Smith's Criminal Case Compendium

Smith's Criminal Case Compendium

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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.

Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.

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E.g., 11/27/2021
E.g., 11/27/2021

Law enforcement officers were attempting to serve an arrest warrant early in the morning at an apartment complex in New Mexico. They noticed the plaintiff in the parking lot and realized she was not the subject of the warrant but wished to speak with her. As they approached, the plaintiff entered her car. According to the plaintiff, she did not immediately notice the police approaching (and was admittedly under the influence of methamphetamine). When an officer tried to open her car door to speak with her, she noticed armed men surrounding her car for the first time and drove off, fearing a carjacking. Although not in the path of the vehicle, the officers fired 13 rounds at the car as it drove away. The plaintiff was struck twice in her back but escaped, only to be apprehended the next day. She sued under 42 U.S.C. § 1983 for excessive force, alleging that the shooting was an unreasonable Fourth Amendment seizure. The district court granted summary judgment to the officers and the Tenth Circuit affirmed. Circuit precedent held that no seizure occurs when an officer’s use of force fails to obtain control of the suspect. The Supreme Court granted certiorari and reversed 5-3.

Under the Fourth Amendment, a seizure of a person occurs when law enforcement applies physical force or when a person submits to an officer’s show of authority. In Hodari D. v. California, 499 U.S. 621 (1991), the Court noted that the application of any physical force to a suspect constituted an arrest (and therefore a seizure) under the common law, even if the use of force was unsuccessful in gaining control of the suspect. “An officer’s application of physical force to the body of a person ‘for the purpose of arresting him’ was itself an arrest—not an attempted arrest—even if the person did not yield.” Torres Slip op. at 4 (citations omitted). This is distinct from seizure by show of authority, where the seizure is not complete until the suspect submits to the authority. See Hodari D. The rule that physical force completes an arrest as a constructive detention is widely acknowledged in the common law.

That the use of force by law enforcement here involved the application of force from a distance (by way of the bullets) did not meaningfully alter the analysis. The Court observed: “The required ‘corporal sei[z]ing or touching the defendant’s body’ can be as readily accomplished by a bullet as by the end of a finger.” Torres Slip op. at 11 (citation omitted). But not all applications of force or touches will constitute a seizure. For Fourth Amendment purposes, only where an officer applies force with an “intent to restrain” the suspect does the use of force rise to the level of a seizure.  An accidental or incidental touching would not qualify, nor would the use of force for a purpose other than with the intent to restrain. Intent to restrain is analyzed under an objective standard. The question is not what the officer intended (or what the suspect perceived), but rather whether the circumstances objectively indicate an intent by officers to restrain the suspect. The level of force used by officers remains relevant in that inquiry. A seizure by application of force lasts no longer than the application of force, and the length of the seizure may be relevant to the question of damages or suppression of evidence. Taking the facts in the light most favorable to the plaintiff, the officers here seized the plaintiff by using force with an intent to restrain her.

The defendant-officers sought a rule that no seizure would occur until there is “intentional acquisition of control” by police of a suspect. They contended that the common law rule from Hodari D. was meant to apply only to arrests for civil debt matters, not criminal cases. The majority rejected this argument, finding no distinction at common law between civil or criminal arrests. The common law tort of false imprisonment provides support for the seizure principle at issue—even a moment of wrongful confinement creates liability for false imprisonment, just as a mere touching accomplishes an arrest. The approach proposed by the defendants would eliminate the distinction between arrest by show of authority and arrest by use of force. This would create confusion about when a suspect is considered to be under an officer’s control, and how long a suspect would need to be under the officer’s control.

The dissent faulted the majority’s definition of seizure as “schizophrenic” and inconsistent with the law of property seizures and the Fourth Amendment. The majority responded:

[O]ur cases demonstrate the unremarkable proposition that the nature of a seizure can depend on the nature of the object being seized. It is not surprising that the concept of constructive detention or the mere-touch rule developed in the context of seizures of a person—capable of fleeing and with an interest in doing so—rather than seizures of ‘houses, papers, and effects.’ Id. at 19-20.

The majority also rejected accusations by the dissent that its decision was result-oriented or designed to appear so. The Court noted its holding was narrow. The decision does not determine the reasonableness of the seizure, the question of potential damages, or the issue of qualified immunity for the officers. In the words of the Court:

[A] seizure is just the first step in the analysis. The Fourth Amendment does not forbid all or even most seizures—only unreasonable ones. All we decide today is that the officers seized Torres by shooting her with intent to restrain her movement.  Id. at 20.

Justice Gorsuch dissented, joined by Justices Alito and Thomas. They disagreed that a mere touching with intent to restrain constitutes a Fourth Amendment seizure where the officer fails to obtain control of the suspect and would have affirmed the Tenth Circuit.  Justice Barrett did not participate in the case.

