Criminal Practice – Search & Seizure – Reasonable Suspicion – Anonymous Tip – Few Details – Drug Possession

State v. Harwood (Lawyers Weekly No. 12-07-0699, 24 pp.) (Sam Ervin IV, J.) Appealed from Buncombe County Superior Court. (James U. Downs, J.) N.C. App. Full-text opinion.

Holding: An anonymous tip – that defendant would be selling marijuana at a certain location on a certain day and would be driving a white vehicle – wasn’t detailed enough to justify defendant’s seizure.

Defendant is awarded a new trial. The order of forfeiture is vacated.

Law enforcement officers saw defendant driving a white vehicle at the place and on the day indicated by the anonymous tip. As defendant drove away, the officers followed defendant until he pulled into a driveway and opened his car door. The officers parked behind defendant, drew their guns, and ordered defendant and his passenger to exit defendant’s car. Defendant was placed on the ground and handcuffed.

Although this was not a traffic stop, defendant was nonetheless seized. Hence, the officers were required to have a reasonable and articulable suspicion of criminal activity.

The anonymous tip that the officers received lacked any detail concerning the nature of defendant’s present and planned activities, such as the time at which defendant would be at the gas station, the type of vehicle defendant would be driving, the identity of the person to whom the sale would be made, or the manner in which the sale would be conducted.

Nothing in the subsequent activities of the investigating officers buttressed the tip through sufficient police corroboration. Agent McAbee’s knowledge of defendant’s previous drug activity, which consisted of “talking to” unnamed individuals in the community, was not specific in nature and did nothing more than indicate that, as a general matter, defendant engaged in the business of selling controlled substances. Upon arriving at the convenience store, investigating officers observed a white vehicle driven by an individual identified as defendant backing out of a parking space. The observations made by the investigating officers at the convenience store consisted of nothing more than identifying a “determinate person” at a determinate location, a  degree of corroboration that does not justify an investigative detention.

Although Agent McAbee watched defendant drive away from the convenience store and pull into the driveway of a residence that was not his own, defendant could just as easily have been visiting an acquaintance, giving his passenger a ride home, or turning around as opposed to engaging in evasive or unlawful conduct. Thus, the information provided and known to Agent McAbee prior to the seizure did not contain the range of details required to sufficiently predict defendant’s specific future action; it was peppered with uncertainties and generalities.

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. As a result, the investigating officers lacked the reasonable articulable suspicion necessary to support their decision to detain defendant.

Defendant’s statement admitting that he had sold marijuana at the convenience store directly resulted from the investigating officers’ decision to detain him.  Similarly, defendant’s subsequent decision to consent to the search of his residence, resulting in the discovery of a rifle and the seizure of various controlled substances, directly resulted from the investigating officers’ detention of defendant. For that reason, the challenged evidence could not have been discovered by means sufficiently distinguishable to be purged of the primary taint, and should have been suppressed.

Moreover, absent the evidence obtained as a result of the unlawful investigative detention, the record would probably not have contained sufficient evidence to establish defendant’s guilt. The trial court committed plain error by admitting the challenged evidence, so defendant is entitled to a new trial and to have the forfeiture order vacated pending further proceedings.