No. Coa03-1351 Twenty Eighth Judicial District

NO. COA03-1351 TWENTY EIGHTH JUDICIAL DISTRICT

NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA )

)

v. ) FROM HAYWOOD COUNTY

) Nos. 02-CRS-53021;

JAMES EDWIN SUTTON )

)

______)

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DEFENDANT-APPELLANT’S BRIEF

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INDEX

PAGE

TABLE OF AUTHORITIES ...... ii

QUESTIONS PRESENTED ...... 1

STATEMENT OF THE CASE ...... 2

STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW ...... 2

STATEMENT OF THE FACTS ...... 3

ARGUMENTS ...... 5

I.THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING TO GRANT DEFENDANT’S MOTION TO SUPRESS AS THE OFFICER CONDUCTED A CUSTODIAL INTERROGATION OF DEFENDANT WITHOUT ADVISING HIM OF HIS MIRANDA RIGHTS(ASSIGNMENTS OF ERROR NO. 1,2, AND 4-10 R.pp.19-24) ...... 5

II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING TO GRANT DEFENDANT’S MOTION TO SUPRESS AS THE OFFICER CONDUCTED AN UNREASONABLE SEARCH AND SEIZURE OF DEFENDANT WITHOUT PROBABLE CAUSE (ASSIGNMENTS OF ERROR NO. 1-3,5,9,10 R.pp. 19-21,and 23-24)...... 8

III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN NOT SUSTAINING DEFENDANT’S OBJECTION TO THE ADMISSION OF STATE’S EXHIBITS OBTAINED AS A RESULT OF THE CUSTODIAL INTERROGATION WITHOUT ADVISING HIM OF HIS RIGHTS AND THE ILLEGAL SEARCH AND SEIZURE OF DEFENDANT (ASSIGNMENT OF ERROR NO. 10, R.pp.23-24) ...... 15

IV. THE TRIAL COURT ERRED IN FAILING TO GRANT DEFENDANT’S MOTION TO DISMISS THE CHARGES AGAINST HIM BECAUSE OF THE INSUFFICIENCY OF THE EVIDENCE AND FOR THE EVIDENCE PRESENTED WHICH WAS SEIZED AS THE RESULT OF AN ILLEGAL SEARCH AND SEIZURE AND CUSTODIAL INTERROGATION(ASSIGNMENT OF ERROR NO.12, R.p.24).) ...... 17

