1 Constitutional issues Constitutional issues... 1 I. Stop - Reasonable Articulable Suspicion OVERVIEW with General & Historic cases When Detained (What constitutes detention)... 6 B. Reason for Traffic Stops Officer Observed Infraction Officer Observed Suspicion C. Tips: Officers, Informants, The public- Anonymous or Face-to-Face Tip Summary of Specific Fact patterns Cases D. Investigation of Other Crimes E. Wreck Investigation & Miranda (i) Amnesty or Privilege Corpus Delicti: St v Trexler 77 N.C.App. 11 (1985) F. Check Points History of U.S. Supreme Court checkpoint cases: Sobriety checkpoints Narcotics checkpoints legitimate primary purpose The New Statute... 39
2 6. Post Edmunds Primary Purpose Avoiding a checking station Do you have a good fact pattern for the Next case to go up? G. Other Police Public Contact Client initiated Community Care-taker Function II. The Detention A. Introduction The Terry Stop Reasonableness of Investigative Detention B. Scope Robinette Pearson Falana McClendon Fisher Munoz Castellon Jacobs C. Length Officer s convenience minutes III. Probable Cause For Arrest A. 4 th vs. 5 th amendment detention issues... 47
3 1. Arrested vs. Charged (4 th Amendment Violation) Arrested vs. In Custody (5 th Amendment Violation) B. Field Sobriety Tests COMMON FIELD SOBRIETY TESTS C. Court of Appeals recognizes NITSA D. Fighting Field Sobriety Tests Why Fight Field Sobriety Tests? WAYS TO FIGHT FIELD SOBRIETY TESTS IV. Non-Arrest Probable Cause A. Pre-Arrest Test under B. Hospital tests C. Wreck cases D. Law (a) (2) Oral report to investigating trooper constitutes a report: V. Other Constitutional Issues A. 4 th Amendment Frisk exceeded scope Search of vehicle B. 5 th Amendment Valid Waiver of 5 th Amendment Rights When a brief detention becomes custody Hearsay and Crawford issues... 60
4 (i) Reinstituting questioning: C. 6 th Amendment Right to gather evidence Right to counsel Right to witness to preserve evidence Right to interpreter Double Jeopardy D. 14 th Amendment Due Process on recharge Nol Pros Speedy Trial Collateral Estoppel Bifurcate charges E. Confidential or privileged communications Attorneys Client Doctors Patient Husband Wife F. Tainted Identification of Defendant G. Handcuffed for officer s safety... 64
5 I. STOP - REASONABLE ARTICULABLE SUSPICION 1. OVERVIEW with General & Historic cases Each DWI case has the same basic structure, starting with an encounter with a law enforcement officer -- either because of a 1) traffic stop, 2) wreck, 3) checkpoint, 4) community caretaker function, or 5) casual encounter. Regardless of the circumstances, this encounter is typically referred to as "the stop," even if the person was not physically stopped by an officer, however the issue a response to the show of Government authority is critical. There must be a Stop for you to invoke the protections of the 4th Amendment. As a rule, the law enforcement officer must have observed the person doing something wrong to justify the stop. There are three basic exceptions to this rule: 1) wrecks; 2) checkpoints; and 3) casual encounters, and a fourth hybrid of community caretaker function which may or may not invoke 4th Amendment protections. Wreck cases could be considered as a subset of the community caretaker function, but they have their own statute on point. a) 1968 Terry v Ohio No summary needed or given. Go read the Case and keep a copy on your person at all times! b) 1979 Delaware v. Prouse No summary needed or given. Read the case and be familiar with it if you want to be a criminal lawyer. c) 1990 Alabama v. While No summary needed or given. Read it! d) 1992 State v. Fleming
6 In Fleming, our Court held that a stop and frisk was unjustified where an officer relied solely on the fact that a defendant was standing in an open area between two apartment buildings shortly after midnight and chose to walk away from a group of officers. Fleming, 106 N.C.App. at 171, 415 S.E.2d at 785. From those facts, our Court held that the officer in Fleming had only a generalized suspicion that the defendant was engaged in criminal activity, based upon the time, place, and the officer's knowledge that defendant was unfamiliar in the area. Id. The defendant's actions were not sufficient to create a reasonable suspicion that [the] defendant was involved in criminal conduct, it being neither unusual nor suspicious that [the defendant] chose to walk in a direction which led away from [a] group of officers. Fleming, 106 N.C.App. at , 415 S.E.2d at 785. e) 1995 State v. Watkins In Watkins, our Supreme Court determined that Harbour's stop of defendant was justified by his reasonable suspicion, which was based upon an anonymous tip and his own observations, following the tip, of the defendant. Watkins, 337 N.C. at , 446 S.E.2d at The question in the present case is, however, whether a tip which is fabricated by a police officer may serve as a basis for an officer's reasonable suspicion. f) 2006 In re J.L.B.M. The State argues [i]t is clear from the record that Officer Henderson had a reasonable suspicion that the juvenile was involved in suspicious activity. However, the rule is clear under both federal and state law that an officer must have a reasonable and articulable suspicion of criminal activity, not merely suspicious activity. Officer Henderson relied solely on the dispatch that there was a suspicious person at the Exxon gas station, that the juvenile matched the Hispanic male description of the suspicious person, that the juvenile was wearing baggy clothes, and that the juvenile chose to walk away from the patrol car. Officer Henderson was not aware of any graffiti or property damage before he stopped the juvenile, and he testified that he noticed the bulge in the juvenile's pocket after he stopped the juvenile. From those facts, we find that Officer Henderson had only a generalized suspicion that the [juvenile] was engaged in criminal activity[.] 2. When Detained (What constitutes detention) When an officer turns on his or her blue lights and pulls someone over, that person is not free to go. Clearly, that person must yield to the officer's authority or face a charge of resisting an officer or failure to heed a blue light, because there has been a clear and unequivocal show of government authority by the officer. The more difficult question becomes when has the person been subjected to a show of governmental authority if there is not a clear blue light situation.