In this drug trafficking case arising out of a traffic stop, the court affirmed the conclusion of the Court of Appeals that the law enforcement officer who arrested the defendant violated the Fourth amendment by prolonging the stop without the defendant’s consent or a reasonable articulable suspicion of criminal activity.  Highway Patrol Trooper Lamm, a member of the Patrol’s Criminal Interdiction Unit who was assigned to aggressively enforce traffic laws while being on the lookout for other criminal activity including drug interdiction and drug activity, clocked the black male defendant’s vehicle by radar being operated at a speed of 78 miles per hour in a 65 mile-per-hour zone.  Lamm initiated a traffic stop and observed at its outset that there was a black female passenger and a female pit bull dog inside the vehicle.  The defendant provided Lamm with his New York driver’s license and the rental agreement for the vehicle, which indicated that the female passenger, Usha Peart who also was the defendant’s fiancée, was the renter and that the defendant was an additional authorized driver.  Trooper Lamm ordered the defendant out of the vehicle, which Lamm characterized as displaying “signs of . . . hard [continuous] driving,” and into the front seat of Lamm’s patrol car, where he further ordered the defendant to close the door of the patrol car, which the defendant did after expressing some reluctance.  Trooper Lamm did not consider the defendant to be free to leave at this point and began to question the defendant about his travel and other activities.  Upon confirming that things were sufficiently in order regarding the rental car, Lamm completed the traffic stop and returned all paperwork to the defendant, telling him that the stop was concluded.  About 20 minutes had elapsed at this point.  After telling the defendant that the stop had ended, Lamm said “I’m going to ask you a few more questions if it is okay with you,” and construed the defendant’s continued presence in his patrol car as voluntary.  Lamm testified that despite informing the defendant that the stop had ended, defendant would still have been detained, even if he denied consent to search the vehicle and wanted to leave.  Lamm asked the defendant for consent to search the vehicle, to which he replied “you could break the car down,” but further explained that Lamm should seek consent from Peart since she had rented the car.  Lamm told the defendant to “sit tight” in the patrol vehicle as Lamm went to confer with Peart.  At this time, Trooper Ellerbe, also a member of the Criminal Interdiction Unit, arrived at the scene in response to Lamm’s request for backup where he was informed by Lamm that Lamm was going to attempt to obtain consent to search from Peat.  Ellerbe then stationed himself next to Lamm’s passenger seat where the defendant remained seated with the door closed.  Lamm proceeded to talk with Peart and obtained her signature on the State Highway Patrol form “Written Consent to Search,” which he had completed himself.  Lamm then discovered cocaine in the backseat area of the vehicle and directed Ellerbe to place the defendant in handcuffs.

With this recitation of the factual circumstances surrounding the stop and search, the court proceeded to analyze, under the two-pronged analysis of Terry v. Ohio, 392 U.S. 1 (1968), (1) whether the stop was reasonable at its inception, and (2) whether the continued stop was “sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure.”  Focusing on the second prong of the analysis because the defendant conceded that the stop was lawful at is inception, the court cited its previous decision in State v. Bullock, 370 N.C. 256 (2017) while explaining that “the duration of a traffic stop must be limited to the length of time that is reasonably necessary to accomplish the mission of the stop,” and that a law enforcement officer may not detain a person “even momentarily without reasonable, objective grounds for doing so.”  The critical question on this second prong in the traffic stop context is whether Trooper Lamm “diligently pursued a means of investigation that was likely to confirm or dispel [his] suspicions quickly, during which time it was necessary to detain the defendant” or whether Lamm unlawfully extended an otherwise-completed stop.  Reviewing its own precedent and that of the U.S. Supreme Court, the court explained that all of Trooper Lamm’s investigative activities until the point where Lamm returned the defendant’s paperwork, issued the warning ticket, and told the defendant that the stop had ended were lawful.  At that point, however, the mission of the stop was accomplished and Lamm unlawfully prolonged it by detaining the defendant in his patrol car and asking the defendant further questions without reasonable suspicion.  As to whether reasonable suspicion existed to prolong the stop, the court found that inconsistencies in Lamm’s testimony demonstrated that he was unable to articulate an objective basis for his purported reasonable suspicion and was unable to articulate the time at which he formulated such suspicion.  The court disagreed with dissenting justices who took the view that the defendant’s nervousness, his explanation of travel plans, the condition of the rental car, and the fact that it had been paid for in cash provided reasonable suspicion, saying that these circumstances were generally consistent with lawful travel and were unremarkable.  The court concluded by agreeing with the Court of Appeals that the trial court erred in denying the defendant’s motion to suppress evidence obtained as a result of the defendant’s unlawful detention.

Justice Newby dissented, explaining that in his view, and as the trial court had found, the defendant consented to the prolonging of the stop in order to allow Trooper Lamm to ask him a few more questions.

Justice Davis, joined by Justices Newby and Ervin, also dissented, expressing the view that even is the defendant’s consent to search was not voluntary, Trooper Lamm possessed reasonable suspicion to extend the stop.  In finding that reasonable suspicion existed, Justice Davis noted the defendant and his passenger’s inconsistent statements regarding their travel plans, certain features of the rental car agreement, the fact that the car had been paid for in cash, and the condition of the interior of the car, including that dog food was strewn about and that air fresheners were present.

