North Carolina DWI Search and Seizure

Continuing Legal Education

Charlotte, North Carolina Continuing Legal Education as presented by Bill Powers,  Attorney at Law in 2008.  CarolinaAttorneys.com  

Contact Bill Powers:  (704)-342-HELP or (704)-342-4357

Notice to Legal Counsel – Legal Research & Reference Materials

WRITTEN MATERIALS FROM 2008 CONTINUING LEGAL EDUCATION PRESENTATION BY ATTORNEY BILL POWERS IN MECKLENBURG COUNTY. 

 CASELAW HAS DEVELOPED SINCE 2008, WHEREIN THE MATERIALS HEREIN HAVE BEEN SUPPLEMENTED, AFFIRMED AND IN SOME INSTANCES, REVERSED. 

 THE PURPOSE OF THE CONTINUING LEGAL EDUCATION SEMINAR WAS TO SET FORTH THE STATUS OF THE LAW AS IT EXISTED IN 2008 AND FURTHER TO PROVIDE A FRAMEWORK FOR ANALYSIS ON THE HISTORY OF SEARCH AND SEIZURE LAW IN NORTH CAROLINA. 

 COMPETENT COUNSEL WOULD BE WELL-SERVED IN EXTENSIVELY RESEARCHING THE STATUS OF THE DOCUMENTATION HEREIN AND UTILIZE THESE MATERIALS AS A STARTING POINT.   

 

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Introduction & General Definition

Rulings by the United States Supreme Court “sculpt out, at least theoretically, three tiers of police-citizen encounters:  (1) communications between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, (2) brief ‘seizures’ that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause.”

The Fourth Amendment of the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment protects individuals “against unreasonable searches and seizures,” U.S. Const. amend. IV, and the North Carolina Constitution provides similar protection, N.C. Const. art. I, § 20.

A traffic stop is a seizure “even though the purpose of the stop is limited and the resulting detention quite brief.” Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 1396, 59 L. Ed. 2d 660, 667 (1979).

Terry v. Ohio, 392 U.S. 1,  88 S. Ct. 1868,  20 L. Ed. 2d 889 (1968), the Supreme Court of the United States held, “It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has seized that person.”

Traffic stops have “been historically reviewed under the investigatory detention framework first articulated in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).” United States v. Delfin-Colina, 464 F.3d 392, 396 (3d Cir. 2006).

Under Terry and subsequent cases, a traffic stop is permitted if the officer has a “reasonable, articulable suspicion that criminal activity is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123, 120 S. Ct. 673, 675, 145 L. Ed. 2d 570, 576 (2000).

The first point of evaluating a warrantless encounter with police (after the vehicle is pulled over or otherwise comes in contact with law enforcement) is the issue of whether the encounter constitutes as seizure.

Terry sheds some important light on this subject:  “Obviously, not all personal intercourse between police officers and citizens involves seizures of persons.  Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a seizure has occurred.  Terry v. Ohio392 U.S. 1 at p. 19,footnote 16 (1968).

The Fourth Amendment is not, however, a blanket prohibition against all search and seizures;  rather, it prohibits unreasonable searches and seizures.  Scope and manner are important considerations.  The United States Supreme Court wrote in Terry, “a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause.”  [Emphasis added.]

In Delaware v. Prouse, 440 U.S. 648,  99 S. Ct. 1391,  59 L. Ed. 2d 660 (1979), the United States Supreme Court applied Terry to vehicle stops.  The court held:

Except in those situations in which there is at least an articulable and reasonable suspicion that a motorist is unlicensed or than an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver’s license and the registration of the automobile are unreasonable under the Fourth Amendment.

In United States v. Glover, 957 F.2d 1004 (2d Cir. 1992), the Second Circuit articulated under what circumstances an officer may make a Terry stop of an individual.  The court held:

To justify a limited Terry-type investigative stop, a law enforcement officer must have a reasonable suspicion based on articulable facts that the suspect is, has been, or is about to be engaged in criminal activity. . . .Although the concept of reasonable suspicion is not susceptible to precise definition, the requisite level of suspicion to make an investigative stop is considerably less than proof of wrongdoing by a preponderance of the evidence. . . .Still the Fourth Amendment requires some minimal level of objective justification for making the stop. . .Consequently, an officer’s inchoate suspicion or mere hunch is insufficient to justify a Terry-type detention.  [Emphasis added.]

Facts necessary to raise reasonable articulable suspicion of wrongdoing which would justify a Terry stop are varied.  Facts must be analyzed on a case by cases basis.

United State v. Lender, 985 F.2d 151, 154 (4 th Cir. 1993).  “Reasonable suspicion is a commonsensical proposition, courts are not remiss in crediting the practical experience of officers who observe on a daily basis what transpires on the street.”

United States v. Mendenhall, 446 U.S. 544, 565 -566, 64 L. Ed. 2d 497, 517 (1980),  “In applying a test of reasonableness, courts need not ignore the considerable expertise that law enforcement officials have gained from their special training and experience.”; State v. Thompson,  296 N.C. 703,  706,  252 S.E.2d 776,  779 (1979).

State v. Watkins, 337 N.C. 437, 441, 446 S.E. 2d 67, 70 (1994)  The only requirement is a minimal level of objective justification, something more than an unparticularized suspicion or hunch.” (quoting United States v. Sokolow, 490 U.S. 1, 7, 104 L. Ed. 2d 1, 10 (1989).

State v. Jordan, 120 N.C. App. 364, 367, 462 S.E.2d 234, 237 (1995) (quoting Terry v. Ohio; Watkins, 337 N.C. 437, 441, 446 S.E. 2d 67, 70 (1994). An officer may conduct a brief investigatory stop . . . if the officer is justified by specific, articulable facts which would lead a police officer to reasonably conclude in light of his experience that criminal activity my be afoot.”

State v. Willis, 125 N.C. App. 537, 541, 481 S.E.2d 407, 410 (1997) (quoting United States v. Cortez, 449 U.S. 411, 417, 66 L. Ed. 2d 621, 629 (1981). “Courts must consider the totality of the circumstances -the whole picture -in making the determination as to whether a reasonable suspicion to make an investigatory stop existed at the time the stop was made.”

Appellate Standard of Review

It is well established that the standard of review in evaluating a trial court’s ruling on a motion to suppress is that the trial court’s findings of fact are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting.  State v. Buchanan, 353 N.C. 332, 336, 543 S.E.2d 823, 826 (2001) (quoting State v. Brewington, 352 N.C. 489, 498, 532 S.E.2d 496, 501 (2000), cert. denied, 531 U.S. 1165, 121 S.Ct. 1126, 148 L.Ed.2d 992 (2001)).

In addition, findings of fact to which defendant failed to assign error are binding on appeal. State v. Lacey, 175 N.C.App. 370, 623 S.E.2d 351 (2006),

“Once this Court concludes that the trial court’s findings of fact are supported by the evidence, then this Court’s next task ‘is to determine whether the trial court’s conclusion[s] of law [are] supported by the findings.’” Brewington, 352 N.C. at 498-99, 532 S.E.2d at 502 (alterations in original) (quoting State v. Steen, 352 N.C. 227, 237, 536 S.E.2d 1, 7 (2000), cert. denied, 531 U.S. 1167, 121 S.Ct. 1131, 148 L.Ed.2d 997 (2001)).

“[T]he trial court’s conclusions of law are reviewed de novo and must be legally correct.” State v. Pickard, 178 N.C.App. 330, 334, 631 S.E.2d 203, 206, appeal dismissed and disc. rev, denied, 361 N.C. 177; 640 S.E.2d 59 (2006).

Fourth Amendment:  Lesser Standard for Vehicles & Persons

Because the balance between the public interest and the individuals right to personal security, United States v. Brignoni-Ponce, 422 U.S. 873, 878, tilts in favor of a standard less than probable cause in brief investigatory stops of persons or vehicles, the Fourth Amendment is satisfied if the officers action is supported by reasonable suspicion to believe that criminal activity may be afoot, United States v. Sokolow, 490 U.S. 1 (1989).

“In making reasonable-suspicion determinations, reviewing courts must look at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing.” United States v. Cortez, 449 U.S. 411, 417, 418.   “This process allows officers to draw on their own experiences and specialized training to make inferences from and deductions about the cumulative information available.” Id., at 418.

“[T]he evidence. . .must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.”  Cortez, 449 U.S. at 418,  66 L. Ed. 2d at 629.

“The courts’ totality of the circumstances process allows officers to draw on their own experience and specialized training to make inferences from, and deductions about, the cumulative information available to officers that might well elude an untrained person.”  United States v. Arvizu,  534 U.S. 266,  273-4,  122 S. Ct. 744,  750-1,  151 L. Ed. 2d 740,  749-50 (2002).

The Fourth Amendment prohibits unreasonable searches and seizures by the Government, and its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest. Terry v. Ohio, 392 U.S. 1, 9 (1968); United States v. Cortez, 449 U.S. 411, 417 (1981).

Because the balance between the public interest and the individuals right to personal security, United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975), tilts in favor of a standard less than probable cause in such cases, the Fourth Amendment is satisfied if the officers action is supported by reasonable suspicion to believe that criminal activity may be afoot, United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry, supra, at 30).

Cortez, 449 U.S., at 417.  “An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity”.

Sokolow, at 7  “Although an officers reliance on a mere hunch is insufficient to justify a stop. . .the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.”

Sokolow, at 9  The officer in Terry observed the petitioner and his companions repeatedly walk back and forth, look into a store window, and confer with one another. Although each of the series of acts was perhaps innocent in itself, we held that, taken together, they warranted further investigation.  Factors which by themselves were quite consistent with innocent travel collectively amounted to reasonable suspicion.