CONCLUSION ...... 19

CERTIFICATE OF SERVICE ...... 20

CASES TABLE OF AUTHORITIES PAGE

Alabama v. White, 110 S.Ct. 2441 (1992)...... 14

Brown v. Illinois,422 U.S. 590,48 L.Ed.2d 416(1975) . . 16

Dunaway v. New York,442 U.S. 200,60 L.Ed.2d824(1979) . .16

Florida v. Royer, 460 U.S. 491, 75 L.Ed.2d 229 (1983) . 16

Illinois v. Gates, 103 S.Ct. 2317 (1983) ...... 10

Mapp v. Ohio,367 U.S. 643, 6 L.Ed.2d 1081 (1961) . . . 16

Miranda v. Arizona,384 U.S. 436,16 L.Ed.2d 694(1966) . .6

New York v. Harris,495 U.S. 14,109 L.Ed.2d 13(1990) . . 16

State v. Buchanan,353 N.C.332,543 S.E.2d 823 (2001) . .6,7

State v. Burrus,344 N.C. 79,472 S.E.2d 867(1996) . . . .6

State v. Chadwick,149 N.C.App.200,560 S.E.2d 207(2002).9,10

State v. Crenshaw,144 N.C.App.574,551 S.E.2d 147(2001) .13

State v. Diaz, 317 N.C. 545,346 S.E.2d 488(1986) . . . .18

State v. Earhart,134 N.C. App.130,516 S.E.2d 883(1999). 10

State v. Gaines,345 N.C.647,483 S.E.2d 396 (1997) . . . 7

State v. Holmes,142 N.C.App.114,544 S.E.2d 18(2001) . . 10

State v. Hughes, 353 N.C. 200,539 S.E.2d 625(2000) 12,13,16,17

State v. Sanchez,147 N.C. App. 619,556 S.E.2d 602(2001). 9,14

State v. Torres, 330 N.C. 517, 412 S.E.2d.20(1992). . . .6

State v. Wallace,111 N.C. App.581,433 S.E.2d 238,(1993) . 10

Taylor v. Alabama,457 U.S. 687,73 L.Ed2d 314(1982) . . . .16

Terry v. Ohio, 88 S. Ct. 1868 (1968) ...... 13

iii

Wong Sun v. United States,371 U.S.471,9 L.Ed.2d 441(1963). 16

STATUTES

N.C.G.S. 15A-1443(B) ...... 8

NO. COA03-1351 TWENTY EIGHTH JUDICIAL DISTRICT

NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA )

)

v. ) FROM HAYWOOD COUNTY

) Nos. 02-CRS-53021;

JAMES EDWIN SUTTON )

)

______)

********************************************

DEFENDANT-APPELLANT’S BRIEF

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QUESTIONS PRESENTED

I.DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN FAILING TO GRANT DEFENDANT’S MOTION TO SUPRESS AS THE OFFICER CONDUCTED A CUSTODIAL INTERROGATION OF DEFENDANT WITHOUT ADVISING HIM OF HIS MIRANDA RIGHTS?

II. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN FAILING TO GRANT DEFENDANT’S MOTION TO SUPRESS AS THE OFFICER CONDUCTED AN UNREASONABLE SEARCH AND SEIZURE OF DEFENDANT WITHOUT PROBABLE CAUSE?

III. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN NOT SUSTAINING DEFENDANT’S OBJECTION TO THE ADMISSION OF STATE’S EXHIBITS OBTAINED AS A RESULT OF THE CUSTODIAL INTERROGATION WITHOUT ADVISING HIM OF?

IV. DID THE TRIAL COURT ERR IN FAILING TO GRANT DEFENDANT’S MOTION TO DISMISS THE CHARGES AGAINST HIM BECAUSE OF THE INSUFFICIENCY OF THE EVIDENCE AND FOR THE EVIDENCE PRESENTED WHICH WAS SEIZED AS THE RESULT OF AN ILLEGAL SEARCH AND SEIZURE AND CUSTODIAL INTERROGATION?

STATEMENT OF THE CASE

The Defendant, James Edwin Sutton, was indicted on three charges of trafficking by possession; by sale/delivery; and by transportation of oxycontin on 14 January 2003. The Defendant’s case was called for trial on the 24 March 2003 session of Criminal Superior Court for Haywood County before the Honorable James L. Baker, Jr. and a jury. On or around 25 March, 2003, the Court denied Defendant’s Motion to Suppress Evidence in open court. On 26 March 2003 the jury returned a verdict finding the Defendant guilty of trafficking by sell/delivery of oxycontin. The trial court entered the judgment on 26 March 2003, sentencing Defendant to an active sentence with the North Carolina Department of Corrections. The Defendant gave timely notice of appeal from the denial of his motion to suppress and the judgment of the trial court on 4 April 2003. The transcript was ordered on 9 April 2003 and was mailed to the parties on 14 August 2003.

The final record on appeal was filed with the North Carolina Court of Appeals on 14 October 2003 and docketed on 24 October 2003. The printed Record on Appeal was mailed from the Office of the Clerk of the Court of Appeals on 4 November 2003.

STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW

The ground for appellate review is a final judgment of superior court under N.C. Gen. Stat. 7A-27(b). A timely notice on appeal was filed by the Defendant on 4 April 2003.