State v. Leak, 368 N.C. 570 (Dec. 18, 2015)

The supreme court vacated the decision below, State v. Leak, ___ N.C. App. ___, 773 S.E.2d 340 (2015), and ordered that the court of appeals remand to the trial court for reconsideration of the defendant’s motion to suppress in light of Rodriguez v. United States, ___ U.S. ___, 135 S. Ct. 1609 (2015). The court of appeals had held that the defendant’s Fourth Amendment rights were violated when an officer, who had approached the defendant’s legally parked car without reasonable suspicion, took the defendant’s driver’s license to his patrol vehicle. The court of appeals concluded that until the officer took the license, the encounter was consensual and no reasonable suspicion was required: “[the officer] required no particular justification to approach defendant and ask whether he required assistance, or to ask defendant to voluntarily consent to allowing [the officer] to examine his driver’s license and registration.” However, the court of appeals concluded that the officer’s conduct of taking the defendant’s license to his patrol car to investigate its status constituted a seizure that was not justified by reasonable suspicion. Citing Rodriguez (police may not extend a completed vehicle stop for a dog sniff, absent reasonable suspicion), the court of appeals rejected the suggestion that no violation occurred because any seizure was “de minimus” in nature.

State v. Icard, 363 N.C. 303 (June 18, 2009)

Under the totality circumstances, the defendant was seized by officers and the resulting search of her purse was illegal. The officers mounted a show of authority when (1) an officer, who was armed and in uniform, initiated the encounter, telling the defendant, an occupant of a parked truck, that the area was known for drug crimes and prostitution; (2) the officer called for backup assistance; (3) the officer initially illuminated the truck with blue lights; (4) a second officer illuminated the defendant’s side of the truck with take-down lights; (5) the first officer opened the defendant’s door, giving her no choice but to respond to him; and (6) the officer instructed the defendant to exit the truck and bring her purse. A reasonable person in defendant’s place would not have believed that she was free to leave or otherwise terminate the encounter and thus the trial court erred when it concluded that the defendant’s interaction with the officers was consensual.

An East Carolina University police officer was responding to a traffic accident call at 2:50 a.m. in Pitt County. He noticed a vehicle on the road and followed it, suspecting it had been involved in the accident. The officer testified that the vehicle did not have its rear lights on. There were no other cars on the road at the time. The vehicle pulled into a parking lot and circled around to exit. The officer entered the parking lot and pulled alongside the defendant’s car as it was exiting the lot. The officer gestured with his hand for the other vehicle to stop but did not activate his blue lights or siren and did not obstruct the defendant’s path. The defendant’s vehicle stopped, and the officer engaged the driver in conversation. He quickly suspected the driver was impaired and ultimately arrested the defendant for impaired driving. The defendant moved to suppress. The trial court denied the motion, finding that the defendant was not seized and that the encounter was voluntary. The defendant pled guilty, reserving his right to appeal the denial of the suppression motion. A majority of the Court of Appeals reversed.

The trial court made a finding of fact that the officer’s intention was to conduct a voluntary encounter. While the officer did so testify, this finding did not resolve the conflict between the State’s evidence that the encounter was voluntary and consensual and the defendant’s evidence that the encounter amounted to a traffic stop. “[W]hen there is a material conflict in the evidence regarding a certain issue, it is improper for the trial court to make findings which ‘do not resolve conflicts in the evidence but are merely statements of what a particular witness said.’” Steele Slip op. at 8-9. This finding therefore failed to support the trial court’s conclusions of law. Additionally, the defendant challenged two other findings of fact relating to the defendant’s rear lights. According to the defendant, the officer’s testimony about the rear lights was plainly contradicted by the officer’s dash cam video. The Court of Appeals, though “inclined to agree” with the defendant, found that these findings were not relevant to the issue at hand:

The issue of whether Defendant’s taillights were illuminated is irrelevant because the trial court’s ruling did not turn on whether [the officer] had reasonable suspicion to pull over Defendant for a traffic stop. Instead . . .  the dispositive issue is whether this encounter qualified as a traffic stop at all (as opposed to a voluntary encounter which did not implicate the Fourth Amendment). Id. at 11-12.

The state argued that the defendant was not stopped and that the encounter was consensual. A seizure occurs when an officer uses physical force with intent to seize a suspect or when a suspect submits to an officer’s show of authority. See Terry v. Ohio, 392 U.S. 1 (1968). An officer’s show of authority amounts to a seizure when a reasonable person would not feel free to terminate the encounter and leave. The court noted that this case was unusual, as most seizure cases involve pedestrian stops. The trial court (and the dissent) erred by relying on pedestrian stop cases to find that no seizure occurred. Unlike when an officer approaches a person or parked car on foot, this case involved the officer following the defendant with each party in moving vehicles and the officer gesturing for the defendant to stop. According to the court:

There is an important legal distinction between an officer who tails and waves down a moving vehicle in his patrol car; and an officer who walks up to a stationary vehicle on foot. In the latter scenario, the officer has taken no actions to impede the movement of the defendant—whereas in the former scenario, the officer’s show of authority has obligated the defendant to halt the movement of his vehicle in order to converse with the officer. Steele Slip op. at 18.

