NO. COA09-908

NORTH CAROLINA COURT OF APPEALS

* * * * * * * * * * * * * * * * *

STATE OF NORTH CAROLINA, )Plaintiff )

)v. ) From Forsyth County

)KELVIN JAMES JOHNSON, )

Defendant ))

* * * * * * * * * * * * * * * * *

DEFENDANT-APPELLANT’S BRIEF

* * * * * * * * * * * * * * * * *

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TABLE OF CONTENTS

TABLE OF AUTHORITIES………………………………………………………..…………..iii

QUESTIONS PRESENTED…………………………………………………………………….1

STATEMENT OF THE CASE………………………………………………………………3

STATEMENT OF GROUNDS FOR APPELLATE REVIEW……………………………...4

STATEMENT OF THE FACTS……………………………………………………………..4

ARGUMENT…………………………………………………………………………………9

I. THE TRIAL COURT ERRED WHEN IT HELD, AS A MATTER OF LAW, THAT THE ANONYMOUS TIP POSSESSED SUFFICIENT INDICIA OF RELIABILITY TO JUSTIFY THE OFFICERS’ WARRANTLESS STOP OF MR. JOHNSON’S CAR……………...….9

II. THE WARRANTLESS SEARCH OF MR. JOHNSON’S CAR FOLLOWING HIS ARREST FOR DRIVING ON A SUSPENDED LICENSE CONDUCTED WHILE HE WAS DETAINED IN THE BACKSEAT OF A POLICE CAR WAS UNCONSTITUTIONAL..19

CERTIFICATE OF WORD COUNT…………………………………………………...…....28

CERTIFICATE OF FILING AND SERVICE………………………………………………..28

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TABLE OF AUTHORITIES

CASES

Aguilar v. Texas, 378 U.S. 108, 12 L. Ed. 2d 723 (1964)...............................................................9

Alabama v. White, 496 U.S. 325, 110 L.Ed. 2d 301 (1990)..................................................passim

Arizona v. Gant, 556 U.S. ___, 173 L.Ed.2d 485 (2009).......................................................passim

Illinois v. Gates, 462 U.S. 213, 76 L. Ed. 2d 527 (1983)................................................8, 9, 11, 12

In re Appeal of the Greens of Pine Glen Ltd. P'ship, 356 N.C. 642, 576 S.E.2d 316 (2003)..........7

Johnson v. Zerbst, 304 U.S. 458, 82 L.Ed. 1461 (1938)...............................................................19

New York v. Belton, 453 U.S. 454, 69 L.Ed.2d 768 (1981).........................................................18

Spinelli v. United States, 393 U.S. 410, 21 L. Ed. 2d 37 (1969).....................................................9

State v. Brooks, 337 N.C. 132, 446 S.E.2d 579 (1994).................................................................18

State v. Cheek, 307 N.C. 552, 299 S.E.2d 633 (1983)..................................................................20

State v. Cooper, 304 N.C. 701, 286 S.E.2d 102 (1982).................................................................18

State v. Gibson, 32 N.C. App. 584, 233 S.E.2d 84 (1977)............................................................20

State v. Grundler, 251 N.C. 177, 111 S.E.2d 1 (1959)..................................................................19

State v. Hernandez, 170 N.C. App. 299, 612 S.Ed.2d 420 (2005)..................................................7

State v. Hooper, 318 N.C. 680, 351 S.E.2d 286 (1987)................................................................20

State v. Hughes, 353 N.C. 200, 539 S.E.2d 625 (2000).........................................................passim

State v. Kincaid 147 N.C.App. 94, 555 S.E.2d 294 (2001)...........................................................16

State v. Oliver, 309 N.C. 326, 307 S.E.2d 304 (1983)..................................................................19

State v. Peele, Jr., __ N.C.App,__, 675 S.E.2d 682 (2009)....................................................passim

State v. Styles, 362 N.C. 412, 665 S.E.2d 438 (2008).....................................................................8

Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889 (1968)..........................................................................8

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U.S. v. Sokolow, 490 U.S. 1, 7, 104 L.Ed.2d 1, 10 (1989)...........................................................16

Wong Sun v. United States, 371 U.S, 471, 9 L.Ed.2d 441 (1963)................................................17

STATUTES

N.C. Gen. Stat. §15A-977(c).........................................................................................................19

N.C. General Statute §15A-979(b)..................................................................................................3

RULES

N.C. App. R.P. 2............................................................................................................................20

N.C.App.R.P. 10(b)(1)...................................................................................................................19

CONSTITUTIONAL PROVISIO NS

Fourth Amendment to the United States Constitution...................................................................17