STATEMENT OF THE FACTS

At the Motion to Suppress Hearing, the State called Sean Sojack. He is an officer with the Waynesville Police Department. (Tp.12) Sojack testified that on 2 October 2002 he received a telephone call from a pharmacist at Village Pharmacy he knew only as Jeff. Jeff told him that a man had presented a valid prescription for oxycontin, which he had confirmed with the doctor’s office. (Tp.16) This was the first time Jeff had ever given him any information on a valid prescription. The only other times he had called had been on fraudulent or altered prescriptions. (Tp.23) He told Jeff to fill the prescription as he normally would. (Tp.16)

Jeff told Sojack the person with the prescription was on a motorcycle in the parking lot, and gave a clothing and physical description. (Tp.15) Sojack went to the parking lot and located who he thought to be the person in his binoculars. Sojack testified that he saw the person go into the pharmacy, stay several minutes and then return outside with a small bag. (Tp.17) Sojack testified that the person got into a pickup truck in the parking lot and he could see him hand something to the person in the truck, but could not see what it was. (Tp.18) After that, the person exited the truck and then got on his motorcycle, at that point Sojack stopped the person on the motorcycle who was Mr. Sutton. (Tp.19)

Sojack testified that when he stopped Mr. Sutton he had the blue light on his patrol car activated. (Tp.31) He told Sutton he wanted to talk with him and Mr. Sutton said that was fine. He told him to step over to Sojack’s police cruiser and asked Sutton to place his hands on the hood of his patrol car so he could pat him down for weapons. (Tp.31) Sutton told Sojack he had two pocket knives and told him where they were located. Sojack removed the knives from Sutton’s person after conducting the patdown. Sojack testified there was nothing wrong with the pocket knives. (Tp.32) Sojack then proceeded to question Mr. Sutton regarding whether or not he had any narcotics. Sojack never gave Defendant his Miranda Rights at any point before he got the oxycontin from Defendant or before Defendant told the officer he gave 45 of them to the man in the truck. (Tp.20).

On cross examination Sojack admitted that he had no idea what was in the bag Mr. Sutton brought out of the pharmacy. He did not check with the pharmacist to see if Mr. Sutton bought anything else in the store before stopping him. (Tp.29) Sojack said that at no time before or after he stopped him did Mr. Sutton act suspicious, nervous, or like he had anything to hide. (Tp.33)

Jeff Ferguson testified next for the State at the Motion to Suppress Hearing. He testified that Mr. Sutton asked a technician how much the prescription would be, and when he was told that asked how long his wait would be and told them he would go get the money. (Tp.43) Ferguson testified that this was not unusual. (Tp.43) He did not pay attention until some customers came in and said “a lot was going on in the parking lot.” (Tp.44) Ferguson did not see anything going on, and did not see Mr. Sutton do anything suspicious or act unusual. (Tp.45) He had no idea what Mr. Sutton did while he was outside the store. (Tp.45)

ARGUMENTS

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING TO GRANT DEFENDANT’S MOTION TO SUPRESS AS THE OFFICER CONDUCTED A CUSTODIAL INTERROGATION OF DEFENDANT WITHOUT ADVISING HIM OF HIS MIRANDA RIGHTS(ASSIGNMENTS OF ERROR NO. 1,2, AND 4-10 R.pp.19-24).

As set out above, Officer Sojack pulled up to Mr. Sutton

as he sat on his motorcycle in the parking lot with his blue lights activated. (Tp.31) He asked Mr. Sutton if he could speak with him a moment, and then had Mr. Sutton get off his motorcycle and come over to the officer’s car to be pat down for a weapons search. (Tp.31) After Mr. Sutton indicated that he had two pocket knives on his person, Officer Sojack retrieved those and then proceeded to ask Mr. Sutton “if he had any narcotics on him”. (Tp.32) This questioning was done without advising Mr. Sutton of his Miranda Rights, and the failure to suppress this statement and the ensuing statements and evidence obtained by Officer Sojack was reversible error.

The State is prohibited from using at trial any statements resulting from a defendant’s “custodial interrogation” unless it demonstrates, by a preponderance of the evidence, that the defendant received Miranda warnings regarding the constitutional rights to counsel and to remain silent. State v. Burrus, 344 N.C. 79, 92, 472 S.E.2d 867, 876 (1996); State v. Dampier, 314 N.C. 292, 298, 333 S.E.2d 230, 234 (1985). In Miranda, the U.S. Supreme Court defined “custodial interrogation” as “questioning initiated by law enforcement officers after a person has been taken into custody or deprived of his freedom of action in any significant way.” Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 706 (1966) (emphasis added).