7 When a person has been stopped by an officer with his blue lights on, does this mean that the person is under arrest at this point? No. The courts have held that the person has been "detained," and that this detention constitutes a seizure of the person. Is this seizure constitutional? Is it a "reasonable seizure," as opposed to the "unreasonable seizures" outlawed by the Fourth Amendment? The Court s decision in Terry v. Ohio, 392 U.S. 1, (1968) provides significant guidance. Terry developed the current standard, which says that an officer may stop a driver for the purpose of conducting a "brief investigatory stop." Therefore, the officer can detain a person just long enough to make a brief investigation to confirm or dispel a suspicion of criminal activity that lead to the stop. Later courts have held, though, that the officer must have a "reasonable and articulable suspicion" that a crime is being committed before turning the blue lights on. In other words, an officer cannot stop a vehicle simply on a hunch that something is amiss. Rather, before stopping a vehicle the officer must have a reason for thinking a law has been broken -- a reason he or she can explain, or articulate, in court. There is really no such animal as a routine traffic stop. An officer cannot stop a vehicle because the driver is behaving suspiciously. In order for the stop to be lawful, the officer must articulate the specific nature of the suspicious activity and, in particular, what criminal activity appears to be afoot. Terry and its progeny of cases make it clear that reasonable articulable suspicion is a lower standard than Probable Cause; it is a lower standard because the amount of government intrusion is less. One of the rapidly developing areas of DWI jurisprudence is the gray area of the law defining how long an officer may detain a person without establishing probable cause. That is, how long is a brief and reasonable investigative detention? For instance, if a person is pulled over by an officer with his or her blue lights flashing, and the officer then sits in the patrol car doing paperwork for a half hour, simply forcing the person to sit on the side of the road, has the officer crossed the line into an unreasonable seizure of that person? The answer is YES. Although nothing is physically stopping the person from driving away, to do so could incur charges against the person for failure to heed or resist and delay, since the person must yield to the officer's authority while the blue lights are flashing. Therefore, the person has been "seized," and the seizure will become unreasonable after a "brief" period of time. Unfortunately, the U.S. Constitution offers no guidance in this area of how long a person may be detained, i.e. how long a brief period of time is. In addition, there are no federal laws, nor any state laws in North Carolina, that explicitly spell out how long an officer can stop a person without making an arrest. Defense attorneys must therefore look to common law derived from past cases to determine where the duration of detention line falls. a) A brief history of brief detentions A brief history of minimal investigative detention is helpful to elucidate the complex gray area in DWI cases in which law enforcement exceeds the reasonableness of a Terry stop and yet has not
8 formed a reasonable probable cause that a crime has been committed. You need to fully understand what a Terry Stop is and what an actual arrest is, but more than that, you need to be able to articulate when a detention becomes unreasonable between these two bright lines. Please bear in mind that a Terry Stop is an exception to the probable cause requirement, not a standard of law. b) Federal Cases: In Terry, the Court recognized that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.' but the Stop must be brief. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. Id. at , 88 S. Ct. at When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, he may conduct a limited protective search for concealed weapons. Id. at 24, 88 S. Ct. at Please notice the holding!! It does not open the door for searching your client if there is no good faith belief by the officer that he may be in danger. Terry goes on to state that the purpose of this limited search is not to discover evidence of a crime, but to allow the officer to pursue his investigation without fear of violence. Thus, the frisk for weapons might be equally necessary and reasonable, whether or not carrying a concealed weapon violated any applicable state law. So long as the officer is entitled to make a forcible stop and has reason to believe that the suspect is armed and dangerous, he may conduct a weapons search limited in scope to this protective purpose. Id. at 30, 88 S. Ct. at This law has developed some since Terry, and goes beyond the scope of this book, but please think like a libertarian first! Do not cave in to the idea that a Terry Stop gives law enforcement a blank check, or a blank warrant as the case many be. Thus, Terry departed from traditional Fourth Amendment analysis in two respects. First, it defined a special category of Fourth Amendment "seizures" so substantially less intrusive than arrests that the general rule requiring probable cause to make Fourth Amendment "seizures" reasonable could be replaced by a balancing test. Second, the application of this balancing test led the Court to approve this narrowly defined less intrusive seizure on grounds less rigorous than probable cause, but only for the purpose of a pat-down for weapons. Dunaway v. New York, 442 U.S. 200, (1979). Please note, and argue effectively that a Terry Stop is a NARROWLY DRAWN EXCEPTION to the probable cause requirement. It is the Exception, not the rule!!!