Sokolow, at 78 Rejected a holding by the Court of Appeals that distinguished between evidence of ongoing criminal behavior and probabilistic evidence because it create[d] unnecessary difficulty in dealing with one of the relatively simple concepts embodied in the Fourth Amendment.

Ornelas, at 696.  “Our cases have recognized that the concept of reasonable suspicion is somewhat abstract.”

Illinois v. Gates, 462 U.S. 213, 232 (1983) The principle of reasonable suspicion is not a finely-tuned standard; the cause sufficient to authorize police to stop a person is an elusive concept. But we have deliberately avoided reducing it to a neat set of legal rules, Ornelas, at 695, 696.

Kyllo v. United States, 533 U.S. 27, 33, 121 S.Ct. 2038, 150 L.Ed.2d 94, 101 (2001).  Government surveillance of an individual in a location where the individual possesses “a subjective expectation of privacy that society recognizes as reasonable” is a “search” within the meaning of the Fourth Amendment.

United States v. Knotts, 460 U.S. 276, 281, 103 S.Ct. 1081, 75 L.Ed.2d 55, 62 (1983).  Because “a person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another,” a law enforcement officer’s observation of that person’s movements on a public road is not a “search” for purposes of the Fourth Amendment.

The Exclusionary Rule

A stop unsupported by articulable suspicion is a pretextual stop and any evidence which results from the stop is inadmissible.  Evidence obtained at such stops is subject to the exclusionary rule first announced in Weeks v. United States, 232 U.S. 383,  34 S. Ct. 341,  58 L. Ed. 652 (1914) and extended to the states in Mapp v. Ohio,  367 U.S. 643,  81 S. Ct. 1684 , 6 L. Ed. 2d 1081 (1961).  In Murray v. United States, 487 U.S. 533,  108 S. Ct. 2529,  101 L. Ed. 2d 472 (1988), the court set out the rules as follow:

The exclusionary rule prohibits introduction into evidence of tangible materials seized during an unlawful search. . .and of testimony concerning knowledge acquired during an unlawful search.

Eleuteri v. Richman, 26 N.J. 506, 512, 141 A.2d 46, 49 (1958).  The exclusionary rule rests upon two propositions. The first is that government should not stoop to the “dirty business” of a criminal in order to catch him. The second is that civil and criminal remedies against the offending officer are as a practical matter ineffective, and hence the rule of exclusion is the only available remedy to protect society from the excesses which led to the constitutional right.

State v. Carter, 322 N.C. 709, 370 S.E.2d 553 (1988).  North Carolina was among a handful of states that adopted an exclusionary rule by statute rather than by judicial creation. The 1937 statute requiring the exclusion of evidence obtained under an illegal search warrant was amended in 1951 to extend the rule to apply to unlawful warrantless searches. The amended statute was repealed in 1969 and replaced, effective 1975, by N.C.G.S. § 15A-974.

Section 15A-974 provides in pertinent part that “[u]pon timely motion, evidence must be suppressed if: (1) Its exclusion is required by the Constitution of the United States or the Constitution of the State of North Carolina.” Since 1937 the expressed public policy of North Carolina has been to exclude evidence obtained in violation of constitutional rights against unreasonable searches and seizures.

The exclusionary sanction is indispensable to give effect to the constitutional principles prohibiting unreasonable search and seizure. The exclusionary rule is the only effective bulwark against governmental disregard for constitutionally protected privacy rights. Equally of importance in our reasoning, we adhere to the rule for the sake of maintaining the integrity of the judicial branch of government.

The preservation of the right to be protected from unreasonable search and seizure guaranteed by our state constitution demands that the courts of this state not condone violations thereof by admitting the fruits of illegal searches into evidence. This thesis was adumbrated in Weeks, 232 U.S. at 392, 34 S.Ct. at 344, 58 L.Ed. at 655. There Justice Day wrote:

The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures … should find no sanction in the judgments of the courts, which are charged at all times with the support of the Constitution, and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights.

It was given its classical formulation by Justices Holmes and Brandeis in separate and prescient dissents in the 1928 decision, Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944. In his Olmstead dissent, Justice Holmes reasoned that “no distinction can be taken between the government as prosecutor and the government as judge. If the existing code does not permit district attorneys to have a hand in such dirty business, it does not permit the judge to allow such iniquities to succeed.” 277 U.S. at 470, 48 S.Ct. at 575, 72 L.Ed. at 953.

With more passion but with equal force, Justice Brandeis concluded his dissent with these words:

Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent, teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means–to declare that the government may commit crimes in order to secure the conviction of a private criminal–would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face.

State v. Pope, 333 N.C. 106, 423 S.E.2d 740 (1992).  “When evidence is obtained as the result of illegal police conduct, not only should that evidence be suppressed, but all evidence that is the ‘fruit’ of that unlawful conduct should be suppressed.”

State v. Ivey, 360 N.C. 562,  633 S.E.2d 459 (2006).  “We conclude that Officer Rush’s stop violated defendant’s rights under the Fourth Amendment to the United States Constitution and Article I, Section 20 of the North Carolina Constitution. Because the fruit of Officer Rush’s search of the vehicle arose from the illegal stop, all evidence seized during the search should have been excluded by the trial court, and it was therefore error to deny defendant’s motion to suppress.  See Wong Sun v. United States, 371 U.S. 471, 484-87, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) (“The exclusionary prohibition extends as well to the indirect as the direct products of such invasions.”); Mapp v. Ohio, 367 U.S. 643, 654-55, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) (applying the exclusionary rule to the states, thereby barring admission of evidence obtained in violation of the Fourth Amendment in state criminal trials).  [Emphasis added.]

Probable Cause to Stop:  Traffic Offenses & Statutory Authority

Probable cause need not exist before an officer may stop an automobile and conduct a limited investigative inquiry of its occupants.  A violation of a traffic law is sufficient to give rise to reasonable articulable suspicion.  Put simply, a readily observable traffic violation can provide probable cause for a traffic stop.

A law enforcement officer may stop a motorist when the officer has “probable cause” to believe that the motorist has committed a readily observed traffic infraction.  Whren v. United States, 517 U.S. 806, 819, 116 S.Ct. 1769, 135 L.Ed.2d 89, 101 (1996); see also State v. Wilson, 155 N.C.App. 89, 94-95, 574 S.E.2d 93, 97-98 (2002) (recognizing a distinction between an investigative “Terry” stop supported by reasonable articulable suspicion of criminal wrongdoing and a traffic stop supported by probable cause to believe the driver has committed a readily observable traffic violation).

North Carolina recognized Whren in State v. McClendon, 350 N.C. 630, 517 S.E.2d 128 (1999).  A law enforcement officer’s subjective motivation for stopping a motorist is irrelevant to the validity of a traffic stop if the stop is supported by probable cause. Whren, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89; accord State v. McClendon, 350 N.C. 630, 635-36, 517 S.E.2d 128, 132 (1999) (adopting Whren under the North Carolina State Constitution).

“Probable cause is ‘a suspicion produced by such facts as indicate a fair probability that the person seized has engaged in or is engaged in criminal activity.’” Wilson, 155 N.C.App. at 94, 574 S.E.2d at 97-98 (quoting State v. Young, 148 N.C.App. 462, 471, 559 S.E.2d 814, 818, appeal dismissed and disc. review denied, 355 N.C. 500, 564 S.E.2d 233 (2002)).

State v. Baublitz, 172 N.C.App. 806, 616 S.E.2d 619 (2005)  The fact that an officer conducting a traffic stop did not subsequently issue a citation is also irrelevant to the validity of the stop if objective circumstances surrounding the stop indicate that the defendant committed a readily observed traffic infraction.

HELD:  Officer’s “objective observation” that a defendant’s vehicle crossed the center line of a highway twice, in violation of N.C.G.S. § 20-146(a) provided the officer with probable cause to stop the defendant for a traffic violation regardless of the officer’s subjective motivation for making the stop and that the officer’s failure to issue a traffic ticket to the defendant after arresting him for possession of cocaine was irrelevant.

State v. Ivey, 360 N.C. 562,  633 S.E.2d 459 (2006).  “Thus, the United States and North Carolina Constitutions require an officer who makes a seizure on the basis of a perceived traffic violation to have probable cause to believe the driver’s actions violated a motor vehicle law.”  See McClendon, 350 N.C. at 635-36, 517 S.E.2d at 132 (adopting the reasoning of Whren v. United States in interpreting Article I, Section 20 of the North Carolina Constitution). The standard of probable cause is a basic tenet that applies regardless of whether the action is taken by a deputy sheriff, a city police officer, a state Alcohol Law Enforcement agent, or a wildlife enforcement officer.

State v. Villeda, 165 N.C.App. 431, 438-39, 599 S.E.2d 62, 67 (2004).  Law enforcement officer did not have probable cause to stop a defendant for a seat belt violation because the evidence indicated that the officer could not see inside vehicles driving in front of him at night on the stretch of road on which the defendant was driving.

State v. Parker, 183 N.C. App. 1, 644 S.E.2d 235 (2007) Probable cause for traffic stop where officer observed excessive speeding violations.

State v. Baublitz, 172 N.C. App. 801, 616 S.E.2d 615 (2005).  Probable cause for traffic stop where officer observed vehicle cross center line in violation N.C. Gen. Stat. § 20-146(a).

State v. Hernandez, 170 N.C. App. 299, 612 S.E.2d 420 (2005).  Probable cause for traffic stop where officer observed seat belt infraction in violation of N.C. Gen. Stat. § 20-135.2A(a);

State v. Brewington, 170 N.C. App. 264, 612 S.E.2d 648 (2005).  Probable cause for traffic stop where officer observed seat belt infraction in violation of N.C. Gen. Stat. § 20-135.2A(a);

State v. Barnhill, 166 N.C. App. 228, 601 S.E.2d 215 disc. review denied, 359 N.C. 191, 607 S.E.2d 646 (2004).  Probable cause for traffic stop where officer observed vehicle traveling at excessive speed in violation of N.C. Gen. Stat. § 20-141(a).