In the present case, it is evident from Officer Sojack’s testimony that Mr. Sutton was answering questions posed to him by the Officer after he had been approached by the Officer with his emergency signals activated and ordered to get off his motorcycle and put his hands on the patrol car while the officer conducted a pat down weapons search. It is evident that he was not free to leave, thus clearly depriving him of his freedom of movement as contemplated in Miranda.

Our Supreme Court has promulgated a standard to determine whether a person in “in custody” for the purposes of triggering the Miranda warnings. For years, the standard recognized by the Supreme Court to make this determination was “whether a reasonable person in the suspect’s position would feel free to leave or compelled to stay.” State v. Torres,330 N.C. 517 at 525, 412 S.E.2d 20 at 24-25 (1992). Recently, in State v. Buchanan, 353 N.C. 332, 543 S.E.2d 823 (2001), the Court fine tuned the standard set out above stating, “the appropriate inquiry in determining whether a defendant is ‘in custody’ for purposes of Miranda is, based on the totality of the circumstances, whether there was a ‘formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.’” Id. at 339, 543 S.E.2d at 828 (quoting State v. Gaines, 345 N.C. 647, 662, 483 S.E.2d 396, 405, cert. denied, 522 U.S. 900, 118 S.Ct. 248, 139 L.Ed.2d 177 (1997)).

It is evident that considering the totality of the circumstances, Mr. Sutton was “in custody” for purposes of Miranda in that he had been subjected to a pat down weapons search by an officer who approached in a car with emergency signals activated. It is evident from the situation that Mr. Sutton was not free to leave. Thus, the fact that Officer Russell did not formally place Mr. Sutton under arrest before he began questioning him is of no consequence. Further the questioning done by Officer Sojack was not innocuous questioning which only happened to produce incriminating responses. He specifically asked Mr. Sutton if he had any narcotics on him, a question directly asking for a potentially incriminating response. Under the totality of the circumstances as they then existed, there was a restraint of freedom associated with a formal arrest as contemplated in Buchanan and Gaines, and it was reversible error for the trial court to allow the State to present Defendant’s custodial statements to the jury when his Miranda warnings were not given.

The State cannot prove that the erroneous admission of Defendant’s statements were harmless beyond a reasonable doubt. SeeN.C. Gen. Stat. § 15A-1443(b). These statements provided the only link to Defendant and any crime. Officer Sojack admitted that he did not verify the amount of pills in Defendant’s bottle. (Tp.37) Further, Officer Sojack admitted that the only evidence he had to support that Mr. Sutton had given the 45 tablets to Mr. Queen was what Mr. Sutton told them during the interrogation along with the tablets they found in Mr. Queen’s possession after they arrested Mr. Sutton. (Tp.38) It is highly probable that Mr. Sutton would not have been convicted by a jury of the charges against him if the statements and evidence illegally obtained during the unconstitutional interrogation had been excluded.

At the Motion to Suppress hearing, Officer Sojack testified that this was the first time the pharmacist had called him on a valid prescription. (Tp.23) Sojack testified that through his binoculars he thought he saw the person described by Ferguson get into a truck and give something to the person in there, although he could not see what it was. (Tp.18) Sojack admitted that he had no idea what was in the bag that Mr. Sutton brought out of the pharmacy. (Tp.29) Further, at no time did Mr. Sutton act suspicious or nervous, or like he had anything to hide. (Tp.33) On these facts, it was reversible error for the trial court to deny Defendant’s Motion to Suppress as Officer Sojack had no probable cause to stop and search the Defendant on the occasion complained of.

The Trial Court found that there was not “any impropriety or improper action in the officer making what was arguably what I will find to be an investigatory stop.” (Tp.58) This court may review the legal conclusions of the trial court de novo. State v. Chadwick, 149 N.C. App. 200, 560 S.E. 2d 207, 208 (2002); State v. Sanchez, 147 N.C. App. 619, 556 S.E. 2d 602, 605 (2001).