Given the criminal penalties for failure to follow traffic control commands and resisting a public officer, a reasonable driver would likely feel obligated to stop an officer gesturing for the driver to stop. “[W]hen a person would likely face criminal charges for failing to comply with an officer’s ‘request,’ then that person has been seized within the meaning of the Fourth Amendment and Article I, § 20 of our state Constitution.” Id. at 20. Further, the trial court failed to properly weigh the time and location of the encounter. Given the late hour and deserted parking lot, the environment was more “intimidating” than a public, daytime encounter, and a reasonable person would be “more susceptible to police pressure” in these circumstances. Id. at 21. Finally, the trial court also failed to properly weigh the effect of the officer’s hand gestures. The “authoritative” gestures by the uniformed officer in a marked patrol car (and presumably armed) supported the defendant’s argument that he was seized. Had the officer not been in a marked police vehicle, it was unlikely that a reasonable person would have voluntarily stopped under these circumstances. The majority of the court therefore agreed that the defendant was seized and reversed the denial of the suppression motion. The matter was remanded for the trial court to determine whether the seizure was supported by reasonable suspicion.

Judge Hampson dissented and would have affirmed the trial court’s order.

The trial court did not err by determining that the defendant was seized while walking on a sidewalk. Although the officers used no physical force to restrain the defendant, both were in uniform and had weapons. One officer blocked the sidewalk with his vehicle and another used his bicycle to block the defendant’s pedestrian travel on the sidewalk. 

The defendant was seized when officers parked directly behind his stopped vehicle, drew their firearms, and ordered the defendant and his passenger to exit the vehicle. After the defendant got out of his vehicle, an officer put the defendant on the ground and handcuffed him.

The defendant was charged with impaired driving after being involved in a single car accident in a Biscuitville parking lot. The trial court denied the defendant’s motion to suppress the evidence obtained by the arresting officer, who was actually the second officer to arrive on the scene. The defendant argued that the first officer who arrived on the scene and activated the blue lights on her patrol vehicle lacked reasonable suspicion to seize him. The Court of Appeals held that the defendant was not seized by the mere activation of the first officer’s blue lights, and that the trial court therefore did not err by denying the motion to suppress. Activation of an officer’s blue lights is a factor in determining whether a seizure has occurred, but where, as here, there was no other action on the part of the officer to stop the vehicle or otherwise impede the defendant, he was not seized.

A police offer stopped at a gas station for a cup of coffee, and on his way inside he noticed the defendant standing outside the gas station, talking loudly and using abusive language on his cell phone. The clerk inside told the officer she thought the defendant was bothering other customers. The officer called for backup, approached the defendant, and asked him to end his conversation. The defendant complied “after some delay,” but then began shifting from foot to foot and looking from side to side. His nervous behavior made the officer concerned that he might have a weapon, so he asked the defendant if he could pat him down. The defendant hesitated, but then consented. While conducting the pat-down, the officer felt a soft, rubbery wad in the defendant’s pocket that the officer immediately believed to be narcotics packaged in plastic baggies. After completing the pat-down, the officer manipulated the rubbery wad again, ensuring it was what he believed it to be, and then reached into the defendant’s pocket and withdrew the object. The wad was made up of plastic baggie corners containing a white powdery substance that looked like cocaine and a tube of Orajel. The defendant stated that the substance was baking soda, which he mixed with Orajel to fool buyers into thinking it was cocaine. Field and lab testing confirmed the defendant’s statements. The defendant was charged with possession with intent to sell and deliver a counterfeit controlled substance. The trial court denied the defendant’s motion to suppress the fruits of the search on the grounds that he was illegally detained, he did not consent to the search, and the search exceeded the scope of a permissible pat-down. The defendant pled guilty and appealed.

The appellate court affirmed the trial court’s ruling denying the motion. The defendant was not seized by the officers, who initially told him he should “finish his conversation elsewhere.” It was only when the defendant hesitated and began acting nervous that the officer became concerned that the defendant might be armed, and the defendant then consented to be searched for weapons. The counterfeit drugs discovered during that weapons search were admissible under the “plain feel” doctrine. Even before he manipulated the object a second time or removed it from the defendant’s pocket, the officer testified that based on his years of experience in narcotics investigations, it was “immediately apparent” to him that the object would be drugs in plastic packaging. After reviewing several cases on the plain feel doctrine, the court explained that the standard to be applied is analogous to the probable cause standard. In this case, the officer’s training and experience in narcotics investigations, the circumstances surrounding the defendant’s nervous behavior, and the readily apparent nature of the item in the defendant’s pocket established “that [the officer’s] subsequent manipulation of the objects and search of defendant’s pocket for confirmation was therefore supported by probable cause.”

State v. Turnage, ___ N.C. App. ___, 817 S.E.2d 1 (May. 15, 2018) temp. stay granted, ___ N.C. ___, 814 S.E.2d 459 (Jun 20 2018)