NO. COA09-908

NORTH CAROLINA COURT OF APPEALS

* * * * * * * * * * * * * * * *

STATE OF NORTH CAROLINA, )Plaintiff )

)v. ) From Forsyth County

)KELVIN JAMES JOHNSON, )

Defendant ))

* * * * * * * * * * * * * * * * *

DEFENDANT-APPELLANT’S BRIEF

* * * * * * * * * * * * * * * * *

QUESTIONS PRESENTED

I. DID THE TRIAL COURT ERR IN DENYING MR. JOHNSON’S MOTION TO SUPPRESS THE FRUITS OF HIS UNLAWFUL DETENTION WHERE THE ANONYMOUS TIP RELIED ON TO JUSTIFY THE STOP OF HIS CAR LACKED SUFFICIENT INDICIA OF RELIABILITY?

II. DID THE TRIAL COURT ERR IN CONCLUDING THAT THE WARRANTLESS SEARCH OF MR. JOHNSON’S CAR WAS PERMITTED AS A SEARCH INCIDENT TO HIS ARREST?

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STATEMENT OF THE CASE

On 9 July 2008, Kelvin James Johnson appeared before Judge L. Todd

Burke, in the General Court of Justice, Superior Court Division of Forsyth County

for a hearing on his motion to suppress evidence related to his pending charges.

He stood charged with four counts of possession of a firearm by a felon, two

counts of possession of a stolen firearm, carrying a concealed gun, and driving

while license was revoked or suspended. He was also alleged to be a habitual

felon. (R pp 5, 11, 17, 20, 53-54)

The State presented evidence on the Mr. Johnson’s motion to suppress, and

the court denied the motion. (T I pp 42-43) 1 The court subsequently entered

written findings of fact and conclusions of law. (R pp 48-50) On 5 November

2008, Mr. Johnson appeared before Judge Ronald E. Spivey on his pro se motion

to suppress. Judge Spivey denied that motion as well.

On 13 January 2009, again before Judge Spivey, Mr. Johnson pled guilty to

all but three counts of possession of a firearm by a felon, which the State

dismissed, and admitted to being a habitual felon. Mr. Johnson specifically

preserved his right to appeal the denial of his motion to suppress. (T II pp 22, 27)

(R pp 53) Mr. Johnson was sentenced to 110-141 months confinement. (T II pp

1 “T I” refers to the Transcript from the hearing held on 9 July 2008. “T II” refers to the Transcript from proceedings held on 5 November 2008 and 13 January 2009, which are bound in one volume.

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37-38) (R pp 55-56) Mr. Johnson filed a written notice of appeal on 14 January

2009. (R p 61)

STATEMENT OF GROUNDS FOR APPELLATE REVIEW

Appeal from denial of a motion to suppress evidence is a matter of right

pursuant to N.C. General Statute §15A-979(b).

STATEMENT OF THE FACTS

According to testimony presented by the State, on 19 September 2007,

Sergeant Osborne and Officer Dickerson were working as officers for the Winston-

Salem Police Department. They were riding together and assisting Officer Navy

who had been assigned to respond to an anonymous tip that dispatch received at

12:14 that day. The anonymous tipster had reported that a black male wearing a

white t-shirt and blue shorts was selling illegal narcotics and guns at the corner of

Pitts and Birch Streets in the Happy Hill Garden housing community. The caller

said the sales were occurring out of a Blue Mitsubishi, with a license plate of WT

3456. (T I pp 5, 19) The caller refused to provide a name and the police had no

means of tracking him or her down. The officers did not know how the caller had

obtained his or her information. (T I pp 11-12)

Just prior to the officers’ arrival in the Happy Hill neighborhood, the

anonymous tipster called back at 12:32 and stated that the suspect had just left the

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area, but would return shortly. Due to construction, the Happy Hill neighborhood

had only two entrance points: the Mock Street Bridge, and the Alder Street exit.

Osborne and Dickerson stationed themselves near the Mock Street entrance while

Navy waited near the Alder Street exit. (T I pp 5-6) Soon after Osborne and

Dickerson parked in the Happy Hill neighborhood, they saw a Blue Mitsubishi

enter the neighborhood traveling westbound on Mock Street. The car’s license was

WTH 3453. It was driven by a black male wearing a white T-shirt. (T I p 6) The

officers followed the car. Osborne, who was in the passenger seat of the patrol car,

entered the license plate information into his computer. It came back as registered

to a Kelvin Johnson, black male, with a date of birth of August 5, 1964. The

computer also informed Osborne that the registered owner’s driver’s license was

suspended. (T I p 7) Osborne then told Dickerson to stop the Mitsubishi.

