Defendant-Appellant S Brief

No. COA 08-1312 / TWENTY-ONE DISTRICT
NORTH CAROLINA COURT OF APPEALS
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STATE OF NORTH CAROLINA
v.
EDGAR BEDOLLA GARCIA,
Defendant. / )
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) / From Forsyth County

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DEFENDANT-APPELLANT’S BRIEF

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INDEX

TABLE OF CASES AND AUTHORITIES...... iii

QUESTIONS PRESENTED...... 1

STATEMENT OF THE CASE...... 1

STATEMENT OF THE FACTS...... 2

STATEMENT OF GROUNDS FOR APPELLATE REVIEW...... 6

ARGUMENT...... 6

The Trial Court ERRED IN denying defendant’s motions to suppress 6

Introduction...... 6

Standard of Review...... 7

Governing Law...... 8

Police Lacked Required Reasonable Suspicion to Detain Mr. Garcia 10

Because the Police Did Not Have Required Reasonable Suspicion to Detain Mr. Garcia, All Evidence Seized As a Result of That Stop Should Have Been Suppressed 17

CONCLUSION...... 19

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

Federal Cases

Adams v. Williams,
407 U.S. 143, 92 S.Ct. 1921,
32 L.Ed.2d 612 (1972)...... 12

Alabama v. White,
496 U.S. 325, 110 C.Ct. 2412,
110 L.Ed.2d 301 (1990)...... 11

Arizona v. Hicks,
480 U.S. 321,
107 S.Ct. 1149 (1987)...... 18

Brown v. Illinois,
422 U.S. 590, 95 S.Ct. 2254,
45 L.Ed.2d 416 (1975)...... 18

Brown v. Texas,
443 U.S. 47, 99 S.Ct. 2637,
61 L.Ed.2d 357 (1979)...... 11

Davis v. Mississippi,
394 U.S. 721, 89 S.Ct. 1394,
22 L.Ed.2d 676 (1969)...... 8

Dunaway v. New York,

442 U.S. 200, 99 S.Ct. 2248,
60 L.Ed.2d 824 (1979)...... 18

Florida v. Royer,
460 U.S. 491, 103 S.Ct. 1319,
75 L.Ed.2d 229 (1983)...... 10

Illinois v. Gates,

462 U.S. 213, 103 S.Ct. 2317,
76 L.Ed.2d 527 (1983)...... 11-12

Illinois v. Wardlow,
528 U.S. 119, 120 S.Ct. 673,
145 L.Ed.2d 570 (2000)...... 7

Reid v. Georgia,
448 U.S. 438, 100 S.Ct. 2752,
65 L.Ed.2d 890 (1980)...... 14

Terry v. Ohio,
392 U.S. 1, 88 S.Ct. 1868,
20 L.Ed.2d 889 (1968)...... 8

U.S. v. Cortez,
449 U.S. 411, 101 S.Ct. 690,
L.Ed.2d 621 (1989)...... 9

U.S. v. Sokolow,
490 U.S. 1, 109 S.Ct. 1581,
104 L.Ed.2d 1 (1981)...... 9, 13

United States v. Brignoni-Ponce,
422 U.S. 873, 95 S.Ct. 2574,
45 L.Ed.2d 607 (1975)...... 9

Wong Sun v. United States,
371 U.S. 471, 83 S.Ct. 407,
9 L.Ed.2d 441 (1963)...... 17

State Cases

In re I.R.T.,
184 N.C. App. 579,
647 S.E.2d 129 (2007)...... 9, 17

State v. Cooke,
306 N.C. 132,
291 S.E.2d 618 (1982)...... 8

State v. Garner,
331 N.C. 491,
417 S.E.2d 502 (1992)...... 8, 17

State v. Jacobs,
162 N.C. App. 251,
590 S.E.2d 437 (2004)...... 8

State v. Parker,
137 N.C. App. 590,
530 S.E.2d 297 (2000)...... 8

State v. Pittman,
111 N.C. App. 808,
433 S.E.2d 822 (1993)...... 9-10

State v. Pope,
333 N.C. 106, 423 S.E.2d 740 (1992)....17, 18

State v. Roberts,
142 N.C. App. 424,
542 S.E.2d 703 (2001)...... 9, 13

State v. Sanchez,
147 N.C. App. 619,
556 S.E.2d 602 (2001)...... 11, 12

State v. Watkins,
337 N.C. 437,
446 S.E.2d 67 (1994)...... 8

State Statutes

N.C. Gen. Stat. § 15A-979(b)...... 6

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QUESTIONS PRESENTED

I.DID THE TRIAL COURT ERR BY DENYING DEFENDANT-APPELLANT’S MOTIONS TO SUPPRESS?