State v. Reynolds, 161 N.C. App. 144, 587 S.E.2d 456 (2003).  Probable cause for traffic stop where officer “observed defendant commit two traffic offenses, including exceeding the posted speed limit and failure to use a signal, when changing lanes.”

State v. Wilson, 155 N.C. App. 89, 574 S.E.2d 93 (2002), disc. review denied, 356 N.C. 693, 579 S.E.2d 98, cert. denied, 540 U.S. 843, 157 L. Ed. 2d 78 (2003). Probable cause for traffic stop where officer observed vehicle following another vehicle more close than reasonable and prudent in violation of N.C. Gen. Stat. § 20-152(a).

State v. Hamilton, 125 N.C. App. 396, 481 S.E.2d 98, disc. review denied, 345 N.C. 757, 485 S.E.2d 302 (1997).  Probable cause for traffic stop where officer observed seat belt infraction in violation of N.C. Gen. Stat. § 20-135.2A(a).

State v. Kincaid, 147 N.C. App. 94, 555 S.E.2d 294 (2001)  Investigatory vehicle stop reasonable when suspicion defendant driving while license revoked.

State v. Schiffer, 132 N.C. App. 22, 510 S.E.2d 165, disc. review denied, 350 N.C. 847, 539 S.E.2d 5 (1999).   Investigatory vehicle stop reasonable when officer believed defendant’s vehicle violated N.C. Gen. Stat. § 20-127.

State v. Satterfield, No. COA03-912 (2004).  Defendant was not following the directions of the Highway Patrol N.C. Gen. Stat. § 20-114.1(a) (2003) provides:  No person shall willfully fail or refuse to comply with any lawful order or direction of any law-enforcement officer or traffic-control officer invested by law with authority to direct, control or regulate traffic, which order or direction related to the control of traffic.

State v. Morocco, 99 N.C.App. 421, 427, 393 S.E.2d 545, 548 (1990).  The 30-day temporary tag was illegible because both the expiration date and the numbers were “faded out.”

G.S. 20-79.1(e) states that the date of issuance and expiration are to appear “clearly and indelibly on the face of each temporary registration plate.” See G.S. 20-79.1(k), 20-63(c).

HELD:            Sufficient competent evidence from which to conclude that the officer had an articulable and reasonable suspicion that the tag may have been more than thirty days old in violation of G.S. 20-79.1(h) and that the vehicle may have been improperly registered with the Department of Motor Vehicles in violation of G.S. 20-50.

Reasonable Suspicion to Stop:  General Discussion

A lesser standard than probable cause may also justify a stop when a law enforcement officer has a reasonable suspicion that a traffic violation is being committed, but when that suspicion can only be verified by stopping the vehicle.

Before a police officer may stop a vehicle and detain its occupants without a warrant, the officer must have a reasonable suspicion that criminal activity may be occurring. State v. McArn, 159 N.C. App. 209, 582 S.E.2d 371 (2003), (citing Terry v. Ohio, 392 U.S. 1, 30, 20 L. Ed. 2d 889, 911, 88 S. Ct. 1868, 1884 (1968)).

United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740, (2002).  [F]actors supporting reasonable suspicion are not to be viewed in isolation.

State v. Crenshaw, 144 N.C.App. 574,  551 S.E.2d 147, (2001). (“[I]ndividually, any of the factors cited [in articulating reasonable suspicion] might not justify a search, but one cannot piecemeal this analysis. One piece of sand may not make a beach, but courts will not be made to look at each grain in isolation and conclude there is no seashore.”

State v. Jones, 96 N.C. App. 389, 395, 386 S.E.2d 217, 221 (1989), disc. review denied, 326 N.C. 366, 389 S.E.2d 809 (1990), the North Carolina Court of Appeals held that the vehicle stop was justified where the evidence presented raised grounds for a reasonable suspicion the defendant was driving while impaired “[D]espite the lack of an observed and verifiable traffic code violation.”

State v. Hernandez, 170 N.C.App. 299, 303-04, 612 S.E.2d 420, 423 (2005).  An appellate court accords great deference to the trial court’s ruling on a motion to suppress because the trial court is entrusted with the duty to hear testimony (thereby observing the demeanor of the witnesses) and to weigh and resolve any conflicts in the evidence. Review of a trial court’s denial of a motion to suppress is strictly limited to a determination of whether [its] findings are supported by competent evidence, and in turn, whether the findings support the trial court’s ultimate conclusion. However, the trial court’s conclusions of law are reviewed de novo and must be legally correct.

State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 70 (1994). “[R]easonable suspicion” requires that “[t]he stop . . . be based on specific and articulable facts, as well as the rational inferences from those facts, as viewed through the eyes of a reasonable, cautious officer, guided by his experience and training.”

All that is required is a “minimal level of objective justification, something more than an ‘unparticularized suspicion or hunch.’” Id. at 442, 446 S.E.2d at 70 (quoting U.S. v. Sokolow, 490 U.S. 1, 7, 104 L. Ed. 2d 1, 10, 109 S. Ct. 1581 (1989)). A court must consider the totality of the circumstances in determining whether reasonable suspicion to make an investigatory stop existed. Id. at 441, 446 S.E.2d at 70.

State v. Bonds, 139 N.C. App. 627 (2000).  Defendant’s vehicle stopped at an intersection. Officer noticed that defendant’s driver-side window was rolled down all the way, even though the outside temperature was twenty-eight degrees. Officer also observed defendant had “a blank look on his face” and never turned his head to make eye contact with the officer. After the light changed, Officer proceeded to follow defendant for approximately a half mile. The speed limit on this stretch of road was forty miles per hour, but defendant’s speed never reached more than thirty miles per hour.

Important Factors:

 

1.         Officer had been specifically trained to look for certain indicators of intoxication,    including some of the ones used for stop & arrest;

2.         Officer had ten years of experience in “this area” and had even made several arrests            using the exact same indicators that were present for Defendant’s arrest;

3.         An officer’s training and experience must be considered in analyzing the “reasonable            suspicion” standard. Thompson, 296 N.C. at 703, 252 S.E.2d at 779.

4.         The National Highway Traffic Safety Administration (“NHTSA”) has updated metrics and information: https://www.nhtsa.gov/people/injury/research/pub/Alcohol-ImpairedDriving.html#crashes

5.         Statistic lends objective credibility to Officer’s suspicions, demonstrating that his    suspicions were in fact reasonable — something more than just a “hunch.”

Subjective Intention of Officer Irrelevant

In Whren v. United States, 517 U.S. 806,  116 S. Ct. 1769,  135 L. Ed. 2d 89  (1996), the Supreme Court of the United States ruled that where the police stopped a vehicle for a minor traffic offense as an excuse to search for drugs, there was no violation of the Fourth Amendment.  The Supreme Court stated, in response to the question of the police officer’s motivation, “Subjective intentions play no role in ordinary, probable cause Fourth Amendment analysis.”  The court went on to say, “[T]he Fourth Amendment’s concern with ‘reasonableness’ allows certain actions to be taken in certain circumstances, whatever the subjective intent.”

Reasonable Suspicion:          Factual Considerations

Reasonable Suspicion:          Unusual Hour

State v. Rinck,  303 N.C. 551,  560,  280 S.E.2d 912, 920 (1981) The “unusual hour” is an appropriate factor for a law enforcement officer to consider in formulating a reasonable suspicion.

State v. Fox, 58 N.C.App. 692, 294 S.E.2d 410 (1982), aff’d per curiam, 307 N.C. 460, 298 S.E.2d 388 (1983). Court concluded that the officer there had a reasonable suspicion justifying a stop of a vehicle proceeding slowly on a dead-end street of locked businesses at 12:50 a.m. in an area with a high incidence of property crime. The defendant, who was driving, appeared to avoid the officer’s gaze.

State v. Tillet and State v. Smith, 50 N.C.App. 520, 274 S.E.2d 361, appeal dismissed, 302 N.C. 633, 280 S.E.2d 448 (1981).  Court  held that an  investigatory stop was justified by a reasonable suspicion in that the officer there was aware of reports of “firelighting” deer in the area and he saw a car entering a heavily wooded, only seasonally occupied area at approximately 9:40 p.m.

State v. Roberson,  163 N.C. App. (2004)  Defendant’s driving, including the delayed reaction at the traffic light, did not give rise to a reasonable, articulable suspicion that she was driving while under the influence.  Defendant was stopped at 4:30 a.m. in an area that hosted several bars and restaurants; however, by law, those establishments were prohibited from serving alcohol after 2:00 a.m.

Moreover, the furniture market’s presence in town did not serve to increase the level of suspicion related to defendant’s delayed reaction at the traffic light.

The investigatory stop occurred at 10:05 p.m. on the same unlit street where the domestic disturbance had taken place. While three officers were dispatched to the disturbance call, Deputy Franklin was the first to arrive. He knew only that the suspect was male. At the time State v. Harris, No. COA04-1132 (2005)  The stop occurred at 10:05 p.m. on the same unlit street where a domestic disturbance had taken place. Officer observed no activity other than defendant’s van leaving a location very near the place where officer believed the location of the disturbance to be.

State v. Blackstock, 165 N.C.App. 50, 598 S.E.2d 412, (2004). appeal dismissed and disc. rev. denied, 359 N.C. 283, 610 S.E.2d 208 (2005). “[A]ctivity at an unusual hour” may be considered but is not sufficient by itself to establish reasonable suspicion.

