State v. Hughes

• Decision Date: 21 December 2000
• Docket Number: No. 59A00.,59A00.
• Citation: 353 N.C. 200,539 S.E.2d 625
• Parties: STATE of North Carolina v. John Elvis HUGHES.
• Court: North Carolina Supreme Court

539 S.E.2d 625

353 N.C. 200

STATE of North Carolina v. John Elvis HUGHES.

No. 59A00.

Supreme Court of North Carolina.

December 21, 2000.

Michael F. Easley, Attorney General, by William B. Crumpler, Assistant Attorney General, for the State.

Edward G. Bailey and Lee E. Britt, Jacksonville, for defendant-appellant.

Clifford Clendenin O'Hale & Jones, LLP, by Walter L. Jones, Greensboro; and Seth H. Jaffee, Raleigh, Counsel, on behalf of the American Civil Liberties Union of North Carolina Legal Foundation, amicus curiae.

FREEMAN, Justice.

This is an appeal as of right based on a dissent from the Court of Appeals below, reversing the trial court's decision in a controlled substance case to grant defendant's motion to suppress evidence. We conclude that the Court of Appeals erred, and we thus reverse that opinion.

On the morning of 13 March 1998, Detective Imhoff of the Jacksonville Police Department was sitting in the office of Captain Matthews of the Onslow County Sheriff's Department when Matthews received a phone call. At the call's conclusion, Matthews told Imhoff that he had been talking to a confidential, reliable informant who said that an individual nicknamed "Markie" would be arriving that day in Jacksonville by way of a bus coming from New York City, possibly the 5:30 p.m. bus. "Markie" was described as "a dark-skinned Jamaican from New York who weighs over three hundred pounds and is approximately six foot, one inch tall or taller, between twenty or thirty years of age[,] ... who would be clean cut with a short haircut and wearing baggy pants," and who would have marijuana and powdered cocaine in his possession. The informant also indicated that Markie "sometimes" came to Jacksonville on weekends before it got dark, 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.

Later in the day, Detective Imhoff relayed this information by telephone to Detective Bryan of the Jacksonville Police Department and told him to go to the bus station, as the individual might be early. However, at the suppression hearing, Detective Bryan could not recall whether he had been given a description of defendant's clothing, nor could he recall whether he had ever been given the suspect's name. Detective Bryan further testified that he did not know what time defendant would arrive in Jacksonville or on which bus, only that he was coming in that afternoon.

When Detective Bryan and his partner, Detective McAvoy, reached the station, one bus from New York had already arrived, but a bus coming from Rocky Mount was scheduled to arrive around 3:50 p.m. Detective Bryan testified he knew that Rocky Mount was a transfer point between New York and Jacksonville, as were some other cities. When the bus arrived, it pulled in with its door facing away from the officers, blocking their view of the arriving passengers so that they could not see whether defendant stepped off of the bus. Detective Bryan testified, however, that defendant was not in the parking lot before the bus arrived and that he had stepped from behind the bus after it arrived. According to Detective Bryan, defendant matched the exact description he had been given and was carrying an overnight bag. Defendant immediately stepped into a taxi and headed down Highway 17 South, toward an area called the Triangle, where Highway 17 splits in two directions-towards Wilmington and Topsail Beach, North Carolina, or towards Richlands, North Carolina. A person must pass through the Triangle before it can be determined in which of these directions he or she is going. However, the officers stopped defendant's taxi before it reached the Triangle area.

Upon stopping the taxi, Detective Bryan informed defendant that he was a police officer and explained why he had stopped the taxi. He then asked defendant if he would consent to a search, and defendant agreed. Detective Bryan conducted a pat-down search of defendant's person and searched the area of the taxicab where defendant had been sitting and the small bag defendant was carrying. After these searches, Detective Bryan asked defendant to remove his shoes, revealing marijuana in the toes of each shoe. A later search at the police station revealed bags containing cocaine in the tongues of the shoes. Defendant was charged with possession with intent to sell and deliver cocaine, possession with intent to sell and deliver marijuana, manufacturing cocaine, and manufacturing marijuana.