STATEMENT OF CASE

Defendant-Appellant Edgar Bedolla Garcia (“Mr. Garcia”) was arrested in Winston-Salem after undercover police surveillance on 26 July 2007. (R p. 2; T p. ) A Forsyth County grand jury returned bills of indictment for the following offenses on 13 October 2007 in file numbers 07 CRS 57425 and 57426: (1) possession of drug paraphernalia; (2) maintain a vehicle for selling a controlled substance, marijuana; (3) maintain a dwelling for selling a controlled substance, marijuana; (4) trafficking in marijuana; and (5) possession with intent to sell and deliver marijuana. (R pp. 3-6)

Mr. Garcia’s case was called for trial at the 25 June 2008 Criminal Session of Forsyth County Superior Court, the Honorable A. Moses Massey presiding. (R p. 28) Prior to trial, the Court below held an evidentiary hearing on Mr. Garcia’s Motions to Suppressall evidence collected and statements made to law enforcement after he was stopped and detained by members of the Winston-Salem Police Department. (R p. 28) Judge Massey entered an order denying all of Mr. Garcia’s motions to suppress, with the exception of certain statements made to police after being handcuffed but before being read his Miranda rights. (R pp. 28-32; T pp. 122-23)

After Judge Massey’s ruling on the motions to suppress, Mr. Garcia entered a guilty plea to all counts in file numbers 07 CRS 57425 and 57426 while preserving his right to appeal the denial of the suppression motions. (R pp. 33-36) Judge Massey consolidated the offenses for judgment and imposed an active sentence of 25 to 30 months in the Department of Correction for the marijuana trafficking charge. (R p. 39)

STATEMENT OF FACTS

Sometime around the middle of May, 2007, Detective Kim Jones of the Winston-Salem Police Department received a tip from an unidentified informant about possible marijuana transactions from a trailer on lot 40 at 338 Barnes Road. (T p. 25) Though identified in her contemporaneous report as an unnamed “subject,” Detective Jones testified that the informant named Edgar Garcia as the individual selling marijuana from that location. (T pp. 26, 43) Following the tip, Detective Jones went to the trailer and knocked on the door, but nobody answered the door. (T p. 26)

Detective Jones heard from the informant again in early July of 2007. The informant provided Mr. Garcia’s name and a general description. (T p. 44) In addition, Detective Jones pulled a report from the police information system (“PISTOL”) that listed all contacts between Mr. Garcia and the police, including motor vehicle violations. (T pp. 26-27, 44) The PISTOL report listed no arrests for drug transactions of any kind. (T p. 27)

With this information, Detective Jones conducted surveillance from an undercover police car on the trailer on three occasions in the month of July. (T pp. 27; 45-46) On July 26, she observed two Hispanic males through binoculars at the trailer. (T p. 29) One was wearing yellow plaid shorts and a white shirt and the other was wearing a grey shirt and blue jeans. (T p. 28) Though Detective Jones had a picture of Mr.Garcia from the PISTOL report, she could not identify whether either of the individual Hispanic males was in fact Mr.Garcia. (T pp. 29; 48-49)Detective Jones observed the men at the trailer and followed them from her unmarked car as they drove around town in a black BMW. (T p. 51) She did not observe any unlawful behavior while following the two men in the BMW. (Id.)

Later in the afternoon, back at the trailer, Detective Jones observed the two Hispanic males walk out of her line of sight towards a portion of the lot with a storage shed. (T p. 30) They soon emerged, though now the individual in the white shirt and plaid shorts was carrying a black bag with large handles. (T pp. 30, 54) Detective Jones could not see what, if anything, was in the bag. (T p. 54) One of the twomen placed the bag in the passenger area behind the drivers seat and both of them got back in the BMW. (T p. 31) Detective Jones radioed other units to continue surveillance on the men in the BMW. (Id.)