Reasonable Suspicion: Bars in Area

State v. Roberson,  163 N.C. App. (2004)  Defendant’s driving, including the delayed reaction at the traffic light, did not give rise to a reasonable, articulable suspicion that she was driving while under the influence.  Defendant was stopped at 4:30 a.m. in an area that hosted several bars and restaurants; however, by law, those establishments were prohibited from serving alcohol after 2:00 a.m.

Reasonable Suspicion: Weaving

State v. Watson, 122 N.C. App. 596, 599, 472 S.E.2d 28, 30 (1996).  Police officer observed the defendant driving on the dividing line of a two-lane highway near a nightclub. After the officer turned to follow the defendant’s vehicle, the officer noticed the vehicle weaving back and forth within its lane for about 15 seconds. Id. at 598, 472 S.E.2d at 29.

State v. Jacobs, No. COA02-1668 (N.C. App. 1/20/2004) (N.C. App., 2004).  Defendant’s weaving within his lane for three-quarters of a mile at 1:43 a.m. in an area near bars was sufficient to establish a reasonable suspicion of impaired driving. Facts indistinguishable from Watson in that, although defendant’s weaving within his lane was not a crime, that conduct combined with the unusual hour and the location was sufficient to raise a reasonable suspicion of impaired driving

State v. Jones, 96 N.C. App. 389, 395, 386 S.E.2d 217, 221 (1989), disc. review denied, 326 N.C. 366, 389 S.E.2d 809 (1990).  Defendant was driving 20 miles below speed limit and weaving within his lane.

State v. Davis, State v. Davis, No. COA03-647 (2004).  Weaving within own lane for over half a mile, cross the center line while traveling ten miles an hour below the posted speed limit.

State v. Aubin, 100 N.C. App. 628, 397 S.E.2d 653 (1990), disc. review denied, 328 N.C. 334, 402 S.E.2d 443, cert. denied, 502 U.S. 842,116 L. Ed. 2d 101 (1991).   Weaving within lane plus driving only forty-five miles per hour on the interstate.

State v. Adkerson, 90 N.C. App. 333, 368 S.E.2d 434 (1988).  Weaving within lane and off road.

State v. Bonds, 139 N.C. App. 627, 629, 533 S.E.2d 855, 857 (2000).  “[D]efendant correctly points out that most North Carolina cases upholding investigatory stops in the context of driving while impaired have involved weaving within a lane or weaving between lanes.”  “But just because most of our cases have involved weaving does not mean that only those cases involving weaving will meet the reasonable suspicion standard.:

****Weaving was not part of Bonds fact scenario.

State v. Watkins, 337 N.C. 437, 441, 446 S.E. 2d 67, 70 (1994)..  Officer testified that he believed that “at three o’clock in the morning” any vehicle at a “place of business that is closed normally” is a suspicious vehicle.  Officer testified that the car was “continually weaving” within its lane, but that “he never crossed the center line or go off the road.” Officer testified that as he followed the car with the blue light on, the car was continually weaving within its lane, but that he never crossed the center line or went off the road.  Case involved anonymous caller who did not identify himself/herself, did not give a description of the car, and did not make any statements to support the conclusion the car was suspicious.  HELD:  Sufficient Reasonable Suspicion

State v. Thompson, 154 N.C. App. 194 (2002).  Early morning hours, high rate of speed (50/35 or 55/35 mph zone), radar clock confirming over posted speed, ½ to 1 Mile followed, weave within lane, tough the left line separating two lanes twice with both left tires.  Note:            Reasonable Suspicion argument irrelevant, officers possessed probable cause to stop for speeding.

Reasonable Suspicion: Appearance of Impairment

State v. White, 311 N.C. 238, 244, 316 S.E.2d 42, 46 (1984).  A driver’s intoxicated appearance, as observed by an officer driving by, held to be sufficient.  On the day in question, Officer with 12 years of experience was on routine patrol. Upon observing the defendant parking in a no parking area, the sergeant drove past defendant and made eye contact with him. The officer was of the opinion that the defendant “appeared to be highly intoxicated according to the way he looked.”

Reasonable Suspicion: Red Light / Green Light

State v. Roberson,  163 N.C. App. (2004)  Defendant’s driving, including the delayed reaction at the traffic light, did not give rise to a reasonable, articulable suspicion that she was driving while under the influence.  Defendant was stopped at 4:30 a.m. in an area that hosted several bars and restaurants; however, by law, those establishments were prohibited from serving alcohol after 2:00 a.m.

“A motorist waiting at a traffic light can have her attention diverted for any number of reasons. Moreover, as there was no other vehicle behind defendant to redirect her attention to the green light through a quick honk of the horn, a time lapse of eight to ten seconds does not appear so unusual as to give rise to suspicion justifying a stop.”

“When defendant did cross the intersection, there was nothing suspicious about her driving and thus no indication that she may have been under the influence of alcohol. Consequently, The fact that Officer observation of defendant gave rise to no more than an “’unparticularized suspicion or hunch.’“ Steen, 352 N.C. at 239, 536 S.E.2d at 8

Reasonable suspicion, “cannot be rehabilitated by adding to the mix of considerations the general statistics advocated by the State on time, location, and special events from which a law enforcement officer would draw his inferences based on his training and experience.”

“[Statistical] inferences must still be evaluated against the backdrop of everyday driving experience . . . [and the time of day of the stop] does not enhance the suspicious nature of the observation [of the delay]”).

“The furniture market’s presence in town did not serve to increase the level of suspicion related to defendant’s delayed reaction at the traffic light.”

State v. Barnard, 645 S.E.2d 780 (N.C. App., 2007).  Around 12:15 a.m. Officer was on patrol in a high crime area of downtown where a number of bars are located. Officer was driving a marked patrol car and was behind defendant’s vehicle, which was stopped at a red traffic light. When the light turned green, defendant remained stopped for approximately thirty seconds before making a left turn. Based upon his training and experience, Officer considered that the delayed reaction to the green light was an indicator that the driver of the vehicle may be impaired.

HELD:  When considering the totality of the circumstances, the trial court’s findings provide the requisite objective justification from which a conclusion can be drawn that reasonable suspicion existed to warrant the stop.

“The instant case is distinguishable in that the length of defendant’s delay at the traffic light, at thirty seconds, was three times longer than the delay in Roberson. A thirty second delay goes well beyond the delay caused by a motorist’s routine distractions, such as changing a radio station, glancing at a map or looking in the rear view mirror.”

State v. Parker, 137 N.C.App. 590, 598, 530 S.E.2d 297, 302 (2000).  Defendant stopped at an intersection and “remained stopped for some 30 seconds without any reasonable  appearance of explanation for doing so.”

Reasonable Suspicion:  High Crime Area & Recent Crime

State v. Fleming, 106 N.C.App. 165, 415 S.E.2d 782 (1992).  Police officer observed two young men at 12:10 a.m. in a drug area. The officer observed the two men watching him and other police officers for a few minutes; then, the two men turned and started walking the other way. The officer got in his vehicle and drove around to the men and told them to stop and come to him. The men complied, and the officers searched Defendant and found drugs. HELD:  Officer had only a generalized suspicion that the defendant was engaged in criminal activity, based upon the time, place and the officer’s knowledge.  “Should these factors be found sufficient to justify the seizure of this defendant, such factors could obviously justify the seizure of innocent citizens[.]” 106 N.C.App. at 171, 415 S.E.2d at 785-86.

State v. Fox, 58 N.C.App. 692, 294 S.E.2d 410 (1982), affirmed per curium, 307 N.C. 460, 298 S.E.2d 388 (1983). The court concluded that the officer there had a reasonable suspicion justifying a stop of a vehicle proceeding slowly on a dead-end street of locked businesses at 12:50 a.m. in an area with a high incidence of property crime. The defendant, who was driving, appeared to avoid the officer’s gaze.

State v. Tillet and State v. Smith, 50 N.C.App. 520, 274 S.E.2d 361, appeal dismissed, 302 N.C. 633, 280 S.E.2d 448 (1981).  Court  held that an  investigatory stop was justified by a reasonable suspicion in that the officer there was aware of reports of “firelighting” deer in the area and he saw a car entering a heavily wooded, only seasonally occupied area at approximately 9:40 p.m.

State v. Harris, No. COA04-1132 (2005).  The stop occurred at 10:05 p.m. on the same unlit street where a domestic disturbance had taken place. Officer observed no activity other than defendant’s van leaving a location very near the place where officer believed the location of the disturbance to be.

State v. Thompson, 296 N.C. 703, 252 S.E.2d 776 (1979).   Van and a motorcycle were located in a public parking area in an isolated region of county at the end of State Highway. The hour was late, approximately 12:30 a. m. The officers were aware that break-ins involving a van had been reported recently in the vicinity. The front passenger door and the side door of the van were observed to be open.

HELD:  A not unreasonable inference to be drawn from these empirical facts was that the occupants of the van might be in some way connected with the reports of recent break-ins in the vicinity. Indeed, even absent the reports of recent break-ins, given the late hour, the isolated location of the van in a public place, and the considerable activity around it observed by the officers, the inference might reasonably be drawn that the situation warranted investigation.

“These facts and the reasonable inferences to be drawn, when viewed as a whole and through the eyes of experienced police officers, would, we believe, justify a  reasonable suspicion that the occupants of the van might be engaged in or connected with criminal activity.”

State v.Campbell, 656 S.E.2d 721 (N.C. App., 2008).  Proximity to a crime scene, time of day, and the absence of other persons in the vicinity of a crime scene are insufficient, in and of themselves, to establish reasonable suspicion.  Alleged breaking and entering in progress and call concerning a bicyclist. Defendant had an illuminated light on his cap, and the bicycle had a headlight and two flashing rear reflectors. Officer testified that she recognized defendant “by face[,] not name.” Officer drove past defendant, turned around, drove back past defendant, and pulled off the road into a parking lot. Officer watched as defendant took a right turn onto the uphill on-ramp of Highway Bypass. Defendant stopped at the top of hill, and Officer turned on her overhead lights and spotlights. She observed that defendant was wearing a backpack and was “playing with something in his backpack.” Officer testified that she stopped defendant because he was “coming from the area that the burglary came out of.”