In this fleeing to elude, resisting an officer and child abuse case, the trial court erred by concluding that a seizure occurred when a detective activated his blue lights. After receiving complaints about drug activity at 155 John David Grady Road, officers conducted surveillance of the area. All officers were in plain clothes and in unmarked vehicles. As a detective was arriving in the area, he received a report that a burgundy van was leaving the premises. The detective followed the van and saw it, suddenly and without warning, stop in the middle of the road. The detective waited approximately 15 seconds and activated his blue lights. As the detective approached the driver’s side of the vehicle, he saw a male exit the passenger side, who he recognized from prior law enforcement encounters. The individual started walking towards the officer’s vehicle with his hands in his pockets. The detective told his colleague, who was in the vehicle, to get out. The male then ran back to the van yelling “Go, go, go” and the van sped away. During a mile and a half pursuit the van ran off the shoulder of the road, crossed the centerline and traveled in excess of 80 mph in a 55 mph zone. When officers eventually stopped the vehicle, two children were in the back of the van. The defendant was arrested for the charges noted above. The trial court found that a seizure occurred when the detective pulled behind the stopped the van and activated his blue lights and that no reasonable suspicion justified this activity. On appeal, the State argued that the trial court erred by concluding a seizure occurred when the detective activated his blue lights. The court agreed. Citing Hodari D., the court noted that a show of authority by law enforcement does not rise to the level of a seizure unless the suspect submits to that authority or is physically restrained. Here, for unknown reasons the driver and the defendant stopped the vehicle in the middle of the road before any show of authority from law enforcement. The detective’s later activation of his blue lights did not constitute a seizure because the defendant did not yield to the show of authority. The defendant was not seized until the vehicle was stopped during the chase. The criminal activity observed by the officer during the chase and his observation of the two minor children in the van justified the arrest for the offenses at issue.

State v. Wilson, ___ N.C. App. ___, 793 S.E.2d 737 (Dec. 6, 2016) aff’d per curiam, 370 N.C. 389 (Dec 22 2017)

In this impaired driving case, the court held, over a dissent, that the trial court properly denied the defendant’s motion to suppress where no seizure occurred. An officer went to a residence to find a man who had outstanding warrants for his arrest. While walking towards the residence, the officer observed a pickup truck leaving. The officer waved his hands to tell the driver—the defendant—to stop. The officer’s intention was to ask the defendant if he knew anything about the man with the outstanding warrants; the officer had no suspicion that the defendant was the man he was looking for or was engaged in criminal activity. The officer was in uniform but had no weapon drawn; his police vehicle was not blocking the road and neither his vehicle’s blue lights nor sirens were activated. When the defendant stopped the vehicle, the officer almost immediately smelled an odor of alcohol from inside the vehicle. After the defendant admitted that he had been drinking, the officer arrested the defendant for impaired driving. Because a reasonable person would have felt free to decline the officer’s request to stop, no seizure occurred; rather, the encounter was a consensual one.

In this impaired driving case, the defendant was not seized within the meaning of the fourth amendment until he submitted to the officer’s authority by stopping his vehicle. The court rejected the defendant’s argument that the seizure occurred when the officer activated his blue lights. Because the defendant continued driving after the blue lights were activated, there was no submission to the officer’s authority and no seizure until the defendant stopped his vehicle. As a result, the reasonable suspicion inquiry can consider circumstances that arose after the officer’s activation of his blue lights but before the defendant’s submission to authority. 

In this drug case, the trial court properly denied a motion to suppress where no illegal seizure of the defendant occurred during a knock and talk and where exigent circumstances justified the officers’ warrantless entry into the defendant’s home. The court rejected the defendant’s argument that he was illegally seized during a knock and talk because he was coerced into opening the front door. The officers knocked on the front door a few times and stated that they were with the police only once during the 2-3 minutes it took the defendant to answer the door. There was no evidence that the defendant was aware of the officer’s presence before he opened the door. Blue lights from nearby police cars were not visible to the defendant and no takedown lights were used. The officers did not try to open the door themselves or demand that it be opened. The court concluded: “the officers did not act in a physically or verbally threatening manner” and no seizure of defendant occurred during the knock and talk. (2) Exigent circumstances supported the officers’ warrantless entry into the defendant’s home (the defendant did not challenge the existence of probable cause). Officers arrived at the defendant’s residence because of an informant’s tip that armed suspects were going to rob a marijuana plantation located inside the house. When the officers arrived for the knock and talk, they did not know whether the robbery had occurred, was in progress, or was imminent. As soon as the defendant open his door, an officer smelled a strong odor of marijuana. Based on that odor and the defendant’s inability to understand English, the officer entered the defendant’s home and secured it in preparation for obtaining a search warrant. On these facts, the trial court did not err in concluding that exigent circumstances warranted a protective sweep for officer safety and to ensure the defendant or others would not destroy evidence.

No seizure occurred when an officer initially approached the defendant in response to a tip about an impaired driver. The officer used no physical force, approached the defendant’s vehicle on foot and engaged in conversation with him. The officer did not activate his blue lights and there was no evidence that he removed his gun from his holster or used a threatening tone. Thus, the court concluded, the event was a voluntary encounter.

The court ruled that the trial court erred by granting the defendant’s motion to suppress. A wildlife officer approached the defendant, dressed in full camouflage and carrying a hunting rifle, and asked to see his hunting license. After the defendant showed his license, the officer asked how he got to the location; he replied that his wife transported him there. The officer then asked him whether he was a convicted felon. The defendant admitted that he was. The officer seized the weapon and the defendant was later charged with being a felon in possession of a firearm. The court ruled that the defendant was neither seized under the Fourth Amendment nor in custody under Miranda when the officer asked about his criminal history, and therefore the trial court erred by granting the motion to suppress. The court further noted that the officer had authority to seize the defendant’s rifle without a warrant under the plain view doctrine.