Detective Williams, Detective McCready, and Sergeant Southern – each driving in his own unmarked police car –followed the BMW. (T pp. 59-60) These officers followed the BMW to an apartment complex called Ferrell Court in the Rolling Hills community. (T p. 60) According to Detective Williams, Ferrell Court is a predominately African-American “drug location,” and thus, they decided to approach the two Hispanic men after they stopped their car. (T p. 60) Sergeant Southern was in the lead car and was the first to arrive. (T p. 61) He approached the two men and observed them in conversation with two African American men. (T p. 62) Sergeant Southern displayed his badge in his left hand and his gun in his right, identifying himself as a police officer. (Id.) The two African American men fled and the two Hispanic men remained. (Id.)

When Detectives Williams and McReady arrived moments later, they placed the two Hispanic men in handcuffs. (T p. 62) The police officers radioed for back-upin marked police cars to help secure the scene in light of the large number of people out in the neighborhood. (T p. 61)

After the two Hispanic men were placed in handcuffs, Detective Williams approached the BMW, parked about eleven feet away from where they were standing. (T p. 67) Though the doors and windows of the BMW were closed, Detective Williams testified that he was able to smell the odor of “green” marijuana emanating from the car. (Id.) He decided to open the car and conduct a search of the passenger area. (T p. 68) He discovered a black bag in the back seat. (Id.) He opened the bag and found two closed ziplock bags containing about 890 grams of marijuana. (Id.)

Having discovered the marijuana, Detective Williams walked back to one of the Hispanic men and checked his wallet for identification. (T p. 70) At this point, he learned that one of the men was Mr. Garcia. (Id.) Detective Williams began interrogating the handcuffed Mr. Garcia. (T pp. 70-71) After receiving incriminating information, Detective Williams read Mr. Garcia Miranda warnings and placed him under arrest. (Id.)

After the other officers back at Barnes Road received word about Mr. Garcia’s arrest and the seizure of the marijuana, they obtained consent from a woman who answered the door to search the trailer at lot 40. (T p. 35) During the search, police found scales, cash, a .22 caliber rifle, and a small amount of marijuana – 28.2 grams. (T pp. 37-38) Based on items found during the consensual search and an alert from a drug sniffing dog near the storage shed outside of the trailer, a search warrant was sought and obtained. (T p. 40) A search of the storage shed yielded about 11.5 pounds of marijuana. (T p. 132)

STATEMENT OF GROUNDS FOR APPELLATE REVIEW

This is an appeal of right fromthe denial of Mr. Garcia’s motions to suppress following final judgment pursuant to N.C.Gen.Stat. § 15A-979(b).

ARGUMENT

I.THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTIONS TO SUPPRESS

Assignments of Error Nos. 1, 2, 4, 7, 8, 10, & 12 (R pp. 56-60)

A.Introduction

The State did not argue in the court below that there was probable cause to arrest Mr. Garcia at the time that he was stopped by police. Therefore, the evidence seized and statements made as a result of the stop are only admissible if the police were acting on sufficient reasonable suspicion.

The police officers who were conducting surveillance on Mr.Garcia on 26 July 2007 did not have reasonable suspicion to justify detaining him. Just as they had not yet observed anything that would have given rise to an objectively reasonable suspicion sufficient to seize Mr. Garcia at his home on Barnes Road, they observed nothing once his car turned into the Ferrell Court apartment complex in Rolling Hills.

Mr. Garcia’s “presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.”Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 676, 145 L.Ed.2d 570 (2000) (citing Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979)). Thus, the officer’s decision to detain and handcuff Mr. Garcia was not supported by sufficient reasonable suspicion. All the evidence that followed from this unlawful stop should have been suppressed as fruit of the poisonous tree.

