, 353
N.C. at 207, 539 S.E.2d at 630. As a result, the relevant
decisions governing the manner in which a reviewing court should
determine the extent to which information provided by an
informant suffices to establish the reasonable articulable
suspicion required to support a valid investigative detention
require reviewing courts to treat information obtained from
different types of informants differently, with information
supplied by informants with a proven track record of reliability
to be given more credence than information supplied by
informants who lack such a track record and with information
supplied by informants whose identity is known, in whole or in
part, to the relevant members of the law enforcement community
informants about whom nothing of credibility-related value is
known.
The trial court’s undisputed findings of fact establish
that Mr. Crossland had called 911; that Mr. Crossland waited in
the Walmart parking lot for Officer Lambe and identified
Defendant’s pickup truck as it was leaving the Walmart parking -12- lot; and that Mr. Crossland met Officer Lambe at the scene of
the stop. Based on these findings, we have no hesitation in
concluding that the trial court did not err by determining that
the information provided by Mr. Crossland to the 911 dispatcher
and to Officer Lambe should not be evaluated as if it
constituted a purely anonymous tip. Although Defendant
analogizes the facts at issue here to those before the Court in
State v. Blankenship, __ N.C. App. __, __, 748 S.E.2d 616, 618
(2013), in which we held that a taxi driver who placed a call to
911 using his personal cell phone without giving his name should
be treated as an anonymous informant given that “the officers
did not have the opportunity to judge [the informant’s]
credibility firsthand or confirm whether the tip was reliable”
despite the fact that the informant’s identity was later
determined using the relevant phone records, we do not find this
argument persuasive given that Mr. Crossland, unlike the
informant at issue in Blankenship, called 911, remained in the
Walmart parking lot until Officer Lambe arrived, and initiated a
brief interaction with Officer Lambe. Similarly, the fact that
neither Officer Lambe nor the 911 dispatcher had had any face-
to-face contact with Mr. Crossland, while relevant to the
required analysis, does not, standing alone, require us to treat
Mr. Crossland as a purely anonymous informant. As a result, we -13- conclude, as the trial court did, that we should evaluate the
validity of Officer Lambe’s decision to stop Defendant’s vehicle
using an analysis that takes into consideration the fact that
Mr. Crossland placed his anonymity at risk and remained in
contact with law enforcement officers after the time that he
contacted 911 and reported his observations of Defendant’s
condition.
3. Reliability of the Tip
In the second component of his challenge to the trial
court’s judgment, Defendant contends that the information
available to Officer Lambe, which included the information
provided by the 911 dispatcher and the observations that Officer
Lambe made after arriving at the Walmart parking lot, did not
suffice to establish the reasonable articulable suspicion needed
to justify the stopping of Defendant’s vehicle. More
specifically, Defendant argues that neither the 911 dispatcher
nor Officer Lambe had any opportunity to evaluate Mr.
Crossland’s credibility, that Officer Lambe’s interaction with
Mr. Crossland in the parking lot was of such short duration that
Officer Lambe did not gain any additional relevant information
at that time, and that the purely descriptive information
available to Officer Lambe at the time that he stopped -14- Defendant’s vehicle did not suffice to justify the resulting
seizure. We do not find Defendant’s argument persuasive.
The trial court’s findings of fact clearly establish that
Officer Lambe had the required reasonable articulable suspicion
at the time that he stopped Defendant’s vehicle. At the time
that he contacted 911, Mr. Crossland gave specific details about
his exact location, Defendant’s vehicle, and the manner in which
Defendant walked. The detailed nature of the information that
Mr. Crossland provided to the 911 dispatcher, while primarily
descriptive in nature, supports a determination that Mr.
Crossland claimed “eyewitness knowledge,” thereby “lend[ing]
significant support to the tip’s reliability.” Navarette v.
California, __ U.S. __, __, __ S. Ct. __, __, 188 L. Ed. 2d 680,
687 (2014). Moreover, Officer Lambe verified a portion of the
descriptive information that Mr. Crossland provided to 911,
since a truck matching the description that had been provided to
the 911 dispatcher and relayed to Officer Lambe was observed
leaving the Walmart parking lot at the time that Officer Lambe
arrived on the scene shortly after having been contacted by the
911 dispatcher. Id. at __, __ S. Ct. at __, 188 L. Ed. 2d at
688. Moreover, Mr. Crossland placed a call to 911, utilizing a
system that “has some features that allow for identifying and
tracing callers, and thus provide some safeguards against making -15- false reports,” id. at __, __ S. Ct. at __, 188 L. Ed. 2d at
688, and remained at the scene in order to make certain that the
responding officer investigated the correct vehicle. Finally,
the conduct described in the call that Mr. Crossland placed to
911 is certainly consistent with the existence of impairment.
Id. at __, __ S. Ct. at __, 188 L. Ed. 2d at 689-90. As a
result, unlike the situations at issue in decisions such as
Blankenship, __ N.C. App. at __, 748 S.E.2d at 620 (holding that
an anonymous tip to the effect that a red Mustang convertible
with a black top and a specific license plate was driving
erratically on Patton Avenue did not establish the reasonable
articulable suspicion necessary to justify a traffic stop since
the officers “did not personally observe any unlawful behavior
by defendant or have the opportunity to meet [the informant]
prior to the stop”); State v. Coleman, __ N.C. App. __, __, 743
S.E.2d 62, 67 (2013) (holding that a tip emanating from a
citizen whom investigating officers were later able to identify
to the effect that a cup of beer was located in a gold Toyota
sedan bearing a specific license plate parked at a Kangaroo gas
station at the corner of Wake Forest Road and Ronald Drive did
not establish the reasonable articulable suspicion needed to
support an investigative detention given that the informant “did
not identify or describe defendant, did not provide any way for -16- Officer Lampe to assess her credibility, failed to explain her
basis of knowledge, and did not include any information
concerning defendant’s future actions”); State v. Johnson, 204
N.C. App. 259, 264-65, 693 S.E.2d 711, 715-16 (2010) (holding
that an anonymous tip to the effect that “a black male suspect
wearing a white shirt in a blue Mitsubishi with a certain
license plate number” was “selling drugs and guns at the
intersection of Pitt and Birch Streets” did not establish the
reasonable articulable suspicion necessary to justify an
investigative detention given that the record contained no
information about the identity of the informant, no statement of
the basis for the informant’s knowledge, and no information
about the caller’s current location); State v. Peele, 196 N.C.
App. 668, 674-75, 675 S.E.2d 682, 687 (holding that an anonymous
tip to the effect that a burgundy Chevrolet pickup truck that
was headed toward “the Holiday Inn intersection” was being
driven by an impaired driver, coupled with the officer’s
observation that the driver had weaved once within his own lane,
did not establish the reasonable articulable suspicion necessary
to support an investigative detention), disc. review denied, 363
N.C. 587, 683 S.E.2d 384 (2009), we conclude that Officer Lambe
did, in fact, have a reasonable articulable suspicion that
Defendant was engaging in unlawful conduct and that the trial -17- court did not err by rejecting Defendant’s contention to the
contrary in the course of denying his suppression motion.
III. Conclusion
Thus, for the reasons set forth above, we conclude that
Defendant’s challenge to the trial court’s judgment has no
merit. As a result, the trial court’s judgment should, and
hereby does, remain undisturbed.
AFFIRMED.
Judges GEER and STEPHENS concur.
Report per Rule 30(e).