9 Please be very familiar with Delaware v. Prouse, 440 U.S. 648 (1979) (random checks for drivers' licenses and proper vehicle registration not permitted on less than articulable reasonable suspicion). A Terry Stop is not a fishing expedition. Indeed, the Court in U.S. v. Brignoni-Ponce, 422 U.S. 873, (1975), expressly refused to extend Terry to allow for extended questioning. The Court there stated that [t]he officer may question the driver and passengers about their citizenship and immigration status, and he may ask them to explain suspicious circumstances, but any further detention or search must be based on consent or probable cause." Id. at , 95 S. Ct. at 2580 (emphasis added); acc. United States v. Martinez-Fuerte, 428 U.S. 543, 567, (1976). Also be familiar with Dunaway, supra, where the Court found that defendant had been seized and noted that the detention of petitioner was in important respects indistinguishable from a traditional arrest. Petitioner was not questioned briefly where he was found. Instead, he was taken from a neighbor's home to a police car, transported to a police station, and placed in an interrogation room. He was never informed that he was free to go indeed, he would have been physically restrained if he had refused to accompany the officers or had tried to escape their custody. 442 U.S. at 212, 99 S. Ct. at Also see Florida v. Royer, 460 U.S. 491, (1983). In Royer, government agents stopped the defendant in an airport, seized his luggage, and took him to a small room used for questioning, where a search of the luggage revealed narcotics. The Court held that the defendant's detention constituted an arrest. Id. at 503, 103 S. Ct. at c) North Carolina cases: In between the time in which an officer has an articulable suspicion upon which to instigate an investigation and the time in which an officer has probable cause to arrest a person, there is a time continuum in which further delay and detention may constitute an unreasonable seizure. The courts have repeatedly held that detentions which are less intrusive than traditional arrests are subject to the reasonableness requirements. In State v. Grimmett, 54 N.C. App. 494 (1981), the court held that seizures less intrusive than traditional arrests, i.e. investigatory stops, must be supported by articulable and objective facts and must be brief to be constitutional. The primary question in determining whether a detention satisfies the brevity requirement is whether further detention was justified. In State v. Ghaffar, 93 N.C. App. 281 (1989), the court remanded the case for further findings on the continued detention where the facts involved an ongoing and unfolding situation. The court held that the trial court had failed to provide sufficient findings of fact as to whether the officer had a reasonable and articulable suspicion to detain the defendant to further the ongoing investigation and whether the detention was reasonable. In determining whether an investigatory detention is reasonable, courts routinely have looked at both whether an investigation is ongoing, as well as the amount of time involved in the detention. The brevity of an investigative stop is a key factor in justifying such a seizure. State
10 v. McDaniels, 103 N.C. App. 175 (1991). While the courts have held that detentions exceeding 10 minutes may be justified when an ongoing investigation is being conducted, see State v. Trapper, 48 N.C. App. 481 (1980), the courts have also refused to extend this time period beyond 20 minutes, see United States v. Chamberlin, 644 F.2d 1262 (9th Cir. 1980). While an unfolding investigation may provide additional consideration for a continued investigatory detention, the United States Supreme Court in a related issue of procedures for Probable Cause determinations by a magistrate after an arrest has been effectuated, held that examples of unreasonable delay are delays for the purpose of gathering additional evidence to justify the arrest, a delay motivated by ill will against the arrested individual, or delay for delay s sake. County of Riverside v. McLaughlin, 500 U.S. 44, (1991). If there was no ongoing and unfolding investigation, further detention is not justified. For example, the continued detention of the defendant simply to wait for another officer to arrive because the initial officer is getting off duty is not justified because it constitutes delay for delay s sake when the officer could have proceeded with his own investigation, but chose not to simply for his own convenience. Generally, "the scope of the detention must be carefully tailored to its underlying justification." State v. Morocco, 99 N.C. App. 421, , (1990) (quoting Florida v. Royer, supra, 460 U.S. 491, (1983)). Once the original purpose of the stop has been addressed, there must be grounds which provide a reasonable and articulable suspicion in order to justify further delay. See Terry See also, Falana. This extended delay occurs in many