Opinion
No. COA15-1140
07-05-2016
STATE OF NORTH CAROLINA v. JOSHUA ALLEN CALLAHAN
Attorney General Roy Cooper, by Assistant Attorney General Laura H. McHenry, for the State. Robinson Bradshaw & Hinson, P.A., by Andrew A. Kasper, for defendant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. Mecklenburg County, Nos. 14CRS202901-04 Appeal by defendant from judgments entered 20 May 2015 by Judge Carla N. Archie in Mecklenburg County Superior Court. Heard in the Court of Appeals 24 February 2016. Attorney General Roy Cooper, by Assistant Attorney General Laura H. McHenry, for the State. Robinson Bradshaw & Hinson, P.A., by Andrew A. Kasper, for defendant. DIETZ, Judge.
Defendant Joshua Callahan appeals the denial of his motion to suppress. While investigating recent car break-ins, law enforcement officers approached Callahan while he was sitting in his car. One officer observed "a piece of cellophane" in Callahan's lap. When the officers asked Callahan about the cellophane, he appeared nervous and refused to answer. The officers then instructed Callahan to step out of his car and, after searching him, discovered marijuana and a firearm.
In its order denying the motion to suppress, the trial court concluded that law enforcement "had reasonable suspicion to detain the defendant and investigate due to the presence of the cellophane, the defendant's nervous behavior, and his refusal to answer when asked what the cellophane was for."
As explained below, we disagree. Had the officers been patrolling an area known for drug activity, reasonable suspicion might exist on these facts. But here, the officers were investigating car break-ins and nothing in the trial court's findings connected the cellophane or anything else the officers observed to those break-ins. Without that connection, we hold that the three innocent behaviors observed by the officers, standing alone, were insufficient to establish reasonable suspicion. We therefore vacate the trial court's judgments and remand this case for further proceedings.
Facts and Procedural History
The following facts are taken directly from the trial court's order denying Callahan's motion to suppress. On 21 January 2014, Charlotte Mecklenburg Police Officers Horner and Greenlees were patrolling an apartment complex that had experienced a series of vehicle break-ins. The officers observed two individuals sitting in a parked car in the parking lot, but did not see any suspicious activity in or around the car.
Officer Greenlees approached the car and spoke to Defendant Joshua Callahan, who was in the driver's seat, and Reginald Richardson, who was in the passenger seat with a small dog on his lap. Officer Greenlees told Callahan and Richardson that the officers were investigating recent car break-ins and asked the two to explain what they were doing sitting in a parked car in the parking lot. Callahan and Richardson told the officers they were just "hanging out." The officers did not observe any unusual movements, any suspicious objects, or any odor of illegal drugs.
Greenlees then asked Callahan and Richardson for their driver's licenses so he could verify their identities. Both men voluntarily complied.
While Officer Greenlees recorded information from the licenses, Officer Horner approached the driver's side of the vehicle and noticed a two- to three-inch piece of cellophane on Callahan's lap. Officer Horner pointed to the cellophane and asked Callahan what it was. Callahan "did not answer and stared blankly at Officer Horner." Callahan was "visibly nervous" at this point.
Office Greenlees then asked if there were any weapons in the car. Callahan "stated that there were several stun guns in the vehicle because he sold them." Officer Greenlees then asked Richardson, the passenger, if there were any drugs in the vehicle and "Richardson did not respond."
At this point, Officer Horner instructed Callahan to "step out of his vehicle." Officer Horner and Callahan went to the rear of the car and Callahan was "still visibly nervous." Officer Horner asked if Callahan had any weapons on him and Callahan "did not answer this question, but mentioned the stun guns in the vehicle again."
Callahan then "became agitated and was placed into handcuffs." After being handcuffed, Callahan admitted he had marijuana on his person. Officer Horner "frisked" Callahan and found a handgun and marijuana packaged in cellophane.
The State charged Callahan with possession of a firearm by a felon; unlawfully carrying a concealed weapon; possession of marijuana with intent to sell or deliver; and possession of drug paraphernalia.
Callahan later moved to suppress the firearm, marijuana and other evidence obtained when Officer Horner searched him on the ground that the officers seized him without a proper basis under Fourth Amendment doctrine. The trial court denied the motion, holding that "Officer Horner had reasonable suspicion to detain the defendant and investigate due to the presence of the cellophane, the defendant's nervous behavior, and his refusal to answer when asked what the cellophane was for."