Dickerson flipped the blue lights on the police car and initiated a traffic stop at the

700 block of Pitts Street, approximately 1 block away from where the call

originated. (T I pp 7, 15-16) The car pulled over and stopped without much delay.

At that point it was approximately 100 yards from the original area mentioned in

the tip. (T I p 7, 17)

Upon stopping, the driver of the Mitsubishi, Mr. Johnson, started to get out

of the car. Dickerson ordered him to stay in his car. Dickerson asked Mr. Johnson

if he had a driver’s license. Mr. Johnson said that he did not but that he did have a

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N.C. identification card. Dickerson had Mr. Johnson get out of his car and frisked

him for weapons. Dickerson then spoke with Navy and told him of Mr. Johnson’s

license status. Officer Navy placed Mr. Johnson under arrest for driving while

license revoked. After that, Dickerson explained, “We placed him in the back of

our patrol car and then we began a search of the vehicle incident to arrest.” (T I p

22)

During the search of the vehicle, the officers found guns and ammunition.

(T I pp 8-9, 23-24) These weapons formed the basis for the weapons charges

against Mr. Johnson. (R pp 2-5, 8-11, 14-17) On 9 July 2008, The Honorable L.

Todd Burke held a hearing on Mr. Johnson’s motion to suppress this evidence. In

denying the motion, Judge Burke held that the officers had reasonable, articulable

suspicion to stop the Mitsubishi based on the anonymous informant’s tip. (T I pp

42-43) The court specifically held that the officers did not have reasonable,

articulable suspicion to stop the car based on information that the car’s registered

owner had a revoked license. (T I p 35)

On 29 September 2008, Judge Burke entered written findings of fact and

conclusions of law with regard to the suppression hearing. (R pp 48-50) In those

findings the court stated that the officers preformed the search of the vehicle

incident to Mr. Johnson’s arrest. (R p 50, finding 23) The court further found that

the officers stopped Mr. Johnson before he reached the intersection where the

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anonymous tipster had indicated that illegal activity had occurred. (R p 49, finding

19) Finally, the court concluded that the stop was lawful under Alabama v. White,

496 U.S. 325 (1990), “as the anonymous tipster was able to predict the

Defendant’s future behavior and as the officers were able to verify significant

aspects of the tipster’s information about the Defendant and the vehicle he was

driving.” (R p 50, Conclusion of Law 1)

On 24 October 2008, Mr. Johnson filed a pro se motion to suppress with the

Forsyth County Clerk. On 5 November 2008, the Honorable Judge Spivey heard

Mr. Johnson’s pro se motion. Mr. Johnson stated that he lived in the

neighborhood, not more than 50 yards from where he was stopped. (T II p 5, lines

10-14) Judge Spivey found that the motion was consumed by Judge Burke’s order

and therefore did not rule on the merits of the motion. (T II pp 12, 17)

On 13 January 2009, Mr. Johnson pled guilty to one count of possession of a

firearm by a felon, two counts of possession of a stolen firearm, one count of

carrying a concealed gun, and one count of driving while license revoked. Mr.

Johnson also admitted his status as a habitual felon. Mr. Johnson specifically

preserved his right to appeal the denial of his motion to suppress. (R p 53) (T II

pp 19-24) He was sentenced 110 to 141 months confinement on the consolidated

charges. (R pp 55-57)

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STANDARD OF REVIEW

When reviewing a trial court’s ruling on a motion to suppress evidence, an

appellate court determines whether challenged findings of fact are supported by

competent evidence and whether those findings support the trial court’s

conclusions of law. “However, the trial court's conclusions of law are reviewed de

novo and must be legally correct State v. Hernandez, 170 N.C. App. 299, 304,

612 S.Ed.2d 420, 423 (2005) “Under a de novo review, the court considers the

matter anew and freely substitutes its own judgment for that of the [trial court].”

In re Appeal of the Greens of Pine Glen Ltd. P'ship, 356 N.C. 642, 647, 576 S.E.2d

316, 319 (2003) (citation omitted)

ARGUMENT

I. THE TRIAL COURT ERRED WHEN IT HELD, AS A MATTER OF LAW, THAT THE ANONYMOUS TIP POSSESSED SUFFICIENT INDICIA OF RELIABILITY TO JUSTIFY THE OFFICERS’ WARRANTLESS STOP OF MR. JOHNSON’S CAR.

ASSIGNMENTS OF ERROR 1-4(R pp 49-50) (T I p 42, lines 16-17 and T I p 43, lines 16-23)

The trial court upheld the warrantless stop of Mr. Johnson’s car based solely

on the information provided to police by an anonymous tipster. While the tip at

issue included identifying details of a person and car allegedly engaged in illegal

activity, it offered few details of the alleged crime, no information regarding the

informant’s basis of knowledge, and scant information to predict the future

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behavior of the alleged perpetrator. Given the limited details contained in the tip,

and the failure of the officers to corroborate the tip’s allegations of illegal activity,

the tip lacked sufficient indicia of reliability to justify the warrantless stop in this

case. Mr. Johnson’s motion to suppress the evidence obtained from his car should

have been granted.