State v. Cooper, No. COA06-1356, 649 S.E.2d 664 (2007).  Proximity to a crime scene, without more, was insufficient to establish reasonable suspicion.

Reasonable Suspicion:  Use of Turn Signals

In making a determination of whether an officer had probable cause to stop defendant, the court must consider the alleged violation of North Carolina traffic law.  North Carolina General Statutes provide:

The driver of any vehicle upon a highway or public vehicular area before starting, stopping or turning from a direct line shall first see that such movement can be made in safety, and if any pedestrian may be affected by such movement shall give a clearly audible signal by sounding the horn, and whenever the operation of any other vehicle may be affected by such movement, shall give a signal as required in this section, plainly visible to the driver of such other vehicle, of the intention to make such movement. The driver of a vehicle shall not back the same unless such movement can be made with safety and without interfering with other traffic.  N.C.G.S. § 20-154(a) (2005).

Consistent with subsection 20-154(a), “[t]he duty to give a statutory signal of an intended . . . turn does not arise in any event unless the operation of some ‘other vehicle may be affected by such movement.’” Cooley v. Baker, 231 N.C. 533, 536, 58 S.E.2d 115, 117 (1950) (quoting N.C.G.S. § 20-154(a)); accord Clarke v. Holman, 274 N.C. 425, 429-30, 163 S.E.2d 783, 786-87 (1968).

State v. Ivey, 360 N.C. 562, 633 S.E.2d 459 (2006).  [U]nless a reasonable officer would have believed, under the circumstances of the stop, that defendant’s actions violated subsection 20-154(a), Officer Rush lacked probable cause to stop defendant’s vehicle. More specifically, unless a reasonable officer would have believed that defendant’s failure to use his turn signal at this intersection might have affected the operation of another vehicle, then Officer Rush’s stop and subsequent search were unconstitutional.”

Extent of Seizure of Person

“The validity of an officer’s investigative or protective conduct upon making a Terry stop is determined in each case by a balancing the extent of the intrusion against the immediacy and importance of the interest in crime prevention or law enforcement, which is sought to be advanced.”  Michigan v. Long,  463 U.S. 1032,  103 S. Ct. 3469,  77 L. Ed. 2d 1201 (1983).

State v. Falana, 129 N.C.App. 813, 816, 501 S.E.2d 358, 360 (1998).  Generally, the scope of the detention must be carefully tailored to its underlying justification. Once the original purpose of the stop has been addressed, there must be grounds which provide a reasonable and articulable suspicion in order to justify further delay.”

State v. McClendon, 350 N.C. 630, 636, 517 S.E.2d 128, 133 (1999). “After a lawful stop, an officer may ask the detainee questions in order to obtain information concerning or dispelling the officer’s suspicions.” Id., 350 N.C. at 636, 517 S.E.2d at 132.

State v. Kincaid, 147 N.C.App. 94, 99, 555 S.E.2d 294, 299 (quoting United States v. Elliott, 107 F.3d 810, 814 (10th Cir.1997).  “[T]he return of documentation would render a subsequent encounter consensual only if a reasonable person under the circumstances would believe he was free to leave or disregard the officer’s request for information.”

State v. Cuevas, 121 N.C.App. 553, 468 S.E.2d 425 (quoting State v. West, 119 N.C.App. 562, 566, 459 S.E.2d 55, 58, appeal dismissed and disc. review denied, 341 N.C. 656, 462 S.E.2d 524 (1995)), disc. review denied, 343 N.C. 309, 471 S.E.2d 77 (1996).  “A seizure does not occur until there is a physical application of force or submission to a show of authority.”

State v. Brooks, 337 N.C. 132, 142, 446 S.E.2d 579, 586 (1994).  No seizure occurred where officer approached and questioned individual sitting in parked car.

State v. Cuevas, 121 N.C.App. at 563, 468 S.E.2d at 431.  No seizure occurred where officer followed taxicab and opened its door after it stopped because he did not order it to stop, did not engage his siren, and did not order defendant to stay in the taxicab.

State v. Farmer, 333 N.C. at 187, 424 S.E.2d at 129 (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497, 509 (1980)  Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.

“A seizure does not occur, however, ‘when an officer shouts, Stop, in the name of the law,’ and the person continues to flee. To constitute a seizure, there must be … a submission to the officer’s show of authority ( [i.e.,] the person stops as a result of the officer’s command).” Robert L. Farb, Arrest, Search, and Investigation in North Carolina at 286 (2d ed.1992); see Hodari D., 499 U.S. at 629, 111 S.Ct. at 1552, 113 L.Ed.2d at 699.  Officer’s pursuit of defendant did not constitute seizure until officer tackled defendant).

United States v. Hill, 340 F.Supp. 344 (E.D.Pa.1972).  State v. Streeter, 283 N.C. 203, 195 S.E.2d 502 (1973).  No one is protected by the Constitution against the mere approach of police officers in a public place.”

Seizure:  Intensity & Scope

In Terry, the Supreme Court stated that “a search which is reasonable at its inception may violated the Fourth Amendment by virtue of its intolerable intensity and scope.  Terry v. Ohio, 392 U.S. 1,  88 S. Ct. 1868,  20 L. Ed. 2d 889 (1968).

To pass constitutional muster, not only does there need to be a reasonable and articulable suspicion justifying a traffic stop but also the nature of the stop must be reasonable under the circumstances.  Specifically, the intrusion must be confined to what is “minimally necessary” under the circumstances, and it must be extensive or prolonged.  Terry v. Ohio, 392 U.S. 1,  88 S. Ct. 1868,  20 L. Ed. 2d 889 (1968).

Defense counsel should consider the duration of the stop, the extent of police questioning and any use of physical force or other intimidation during the stop.

State v. Myles, 654 S.E.2d 752 (2008), Defendant’s vehicle because the vehicle weaved in its lane, indicating the driver may be impaired. During the stop, Officer did not detect an odor of alcohol either in the car, on defendant, or passenger. Officer described both occupants of vehicle as cooperative. Passenger’s license check revealed he had a valid license. Furthermore, Officer did not find any weapons or contraband on passenger. Because there was no evidence to indicate either passenger or defendant was impaired, Officer considered the traffic stop “completed” because he had “completed all [his] enforcement action of the traffic stop.” Therefore, in order to justify Officer’s further detention of defendant, Officer must have had defendant’s consent or “grounds which provide a reasonable and articulable suspicion in order to justify further delay” before he questioned defendant. Falana, 129 N.C.App. at 816, 501 S.E.2d at 360.

State v. Morocco, 99 N.C.App. 421, 427-28, 393 S.E.2d 545, 549 (1990).  “The scope of the detention must be carefully tailored to its underlying justification.” (quoting Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229, 238 (1983)).

Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).  Once the original purpose of the stop has been addressed, there must be grounds which provide a reasonable and articulable suspicion in order to justify further delay.

State v. Pearson, 348 N.C. 272, 498 S.E.2d 599 (1998).   The following circumstances were the basis of the officer’s suspicions that the defendant was armed and dangerous: (1) the defendant had an odor of alcohol, (2) the defendant acted nervous and excited, and (3) the defendant made statements inconsistent with those of the passenger with regard to their whereabouts the night before.  When considered as a whole, “[to] warrant a reasonable belief that criminal activity was afoot….” the Court stated, “[t]he nervousness of the defendant is not significant. Many people become nervous when stopped by a state trooper. The variance in the statements of the defendant and his fiancée did not show that there was criminal activity afoot.” Thus, the Court held that “the circumstances … did not justify a nonconsensual search of the defendant’s person.”

HELD:  Seizure of contraband from the defendant’s person was improper and that his motion to suppress this evidence should have been granted.

State v. Hudson, 103 N.C. App. 708 (1991).  Officer justified in asking defendant to step out of car after failing to produce driver’s license or vehicle registration.

Pennsylvania v. Mimms,  434 U.S. 106,  98 S.Ct. 330 (1977).  The safety of an officer exposed to heavy traffic during a stop for a traffic violation is a legitimate concern and justifies the officer’s request that the driver step out of the vehicle to a place nearby where the inquiry may be pursued with greater safety.

New York v. Class, 475 U.S. 106,  106 S.Ct. 960 (1986).  Out of concern for the safety of the police, the United States Supreme Court has held that officers may, consistent with the Fourth Amendment, exercise their discretion to require a driver who commits a traffic violation to exit the vehicle even though they lack any particularized reason for believing the driver possesses a weapon.

Michigan v. Long,  463 U.S. 1032,  103 S.Ct. 3469 (1983).  “[P]olice may order persons out of an automobile during a stop for a traffic violation, and may frisk those persons for weapons if there is a reasonable belief that they are armed and dangerous.”

Terry,  “[T]he officer need not be absolutely certain that the individual is armed;  the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. . .And in determining whether the officer acted reasonably is such circumstances, due weight must be given. . .to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.”

Plain View Doctrine

State v. Bagnard, 24 N.C. App. 54,  210 S.E.2d 93 (1974), cert. Denied, 286 N.C. 416,  211 S.E.2d 796 (1975).  “When an officer’s presence at the scene is lawful (and at least if he did not anticipate finding such evidence), he may, without a warrant, seize evidence which is in plain sight and which he reasonably believes to be connected with the commission of a crime, even though the ‘incident to arrest’ doctrine would not apply; and such evidence is admissible.”

Automobile Exception to Warrant Requirement

Warrantless searches of motor vehicles are sanctioned because “the pervasive schemes of regulation, which necessarily lead to reduced expectations of privacy, and the exigencies attendant to ready mobility justify searches without prior recourse to the authority of a magistrate so long as the overriding standard of probable cause is met.”  [Emphasis added.]

