STATE OF NORTH CAROLINA COUNTY OF WAKE IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION FILE NO. 08CRSXXXXX STATE OF NORTH CAROLINA vs. SP MOTION TO SUPPRESS COMES NOW, Defendant, SP, by and through his undersigned counsel and pursuant to N.C. Gen. Stat 15A-972 moves this Court to issue an order suppressing certain evidence that may be used in this case. The specific evidence sought to be suppressed is as follows: 1. Approximately 78 grams of marijuana seized from the co-defendants vehicle on May 3, 2008; 2. One AWS digital scale seized from the co-defendant s vehicle on May 3, 2008; 3. One Marijuana Roach seized from the co-defendant s vehicle on May 3, 2008; 4. Several plastic bags seized from the co-defendant s vehicle on May 3, 2008; 5. Any statements made by the Defendant to any officer or other official in the course of this investigation; 6. Any other physical evidence relating to this case which was seized on May 3, 2008 which is in the possession, custody and/or control of the State. The grounds for this motion are that all of the aforementioned evidence was illegally seized without a warrant by virtue of an unlawful seizure, detention and interrogation of the Defendant in violation of the Defendant s Fourth and Fifth Amendment Rights of the United States Constitution made applicable to the States through the Fourteenth Amendment of the United States Constitution. BACKGROUND FACTS On May 3, 2008 at approximately 8:40pm, Officer Hurst of the Raleigh Police Department responded to a 911 dispatch at xxxx xxxxx Road. The call was the homeowner and allegedly stated that her son R was at the residence when he was prohibited from being there
by court order. As Officer Hurst arrived, he saw TM s, hereinafter co-defendant, vehicle arrive and park in front of the residence to which he was dispatched. Both the Defendant and co-defendant exited the vehicle. Officer Hurst approached both individuals and began a consensual encounter. Both the Defendant and co-defendant truthfully told Officer Hurst that they did not live at the residence and that they were there to pick up their friend R. As the young men waited by the vehicle, Officer Hurst approached the residence and was unable to get a response after ringing the doorbell and knocking on the door. Officer Hurst radioed for back up when he was unable to get a response. When Officer Hurst approached the Defendants and while waiting for back up, both the Defendant and the co-defendant asked Officer Hurst if they were free to leave. Officer Hurst told the young men that they could not leave and requested their identification to make sure that neither was R. Both Defendant s cooperated with the Officer and gave Officer Hurst R s full name. Officer Hurst checked the co-defendant s for active warrants. The warrant check came back negative. When the warrant check came back negative, Officer Hurst suddenly remembered that there was a BOLO for an early 90's white sedan occupied by three, not two, black males for an alleged robbery that had occurred at an unknown time earlier in the day about three miles from the current location. The Defendants were denied permission to leave while Officer Hurst continued to try to locate R. The Defendants were ordered to remain until we figured out what was going on. Several other officers arrived at the scene. Additionally, the co-defendant called his mother who arrived at the scene. At one point, the co-defendant s cell phone rang. The co-defendant s mother answered the telephone and informed the officers that it was R. The officers were informed that R had left the house and that he would not return. Officer Hurst then continued to question both co-defendant s as to the whereabouts of R. Subsequently, Officer Hurst informed the Defendants of the vehicle matching the description of a BOLO to which the Defendants responded that they had nothing to do with a
robbery. Additionally, the co-defendant s mother informed Officer Hurst that the co-defendant had been at home all day and could not have been involved in the robbery. Officer Hurst requested that the co-defendant s mother leave the scene so he could speak with the co-defendant s. Officer Hurst again began to question the co-defendants as to the whereabouts of R. Officer Hurst repeatedly asked permission to search the co-defendant s vehicle. The request was repeatedly denied. At some point after the request to search had been repeatedly denied, Officer Zlockie noticed what he believed to be a marijuana roach in the ashtray of the vehicle. Officer Hurst inquired as to whether there were anymore drugs in the vehicle to which the Defendant replied that there was a little bit of marijuana under the passenger seat. The car was then searched without the consent of the co-defendant and the contraband listed above was discovered. The Defendant than admitted to having possession of the marijuana in the vehicle for personal use. From beginning to end the investigatory detention of the Defendant was in excess of two hours. LEGAL ANALYSIS I. INVESTIGATORY STOP An investigatory stop must be justified by a reasonable suspicion, based on objective facts, that the individual stopped is involved in criminal activity. See In the Matter of J.L.B.M., Juvenile, 176 N.C. App. 613, 620, 627 S.E. 2d 239, 243 (2006) citing State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 70 (1994) see also State v. Edwards, 164 N.C.App. 130, 135, 595 S.E.2d 213, 217 (2004); State v. Blackstock, 165 N.C.App. 50, 56, 598 S.E.2d 412, 416 (2004). The court is to consider the totality of the circumstances in making the determination as to whether the officer possessed a reasonable and articulable suspicion as to justify an investigatory stop. See State v. Robinson, 658 S.E.2d 501, 505 (2008) citing State v. Watkins, 337 N.C. 437, 441-42, 446 S.E.2d 67, 70 (1994); see also U.S. v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1, 10(1989). Officer Hurst s initial encounter with the co-defendants was a consensual encounter.