It is well settled that police may stop and briefly detain a vehicle and its

occupants on less than probable cause. Such investigative stops are lawful if

supported by reasonable, articulable suspicion. Terry v. Ohio, 392 U.S. 1, 20

L.Ed.2d 889 (1968); State v. Styles, 362 N.C. 412, 415, 665 S.E.2d 438, 440

(2008). A court reviewing the constitutionality of a warrantless stop considers

only the officer’s knowledge prior to the stop. The test is whether, under a totality

of the circumstances, the officer had reasonable suspicion to justify the stop. State

v. Peele, Jr., __ N.C.App,__, 675 S.E.2d 682, 685 (2009).

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. In Illinois v. Gates, 462 U.S. 213, 76 L. Ed. 2d

527 (1983), the United States Supreme Court addressed the analysis to be applied

when determining whether an officer’s reliance on an anonymous tip provided

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probable cause.2 In adopting a totality of the circumstances approach, the Gates

Court loosened the rigidly applied two-prong test articulated in Spinelli v. United

States, 393 U.S. 410, 21 L. Ed. 2d 37 (1969) and Aguilar v. Texas, 378 U.S. 108,

12 L. Ed. 2d 723 (1964).

Under the Augilar-Spinelli test, in order for law enforcement to rely on

information provided by an informant to establish probable cause, the informant’s

general veracity or his reliability in the instant situation had to be established as

well as facts setting forth his basis of knowledge. In Gates, the Court no longer

required an anonymous tip to meet both prongs of the Aguilar-Spinelli test.

Rather, concerns of veracity or reliability and basis of knowledge were to be more

fluidly applied along with other factors in a totality-of-the-circumstances analysis.

However, even under Gates, the informant’s veracity or reliability and basis of

knowledge remain “highly relevant in determining the value of his report.” Gates,

462 U.S. at 230, 76 L.E.2d at 543.

Courts have repeatedly recognized, as a general rule, the inherent

unreliability of anonymous tips standing on their own. Alabama v. White, 496

U.S. 325, 329, 110 L.Ed. 2d 301, 308 (1990) (“[A]n anonymous tip alone seldom

demonstrates the informant's basis of knowledge or veracity…”). While an

2 While Gates involved the analysis to be used in a determination of probable cause based on an anonymous tip, this same analysis applies in the reasonable suspicion context, “though allowance must be made in applying them for the lesser showing required to meet that standard”. Alabama v. White, 496 U.S. 325, 328-329, 110 L.Ed.2d 301, 308 (1990).

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anonymous tip can provide an officer with reasonable suspicion to conduct a traffic

stop, it must itself possess sufficient indicia of reliability, or it must be

corroborated by the officer’s investigation or observations. The officer’s follow-up

investigation must do more than corroborate easily observable facts and conditions.

Courts have required anonymous tips to contain verifiable and verified

predictions of future behavior to overcome the lack of veracity and a basis of

knowledge characteristic of such tips. The seminal anonymous tip case discussing

the type of verified prediction of future behavior that can justify a traffic stop is

Alabama v. White, 496 U.S. 325, 110 L.Ed.2d 301 (1990). In White, the United

States Supreme Court, in what it deemed a “close case,” 3 upheld a traffic stop

based on an anonymous tip, where the tipster predicted that an individual would, at

a specific time, leave a specific apartment and building, enter a specific vehicle

that was described in detail, and drive to a second, specific location. According to

the tipster, the individual would have a brown attaché case containing drugs.

Police were able to verify significant aspects of these many predictions. Following

this corroboration, police stopped the defendant’s car and, during a consensual

search of the car, found narcotics.

While the White Court upheld the detention, it regarded the case as

“borderline”.4 It relied heavily on the fact that, as in Gates, the anonymous tip

3 Id. 496 U.S. at 332, 110 L.Ed.2d at 310.4 Florida v. J. L., 529 U.S. 266, 271, 146 L.Ed.2d 254,260 (2000).

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contained a range of details relating to future actions of third parties. Id. 496 U.S.

at 332, 110 L.Ed.2d at 310.

In State v. Hughes, 353 N.C. 200, 209, 539 S.E.2d 625, 632 (2000), our

Supreme Court applied the anonymous tip standard articulated in White to the facts

before it. In Hughes, an informant, treated as anonymous by the Court, had

provided the police with information about an individual named “Markie” who was

described in detail and said to live in New York. The informant stated that this

individual would arrive that day in Jacksonville by way of a bus from New York

City and that he would have marijuana and powdered cocaine in his possession.