The inherent mobility of motor vehicles which makes it impracticable, if not impossible, for a law enforcement officer to obtain a warrant for the search of an automobile while the automobile remains within the officer’s jurisdiction and the decreased expectation of privacy which citizens have in motor vehicles, United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), which results from the physical characteristics of automobiles and their use. Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974). California v. Carney, 471 U.S. 386, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985).

A search of a motor vehicle which is on a public roadway or in a public vehicular area is not in violation of the fourth amendment if it is based on probable cause, even though a warrant has not been obtained. United States v. Ross, 456 U.S. 798,  102 S.Ct. 2157,  72 L.Ed.2d 572 (1982).

State v. Isleib, 319 N.C. 634, 356 S.E.2d 573 (1987). A warrant is not required to perform a lawful search of a vehicle on a public road when there is probable cause for the search.

State v. Earhart, 134 N.C.App. 130, 133, 516 S.E.2d 883, 886 (1999).  “Probable cause exists where ‘the facts and circumstances within . . . [the officers’] knowledge and of which [the officers] had reasonable trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed.’”

State v. Jordan, 277 N.C. 341, 177 S.E.2d 289, (1970) (discussing Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970)).  “[W]here probable cause exists to search an automobile, it is reasonable (1) to seize and hold the automobile before presenting probable cause issue to a magistrate or (2) to carry out an immediate search without a warrant.” 

Passenger Area & Closed Containers Search

Michigan v. Long, 463 U.S. 1032,  103 S. Ct. 3469,  77 L. Ed. 2d 1201 (1983).  The United States Supreme Court has upheld the validity of protective searches notwithstanding the plain view doctrine by stating, “[T]he search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on ‘specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant’ the officer in believing that the suspect is dangerous and the suspect may gain immediate control of the weapons. . . .If a suspect is “dangerous,” he is no less dangerous simply because he is not arrested.

“If, while conducting a legitimate Terry search of the interior of the automobile, the officer should, as here, discover contraband other than weapons, he clearly cannot be required to ignore the contraband, and the Fourth Amendment does not require its suppression in such circumstances.”

Detention for Dog Sniff

Illinois v. Caballes,  543 U.S. 405,  125 S. Ct. 834,  160 L. Ed. 2d 842  (2005), Trooper A stops a car for speeding and Trooper B (who has a “drug dog” in his vehicle) hears the radio call and goes there within minutes of the initial stop.  He uses the dog to circle the stopped car, sniffing for drugs.  HELD:  A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violated the Fourth Amendment if the time spent for the initial stop was not prolonged.

Failure to Cooperate 

In Florida v. Bostick,  501 U.S. 429,  111 S. Ct. 2382,  115 L. Ed. 2d 389 (1991), the United States Supreme Court stated, “We have consistently held that a refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.”

State v. Fleming, 106 N.C.App. 165, 170-71, 415 S.E.2d 782, 785 (1992). An individual may legally avoid contact with the police. (individuals walked “in a direction which led away from the group of officers”). This avoidance, standing alone, is not sufficient to raise a reasonable and articulable suspicion of criminal activity.

State v. Farmer 333 N.C. 172,  424 S.E.2d 120 (1993), quoting Florida v. Royer, 460 U.S. 491,  103 S. Ct. 1319,  75 L.Ed.2d 229 (1983). An individual need not answer any question put to him [by an officer]; indeed he may decline to listen to the questions at all and may go on his way. He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds.

Fourth Amendment:  The Passenger

It is not unreasonable under the Fourth Amendment of the United States Constitution to detain a passenger when a vehicle has been stopped due to a traffic violation committed by the driver of the car.

In 2007, the United States Supreme Court clarified any double that a passenger in a vehicle that has been pulled over without probable cause or articulable suspicion can raise the same Fourth Amendment challenges as the driver of the vehicle.  Brendlin v. California,  127 S. Ct. 2400,  168 L. Ed. 2d 132 (2007).

Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41, (1997).  An officer making a traffic stop may order passengers to get out of the car pending completion of the stop.  However, a passenger may not be detained indefinitely.

State v. Castellon, 151 N.C.App. 680, 566 S.E.2d 699 (____).  Once the original purpose of the stop has been addressed, there must be grounds which provide a reasonable and articulable suspicion in order to justify further delay.

Reasonable Suspicion:  Anonymous Tips / Concerned Citizens / Informant Stops / 911 Calls

Where the alleged criminal activity or traffic violation is witnessed by a private citizen rather than the police, such as where a concerned citizen witnesses a vehicle driving dangerously and calls the police, for a police officer to be able to stop the vehicle, the concerned citizen must have provided enough sufficiently detailed and specific information to the police that the officer is sufficiently sure that the vehicle he stops is the subject of the report.  The “concerned citizen” report is generally dealt with the same manner as a tip from an anonymous person.

Alabama v. White,  496 U.S. 325,  110 S. Ct. 2412,  110  L. Ed. 2d 301 (1990), the Supreme Court of the United States held that for an anonymous tip to provide a basis for articulable suspicion for police to make an investigatory stop, the tip must provide some basis for predicting the future behavior of the subject of suspicion.  Also see Brown v. Texas,  43  U.S.  47,  99 S. Ct. 2637,  61 L. Ed. 2d 357 (1979).

Alabama v. White,  496 U.S. 325,  110 S. Ct. 2412,  110  L. Ed. 2d 301 (1990), the United States Supreme Curt held that an anonymous tip which provided detailed “inside information” and depicted familiarity with the suspect’s affairs would give police the necessary reasonable suspicion to search the defendant’s car.

State v. Watkins, 337 N.C. 437, 441, 446 S.E. 2d 67, 70 (1994).  The anonymous caller did not identify himself/herself, did not give a description of the car, and did not make any statements to support the conclusion that the car was suspicious. Distinguish Alabama v. White, anonymous caller gave many details which could be verified such as the name of the person, a good description of the car and an accurate prediction of where the person was going). In the instant case, the anonymous caller provided Officer with no details which could be verified in order to determine if defendant’s vehicle was in fact the alleged suspicious vehicle. The call failed to state what made the vehicle suspicious. Moreover, the caller failed to state that any criminal activity was connected with the suspicious.

HELD:  Sufficient Reasonable Suspicion**  Multiple factors considered by Court of Appeals, but not addressed in Supreme Court reversal.

Florida v. J.L., 529 U.S. 266, 270, 120 S.Ct. 1375, 1378, 146 L.Ed.2d 254, 260 (2000) (quoting  Alabama).   “Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if [the] allegations turn out to be fabricated, `an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity.’“

State v. McArn, 159 N.C. App. 209, 582 S.E.2d 371 (2003).  “An anonymous tip may provide reasonable suspicion if it exhibits sufficient indicia of reliability and if it does not, then there must be sufficient police corroboration of the tip before the stop can be made.”

IS IT PROBABLE CAUSE OR REASONABLE SUSPICION TO STOP in light of Villeda, Styles, Ivey & Barnard*****

While there are instances in which a traffic stop is also an investigatory stop, warranting the use of the lower standard of reasonable suspicion, the two are not always synonymous. A traffic stop made on the basis of a readily observed traffic violation such as speeding or running a red light is still technically governed by probable cause.

Probable cause is a suspicion produced by such facts as indicate a fair probability that the person seized has engaged in or is engaged in criminal activity.  On the other hand, a traffic stop based on an officer’s mere suspicion that a traffic violation is being committed, but which can only be verified by stopping the vehicle, such as impaired driving or driving with a revoked license, is classified as an investigatory stop, also known as a Terry stop.

Such an investigatory-type traffic stop is justified if the totality of circumstances affords an officer reasonable grounds to believe that criminal activity may be afoot.

State v. Wilson, 155 N.C. App. 89, 94-95, 574 S.E.2d 93, 97-98 (2002) (quoting State v. Young, 148 N.C. App. 462, 470-71, 559 S.E.2d 814, 820-21 (2002) (Greene, J., concurring) (citing State v. Hamilton, 125 N.C. App. 396, 399, 481 S.E.2d 98, 100 (1997) (officer had probable cause to stop the vehicle for the purpose of issuing seatbelt citations because he had observed both the driver and the defendant without seatbelts)) (citations omitted), appeal dismissed and disc. review denied, 356 N.C. 693, 579 S.E.2d 98 (2003).

State v. Villeda, 165 N.C.App. 431, 599 S.E.2d 62 (2004).  Law enforcement officer did not have probable cause to stop a defendant for a seat belt violation because the evidence indicated that the officer could not see inside vehicles driving in front of him at night on the stretch of road on which the defendant was located.  Officer acted within racial, profiling motivation in effectuating stop.

Trooper testified he observed a broken tail-light, and ran the vehicle’s tags through the computer. The computer search indicated the vehicle was uninsured.  Trooper further testified Defendant was not wearing a seat belt.

The trial court concluded “[t]here was no credible evidence of a particularized, reasonable articulable suspicion to justify the traffic stop” and “the investigatory detention of [defendant therefore] violated the Fourth and Fourteenth Amendments to the United States Constitution.”

The trial court further concluded that defendant offered sufficient evidence to support a prima facie showing that the Trooper engaged in racial profiling and that defendant “was stopped pursuant to intentional racially discriminatory law enforcement conduct.”

Because the trial court, as the finder of fact, has the duty to pass upon the credibility of the evidence and to decide what weight to assign to it and which reasonable inferences to draw therefrom, “’[t]he appellate court cannot substitute itself for the trial court in this task.’” Nationsbank of North Carolina v. Baines, 116 N.C. App. 263, 269, 447 S.E.2d 812, 815 (1994) (quoting General Specialties Co. v. Teer Co., 41 N.C. App. 273, 275, 254 S.E.2d 658, 660 (1979)).