Citing California v. Hodari D, 499 U.S. 621 (1991), the court held that the defendant was not seized when he dropped a plastic baggie containing controlled substances. An officer was patrolling at night in an area where illegal drugs were often sold, used, and maintained. When the officer observed five people standing in the middle of an intersection, he turned on his blue lights, and the five people dispersed in different directions. When the officer asked them to come back, all but the defendant complied. When the officer repeated his request to the defendant, the defendant stopped, turned, and discarded the baggie before complying with the officer’s show of authority by submitting to the officer’s request.

An encounter between the defendant and an officer did not constitute a seizure. The officer parked his patrol car on the opposite side of the street from the defendant’s parked car; thus, the officer did not physically block the defendant’s vehicle from leaving. The officer did not activate his siren or blue lights, and there was no evidence that he removed his gun from its holster, or used any language or displayed a demeanor suggesting that the defendant was not free to leave. A reasonable person would have felt free to disregard the officer and go about his or her business; as such the encounter was entirely consensual.

No stop occurred when the defendant began to run away as the officers exited their vehicle. The defendant did not stop or submit to the officers’ authority at this time.

State v. Morton, 198 N.C. App. 206 (July 21, 2009) rev’d on other grounds, 363 N.C. 737 (Dec 11 2009)

No seizure occurred when officers approached the defendant and asked to speak with him regarding a shooting. The defendant submitted to questioning without physical force or show of authority by the police; the officers did not raise their weapons or activate their blue lights. 

The defendant was charged with driving while license revoked, not an impaired revocation; assault on a female; possession of a firearm by a person previously convicted of a felony; attempted robbery with a dangerous weapon; and habitual felon status. The State proceeded to trial on the charges of speeding to elude arrest and attaining habitual felon status, dismissing the other charges. The defendant was found guilty of both, and the trial judge sentenced the defendant to 97 to 129 months’ imprisonment. 

The defendant argued that the trial judge erred in failing to dismiss the speeding to elude arrest charge. According to the defendant, at the time the law enforcement officer activated his blue lights and siren to initiate a traffic stop, the officer did not have reasonable suspicion to stop the defendant and therefore was not performing a lawful duty of his office. The Court of Appeals rejected this argument, holding that the circumstances before and after an officer signals his intent to stop a defendant determine whether there was reasonable suspicion for a stop. Here, after the officer put on his lights and siren, the defendant accelerated to speeds of 90 to 100 miles per hour, drove recklessly by almost hitting other cars, pulled onto the shoulder to pass other cars, swerved and fishtailed across multiple lanes, crossed over the double yellow line, and ran a stop sign before he parked in a driveway and took off running into a cow pasture, where the officers found him hiding in a ditch. These circumstances gave the officer reasonable suspicion of criminal activity before he seized the defendant.

An officer lawfully stopped a vehicle after observing the defendant drive approximately 10 mph above the speed limit. The court rejected the defendant’s argument that the traffic stop was a pretext to search for drugs as irrelevant in light of the fact that the defendant was lawfully stopped for speeding. 

State v. Ford, 208 N.C. App. 699 (Dec. 21, 2010)

Citing Whren v. United States, 517 U.S. 806, 813 (1996), the court rejected the defendant’s argument that a stop for an alleged violation of G.S. 20-129(d) (motor vehicle’s rear plate must be lit so that it can be read from a distance of 50 feet) was pretextual. Under Whren, the reasonableness of a traffic stop does not depend on the actual motivations of the individual officers involved.

After a consensual encounter with the defendant, reasonable suspicion supported the officer’s later detention of the driver. During the voluntary encounter the officer noticed the odor of alcohol coming from the defendant and observed an unopened container of beer in his truck. These observations provide a sufficient basis for reasonable suspicion to support the subsequent stop. 

In Re V.C.R., 227 N.C. App. 80 (May. 7, 2013)

(1) An officer had reasonable suspicion that a juvenile was violating G.S. 14-313(c) (unlawful for person under 18 to accept receipt of cigarettes) and thus the officer’s initial stop of the juvenile was proper. 

While parked on the side of the road, a trooper saw a truck pass by and believed that the passenger was not wearing a seat belt. After the trooper stopped the truck and approached the passenger side, he realized that passenger was wearing his seat belt, but the gray belt had not been visible against the passenger’s gray shirt. The passenger stated that he was wearing his seat belt the whole time, and the trooper did not cite him for a seat belt infraction.

However, upon approaching the window, the trooper had also immediately noticed an odor of alcohol coming from the vehicle. The trooper asked the passenger and the driver (the defendant) if they had been drinking, and both men said yes. The trooper asked the men to step out of the truck, and saw that the defendant’s eyes were red, glassy, and bloodshot. After further investigation, the trooper determined the defendant was impaired and charged him with DWI. The defendant filed a motion to suppress, arguing there was no reasonable suspicion to support the initial or extended vehicle stop. The trial court denied the motion, finding that the trooper had a mistaken but lawful basis for the initial stop, and he developed reasonable suspicion of other criminal activity that warranted an extension of the stop. The defendant proceeded to trial, was convicted of DWI, and appealed.