The informant also indicated that Markie sometimes came to Jacksonville on

weekends before dark, and that he sometimes took a taxi from the bus station, that

he sometimes carried an overnight bag, and that he would be headed to North

Topsail Beach.

Officers went to the bus station. They were there when a bus from Rocky

Mount, which was known to them as a transfer point between New York City and

Jacksonville, arrived. The officers were not in a vantage point to observe the

passengers disembark the bus, but testified that the defendant was not in the

parking lot prior to the bus’ arrival, and that he stepped out from behind the bus

after it arrived. The officers indicated that the defendant matched the description

given by the informant and that he was carrying an overnight bag. The defendant

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immediately got into a taxi and headed south down Highway 17 toward an

intersection where the Highway splits and travelers can head either toward Topsail

Beach, North Carolina, or toward Richlands, North Carolina. The officers stopped

the defendant’s car before he got to this split. During a consensual search of the

defendant following the stop, officers found marijuana. While conducting a

jailhouse search following the defendant’s arrest, officers located cocaine.

In upholding the trial court’s granting of the defendant’s motion to suppress,

our Supreme Court found the information provided by the informant to be vague

when compared to the information provided by the tipster in White. Crucial to the

Hughes court was the fact that “the information provided did not contain the ‘range

of details’ required by White and Gates to sufficiently predict defendant’s specific

future action . . .” Id. at 209, 539 S.E.2d at 631.

Similarly, in State v. Peele, supra, this Court reversed the trial court’s denial

of the defendant’s motion to suppress evidence obtained following a stop of his

vehicle based on information provided by anonymous tipster. In Peele, the officer

received a dispatch call indicating that a burgundy Chevrolet pickup truck was

headed towards the Holiday Inn intersection and was “a possible careless and

reckless, D.W.I.” The officer arrived at the intersection within a second and saw a

truck that matched the description dispatch had provided. He followed the truck

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for approximately a tenth of a mile and observed it to weave once within its lane of

travel. Id. 675 at 684-685.

The Peele Court held that while the caller accurately described the car’s

physical characteristics, the caller gave police no way to test his or her credibility:

“The record contains no information about who the caller was, no details about what the caller had seen, and no information even as to where the caller was located. The caller did not “predict defendant’s specific future action,” Hughes, 353 N.C. at 208, 539 S.E.2d at 631, other than that he was driving from one stoplight to the next. Id. at 210, 539 S.E.2d at 632 (holding that confirmation that defendant was heading in general direction indicated by tipster ‘is simply not enough detail in an anonymous tip situation’).”

Id. 675 S.E.2d at 686

Read together, White, Hughes, and Peele make clear that where an

anonymous tip forms the basis for a traffic stop, it must itself exhibit sufficient

indicia of reliability (a rare situation), or it must be “buttressed by sufficient police

corroboration.” Hughes 353 N.C. at 207, 539 S.E.2d at 630. The type of detail

provided in the tip and corroborated by the officers is critical in determining

whether the tip can supply the reasonable suspicion necessary for the stop. Where

the detail contained in the tip merely concerns identifying characteristics, an

officer’s confirmation of these details will not legitimize the tip:

“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

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be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.”

Hughes, at 209, 539 S.E.2d at 632 (quoting Florida v. J.L., 529 U.S.266, 272, 146

L.Ed.2d 254, 261 (2000))

The present case is indistinguishable from Peele and Hughes. Here the

anonymous caller provided identifying information concerning a black male

suspect wearing a white shirt and blue jeans in a blue Mitsubishi with a certain

license plate number. The caller alleged that this individual was selling drugs and

guns at the intersection of Pitt and Birch Streets. As in Peele, “[t]he record

contains no information about who the caller was, no details about what the caller

had seen, and no information even as to where the caller was located.” Id. As in

Hughes, Peele, and White, there was nothing inherent in the tip itself to allow a

court to deem it reliable and to provide the officers with the reasonable suspicion

necessary to effectuate a stop. There was also nothing observed by the officers

during their brief surveillance of Mr. Johnson as he drove in the Happy Hill

Gardens neighborhood that provided them with reasonable suspicion to stop his

car. Thus the only way that the anonymous tip here could justify Mr. Johnson’s

detention is if the tip contained sufficient detail, corroborated by the officers, to

warrant a reasonable person in the belief that criminal activity was afoot.

