The STATE v. WOLF.
-- September 28, 2012
Jessica Whittington Clark, J. David Miller, for appellantJames Raymond Miller IV, for appellee
The State appeals from the trial court's grant of a motion to suppress evidence obtained from a vehicle after it was stopped by the police. The trial court found that the traffic stop was illegal because it was not based on specific articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct, and that the subsequent arrest was unlawful because the police lacked probable cause. Finding no error, we affirm.
When an appellate court reviews a trial court's order concerning a motion to suppress evidence, the appellate court should be guided by three principles with regard to the interpretation of the trial court's judgment of the facts. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it. Second, the trial court's decision with regard to questions of fact and credibility ․ must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court's findings and judgment. On numerous occasions the appellate courts of this state have invoked these three principles to affirm trial court rulings that upheld the validity of seizures. These same principles of law apply equally to trial court rulings that are in favor of the defendant․ 1
Construed in this light, the evidence showed that on February 3, 2011, a mail carrier reported to the police that he was on Vickers Circle and Coffee Road and observed at a residence a gray Nissan pickup truck and several black men who entered the truck and left the residence, apparently after they had seen the mail carrier. The mail carrier suspected that the men were about to break into the residence. The next day, around noon, a police officer on patrol in the area observed a “gray Nissan four-door pickup truck coming off of Vickers Circle onto Coffee Road.” The officer, driving an unmarked police vehicle, followed the truck, which drove away and then circled back to Vickers Circle. The officer, who testified that he was patrolling the area because of the high number of recent burglaries, thought it “strange” that the truck returned to Vickers Circle. So he continued to follow the truck, and he called dispatch for backup “in reference to possible ․ burglary suspects.”
The officer testified that the truck stopped on Vickers Circle and picked up a “black male [who had] come out of a yard.” The truck drove away, but before it reached Coffee Road again, the officer activated the blue lights on his vehicle and initiated a stop of the truck. A second officer, who arrived just as the first officer had activated his lights, positioned his vehicle in front of the truck, effectively blocking the truck. The officers exited their vehicles with their guns drawn, they “got [the men] out of the [truck],” and they handcuffed all three men. Wolf was the front seat passenger.2 The first officer explained to the driver that they had stopped the truck because of “numerous burglaries in the area.” The first officer asked the driver why they had picked up an individual, and the driver responded that the individual was “getting directions” to a particular location. The officer testified that he did not believe that “story,” and instead believed the men were burglars. The officer testified, however, that the men were not under arrest at that time.
A third officer who had arrived on the scene testified that as she approached the truck to take pictures of it, the doors were open, and she observed in plain view a small baggie of what appeared to be marijuana behind the driver's side seat of the truck. That officer reported to the first officer that she had seen marijuana in the truck. The first officer testified that the men were then placed under arrest. They were later indicted for burglary.
The first officer who had followed the vehicle and had called for backup was the state's primary witness at the hearing on the motion to suppress. When asked on cross-examination whether, prior to stopping the vehicle, he knew “any other information” about the vehicle, such as a tag number, whether it had an extended cab, tinted windows, a tool box, or “any other individualized ․ characteristics,” the officer replied that he did not: “Just that it was a gray Nissan pickup truck with black males in it, possibly.” When asked on cross-examination whether, prior to the stop, he had seen the occupants of the vehicle violate any traffic laws or commit any illegal act, the officer replied that he had not.
1. The state contends that the first officer had an articulable suspicion to perform a traffic stop because the following facts made the officer suspicious that a burglary had been or was about to be committed: the officer was patrolling an area in which many burglaries had occurred; he observed a vehicle matching the description of and on the same road as a vehicle which had been reported as suspicious; and he observed the vehicle circle that area and pick up an individual; and all of this occurred “in the middle of the day, during the week, when few people were likely to be home.”
“According to Terry v. Ohio, [3 ] police-citizen encounters are generally categorized into three tiers: consensual encounters; brief investigatory stops, which require reasonable suspicion; and arrests that must be supported by probable cause.”4
Although an officer may conduct a brief investigative stop of a vehicle, such a stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. Investigative stops of vehicles are analogous to Terry-stops, and are invalid if based upon only unparticularized suspicion or hunch. An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. This suspicion need not meet the standard of probable cause, but must be more than mere caprice or a hunch or an inclination․
In determining whether a stop was justified by reasonable suspicion, the totality of the circumstances—the whole picture—must be taken into account. 5
It is clear from the evidence adduced at the suppression hearing that the officers did not have the requisite particularized basis for suspecting the occupants of this particular vehicle of criminal activity.6 The first officer testified that he had not seen the occupants of the truck violate any traffic laws or commit any illegal acts.7 But “[e]ven if there is no probable cause to arrest for a traffic or other offense, the Fourth Amendment allows police to stop a vehicle to investigate a reasonable suspicion of criminal activity.”8
The officer did not have a reasonable suspicion connecting Wolf to any crime. There was no testimony that any law enforcement officers had, in response to the mail carrier's report, investigated whether the vehicle was properly at the residence the day before. The fact that the first officer had no details about the occupants of that vehicle other than their race and gender and that their vehicle was the same make and color as the one he observed the next day in an area where prior burglaries had reportedly been committed did not provide the requisite particularized basis for suspecting Wolf or the other occupants of the vehicle of criminal activity, justifying a stop of the vehicle.9 And there was no evidence that there was anything unlawful about the circumstances under which an individual was picked up.10 Nor was there testimony about the alleged recent burglaries in the area.11
The police stopped the vehicle without the reasonable suspicion necessary to justify an investigative stop, and the detention was an unreasonable intrusion under the Fourth Amendment.12
2. The state contends that the ensuing arrest was lawful because it was based upon probable cause, namely, that an officer saw suspected marijuana in plain view.
“A police officer who observes contraband in plain view is entitled to seize it, so long as he is at a place where he is entitled to be, i.e., so long as he has not violated the defendant's Fourth Amendment rights in the process of establishing his vantage point.”13 “The plain view doctrine permits a warrantless search and seizure if the agents are lawfully in position to obtain the view, the discovery is inadvertent, and the object viewed is immediately seen to be incriminating.”14
The officer who located the suspected marijuana testified that she observed the contraband when she approached the vehicle to take pictures. She testified that when she approached the vehicle the doors were open and she observed in plain view the suspected contraband “behind the driver's side seat.” Had the first officer not illegally stopped the vehicle and detained the occupants, however, the doors to the vehicle would not have been open and the third officer would not have seen the suspected marijuana. Accordingly, the trial court did not err in granting the motion to suppress.15
The third officer was not in a lawful position when she viewed the interior of the vehicle; thus what she saw in “plain view” did not furnish probable cause for Wolf's arrest.16
3. The state contends also that the search of the vehicle was valid because it was an inventory search incident to a lawful arrest. Because the officers arrested Wolf without probable cause, the arrest was not lawful. Therefore, any evidence discovered as a result of that unlawful arrest was properly suppressed.17
I concur in judgment only because I do not agree with all that is said in the majority opinion. As such, the majority's opinion decides only the issues presented in the case sub judice and may not be cited as binding precedent. See Court of Appeals Rule 33(a).
PHIPPS, Presiding Judge.
DILLARD, J., concurs in the judgment.ELLINGTON, C. J., concurs.