counties when a deputy sheriff roles up on a wreck, and he detains the drivers for a trooper to come do an accident report. N.C.G.S and put an affirmative duty on the deputy sheriff to complete an accident report and turn it in to the DMV. There is absolutely no reasonable reason that a private citizen must be held at the scene of the accident simply to accommodate the local protocol. The court in these cases should suppress any and all evidence obtained by the State after the unreasonable delay in the investigative detention, as there has been a clear violation of the 4 th amendment based upon the totality of the circumstances. In Falana, supra, 129 N.C. App. 813, the court held that detention of the defendant after the warning ticket had been issued was improper. There, the officer initially stopped the defendant because he was driving below the speed limit and weaving in his lane, and the officer detained him because the defendant was nervous and because his fiancée could not remember exactly what day they had started driving. The court stated that it was compelled to conclude that [the officer s] suspicions, even if genuine, did not reach the level of reasonable and articulable suspicion that criminal activity was afoot and were insufficient to support a further detention of the defendant once the warning ticket was issued and the defendant s papers were returned. Thus, the detention of defendant exceeded the scope of the stop and a violation of the defendant s Fourth Amendment rights occurred. B. REASON FOR TRAFFIC STOPS 1. Officer Observed Infraction
11 a) Speeding Speeding is almost always grounds for a stop. If a person is pulled over for speeding, initially the officer may not suspect the person of a DWI offense. Speeding is almost always grounds for a stop however in some court rooms, the judge may view as pretextual a stop justified by speeding that is less than five mph over the speed limit. A pretextual stop is a stop in which the reason for the stop is a pretext, or an excuse, to check for some other offense -- in this case, for a DWI offense. So even if on the surface it appears to be a stop based upon a clear cut infraction, never automatically concede the stop. b) Driving without a vehicle's headlights on Driving without a vehicle's headlights on is also grounds for a stop. The law requires that a person drive with the vehicle's headlights on after dark. If a person turned his or her lights on immediately after pulling out on the road, however, some judges will agree that this was a pretextual stop and throw it out. c) Crossing Double Yellow Line Crossing a double-yellow center line, like speeding, is an infraction and thus is always legitimate grounds for being stopped. Like weaving, however, if a person is stopped because of crossing the center line, the odds are that the officer will suspect the person of a DWI offense from the moment the blue lights go on, and will not necessarily testify that the stop was for a traffic infraction. 2. Officer Observed Suspicion St v. Ivey 360 N.C. 562 (2006) a) Lack of turn signal b) Crossing center line or Left of center Many times a person is charged with crossing the center line when there is no line in the road. The officer sees your client simply pull to far into the center as he is going down a narrow residential road. Never, Never accept this as a clear cut infraction unless there was a double yellow line, and no obstruction in the road. Take notice of how often you actually drive left of center when driving in your every day life. Many time during a trial the officer will admit that there was not a real painted center line, but he meant the center line of the road. Have your client take a photo of the area that he was alleged to have cross a center line in the road. A picture is worth a thousand words. c) Weaving
12 Weaving is also grounds for a stop. Unlike speeding, weaving is not against the law. If a person is stopped for weaving, the officer will likely argue that he suspected the person of a DWI offense from the outset. Weaving within a person's own lane, however, is not enough of a reason to justify a stop. This assertion is based on State v. Watkins, 337 N.C. 437 (1994). An officer stopped Mr. Watkins after receiving an anonymous tip about a suspicious vehicle in the area and after observing Watkins weaving in his own lane. The North Carolina Supreme Court held that those two factors together were enough articulable suspicion to warrant a stop. When the case went back for trial in Superior Court, new evidence showed that the local police chief had fabricated the "anonymous tip." When the case went to the Court of Appeals with the "anonymous tip" as evidence, (leaving the defendant's weaving within his own lane as the only grounds for the stop) the court threw out the stop for lack of articulable suspicion. In another case, State v. Watson, 310 N.C. 384 (1984), the North Carolina Supreme Court held that weaving had to be