The only prediction offered by the anonymous caller here was in a follow-up

call where the caller reported that the suspect just left the area but would return

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shortly. (T I p 6) Police were unable to corroborate any information provided in

the first call. In the second call, the tipster stated that the suspect had left the area

prior to the officers’ arrival. (T I p 12, lines 7-9) Thus, police could not confirm

that the suspect was ever at the intersection, that he left, or that he was engaged in

activity while there that was consistent with the sale of contraband from his

vehicle. Confirmation of the single prediction that an unnamed suspect would

return to the area shortly is analogous to the confirmation deemed insufficient in

Hughes and Peele. (“[C]onfirmation that defendant was heading in general

direction indicated by tipster ‘is simply not enough detail in an anonymous tip

situation’” Peele, ___ N.C.App. at ___,675 S.E.2d at 686, quoting Hughes, 353

N.C.at 210, 539 S.E.2d at 632.) This lone prediction falls far short of the quantity

and quality of the predictions given by the tipster and verified by the police in

White (A specified individual would be at a specific apartment in a specific

building, she would leave that apartment at a specified time, she would get into a

specific car, and drive to a specified location). Given that the White court

characterized the constitutionality of a the stop based on this corroborated

anonymous tip as a “close case” and “borderline”, there can be no doubt that the

stop in the present case, based on a far less detailed tip, with far less corroboration,

falls short of the constitutional minimum described in White.5

5 The inability of a single, innocuous prediction to support an anonymous tip that is otherwise lacking in indicia of reliability is demonstrated in the present case. Mr. Johnson lived in the Happy Hill Garden

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Even assuming arguendo that the fact that Mr. Johnson drove into the Happy

Hill Garden neighborhood provided the tip with sufficient indicia of reliability, the

tip itself was conclusory and could not form the basis for a stop. Officers must

have more than an “unparticularized suspicion or ‘hunch’ ” to justify the stop.

U.S. v. Sokolow, 490 U.S. 1, 7, 104 L.Ed.2d 1, 10 (1989); State v. Kincaid 147

N.C.App. 94, 98, 555 S.E.2d 294, 298 (2001). They must be able to articulate

specific facts and inferences there from that would support a reasonable belief that

criminal activity was occurring. Because the tipster here provided no detail of

what he or she observed or otherwise knew, there was no way to determine

whether the information was more than an unparticularized suspicion or hunch.

Certainly, if a stop cannot be justified based on an officer’s suspicion or hunch, it

cannot be based on the suspicion or hunch of an anonymous tipster. Without some

recitation of the facts giving rise to his or her conclusion that an individual was

selling contraband, the tipster in this case, even if reliable, failed to provide the

articulable facts necessary to justify the stop.

Because the stop of Mr. Johnson’s car was not supported by reasonable

suspicion, the fruits of that unlawful detention should have been suppressed.

Wong Sun v. United States, 371 U.S., 471, 9 L.Ed.2d 441 (1963). Had officers not

stopped him, Mr. Johnson would not have been arrested for driving on a suspended

neighborhood, less than 50 yards from where he was stopped. (T II p 5, lines 10-14; p 6, lines 7, 17-19) The prediction that he would return required little inside information.

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license, his car would not have been searched, and the items which gave rise to the

charges in this case would not have been found. Thus the contraband that

constituted the basis for the charges against Mr. Johnson should have been

suppressed.

II. THE WARRANTLESS SEARCH OF MR. JOHNSON’S CAR FOLLOWING HIS ARREST FOR DRIVING ON A SUSPENDED LICENSE CONDUCTED WHILE HE WAS DETAINED IN THE BACKSEAT OF A POLICE CAR WAS UNCONSTITUTIONAL.

ASSIGNMENT OF ERROR 5 (T I pp 42, lines 16-17); (R p 50)

Mr. Johnson’s rights under the Fourth Amendment to the United States

Constitution were violated when, after he was arrested for driving with a revoked

or suspended license and secured in the back of a police car, his car was searched

incident to that arrest. A recent case from the United States Supreme Court,

Arizona v. Gant,6 makes clear, under remarkably similar facts, that a search of a

car incident to a recent occupant’s arrest is unlawful where the arrestee no longer

has access to his vehicle, and where officers cannot reasonably believe that they

may find evidence relevant to the crime of arrest in the car. Like Gant, Mr.

Johnson was arrested for driving with a suspended license and placed in the back

of a patrol car prior to the search. As in Gant, the search in this case was

unreasonable.