As Mr. Sutton was on his motorcycle, preparing to leave the shopping center when stopped and detained by Officer Sojack, this essentially involves a traffic stop. A traffic stop is an investigatory detention which must be reasonable under the Fourth Amendment to the United States Constitution and Article 1 of the North Carolina Constitution. State v. Sanchez, 147 N.C. App. 619, 556 S.E. 2d 602, 606 (2001). In the instant case, the traffic stop was based upon a tip from an informant. Whether such a tip can furnish probable cause for a traffic stop is to be determined using a “totality of the circumstances analysis, which permits a balanced assessment of the relative weights of all the various indicia of reliability and unreliabilityattending an informant’s tip.” State v. Earhart, 134 N.C. App. 130, 516 S.E. 2d 883, 886 (1999), citing Illinois v. Gates, 103 S.Ct. 2317 (1983). The basis of the informant’s knowledge and the veracity or reliability of the tip are factors to be considered in determining the value of the informant’s report. Independent police corroboration of facts given by the informant are important in evaluating the reliability of the tip. State v. Earhart, 516 S.E. 2d at 886.

In this case, Officer Sojack testified that the informant had provided tips on fraudulent prescriptions before, but had never provided a tip related to a valid prescription, such as existed in the present case. Even in cases where the informant has provided past tips leading to arrests, the track record of an informant is insufficient to justify reliance on his informationState v. Chadwick, 149 N.C. App. 200, 560 S.E. 2d 207, 209 (2002)(A known informant’s tip established probable cause, based on a reliable track record and that all information provided by informant was independently corroborated “with minute particularity”); State v. Holmes, 142 N.C. App. 114, 544 S.E. 2d 18, 22-23 (2001) (factors to be considered in determining whether known informant’s tip is reliable are informant’s basis of knowledge and veracity/reliability of tip, which may be established by independent corroboration); State v. Wallace, 111 N.C. App. 581, 433 S.E. 2d 238, 239 (1993) (informant had been reliablein past, but tip which lacked evidence of informant’s basis of knowledge and could not be corroborated was insufficient to make out probable cause).

The tip on which Sojack relied was not specific and was not independently verified before he acted on it. Sojack testified that the tip indicated that a person dropped off a valid prescription for oxycontin, asked how much it was and how long it would be before it was ready. The person then went out to retrieve the money to pay for it. This was the first time this informant had ever called Sojack on a valid prescription. Jeff Ferguson testified at the Motion to Suppress Hearing that it was not unusual for customers to ask how much a prescription would be and then have to go get the money. (Tp.43) Ferguson saw or heard nothing suspicious, he only called Sojack because some other customers complained about some commotion in the parking lot. (Tp.44) Sojack witnessed Sutton doing nothing suspicious upon getting to the parking lot. Therefore, the tip was deficient as it provided no facts from which probable cause could be deduced that Mr. Sutton was doing anything illegal, and the Officer failed to independently verify even that “some commotion” was going on in the parking lot, the basis for the tip to begin with.

This tip is far sketchier than the tip in State v. Hughes, 353 N.C. 200, 539 S.E. 2d 625 (2000), where the court found that the tip was insufficient to provide even reasonable suspicion of criminal activity. In Hughes, the police relied upon a tip to make a traffic stop of a taxi. An informant had told police that a Jamaican named “Markie” would be arriving by bus from New York City, that he was six feet tall, weighed over 300 pounds, would be wearing baggy pants and carrying an overnight bag, and would have marijuana and cocaine in his possession. The tipstersaid that Markie sometimes traveled by taxi to a particular beach location. The officer who received the tip dispatched other officers to apprehend Markie. They saw a man matching the description near a bus that had arrived from Rocky Mount. One officer knew that buses from New York City stopped in Rocky Mount. When the man took a taxi, and reached a route that could lead to the beach destination, the police stopped the taxi. A search of the man and the car revealed marijuana and cocaine.

The Hughes court analyzed the lawfulness of the stop by looking to the reliability of the tip. The court held that for tips from confidential reliable informants, the test is whether the totality of circumstances, including the reliability and veracity of the informant, and his basis of knowledge, indicate that the tip is credible. Id. at 628. Since the police did not establish the track record of the informant, and there was no objective evidence of his reliability, the court treated the tip as one from ananonymous informant. The court found that the tip was not sufficient even to raise a reasonable suspicion of criminal activity. The tip was too vague, the predictions of future behavior too speculative, and the police had not sufficiently corroborated the tip. Id. at 631-32.