coupled with some other observation. In this case, Trooper Deans testified that he observed defendant driving on the center line and weaving back and forth within his lane for 15 seconds. This observation occurred at 2:30 a.m. on a road near a nightclub. Looking at the totality of the circumstances, we hold that this evidence is sufficient to form a suspicion of impaired driving in the mind of a reasonable and cautious officer. The court ruled that the time, location, and 15 seconds of continuous weaving were enough justification for a stop. The corollary seems obvious, just weaving is not enough. d) Driving too slow Driving too slow is not in and of itself grounds for a stop. Like weaving, slow driving by itself is not generally construed as adequate grounds for stopping a person on suspicion of a DWI offense, unless the person is driving below the posted minimum speed limit on a highway or the slow driving is coupled with some other observable suspicious behavior. We determine that the trial court's findings of fact showed that despite the lack of an observed and verifiable traffic code violation by Whitefield, his driving 20 miles per hour below the speed limit and weaving within his lane were actions sufficient to raise a suspicion of an impaired driver in a reasonable and experienced Trooper's mind. St v Jones 96 N.C.App. 389 (1989) e) Running off the road Running off the road is grounds for a stop. This includes when a person temporarily runs his or her tires off the pavement, perhaps caused by not accurately gauging a bend in the road. In these situations, running off the road is a highly subjective reason for a stop, especially if it happened only once before an officer stopped the person. Running off the road is not an infraction in and of itself, but officers will argue that its occurrence provided them with a reasonable and articulable suspicion that the person was impaired. Many times all your client will have doen on closer scrutiny is to have crossed the white fog line. This is not an infraction.
13 f) Tinted Windows While officers will argue that this is a statutory violation, you can easily establish that the officer was only action on a hunch based upon the lack of clear knowledge that the tint was in violation. Typically DWI stops based upon window tinting are made at night when you cannot establish any real suspicion about the amount of tint on the window. g) Spinning Tires Spinning a vehicle's tires may also support a stop. This is another instance of behavior that does not violate any law, but may raise suspicions that the person is driving while intoxicated. Many officers will get around the fact that this is not an infraction by arguing that the back end of the vehicle kicked to the side while the tires were spinning, thereby using careless and reckless driving to justify the stop. Reckless driving is against the law and therefore always grounds for a stop. Spinning tires, however, is not illegal in North Carolina and should not be considered careless and reckless. Many counties and cities have local laws that may prohibit spinning tires. h) Sitting in a parking lot Sitting in a parking lot may be grounds for a stop. This is another situation in which a person is not actually stopped while travelling. If the person is sitting in his or her vehicle in a parking lot or outside the person's house, an officer may approach the person's vehicle and converse with the person without raising any constitutional issues -- just as one citizen has the right to approach another to ask a question. A person does not violate any law while sitting in a car while drunk, but the car cannot be running or rolling, even if the engine is off. If the car is running or rolling, courts consider the person to technically be operating the vehicle. The state must prove that the officer did not use any "show of force," however, if the state wants to argue it was not a "stop." If an officer approached the vehicle, tapped on the window, and motioned for the person to roll down the window, courts agree that the person responded to an order by an officer. Thus, the officer "detained" the person, and the officer must be able to prove an articulable suspicion to justify the detention. i) 30 day tag not readable, was not reason to stop (fact specific) Officer McLemore noticed that the car had a North Carolina temporary tag, and he began following it. It was dark, and Officer McLemore had his headlights on. The officer followed behind the Cougar for a quarter to half of a mile, but he was unable to read the expiration date on the tag. The officer admitted that he never saw anything illegal about the tag or the operation of the car. There was no evidence that the tag was concealed, improperly displayed, smudged, or faded by age. Solely because he could not read the handwritten expiration date in the bottom little corner of the paper tag, Officer McLemore signaled for the driver of the Cougar to pull over..