6 Arizona v. Gant,556 U.S. ___, 173 L.Ed.2d 485 (2009)

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1. Issue Preserved For Appeal

The trial court denied Mr. Johnson’s motion to suppress the evidence

obtained during the warrantless search of his car based, in part, on the finding that

the search was justified as incident to an arrest. (R p 50, Finding 23)7 At the time

of the suppression hearing, North Carolina law interpreting New York v. Belton,

453 U.S. 454, 69 L.Ed.2d 768 (1981) made clear that police had broad authority to

search a vehicle incident to the driver’s arrest. State v. Cooper, 304 N.C. 701, 703-

705, 286 S.E.2d 102, 103-104 (1982) (“The fact that defendant in this  case was

sitting in a police vehicle instead of standing on the street under an officer's

supervision fails to remove the factual setting from the scope of Belton.”) ; State v.

Brooks, 337 N.C. 132, 145, 446 S.E.2d 579, 587 (1994). Accordingly, Mr.

Johnson did not assert the unconstitutionality of the search of his car incident to his

arrest for driving with a suspended or revoked license as an alternate ground to

support his motion to suppress evidence.

As a general rule, the failure to raise an alleged error in the trial court waives

the right to raise it for the first time on appeal. State v. Oliver, 309 N.C. 326, 334,

307 S.E.2d 304, 311 (1983); N.C.App.R.P. 10(b)(1). “A waiver is ordinarily an

7 The trial court designated this conclusion as a finding of fact. To the extent that it upholds the search of Mr. Johnson’s car as incident to his arrest, it is a legal conclusion. Reviewing courts look beyond the label given to a finding by a trial court and review portions of factual findings that are actually conclusions of law under the de novo standard. State v. Icard, 363 N.C. 303, 308, 677 S.E.2d 822, 826 (N.C. 2009)

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intentional relinquishment or abandonment of a known right or privilege.” State v.

Grundler, 251 N.C. 177, 187, 111 S.E.2d 1, 8 (1959), quoting Johnson v. Zerbst,

304 U.S. 458, 464, 82 L.Ed. 1461 (1938). Here, the constitutional challenge to the

search of Mr. Johnson’s car incident to his arrest did not exist under controlling

North Carolina law at the time of the hearing. Trial counsel’s failure to

specifically and independently challenge the search of Mr. Johnson’s car in his

motion to suppress cannot be fairly viewed as a knowing and intentional

relinquishment of Mr. Johnson’s right to be free from unreasonable searches or his

right to raise the issue on appeal.

Further, once a trial court makes the discretionary decision not to summarily

deny a motion to suppress evidence under N.C. Gen. Stat. §15A-977(c), at the

hearing on the motion “the burden is on the state to demonstrate the admissibility

of the challenged evidence. . .” State v. Cheek, 307 N.C. 552, 557, 299 S.E.2d

633, 636 (1983). Indeed, the state’s burden in this regard is what saved the statute

from constitutional attack:

“The statute in question, G.S. 15A-977, does no more than shift to the defendant the burden of going forward with evidence when the State's warrants appear to be regular. The State still has the burden of proving that the evidence was lawfully obtained. Accordingly, G.S. 15A-977 is constitutional”.

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State v. Gibson, 32 N.C. App. 584, 586, 233 S.E.2d 84, 86 (1977) (emphasis

added). Under the holding in Gant, the State cannot be said to have sustained its

burden of proving that the evidence was lawfully obtained.

Even if this Court concludes that Mr. Johnson did not properly preserve the

right to challenge the search incident to his arrest on appeal, this Court can reach

the merits of his claim under Rule 2 of the N.C. Rules of Appellate Procedure.

Rule 2 allows this court to suspend or vary the requirements of the appellate rules

to prevent a manifest injustice to a party. State v. Hooper, 318 N.C. 680, 681 351

S.E.2d 286, 287 (1987). Given the substantial change in the treatment of vehicle

searches incident to the occupant’s arrest that occurred after Mr. Johnson’s

suppression hearing, it would be a manifest injustice to deny Mr. Johnson the right

to raise the constitutional violation on appeal.8

8 Out of concern that this Court may decline to hear Mr. Johnson’s challenge to the search of his car in this appeal, Mr. Johnson has filed a Motion for Appropriate Relief that also addresses this issue.

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2. Substantive Argument

The United States Supreme Court, in its recent decision of Arizona v. Gant,

held that:

“Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.”

556 U.S. at ___, 173 L.Ed.2d 485, 501 (2009). In Gant, the arrestee was secured in

the back of a police car after his arrest for a misdemeanor traffic offence at the

time his car was searched. The Gant court held that the search under these

circumstances was unreasonable and violated Gant’s Fourth Amendment rights.

The present case is indistinguishable in any constitutionally relevant sense

from Gant. Here, Mr. Johnson was arrested for driving while his license was

suspended or revoked. He was placed in the rear of a patrol vehicle. (T I p 7) At

least three officers were present at the stop and arrest. After Mr. Johnson was

secured in the back of the patrol car, the officers began their search of his car

incident to his arrest. (T I pp 7-8, 22).