The question raised here on appeal is whether the evidence seized from defendant was legally obtained. The determination of the legality of the stop, and subsequent search, is partly dependant on the reliability of the information relied on by arresting officers in making the stop. In order to determine the reliability of the information received, we must first determine whether the information received by the officers was obtained from an anonymous informant or a confidential and reliable informant?

The two-pronged test for probable cause to search formulated by the United States Supreme Court in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and later refined in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), set forth the requirements for obtaining a search warrant based on information supplied by a reliable informant. This test required, first, that the affidavit must contain sufficient information that would allow a magistrate to understand how the informant obtained the information and, second, that the affidavit must establish the reliability of the informant. Reliability could be established by showing that the informant had been used previously and had given reliable information, that the information given was against the informant's penal interest, that the informant demonstrated personal knowledge by giving clear and precise details in the tip, or that the informant was a member of a reliable group such as the clergy.

The Court later abandoned this test in favor of the "totality of the circumstances" test established in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Under this test, the "basis of knowledge" and "reliability" or "veracity" prongs of the Aguilar-Spinelli test are still relevant, but instead of being independent of each other, they are "closely intertwined issues," where "a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability." Id. at 233, 103 S.Ct. at 2329, 76 L.Ed.2d at 545.

This Court adopted the reasoning of Gates in State v. Arrington, 311 N.C. 633, 319 S.E.2d 254 (1984). In applying the test used in Gates, this Court also found the principles underlying Aguilar and Spinelli, mainly that evidence is needed to show indicia of reliability, to be important components in determining the totality of the circumstances.

Turning to the case before us, the evidence shows that Detective Imhoff had never spoken with the informant and knew nothing about the informant other than Captain Matthews' claim that he was a confidential and reliable informant. There was no indication that the informant had been previously used and had given accurate information or that his statement was against his penal interest nor, as will be discussed later, was there any other indication of reliability. Some objective proof as to why this informant was reliable and credible, other than just Captain Matthews' assertion passed to Detective Imhoff, and by him to Detectives Bryan and McAvoy, must support Detectives Bryan and McAvoy's decision to conduct a search. To hold otherwise would be to ignore the protections contained in the Fourth Amendment.

The State argues that this was a case of declaration against penal interest because, first, by his statement to Detective Imhoff, Captain Matthews indicated that he knew the informant, and second, since giving a false report to the police is a misdemeanor, the informant risked criminal charges if his information was not truthful. We are not persuaded by this argument, and we conclude that, under the circumstances, the burden of reliability was not met. Captain Matthews never testified at the suppression hearing, nor did he give any indication to Detective Imhoff or anyone else as to how he knew this informant or why this informant was reliable. The only evidence showing that the identity of this informant was known is Captain Matthews' conclusory statement that the informant was confidential and reliable.

Nor was this a statement against penal interest. Being held accountable for a false statement to the police necessarily requires that an individual's identity is known. Here, the record contains no evidence that the informant's identity was known to the officers directly involved in the arrest. Captain Matthews' conclusory statement, which was third-hand hearsay by the time Detectives Bryan and McAvoy relied on it, is insufficient indicia of reliability. Furthermore, making a false statement to the police, standing alone, is not against an individual's penal interest because doing so is not a crime. To be charged with the crime of making a false report to law enforcement agencies or officers, the evidence must show that the person willfully made a false or misleading statement to a law enforcement agency or officer for the purpose of interfering with the law enforcement agency or hindering or obstructing the officer in the performance of his duties. N.C.G.S. § 14-225 (1994)(emphasis added). We do not have any evidence before us indicating that all of these elements were or would have been fulfilled.

Without more than the evidence presented, we cannot say there was sufficient indicia of reliability to warrant use of the confidential and reliable informant standard. Accordingly, we analyze the anonymous tip standard...