Callahan filed a notice of intent to appeal the denial of his motion to suppress and later pleaded guilty. He then timely appealed the denial of his motion to suppress.
Analysis
Callahan argues that the trial court erred in denying his motion to suppress because the trial court's findings do not establish that the officers had reasonable suspicion. As explained below, we agree and therefore vacate the trial court's judgments and remand for further proceedings.
This Court reviews a motion to suppress ruling to determine "whether the trial judge's underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge's ultimate conclusions of law." State v. McKinney, 368 N.C. 161, 163, 775 S.E.2d 821, 824 (2015). Importantly, this Court cannot go behind the trial court and find its own facts based on the record. Our review is limited to the facts found by the trial court. See State v. Cooke, 306 N.C. 132, 134-35, 291 S.E.2d 618, 619-20 (1982). When those findings are insufficient to support the trial court's conclusion, we must vacate and remand. See State v. Salinas, 366 N.C. 119, 124, 729 S.E.2d 63, 67 (2012).
Here, the trial court concluded that "[t]he contact between Officer Horner and the defendant began as voluntary, but turned into a detention by the time the defendant was asked to exit the vehicle." The trial court concluded that this seizure was permissible under the Fourth Amendment because "Officer Horner had reasonable suspicion to detain the defendant and investigate due to the presence of the cellophane, the defendant's nervous behavior, and his refusal to answer when asked what the cellophane was for."
We disagree with the trial court's reasoning. Just as courts have observed that "[t]here is nothing apparently incriminating about a plastic bag," Moya v. United States, 761 F.2d 322, 326 (7th Cir. 1984), there is nothing inherently incriminating about a piece of cellophane. Cellophane has countless lawful uses. Likewise, neither a defendant's nervousness nor his refusal to answer questions from law enforcement is inherently suspicious. As our Supreme Court has observed, "[m]any people become nervous when stopped by a state trooper" or other law enforcement officer. State v. Pearson, 348 N.C. 272, 276, 498 S.E.2d 599, 601 (1998). Importantly, the trial court stated at the hearing that Callahan did not exhibit the type of "extreme nervousness" that courts have held is an indication of criminal behavior. See State v. Myles, 188 N.C. App. 42, 49-50, 654 S.E.2d 752, 757-58, aff'd, 362 N.C. 344, 661 S.E.2d 732 (2008). Finally, it is well-settled that one may refuse to answer questions during a consensual encounter with law enforcement without giving rise to any reasonable suspicion. In re I.R.T., 184 N.C. App. 579, 585, 647 S.E.2d 129, 135 (2007).
The question, then, is whether, as the State argues, the three factors on which the trial court relied "taken as a whole . . . constitute reasonable suspicion justifying Defendant's detention." We hold that they do not.
What distinguishes this case from past cases where a series of otherwise innocent behaviors justified a seizure is that, here, none of these factors are related to the reason the officers approached the vehicle in the first place. The officers might have had reasonable suspicion, for example, if they were patrolling an area known for illegal drug activity. Then, the cellophane in the suspect's lap, combined with testimony that the officer recognized that piece of cellophane as likely drug paraphernalia, and the suspect's nervousness and refusal to answer questions, might be enough to establish reasonable suspicion. Cf. In re I.R.T., 184 N.C. App. at 585, 647 S.E.2d at 135 (holding that police had reasonable suspicion to detain the defendant where "the police had received complaints that drug dealing had been occurring in the area" and the defendant put something in his mouth as officers approached, exhibited nervous behavior, and refused to speak when questioned); State v. Watson, 119 N.C. App. 395, 398, 458 S.E.2d 519, 522 (1995) (holding that an officer had reasonable suspicion to detain a defendant who appeared to be concealing something, had previously been arrested on drug charges, and was in "an area of high drug transactions").
Here, by contrast, the officers were investigating previous car break-ins and nothing in the trial court's findings connected the cellophane or anything else the officers observed to those break-ins. Thus, we hold that the three otherwise innocent grounds on which the trial court relied—"the presence of the cellophane, the defendant's nervous behavior, and his refusal to answer when asked what the cellophane was for"—were insufficient to establish reasonable suspicion based on the trial court's findings in this case. We therefore vacate the trial court's judgments and remand for further proceedings.
Conclusion
We vacate the trial court's judgments and remand for further proceedings.
VACATED AND REMANDED.
Judge CALABRIA concurs.
Judge DILLON concurs in result only.
Report per Rule 30(e).