In Gant, officers knocked on the door of a house after receiving a tip that the

house was being used to sell drugs. Gant answered the door, and the officers asked

to speak to the owner of the house. Gant identified himself and said that he

expected the owner to return later. The officers left and conducted a records check

on Gant. They learned that his driver’s license had been suspended and that there

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was an outstanding warrant to arrest him for driving with a suspended license. The

officers returned to the house that night, and they found a man near the back and

woman in a car parked in front of the house. A third officer arrived, and they

arrested the man for giving them a false name and the woman for possession of

drug paraphernalia. They handcuffed the man and the woman and secured them in

separate police cars. Then Gant drove a car into the driveway. The officers

recognized him and his car. They arrested Gant for driving with a suspended

license and handcuffed him when he got out of his car. After two more officers

arrived in a police car, the officers locked Gant in the back of that police car. Then

two officers searched Gant’s car and found a bag of cocaine in a jacket on the back

seat and a gun. Id. at ___, 173 L.Ed.2d at 491-92.

The Supreme Court ruled that the warrantless search of Gant’s car was not

constitutional as a search incident to Gant’s arrest because Gant was not within

reaching distance of his car at the time of the search. The Gant court recognized

that, given the many means available to officers to “ensure the safe arrest of

vehicle occupants, it will be the rare case in which . . . a real possibility of access

to the arrestee’s vehicle remains.” Id. at ___, 173 L.Ed.2d at 496 n. 4 (emphasis

added). This case is not the rare case mentioned by the court. Rather, the facts

here are indistinguishable in any meaningful way from Gant: three officers in this

case outnumbered the one arrestee, who had been secured in a patrol car at the time

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of the search. Thus, in this case, as in Gant, the arrestee “clearly was not within

reaching distance of his car at the time of the search.” Id. at ___, 173 L.Ed.2d at

496-97.

The Court also emphasized in Gant that it was not reasonable to believe that

Gant’s car contained evidence of the offense for which he had been arrested: “Gant

was arrested for driving with a suspended license -- an offense for which police

could not expect to find evidence in the passenger compartment of Gant’s car.” Id .

at ___, 173 L.Ed.2d at 485. Again, the facts in this case are strikingly similar: Mr.

Johnson was arrested for driving while license suspended or revoked --a motor

vehicle misdemeanor for which the officers could not expect to find evidence in

the passenger compartment of the car.

In summary, the Supreme Court concluded in Gant,

Because police could not reasonably have believed either that Gant could have accessed his car at the time of the search or that evidence of the offense for which he was arrested might have been found therein, the search in thiscase was unreasonable.

Id . at ___, 173 L.Ed.2d at 497. The Supreme Court’s conclusion in Gant governs

this case. Because officers Osborne, Navy and Dickerson could not reasonably

have believed that Mr. Johnson could have accessed the passenger compartment of

his car at the time of the search or that evidence of driving while license suspended

might have been found in the passenger compartment of the car, the search of Mr.

Johnson’s car was unreasonable and a violation of the Fourth Amendment.

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CONCLUSION

For all the foregoing reasons, defendant respectfully contends that his

motion to suppress was improperly denied. Because all the State’s evidence of

contraband and weapons should have been suppressed, the conviction below

should be vacated, the order denying defendant’s motion to suppress reversed.

Respectfully submitted this the 30th day of September 2009.

_______________________________________

Michele GoldmanATTORNEY FOR DEFENDANT-APPELLANTN.C. State Bar No. 36358P.O. Box 30564Raleigh, NC 27622(919) 270-4175michelegoldman@earthlink.net

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CERTIFICATE OF WORD COUNT

I hereby certify that the word count of Defendant-Appellant’s Brief in COA

09-908 is less than 8,750 words including footnotes and citations.

This the 30th day of September, 2009.

____________________________________Michele Goldman

ATTORNEY FOR DEFENDANT-APPELLANT

CERTIFICATE OF FILING AND SERVICE

I hereby certify that a copy of the above and foregoing Defendant-

Appellant’s Brief and the Appeal Information Statement have been duly filed by

sending them first-class mail, postage prepaid to Clerk of the Court of Appeals,

P.O. Box 2779, Raleigh, NC 27602 and have been duly served upon Mr. Scott

Stroud, Assistant Attorney General, Department of Justice--Medical Facilities

Section, 114 W. Edenton Street, P.O. Box 629, Raleigh, North Carolina 27602, by

U.S. Postal Service first-class mail, postage prepaid.

This the 30th day of September 2009,

_______________________________________Michele GoldmanATTORNEY FOR DEFENDANT-APPELLANT