State v. McClendon, 350 N.C. 630, 635, 517 S.E.2d 128, 131 (1999). “[P]rovided objective circumstances justify the action taken, any ‘ulterior motive’ of the officer is immaterial.”

State v. Styles, No. 442A07 (N.C. 8/27/2008) (N.C., 2008) In the years since Whren, this Court has occasionally discussed whether a traffic stop was constitutional in terms of probable cause.” See State v. Ivey, 360 N.C. 562, 633 S.E.2d 459 (2006); State v. McClendon, 350 N.C. 630, 517 S.E.2d 128 (1999).

State v. Styles, “At the same time, a distinction has developed in the Court of Appeals by which that court has required probable cause for traffic stops ‘made on the basis of a readily observed traffic violation,’ but reasonable suspicion for stops ‘based on an officer’s mere suspicion that a traffic violation is being committed.’ State v. Young, 148 N.C. App. 462, 470-71, 559 S.E.2d 814, 820-21 (Greene, J., concurring), appeal dismissed and disc. rev. denied, 355 N.C. 500, 564 S.E.2d 233 (2002), quoted in State v. Wilson, 155 N.C. App. 89, 94, 574 S.E.2d 93, 97-98 (2002), appeal dismissed and disc. rev. denied, 356 N.C. 693, 579 S.E.2d 98, and cert. denied, 540 U.S. 843, 124 S. Ct. 113, 157 L. Ed. 2d 78 (2003).

Seven Member Panel of the NC Supreme Court.

1.         Majority HELD:          “The State argues this distinction is incorrect because reasonable suspicion is the standard for both types of traffic stops. We agree.”

2.         Justice Hudson HELD:           “Concurs in result only.” Stating, “This finding of fact indicates that defendant’s failure to signal violated N.C.G.S. §20-154(a), because it is clear that changing lanes immediately in front of another vehicle may affect the operation of the trailing vehicle. . .Observation of defendant’s traffic violation gave him the required reasonable suspicion to stop defendant’s vehicle.”

3.         “Note 1” by majority reads, “Our holding is consistent with McClendon and Ivey.”  Further adding, “To the extent language in Ivey may be interpreted as requiring probable cause, we specifically disavow that interpretation.  In short, under this Court’s post-Whren cases, probable cause is sufficient, but not necessary, for a traffic stop.” [Emphasis added.]

Hudson Dissent, Joined by Justice Timmons-Goodson,

1.         Referencing Terry, “'[n]o right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.’“ Id. at 9 (quoting Union Pac.Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891)). The Court noted that “whenever a police officer accosts an individual and restrains his freedom to walk away, he has `seized’ that person.” Id. at 16.

2.         Further states, “In State v. Ivey, this Court clearly, unambiguously, and unanimously stated that ‘the United States and North Carolina Constitutions require an officer who makes a seizure on the basis of a perceived traffic violation to have probable cause to believe the driver’s actions violated a motor vehicle law.’ 360 N.C. 562, 564, 633 S.E.2d 459, 461 (2006) (citing State v. McClendon, 350 N.C. 630, 635-36, 517 S.E.2d 128, 132 (1999)). The majority relegates this clear standard in Ivey to ‘misinterpretations’ and only discusses it in passing, stating merely that ‘this Court has occasionally discussed whether a traffic stop was constitutional in terms of probable cause’” Ivey’s discussion of the standard is indistinguishable from the present case, as the statute under which defendant was stopped is the exact same statute that was at issue in Ivey.”

3.         Criticizing the “majority” Brady adds, “Rather than rely upon the controlling authority of this Court’s prior decisions, the majority has sought out non-authoritative opinions of federal circuit courts with which to justify its departure from our case law.”

4.         Referring to Fourth Amendment rights, Brady quotes Supreme Court of the United States Justice Robert Jackson,  [A]re not mere second-class rights but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. And one need only briefly to have dwelt and worked among a people possessed of many admirable qualities but deprived of these rights to know that the human personality deteriorates and dignity and self-reliance disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police.

5.         Warns of Police are “Chief Invaders.”             “But the right to be secure against searches and seizures is one of the most difficult to protect. Since the officers are themselves the chief invaders, there is no enforcement outside of court.”  Brinegar v. United States, 338 U.S. 160, 180-181 (1949) (Jackson, J., dissenting).

“I cannot agree that a brief, cryptic, and confusing statement by a law enforcement officer, which conveys insufficient information whether a purported traffic violation occurred, is a sufficient factual basis to support a finding of probable cause. The effect of the majority opinion is to retroactively issue a general warrant to Officer Jones, allowing him to be the judge in his own case, thereby ‘dangerously exposing the citizens of North Carolina to the potential for unreasonable and arbitrary police practices unchecked by our state’s trial and appellate courts.’” State v. Barnard, ____N.C.____,  658 S.E.2d at 646 (2008) (Brady, J., dissenting).

6.         Declares the majority has violated Stare Decisis:   “Today, the Court has fallen disappointingly short of enforcing the dictates of the Fourth Amendment and of Article I, Section 20 of the North Carolina Constitution and has disregarded our longstanding precedent. I therefore respectfully dissent.”

Probable Cause for Arrest:  Defined

 State v. Wooten, 34 N.C.App. 85, 88, 237 S.E.2d 301, 304 (1977). “An arrest is constitutionally valid whenever there exists probable cause to make it.”

State v. Mangum, 30 N.C.App. 311, 226 S.E.2d 852 (1976). Probable cause exists when the facts and circumstances known to the arresting officer at the time of arrest were sufficient to warrant a prudent man in believing that the defendant had committed or was committing an offense.

G.S. § 15A-401(b)(1); Wooten,  “[A]n officer may arrest without a warrant any person who the officer has  probable cause to believe has committed a criminal offense in the officer’s presence.”

State v. Rudolph, 39 N.C.App. 293, 250 S.E.2d 318, disc. rev. denied, appeal dismissed, 297 N.C. 179, 254 S.E.2d 40 (1979).  Any incriminating evidence which comes to the officer’s attention during a valid investigatory detention may establish a reasonable basis for finding the probable cause necessary for effecting a warrantless arrest.

State v. Zuniga, 312 N.C. 251, 259, 322 S.E.2d 140, 145 (1984). ““To be lawful, a warrantless arrest must be supported by probable cause.”

“Probable cause for an arrest has been defined to be a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty. . .”

This requires less than evidence which would justify …’ conviction.” In determining if probable cause exists, one must examine the particular facts and circumstances of each case.

Berkemer v. McCarty, 468 U.S. 420,  104 S. Ct. 3138,  82 L. Ed. 2d 317 (1984).  The test for determining whether a traffic stop has become a full arrest is “[w]hether a reasonable person in the suspect’s position would have thought the detention would not be temporary.”

In Berkemer, the United States Supreme Court defined “custodial interrogation” as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”  468 U.S. at 444.

The United States Supreme Court has ruled that when determining whether a suspect is “in custody,” a court must look at the objective circumstances of the interrogation, and not the subjective views of either the interrogating officer or the suspect.  Stansbury v. California,  511 U.S. 318,  114 S. Ct. 1526,  128 L. Ed. 2d 293 (1994).

Stansbury  indicates that the “ultimate inquiry” is simply whether there was a “formal arrest or restraint on freedom of movement” of the degree associated with a formal arrest.

Whether an arrest is constitutionally valid depends upon whether, a the moment the arrest is made, the facts and circumstances within the officer’s knowledge and information are sufficient to warrant a prudent man or woman to believe that the defendant has committed or is committing an offense.  Beck v. Ohio,  379 U.s. 89,  85 S. Ct. 233,  13 L. Ed. 2d 142 (1964);  Henry v. United States, 361 U.S. 98,  80 S. Ct. 168,  4 L. Ed. 2d 134 (1959).

State v. Myles, 654 S.E.2d 752 (2008), Defendant’s vehicle because the vehicle weaved in its lane, indicating the driver may be impaired.  Defendant exhibited more than ordinary nervousness; defendant was fidgety and breathing rapidly, sweat had formed on his forehead, he would sigh deeply, and he would not make eye contact with the officer. This, taken in the context of the totality of the circumstances found to exist by the trial court, gave rise to a reasonable suspicion that criminal activity was afoot. Id., 350 N.C. at 639, 517 S.E.2d at 134.

“To be lawful, a warrantless arrest must be supported by probable cause.” State v. Zuniga, 312 N.C. 251, 259, 322 S.E.2d 140, 145 (1984). “ ‘Probable cause for an arrest has been defined to be a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty. . . .’”

Illinois v. Gates, 462 U.S. 213, 244 n. 13, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). [P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.”

State v. Streeter, 283 N.C. 203, 207, 195 S.E.2d 502, 505 (1973).  “Probable cause for an arrest has been defined to be a reasonable ground of suspicion, supported by circumstances strong in themselves to warrant a cautious man in believing the accused to be guilty.”

Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003). “The probable-cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances.”

State v. Harris, 279 N.C. 307, 311, 182 S.E.2d 364, 367 (1971) (quoting 5 Am.Jur.2d Arrests § 44 (1962)).  Probable cause for an arrest is “‘a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty.’”

State v. Crawford, 125 N.C.App. 279, 282, 480 S.E.2d 422, 424 (1997).

To justify a warrantless arrest, it is not necessary to show that the offense was actually committed, only that the officer had a reasonable ground to believe it was committed.  Whether these grounds exist is determined by the practical and factual considerations of everyday life on which reasonable and prudent people act.

State v. Morocco, 99 N.C.App. 421, 427, 393 S.E.2d 545, 548 (1990).  The 30-day temporary tag was illegible because both the expiration date and the numbers were “faded out.” A violation of either G.S. 20-50 or G.S. 20-79.1 is a misdemeanor offense. G.S. 20-176(a).