14 The Fourth Amendment does not allow a policeman to stop a car just because it has temporary tags. Because Officer McLemore did not have any articulable, reasonable suspicion of unlawful conduct, he had no justification for stopping Wilson's car. U.S. v. Wilson 205 F.3d 720 (2000) j) Eight-to-ten second delayed reaction at traffic light Eight-to-ten second delayed reaction at traffic light did not give rise to reasonable suspicion that she was driving while under the influence of alcohol when she was stopped by police officer. State v. Roberson 163 N.C.App. 129 (2004) C. TIPS: OFFICERS, INFORMANTS, THE PUBLIC- ANONYMOUS OR FACE-TO-FACE TIP How do you deal with a seizure under the 4 th Amendment that is not based upon the actual knowledge of the stopping or seizing officer, but is based upon hearsay, or the knowledge of some other person? Does the person who made the observations need to be present? This is a complex area of fourth amendment philosophy that needs to be watched carefully. The simple rule of thumb is that the tipster must testify, unless the tip is self authenticating based upon the prediction of future behavior that is criminal in nature, not just readily observable public facts. You need to know and understand the difference between anonymous tips which end up self authenticating and tips that lack indicia a reliability. Then you need to be prepared to argue that the tipster must come before the Court to determine reliability, or that the self authenticating portion of the tip authenticated predictive behavior of criminal activity. There are many nuances and this can be fertile grounds for a strong constitutional challenge. The prosecutor will typically read from the prosecutors manual a few generic cases that claim that hearsay is admissible in suppression hearings. You need to be very familiar with this area of the law and recognize that the cases which the prosecutor typically recites are not directly on point (most are referring to the probable cause that is given to a magistrate when there is no cross examination.) they are also prior to the Supreme Court s more recent restrictions of the use of out of court statements, and the 6 th amendment right to confront and cross examine. Even if the hearsay is going to be admitted for the limited purpose of explaining what the officer did next, it is not admitted for the truth of the matter asserted! If a tip is going to be the basis for a stop, it must by definition be accepted for the truth of the matter asserted, and deprive your client of his 6 th amendment rights. More than one angry lover has called in a false allegation to get someone pulled over unjustly. The more recent cases begin to define this issue more clearly. For a tip to be at all admissible as an exception to the hearsay rule it must have it s own indicia or reliability built into the tip. Hence it must contained a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted.
15 In addition the state will argue that hearsay is allowable in hearings to determine probable cause, it is important to counter this argument with St v Nixon 160 N.C.App. 31 (2003): Those cases required that first, an affidavit for a search warrant must contain sufficient information as to how the informant obtained the information ("basis of knowledge"), and second, that the affidavit must establish the "reliability" of the informant. Id. We note here that although the standard is the same, more evidence may be required when the officer is acting without a warrant. In the State v. Harvey, 281 N.C. 1, 7, 187 S.E.2d 706, 710 (1972), our Supreme Court noted, quoting the Aguilar case: In Aguilar v. Texas, 378 U.S. 108, the Supreme Court of the United States dealt with questions concerning the Fourth Amendment requirements for obtaining a valid state search warrant. It said: [W]hen a search is based upon a magistrate's, rather than a police officer's, determination of probable cause, the reviewing court will accept evidence of a less "judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant." * * * and will sustain the judicial determination so long as "there was substantial basis for [the magistrate] to conclude that [the articles searched for] were probably present." * * * Harvey at 7, 187 S.E.2d at 710. Review the history of these cases, and be prepared to explain the nuances of a very complex area of constitutional law. However, if you do not have time to be a constitutional scholar at least remember the quote from JL: The anonymous call concerning J.L. provided no predictive information and therefore left the police without means to test the informant's knowledge or credibility. 1. Summary of Specific Fact patterns While many cases fit neatly into a subcategory of Tip [JL is clearly an Anonymous Tip, and Battle is a Cumulative Knowledge case], many times the lines are blurred. Because this is such a nuanced area of law we will first look as several basic fact patterns, then look at the cumulative history of the Tip in specific landmark cases. a) Officers (1) Requests to detain from other Officers This is basic law enforcement, where one officer directs another officer to detain a person. Clearly the second officer s detention is only as valid as the first officer s reasonable Articulable suspicion. The First Officer must appear and testify for the Court. See: State v. Whitehead 42 N.C. App. 506 (1979)
16 (2) Reports from Other Officers This is the classic cumulative knowledge doctrine, where the two officer s knowledge taken cumulatively gives rise to articulable suspicion. "Where there is no request from the first officer that the second officer stop a vehicle, the collective knowledge of both officers may form the basis for reasonable suspicion by the second officer, if and to the extent the knowledge possessed by the first officer is communicated to the second officer. Battle See also: Hughes, 353 N.C. 200 (2000) (holding that under whatever scrutiny is applied, whether the informant was treated as reliable or anonymous, there was insufficient evidence to support probable cause when the officer who received the tip did not give any testimony establishing the informant's reliability, and there was insufficient detail and corroboration of the tip). See also: State v. Coffey, 65 N.C. App. 751 (1984) U.S. v. Hensley 469 U.S. 221, (1985) State v. Battle, 109 N.C.App. 367 (1993) State v. Watkins 120 N.C.App. 804 (1995) b) Informants Merely alleging that a specific confidential informant is reliable does not afford the defendant the opportunity to cross examine the accuser, nor does it give the Court the basis of the Tipster s knowledge. However if the State can establish that the tipster is reliable from past experience the tipster s identity does not need to be disclosed if it does not go to guilt or innocence, but merely to probable cause. This fact pattern is rarely ever scene in DWI tips so it will not be addressed in detail here. Note that this applies only to tipsters who are known to be reliable based upon prior reliable tips. c) Reports from The Public (1) Face to Face reports The face to face report to an officer is different than the anonymous tip given over the phone. This carries some indicia of reliability because in theory the tipster could be subject to criminal charges for filing a false report plus the officer has the ability to evaluate the demeanor of the tipster; however, it is still critical that the court have the ability to determine these factors, so the tipster must appear in court, or the Court is left with a conclusory allegation and hearsay.
