State v. Watkins11/21/1995
hat the tip to Harbour was anonymous. See Watkins, 337 N.C. at 442, 446 S.E.2d at 70. In his supplemental motion, defendant presented evidence that the "anonymous tip" in this case was fabricated by police. Defendant's new evidence was pertinent and presented after a pretrial determination and denial of his motion to suppress, and the State's assignment is overruled.
II
Although there was testimony which would support contrary findings than those made by the trial court, we are bound by the trial court's determinations of credibility and the weight to be afforded the testimony, absent an abuse of discretion. State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619-20 (1982). We see no abuse of discretion here, where there is competent evidence, testimony by Carter and defendant, which supports findings that Fowler made the call and arranged to meet Shockley so that he could radio the report to the Sheriff's Department. See State v. Smith, 118 N.C. App. 106, 111, 454 S.E.2d 680, 683 (question on appeal from suppression motion is whether findings are supported by competent evidence and whether findings support legally correct Conclusions of law), cert. denied, 340 N.C. 362, 458 S.E.2d 196 (1995). This competent evidence also supports the trial court's findings that Fowler acted with "trickery" and made a report based upon a situation which he orchestrated in reckless disregard for the truth.
III
In Watkins, our Supreme Court determined that Harbour's stop of defendant was justified by his reasonable suspicion, which was based upon an anonymous tip and his own observations, following the tip, of the defendant. Watkins, 337 N.C. at 442-43, 446 S.E.2d at 70-71. The question in the present case is, however, whether a "tip" which is fabricated by a police officer may serve as a basis for an officer's reasonable suspicion.
Although reasonable suspicion is less stringent than probable cause, it nevertheless requires that statements from tipsters carry some "indicia of reliability." Alabama v. White, 496 U.S. 325, 332, 110 L. Ed. 2d 301, 310, 110 S. Ct. 2412 (1990). Because the evidence which supports a reasonable suspicion, like that supporting probable cause, must bear some "indicia of reliability," it follows that the evidence which will support reasonable suspicion, though it may be of a lesser "quantity or content" than that to support probable cause, White, 496 U.S. at 330, 110 L. Ed. 2d at 309, must be genuine and not contrived misstatements by law enforcement officers. See Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978) (misstatements and material omissions by government employees cannot legally support a determination of probable cause). Furthermore, "police cannot insulate officer's deliberate misstatement merely by relaying it through an officer-affiant personally ignorant of its falsity." Franks, 438 U.S. at 163, 57 L. Ed. 2d at 677 n.6.
In this case, Fowler orchestrated a situation which, after alerting a second officer who knew nothing of Fowler's actions, gave rise to another officer's reasonable suspicion. The facts upon which Harbour's reasonable suspicion were grounded were not genuine and the fact that he had no knowledge of Fowler's "trickery" does not attenuate his actions from Fowler's illegal actions. Franks, 438 U.S. at 163, 57 L. Ed. 2d at 677 n.6; see State v. Cooke, 54 N.C. App. 33, 45, 282 S.E.2d 800, 808 (1981), aff'd, 306 N.C. 132, 291 S.E.2d 618 (1982). Accordingly, the trial court properly granted defendant's motion to suppress.
Affirmed.
Judges MARTIN, Mark D., and MCGEE concur.
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