G.S. 20-79.1(e) states that the date of issuance and expiration are to appear  “clearly and indelibly on the face of each temporary registration plate.” See G.S. 20-79.1(k), 20-63(c).

HELD:            Sufficient competent evidence from which to conclude that the officer had an articulable and reasonable suspicion that the tag may have been more than thirty days old in violation of G.S. 20-79.1(h) and that the vehicle may have been improperly registered with the Department of Motor Vehicles in violation of G.S. 20-50.

Probable Cause to Arrest:    Fact Specific

 

State v. Tappe, 533 S.E.2d 262 (2000).

NC COA:  99-168

Relevant Facts:

Breathalizer Reading of 0.34

Officer met vehicle traveling opposite direction and “observed it cross the center line” after passing the patrol automobile.

Officer “could smell alcohol that was inside” the vehicle

Defendant “had a strong odor of alcohol about his breath”

“As defendant accompanied officer to patrol automobile, officer observed ‘a strong odor of alcohol about [defendant’s] breath, [and] his eyes were watery and glassy.”

Open container of “Milwaukee beer” in vehicle

Defendant “also remarked that he was of German origin and that ‘in Germany they drank beer for water.’”

State v. Teate,  638 S.E.2d 29 (2006)

NC COA         2006

Relevant Facts:

Drive through checkpoint

Very Strong Odor Alcohol coming from vehicle

Moderate Odor Alcohol coming from Defendant

“Some” to drink

Eyes Appeared Glassy

Speech Slurred

Trouble Completing Sentences

Speech slurred

Appeared “think tongued” and having trouble with words

Two Field Sobriety Tests

Count backwards 67 to 58

Performance: “Hesitated on the numbers sixty-one and fifty-nine, enough to be noticeable”

Count one through four and back touching each finger w/ thumb

“On the second cycle of counting, the defendant missed touching her second finger twice and instead of counting one, two, three, four, then four, three, two, one, she counted, one, two, three, four, then one, two, three, four.”

“On the third cycle of counting, the defendant counted one, two, three, four, then four, three, three, one and missed the second finger counting.”

Two More Roadside Tests:  Two Suppressed by Court

“Not Certified to Administer those Tests”

Refused to consider HGN:  “but the court considered the two counting tests and the AlcoSensor test, despite the fact that Officer Doty was not certified to administer those tests.”

“Officer Doty testified that he employed the nonstandard counting tests because defendant reported balance problems and was wearing high heeled boots.”

***Suggestion that certain tests “Standardized”

***Suggestion that “Certification” necessary for AlcoSensor & SFST’s

Admission of AlcoSensor

“Officer Doty had been trained by his field training officer how to use that instrument, but is not certified to conduct such a test.”

AlcoSensor assigned to specific car and no one else used his patrol car except himself

“Instrument had undergone its required preventative maintenance according to the log maintained in the Granite Quarry Police Department.”

2x .08 on AlcoSensor

“Here, AlcoSensor results were admitted during the motion to suppress hearing for the purpose of determining whether Officer Doty had probable cause to arrest defendant.  No objection was made when the test results were introduced.  Since no objection was made, we need not address the issue of whether an officer must be certified to administer such tests.”  [Emphasis added.]

“Because no objection was made to the introduction of the counting tests at either the motion to suppress hearing or at trial, the introductions of those tests is beyond the scope of this appeal.”

State v. Adkerson, ____N.C. App. _____, (1988).

Relevant Facts:

Headlights darting back and forth as if it were weaving

Weaved back and forth in its lane five or six times

Trooper “followed the car for about a quarter of a mile and within that distance the car weaved back and forth in its lane five or six times and ran off the side of the road once.”

Ran off the right side of the road once.

“In a daze”

“Eyes were extremely red”

“Adkerson’s eyes were extremely red and glass and that he appeared to be in a daze.”

“Moderate odor of alcohol about his breath”

“Just stared around”

“Moved sort of slowly”

Defendant “was not normal”

Adkerson “moved sort of slowly” and that “he appeared to be nervous and in his opinion was not normal”

“In the case below, Trooper Robles based his opinion upon the manner in which Adkerson drove his car, the fact that Adkerson’s eyes were red and glassy, the way Adkerson moved, and the fact that he appeared to be nervous and not normal.”

State v. Thomas, _____N.C. App. _____, (1997).

Relevant Facts:

“Emergency room nurse told officer that a patient on medication that would impair her ability to operate a motor vehicle was leaving the hospital”

“Nurse identified patient to officer”

Defendant was “slumbered down in the passenger seat” with “eyes closed”

“After woman acknowledged that she was on medication that would impair her ability to drive, defendant woke up and started speaking to her.”

“Officer detected a strong odor of alcohol coming from his breath”

“Noticed that defendant’s eyes were very red and bloodshot”

“In addition, his physical appearance was disorderly.”

“Officer believed defendant’s mental and/or physical faculties were impaired by the consumption of alcohol.”

“When the defendant saw him, he started backing the car up, but did not back up in a straight line or follow the curve of the driveway.”

“In fact, had he continued, he would have backed into the curb.”

“Defendant could not produce a driver’s license or registration.”

“Appearance was disorderly”

“Based on his observations of defendant, the fact that defendant backed up upon seeing him and defendant’s inability to produce either a driver’s license or registration, Officer Bigelow arrested him.”

**Suggestion that “many of the factors identified by officer would, if viewed singly, be insufficient to establish probable cause, they are clearly sufficient when considered as a whole.”

“Based on his observations of the defendant- – including his disorderly appearance, red glassy eyes, the strong odor of alcohol, backing up when he saw Officer Bigelow, and inability to produce either a driver’s license or registration- – -Officer Bigelow arrested defendant.”

“Taken as a whole, this evidence is clearly sufficient to establish probable cause.”

State v. Johnston, 115 N.C. App. 715 (1994).

**Probable Cause for Arrest Exists if independent basis, to wit:  Failure to Carry License or Registration

Relevant Facts:

“Trooper Ashby asked defendant why he turned off of the road prior to the license check and for his driver’s license.”

Probable Cause to Arrest:

“[[A drivers] license shall be carried by the licensee at all times while engaged in the operation of a motor vehicle.”  N.C.G.S. §20-7(n).  See N.C.G.S. §20-7(a).  Failure to carry one’s license at all times while engaged in the operation of a motor vehicle is a misdemeanor.  N.C.G.S. §20-35.  See also N.C.G.S. §20-29.”

“Accordingly, Trooper Ashby had sufficient probable cause at that time and place to place defendant under arrest.”  State v. Hudson,  103 N.C. App. 708,  407 S.E.2d 583 (1991) disc. Review denied,  330 N.C. 615,  412 S.E.2d 91 (1992);  see also United States v. Dixon, 729 F. Supp. 1113 (1990).

State v. Hudson, 103 N.C. App. 708 (1991).

**Probable Cause for Arrest Exists if independent basis, to wit:  Failure to Carry License or Registration

“Any person operating or in charge of a motor vehicle, when requested by an officer in uniform … who shall refuse, on demand of such officer … to produce his license and exhibit same to such officer … for the purpose of examination … shall be guilty of a misdemeanor.” G.S. 20-29. Defendant stated that he did not have a driver’s license. Operating a motor vehicle without being licensed by the Division of Motor Vehicles is a misdemeanor. G.S. 20-7(a), (o). Failure to carry one’s license “at all times while engaged in the operation of a motor vehicle” is also a misdemeanor. G.S. 20-7(n), (o). Accordingly, the officers had sufficient probable cause to place defendant under arrest for these violations. See United States v. Dixon, 729 F.Supp. 1113, 1116 (W.D.N.C.1990).

 SOURCES OF INFORMATION

These materials were prepared for Continuing Legal Education, in an attempt to provide a nuts and bolts understanding of reasonable suspicion and probable cause issues related to Impaired Driving offenses in North Carolina.

Numerous reference sources were utilized, with either direct or partial portions of information placed directly into the text.  This paper is not intended as a formalized publication necessitating footnotes; although, in most instances a case site is provided.

At the same time, I would like to particularly thank the following friends and mentors, from whom I have received permission to take, borrow, steal and manipulate their lofty thoughts, papers and written materials.  They gave me the framework and encouragement to begin the process of writing this paper.  For that I will be forever thankful.

William R. Head, Esquire

William C. Head, PC

5 Concourse Pkwy

#2340

Atlanta, GA 30328

Office: (404) 567-5515

Website

 

David Teddy, Esquire

Teddy & Meekins

1219 Fallston Road

Shelby, NC 28150

Toll Free: 800-314-5290

 

Anne Bleyman, Esquire

Law Office of Anne Bleyman

1818 Martin Luther King Boulevard, Suite 146

Chapel Hill, NC 27514

919-593-0782

Abtigerlaw@earthink.net

Supplemental Resource Materials:

PLEASE NOTE, CASELAW IN THIS AREA OF LAW HAS CHANGED DRAMATICALLY SINCE THE POST DATE IN 2014.  THE MATERIALS HEREIN ARE INTENDED AS A REFERENCE SOURCE AND BEGINNING POINT FOR SUBSTANTIAL LEGAL RESEARCH AS TO THE HISTORY, LOGIC AND FACTUAL SUMMARIES OF CASES IN NORTH CAROLINA.  

NHTSA Metrics:  https://www.nhtsa.gov/people/injury/research/pub/Alcohol-ImpairedDriving.html#crashes

2005 NIAAA / NIH Guide to Sentencing Offenders:  https://pubs.niaaa.nih.gov/publications/SentencingDWI/A_Guide2.pdf

Impaired Driving Detection:  https://researchscript.com/ijrcs/ijrcsvol3issue3/ijrcs030304

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