17 (2) Non-Face to face & Not anonymous Reports from other drivers is not enough to justify a stop. It is not uncommon in this time of cellular phones for drivers to report the hazardous driving of other drivers, who appear to be driving while intoxicated. Typically, such calls are relayed through a dispatcher to a patrolling officer, who then seeks out and stops the reported driver. This alone is not enough to justify a stop if the caller does not appear in court to describe the person's driving. Even if the caller does appear in court, the state must also prove that the officer had reason to believe the caller to be a reliable source. The Stop is also only as good as the specific facts that were relayed to the stopping officer, not what he may have in his report after stopping the defendant and after the anonymous tippers may have stopped and given a full statement, and no longer are anonymous. The court must look at what was known by the officer at the time of the stop only. (3) Anonymous tips The most inherently unreliable reason to use police force to detain a private citizen! This is a narrowly carved exception to the warrant requirement. 2. Cases a) Aguilar v. Texas, 378 U.S. 108 (1964), In Aguilar, a search warrant had issued upon an affidavit of police officers who swore only that they had received reliable information from a credible person and do believe that narcotics were being illegally stored on the described premises. While recognizing that the constitutional requirement of probable cause can be satisfied by hearsay information, this Court held the affidavit inadequate for two reasons. First, the application failed to set forth any of the underlying circumstances' necessary to enable the magistrate independently to judge of the validity of the informant's conclusion that the narcotics were where he said they were. Second, the affiant-officers did not attempt to support their claim that their informant was credible or his information reliable. (this is later summarized as Basis for knowledge ) Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant,  the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed,  was credible or his information reliable.' Otherwise, the inferences from the facts which lead to the complaint will be drawn not by a neutral and detached magistrate, as the Constitution requires, but instead, by a police officer engaged in the often competitive enterprise of ferreting out crime,  or, as in this case, by an unidentified informant. b) Spinelli v. U.S. 393 U.S. 410 (1969)
18 Aguilar and Spinelli established a two prong test of an informant's veracity, and reliability, as prong one then looked at the basis of knowledge We first consider the weight to be given the informer's tip when it is considered apart from the rest of the affidavit. It is clear that a Commissioner could not credit it without abdicating his constitutional function. Though the affiant swore that his confidant was reliable, he offered the magistrate no reason in support of this conclusion. Perhaps even more important is the fact that Aguilar's other test has not been satisfied. The tip does not contain a sufficient statement of the underlying circumstances from which the informer concluded that Spinelli was running a bookmaking operation. We are not told how the FBI's source received his information-it is not alleged that the informant personally observed Spinelli at work or that he had ever placed a bet with him. Moreover, if the informant came by the information indirectly, he did not explain why his sources were reliable c) Whiteley v. Warden, 401 U.S. 560 (1971). The Supreme Court held that arresting officers did not have probable cause for warrantless arrest of defendant by virtue of state police bulletin which was issued pursuant to complaint of sheriff of another county and which was based on informer's tip and sheriff's conclusion that defendant and his companion committed breaking and entering; subsequent search of defendant's automobile and seizure of contraband therefrom were unlawful and violated defendant's rights under Fourth and Fourteenth Amendments. d) State v. Whitehead, 42 N.C. App. 506 (1979) Arrest as result of radio bulletin - knowledge of facts for probable cause by officer directing arrest Probable cause existed for the arrest of defendant by a Tyrrell County deputy sheriff where a Manteo police officer observed a car leave the gas pumps of a service station at a high rate of speed at 2:30 a.m.; the officer pursued the car but was unable to intercept it; the officer then discovered that the currency operated self-service apparatus on a gas pump at the service station had been broken open; the officer had a radio message sent to Tyrrell County officers to be on the lookout for a described vehicle and to stop it for questioning; and the Tyrrell County deputy sheriff stopped a car fitting such description while it was being driven by defendant between 3:20 and 3:40 a.m., since the officer who actually made the arrest need not have knowledge of all the facts necessary to constitute probable cause, but it is sufficient if the officer who issued the directions for the detention or arrest has probable cause for the detention or arrest. e) Illinois v Gates 462 U.S. 213 (1983) Illinois v. Gates dealt with an anonymous tip in the probable-cause context. The Court there abandoned the two-pronged test of Aguilar and Spinelli in favor of a totality of the circumstances approach to determining whether an informant's tip establishes probable cause.