Accordingly, the co-defendants were not seized upon the initial encounter and were not seized. See Milien at 144 N.C.App.335, 339, 548 S.E.2d 768, 771(holding that only arrests and investigatory stops constitute seizures giving rise to Fourth Amendment Protections) citing Graham v. Conner, 490 U.S. 386, 394, 109 S.Ct. 1865, 1870-71, 104 L.Ed.2d 443, 454 (1989). This matter turned into an investigatory stop subsequent to Officer Hurst ringing the doorbell at the residence and then returning to the co-defendants who were standing by the vehicle. Both co-defendants requested if they were permitted to leave. At the moment that Officer Hurst informed the co-defendants that they were not permitted to leave, this matter became an investigatory stop and the continued detention was subject to the protections of the Fourth Amendment. The Defense does not contend that Officer Hurst did not have reasonable suspicion to conduct the investigatory stop. The facts clearly show that Officer Hurst was responding to a 911 telephone call regarding domestic violence. The perpetrator was not at the residence and the co-defendants admitted truthfully that they were there to pick up the Defendant. Being that the co-defendants were unknown to Officer Hurst, he was well within the law to check both of the co-defendant s identification in order to determine if either of the co-defendants was the suspect in the domestic violence investigation. After Officer Hurst checked the co-defendant s identification and ran a warrant check, Officer Hurst had dispelled his suspicion that either of the co-defendant s were involved in criminal activity. As such, the co-defendants should have been free to leave. See Falana. II. LENGTH OF DETENTION The scope of an investigatory detention must be carefully tailored to its underlying justification. See State v. Myles, 654 S.E. 2d 752, 754 Once the original purpose of the stop has been addressed, there must be grounds which provide a reasonable and articulable suspicion that the individual is involved in criminal activity in order to justify further delay. See Id. citing State v. Falana, 129 N.C.App. 813, 816, 501 S.E. 2d 358, 360(1998). An investigative detention must be temporary and last no longer than necessary to confirm or dispel the officer s
suspicion that the individual detained is involved in criminal activity. See Milien at 144 N.C.App.335, 340, 548 S.E.2d 768, 772 citing Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325-26, 75 L.Ed.2d 229, 238 (1983). After approximately 10 to 15 minutes of contact with the co-defendants it had been confirmed that neither of the co-defendant s were the suspect regarding the 911 dispatch. At that point Officer Hurst asserts that he had reasonable suspicion to further detain the co-defendants due to an earlier BOLO. It is important for the Court to note that both the undersigned and the ADA assigned to this case have not been able to find a printed copy of the BOLO. The BOLO cited to by Officer Hurst lacks any meaningful description of the suspects other than ethnicity. The BOLO described by Officer Hurst was an early 90's white sedan occupied by three black males for a robbery that had occurred earlier about three miles from the location we were at[sic]. Notwithstanding the fact that there were only two individuals in the car, the description of the BOLO given by Officer Hurst is so vague as to give Officer Hurst no reasonable suspicion to detain the co-defendants any further. No matter how the BOLO is worded the essence of the description given by Officer Hurst comes down to black guys in a white car. Nevertheless, Officer Hurst did not immediately act to confirm or dispel his suspicion that the co-defendant s were involved in the robbery. Instead, Officer Hurst continued to question the co-defendant s regarding the whereabouts of R and R s mother. I attempted to call R s mother on the number in the call but it went to her work voicemail. I asked TM s and SP if they knew R s mothers cell number. Neither knew the number. During the ensuing 1 ½ to 2 hours, co-defendant MT s mother arrived at the scene and is a witness to the length of the investigatory detention. Additionally, five (5) additional officers arrived to conduct a search of the house to which the 911 dispatch came from. With full knowledge that the co-defendant s were not involved in the domestic situation, Officer Hurst