The appellate court affirmed the findings and rulings denying the suppression motion. First, the trial court’s findings of fact were adequately supported by the trooper’s testimony. Second, even though the trooper’s initial belief that the passenger was not wearing a seat belt turned out to be mistaken, it was nevertheless objectively reasonable (“failing to see a gray seat belt atop a gray shirt is one a reasonable officer could make”) and the extension of the stop was permissible based on the trooper “instantaneously” smelling an odor of alcohol coming from the vehicle, raising a reasonable suspicion of DWI. Defendant’s related constitutional arguments concerning the extension of the stop and probable cause to arrest were not properly raised at the trial level, so they were dismissed on appeal. As to defendant’s remaining arguments regarding his trial (denial of motion to dismiss at close of evidence, allowing a “positive” PBT reading into evidence, and qualifying the trooper as an expert in HGN), the appellate court likewise found no error.

In a case in which the court determined that the defendant received ineffective assistance of appellate counsel, it considered whether the officers’ mistake of fact regarding a basis for a traffic stop was reasonable and concluded that it was not. Having found that appellate counsel’s performance was deficient, the court moved on to the prejudice prong of the ineffective assistance of counsel claim. The analysis required it to evaluate how it would have ruled on direct appeal with respect to the defendant’s claim that the officers’ mistake of fact regarding his vehicle registration invalidated the traffic stop. Here, the officers argued that the stop was justified because the vehicle had an expired registration. Although the vehicle’s registration was in fact valid at the time, the trial court had found that the officers’ mistake was reasonable and did not invalidate the stop. The DMV record indicated that the registration was valid and the officers stopped the vehicle “for a registration violation despite having intentionally neglected to read the very sentence in which the relevant expiration date appeared.” Under the circumstances the court found that there is a reasonable probability that it would have determined that the facts do not constitute the sort of objectively reasonable mistake of fact tolerable under the fourth amendment.

State v. Jackson, 368 N.C. 75 (June 11, 2015)

Reversing the decision below, State v. Jackson, 234 N.C. App. 80 (2014), the court held that an officer had reasonable suspicion for the stop. The stop occurred at approximately 9:00 pm in the vicinity of Kim’s Mart. The officer knew that the immediate area had been the location of hundreds of drug investigations. Additionally, the officer personally had made drug arrests in the area and was aware that hand to hand drug transactions occurred there. On the evening in question the officer saw the defendant and another man standing outside of Kim’s Mart. Upon spotting the officer in his patrol car, the two stopped talking and dispersed in opposite directions. In the officer’s experience, this is typical behavior for individuals engaged in a drug transaction. The officer tried to follow the men, but lost them. When he returned to Kim’s Mart they were standing 20 feet from their original location. When the officer pulled in, the men again separated and started walking in opposite directions. The defendant was stopped and as a result contraband was found. The court found these facts sufficient to create reasonable suspicion to justify the investigatory stop. The court noted that its conclusion was based on more than the defendant’s presence in a high crime and high drug area.

State v. Mello, 364 N.C. 421 (Oct. 8, 2010)

The court affirmed per curiam State v. Mello, 200 N.C. App. 437 (Nov. 3, 2009) (holding, over a dissent, that reasonable suspicion supported a vehicle stop; while in a drug-ridden area, an officer observed two individuals approach and insert their hands into the defendant’s car; after the officer became suspicious and approached the group, the two pedestrians fled, and the defendant began to drive off).

Reasonable suspicion supported the stop. An officer patrolling a “known drug corridor” at 4 am observed the defendant’s car stopped in the lane of traffic. An unidentified pedestrian approached the defendant’s car and leaned in the window. The officer found these actions to be indicative of a drug transaction and thus conducted the stop.

Reasonable suspicion supported the stop of the defendant’s vehicle. The vehicle was stopped after the defendant left premises known as “Blazing Saddles.” Based on his experience making almost two dozen arrests in connection with drug activity at Blazing Saddles and other officers’ experiences at that location, the officer in question was aware of a steady pattern the people involved in drug transactions visit Blazing Saddles when the gate was down and staying for approximately two minutes. The defendant followed this exact pattern: he visited Blazing Saddles when the gate was down and stayed approximately two minutes. The court distinguished these facts from those where the defendant was simply observed in a high drug area, noting that Blazing Saddles was a “notorious” location for selling drugs and dealing in stolen property. It was an abandoned, partially burned building with no electricity, and there was no apparent legal reason for anyone to go there at all, unlike neighborhoods in high drug or crime areas where people live and naturally would be present.

In this drug case, the officer had reasonable suspicion for the stop. The officer, who was in an unmarked patrol vehicle in the parking lot of a local post office, saw the defendant pull into the lot. The officer knew the defendant because he previously worked for the officer as an informant and had executed controlled buys. When the defendant pulled up to the passenger side of another vehicle, the passenger of the other vehicle rolled down his window. The officer saw the defendant and the passenger extend their arms to one another and touch hands. The vehicles then left the premises. The entire episode lasted less than a minute, with no one from either vehicle entering the post office. The area in question was not known to be a crime area. Based on his training and experience, the officer believed he had witnessed hand-to-hand drug transaction and the defendant’s vehicle was stopped. Based on items found during the search of the vehicle, the defendant was charged with drug crimes. The trial court denied the defendant’s motion to suppress. Although it found the case to be a “close” one, the court found that reasonable suspicion supported the stop. Noting that it had previously held that reasonable suspicion supported a stop where officers witnessed acts that they believed to be drug transactions, the court acknowledged that the present facts differed from those earlier cases, specifically that the transaction in question occurred in daylight in an area that was not known for drug activity. Also, because there was no indication that the defendant was aware of the officer’s presence, there was no evidence that he displayed signs of nervousness or took evasive action to avoid the officer. However, the court concluded that reasonable suspicion existed. It noted that the actions of the defendant and the occupant of the other car “may or may not have appeared suspicious to a layperson,” but they were sufficient to permit a reasonable inference by a trained officer that a drug transaction had occurred. The court thought it significant that the officer recognized the defendant and had past experience with him as an informant in connection with controlled drug transactions. Finally, the court noted that a determination that reasonable suspicion exists need not rule out the possibility of innocent conduct.