19 Gates made clear, however, that those factors that had been considered critical under Aguilar and Spinelli -an informant's veracity, reliability, and basis of knowledge -remain highly relevant in determining the value of his report. The opinion in Gates recognized that an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity inasmuch as ordinary citizens generally do not provide extensive recitations of the basis of their everyday observations and given that the veracity of persons supplying anonymous tips is by hypothesis largely unknown, and unknowable. Quote from Alabama v. White 496 U.S. 325 (1990) f) State v. Coffey, 65 N.C. App. 751 (1984) Information which justifies a warrantless arrest need not all be known to the arresting officer or officers, it being sufficient if the various officers who participate in an investigation and arrest have the probable cause information among them Officers had probable cause to make a warrantless arrest of defendant for trafficking in marijuana at the Raleigh-Durham Airport at which he had landed to refuel an airplane where three different law enforcement agencies had among them the following information: defendant's airplane had landed at the Monroe Airport in the middle of the night without using lights or contacting the control tower and was met by a van; the airplane took off from the Monroe Airport with a sheriff's car in hot pursuit and thereafter landed at the Raleigh-Durham Airport to refuel; the van which met the airplane was found to contain numerous bales of marijuana; in obtaining permission to land at the Raleigh-Durham Airport, the pilot falsely reported the airplane's number; and while waiting for the airplane to be refueled, the pilot falsely told officers that he and defendant had flown in from New Jersey. g) U.S. v. Hensley 469 U.S. 221, (1985) Investigatory stop of defendant in reliance on another police department's wanted flyer, which was issued on basis of articulable facts supporting a reasonable suspicion that the person wanted had committed an offense, was constitutionally reasonable where the stop and detention that occurred were no more intrusive than would have been permitted an experienced officer on an objective reading of the flyer. h) St v. Sturkie 91 N.C. App. 249 (1988) An informant told the police that Sturkie was selling stolen goods at an Exxon. The police set up surveillance and follow him to a storage building. The police get consent to search the common building from a co-tenant and seize goods which the police have a good faith belief are stolen, which later turns out to be true. However at the time they seize the items they do not have any knowledge that they are stolen and the source of the tip has not proven to be reliable.
20 defendant contends that the trial court erred in allowing into evidence property seized by police without foreknowledge that it was stolen, that a crime had been committed, and that the property was contraband, in violation of his constitutional rights. We agree. Whether a seizure is reasonable, and therefore constitutional, is to be determined upon the facts giving rise to the individual case. State v. Beaver, 37 N.C. App. 513, 246 S.E.2d 535 (1978). A seizure of an item in plain view is constitutionally permissible if the officer making the seizure has probable cause to believe that the object seized constitutes contraband or evidence of a crime. State v. Howard, 56 N.C. App. 41, 286 S.E.2d 853 (1982). Furthermore, "[a] good faith belief is not enough to constitute probable cause, unless the faith is [']grounded on facts within knowledge of the [officer][,] which, in the judgment of the court, would make his faith reasonable.'" Beaver, at 518, 246 S.E.2d at 539, quoting, Carrol v. United States, 267 U.S. 132, , 69 L.Ed. 543, 555, 45 S.Ct. 280, 288 (1925). The evidence reveals that the officers received information from a confidential informant that defendant, Rocky Moore, and Drew Phillips were involved in break-ins and larcenies, and that these individuals were selling stolen items at an Exxon station. However, this confidential informant had not been proven reliable because this was the first instance when the police had received information from him. The confidential informant in this case did not reveal how he or she obtained the knowledge that the merchandise was stolen, and the officers could not testify as to the informant's reliability. Noticeably absent is any indication that the informant conducted, participated in, or implicated himself or herself in any criminal transactions with defendant involving stolen goods. Although the police attempted to verify the limited details of the tip, applying a totality of the circumstances analysis, we do not believe that the verified information included details that would ordinarily be known only to someone familiar with the suspects and their plans and activities. i) Alabama v. White 496 U.S. 325 (1990) This case was decided for the State, but the Court has classified it as a close case and it had a strong decent. Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors-quantity and qualityare considered in the totality of the circumstances-the whole picture, United States v. Cortez, 449 U.S. 411, 417 (1981), that must be taken into account when evaluating whether there is reasonable suspicion. Thus, if a tip has a relatively low degree of reliability, more information
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