instructed the co-defendants to wait at the scene until we figured out what was going on. Additionally, Officer Hurst waited for approximately 1 ½ to 2 hours to act on the alleged BOLO. III. DE FACTO ARREST REQUIRES PROBABLE CAUSE When the duration of the detention exceeds the permissible scope the detention constitutes a de facto arrest which must be supported by probable cause. See Milien at 144 N.C.App.335, 340, 548 S.E.2d 768, 772 citing United States v. Sharpe, 470 U.S. 675, 685, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605, 615(1985); State v. Russell, 84 N.C. App. 383, 389, 352 S.E.2d 922, 926, disc. review denied, 319 N.C. 677, 356 S.E.2d 784, cert. denied, 484 U.S. 946, 108 S.Ct. 336, 98 L.Ed.2d 363(1987). In assessing the effect of the length of the detention, the Court is to take into account whether the police diligently pursued their investigation. See Sharpe, 470 U.S. at 685 quoting U.S. v. Place, 462 U.S. 696, 709 (1983). Assuming arguendo that the alleged BOLO 1) exists and 2) supports reasonable suspicion to further detain the co-defendant s, the continued detention became a de facto arrest when Officer Hurst failed to diligently pursue his investigation of the co-defendants. Rather, with several police officers present, Officer Hurst continued to question the co-defendants regarding R and conducted a full sweep of the suspect residence. The undersigned has been unable to find any case law, State or Federal, which has found a 2 hour investigatory detention to be reasonable under similar circumstances. The analysis of the de facto arrest is best served by example. In United States v. Place, 462 U.S. 696 (1983), the United States Supreme Court held that a 90 minute detention of a suitcase was an unreasonable length of time. Similarly, in United States v. Cagle, 849 F2d 924, 927 the Fifth Circuit Court of Appeals held that a 90 minute detention of a passengers luggage was unreasonable as the police did not employ the most diligent and least intrusive means possible in the investigation. In United States v. Codd, 956 F.2d 1109, 1111 the Eleventh Circuit Court of Appeals held that a 2 ½ hour detention of a suspect in order to search her purse without probable cause was an unreasonable detention. In State v. Guzman-Pascual, 184 N.C.App. 189, 645 S.E.2d 900 (2007), the North Carolina Court of Appeals found that a two hour detention of a
suspect was an arrest. However, the arrest in Guzman-Pascual, was supported by probable cause. As Officer Hurst and the other officers at the scene failed to diligently investigate the co-defendants for a period of approximately 2 hours, the detention constitutes a de facto arrest on less than probable cause. As such, all evidence gained during the illegal detention should be suppressed. IV. MIRANDA As the co-defendants were in custody due to a de facto arrest, prior to any questioning, Defendant SP was required to be informed of his rights under the holding in Miranda v. Arizona. In addition to express interrogation, the rules against self-incrimination also apply to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect. See Rhode Island v. Innis, 446 U.S. 291, 100 (1980) (internal quotation marks and citation omitted). As previously stated, the co-defendants were detained in excess of two hours by the time that Officer Hurst had completed his questioning regarding the whereabouts of R as well as a sweep of the suspect residence. Only after in excess of two hours had passed did Officer Hurst request permission to search co-defendant TM s vehicle. After permission was denied, Officer Hurst continued to request permission to search co-defendant TM s vehicle. All subsequent requests were denied. During the continued detention of the co-defendant s Officer Zlockie allegedly noticed a marijuana roach in the ashtray of co-defendant TM s vehicle. Officer Hurst then interrogated the co-defendants as to whether there were any other drugs or weapons in the vehicle. Defendant, SP informed Officer Hurst that there was additional marijuana under the passenger seat. Due to the fact that Defendant SP was in custody and being expressly interrogated by Officer Hurst without being advised of his rights under the holding in Miranda, all statements made by Defendant SP should be suppressed.
Certificate of Service I certify that a copy hereof has been furnished to the State's Attorney by hand delivery on. Respectfully submitted, Michael A. Dye, P.A.