B.Standard of Review

The review of a trial court's denial of a motion to suppress is limited to a determination of (1) whether its findings are supported by competent evidence; and (2) whether those findings support the trial court's ultimate conclusion. State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). “While the trial court's factual findings are binding if sustained by the evidence, the court's conclusions based thereon are reviewable de novo on appeal.” State v. Parker, 137 N.C.App. 590, 594, 530 S.E.2d 297, 300 (2000); see alsoState v. Jacobs, 162 N.C.App. 251, 255, 590 S.E.2d 437, 440 (2004)(“[t]his Court reviews de novo the trial court's conclusion of law that a reasonable, articulable suspicion existed to justify a stop”).

C.Governing Law

1.Constitutional Prohibition Against Unreasonable Searches and Seizures

The Fourth Amendment to the Constitution of the United States and Section 20 of Article I of the North Carolina Constitution prohibits unreasonable searches and seizures. State v. Garner, 331 N.C. 491, 506-07, 417 S.E.2d 502, 510 (1992). This constitutional right applies to “seizures of the person, including brief investigatory detentions.” State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 69-70 (1994); Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969); Terry v. Ohio, 392 U.S. 1, 16-19, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968). “‘[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that person,’and the Fourth Amendment requires that the seizure be ‘reasonable.’ ” United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975) (internal citations omitted).

2.Reasonable Suspicion Required for Investigatory Detention

The touchstone of “reasonableness” for an investigatory detention is whether the police officer has reasonable suspicion of criminal activity. A court “must consider ‘the totality of circumstances-the whole picture’” in determining whether reasonable suspicion to make an investigatory stop exists. U.S.v. Sokolow, 490 U.S. 1, 8, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989)(quoting U.S. v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)). “In order for a seizure to pass constitutional muster, the officer must have reasonable suspicion to believe criminal activity was afoot.” In re I.R.T., 184 N.C.App. 579, 585, 647 S.E.2d 129, 134-35 (2007) (citing State v. Roberts, 142 N.C.App. 424, 429, 542 S.E.2d 703, 707 (2001)).

Provided that the investigatory seizure is supported by reasonable suspicion, the police can conduct a Terry weapons frisk or “pat down.” If, on the other hand, the police conduct a full search of an individual without a warrant or consent, the police must have probable cause and there must be exigent circumstances. State v. Pittman, 111 N.C.App. 808, 812, 433 S.E.2d 822, 824 (1993). The United States Supreme Court has held that searches that go beyond a Terry frisk require probable cause:

Detentions may be “investigative” yet violative of the Fourth Amendment absent probable cause. In the name of investigating a person who is no more than suspected of criminal activity, the police may not carry out a full search of the person or of his automobile or other effects. Nor may the police seek to verify their suspicions by means that approach the conditions of arrest.

Florida v. Royer, 460 U.S. 491, 499, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983).

D.Police Lacked Required Reasonable Suspicion to Detain Mr.Garcia

1.Informant’s Information Insufficient to Provide Reasonable Suspicion

While Winston-Salem police officers had Mr. Garcia under surveillance on 26 July 2007, they never observed anything that corroborated the information provided by the confidential informant. (T pp. 45-52) The informant, whose credibility or reliability could not be assessed by the court below or tested by trial counsel, had told Detective Jones that Mr. Garcia was selling marijuana and lived in a particular trailer on Barnes Road. (T p. 42) Police watched as Mr. Garcia and a companion received guests at the trailer on Barnes Road and went on various errands around town. (T pp. 28; 46; 51) Later in the day, they observed one of the two men place a bag in the car and drive to an apartment complex. (T pp. 31-32) None of the observed behavior corroborated any information relating to illegal activity supplied by the informant. Detective Williams did not testify that he relied upon the information from the confidential informant – which he had received third-hand from Detective Jones – in explaining the alleged basis for reasonable suspicion. (T pp. 59-63)

When police officers rely on information from an informant – particularly when there is no showing with regard to that informant’s reliability – they must corroborate the informant’s information before there will be reasonable suspicion sufficient to justify detaining a suspect. State v. Sanchez, 147 N.C.App. 619, 624-25, 556 S.E.2d 602, 607 (2001) (citing Alabama v. White, 496 U.S. 325, 328, 110 S.Ct. 2412, 2415, 110 L.Ed.2d 301, 305 (1990)). In Sanchez, this Court held that “[t]here must also exist sufficient police corroboration of the tip before the stop is made” if the police are to rely on an informant’s information to supply the requisite reasonable suspicion. Id., 147 N.C.App. at 624, 556 S.E.2d at 607.

When – as in this case - no information is supplied by the State that would help the court evaluate the informant’s “‘veracity,’ ‘reliability,’ and ‘basis of knowledge,’” independent corroboration becomes all the more important. White, 496 U.S. at 324, 110 S.Ct. at 2415 (quoting Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983)). “Some tips, completely lacking in indicia of reliability, would either warrant no police response or require further investigation before a forcible stop of a suspect would be authorized.” Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612 (1972).

Detective Jones testified that on her prior surveillance of the trailer at lot 40 on Barnes Road she had not observed any criminal or suspicious behavior – just some people coming and going. (T p. 46) When Mr. Garcia had been followed earlier in the day, he went to a WalMart, a jewelry store, and a private residence (T p. 51) None of these activities related to information supplied by the informant. Indeed, the confidential informant did not give any information about Mr. Garcia going to Ferrell Court or Rolling Hills. (T p. 49) Absent any way to evaluate this particular informant’s veracity, reliability, or basis for knowledge, the police needed some corroboration before attempting to detain Mr. Garcia. Sanchez, supra. This corroboration was completely lacking in this case.

2.Absent Corroboration of the Information From the Informant, the Police Relied on Only One Insufficient Factor to Support Reasonable Suspicion

Lacking corroboration of the informant’s information, police instead decided to stop and detain Mr. Garcia on the sole basis that he was entering a “drug location.” (T p. 60)This one factor is insufficient to support a finding of reasonable suspicion.

This Court has considered the following factors relevant in determining whether a police officer had reasonable suspicion: (1) nervousnessof an individual; (2) presence in a high crime area; and (3) unprovoked flight. Id. 184 N.C. App. at 585, 647 S.E.2d at 135(internal citations omitted). Importantly, “[n]one of these factors, standing alone, are sufficient to justify a finding of reasonable suspicion.”Roberts, 142 N.C.App. at 429, 542 S.E.2d at 707-08 (citing Sokolow, 490 U.S. at 9, 109 S.Ct. at 1586).

There is no evidence that Mr. Garcia was nervous when law enforcement approached and he made no effort to leave the scene. The only factor that the police point to for the decision to stop and detain Mr. Garcia in Ferrell Court was that the apartment complex is predominantly African American and a known drug location. (T p. 60) Following Roberts, this one factor is insufficient to support a finding of reasonable suspicion, and thus, Mr. Garcia’s detention was unlawful.

3.Officers Observed Only Innocent Behavior Before Detention

Instead of corroboration, the officers observed objectively innocent behavior. As stated above, as the police conducted surveillance on lot 40 and followed Mr. Garcia in unmarked police cars, they observed nothing out of the ordinary.

The officers had been observing Mr. Garcia for some time on July 26. They had followed him as he drove around in the BMW and wentto various stores and homes. Back at his trailer, the police witnessed other people come and go from the trailer. None of these observed behaviors – even in conjunction with the as yet uncorroborated information provided by the confidential informant – provided sufficient reasonable suspicion to stop Mr.Garcia at his home or in his car.

The question then becomes what – if anything - changed when the BMW turned into the Ferrell Court driveway? The answer provided by Detective Williams is that Ferrell Court is a predominantly African American “drug location” – but this answer has nothing to do with Mr. Garcia’s actions or behavior. (T p. 60)

Police observations of behavior that is not objectively suspicious cannot, as a matter of law, give rise to reasonable suspicion to detain an individual. Reid v. Georgia, 448 U.S. 438, 441, 100 S.Ct. 2752, 2754 65 L.Ed.2d 890 (1980) (holding that the DEA agent “could not as a matter of law, have reasonably suspected the petitioner of criminal activity” on the basis of otherwise innocent observed behaviors). As in Reid, Mr. Garcia was observed doing nothing out of the ordinary.

4.The Actual Reasons Articulated by Detective Williams for Detaining Mr. Garcia Do Not Support a Finding of Reasonable Suspicion