In this drug trafficking case, the trial court did not commit plain error by finding that officers had reasonable suspicion to stop the defendant’s vehicle. The court began by rejecting the State’s argument that the defendant’s evasive action while being followed by the police provided reasonable suspicion for the stop. The court reasoned that there was no evidence showing that the defendant was aware of the police presence when he engaged in the allegedly evasive action (backing into a driveway and then driving away without exiting his vehicle). The court noted that for a suspect’s action to be evasive, there must be a nexus between the defendant’s action and the police presence; this nexus was absent here. Nevertheless, the court found that other evidence supported a finding that reasonable suspicion existed. Immediately before the stop and while preparing to execute a search warrant for drug trafficking at the home of the defendant’s friend, Travion Stokes, the defendant pulled up to Stokes’ house, accepted 2 large boxes from Stokes, put them in his car, and drove away. The court noted that the warrant to search Stokes’ home allowed officers to search any containers in the home that might contain marijuana, including the boxes in question.

State v. Ellison, 213 N.C. App. 300 (July 19, 2011) aff'd on other grounds, 366 N.C. 439 (Mar 8 2013)

An officer had reasonable suspicion to stop the defendant’s vehicle. An informant told the officer that after having his prescriptions for hydrocodone and Xanax filled, Mr. Shaw would immediately take the medication to defendant Treadway’s residence, where he sold the medications to Treadway; Treadway then sold some or all of the medications to defendant Ellison. Subsequently, the officer learned that Shaw had a prescription for Lorcet and Xanax, observed Shaw fill the prescriptions, and followed Shaw from the pharmacy to Treadway’s residence. The officer watched Shaw enter and exit Treadway’s residence. Minutes later the officer observed Ellison arrive. The officer also considered activities derived from surveillance at Ellison’s place of work, which were consistent with drug-related activities. Although the officer had not had contact with the informant prior to this incident, one of his co-workers had worked with the informant and found the informant to be reliable; specifically, information provided by the informant on previous occasions had resulted in arrests.

For the reasons stated in the dissenting opinion below, the court reversed the decision of the Court of Appeals in State v. Goins___ N.C. App. ___, 789 S.E.2d 466 (July 5, 2016). In that case, the Court of Appeals held, over a dissent, that a stop of the defendant’s vehicle was not supported by reasonable suspicion. The stop occurred in an area of high crime and drug activity. The Court of Appeals majority concluded that the defendant’s mere presence in such an area cannot, standing alone, provide the necessary reasonable suspicion for the stop. Although headlong flight can support a finding of reasonable suspicion, here, it determined, the evidence was insufficient to show headlong flight. Among other things, there was no evidence that the defendant saw the police car before leaving the premises and he did not break any traffic laws while leaving. Although officers suspected that the defendant might be approaching a man at the premises to conduct a drug transaction, they did not see the two engage in suspicious activity. The officers’ suspicion that the defendant was fleeing from the scene, without more, did not justify the stop. The dissenting judge concluded that the officers had reasonable suspicion for the stop. The dissenting judge criticized the majority for focusing on a “fictional distinction” between suspected versus actual flight. The dissenting judge concluded: considering the past history of drug activity at the premises, the time, place, manner, and unbroken sequence of observed events, the defendant’s actions upon being warned of the police presence, and the totality of the circumstances, the trial court correctly found that the officers had reasonable suspicion for the stop.

State v. Jackson, 368 N.C. 75 (June 11, 2015)

Reversing the decision below, State v. Jackson, 234 N.C. App. 80 (2014), the court held that an officer had reasonable suspicion for the stop. The stop occurred at approximately 9:00 pm in the vicinity of Kim’s Mart. The officer knew that the immediate area had been the location of hundreds of drug investigations. Additionally, the officer personally had made drug arrests in the area and was aware that hand to hand drug transactions occurred there. On the evening in question the officer saw the defendant and another man standing outside of Kim’s Mart. Upon spotting the officer in his patrol car, the two stopped talking and dispersed in opposite directions. In the officer’s experience, this is typical behavior for individuals engaged in a drug transaction. The officer tried to follow the men, but lost them. When he returned to Kim’s Mart they were standing 20 feet from their original location. When the officer pulled in, the men again separated and started walking in opposite directions. The defendant was stopped and as a result contraband was found. The court found these facts sufficient to create reasonable suspicion to justify the investigatory stop. The court noted that its conclusion was based on more than the defendant’s presence in a high crime and high drug area.

The defendant was charged with possession of a firearm by a person previously convicted of a felony and resisting, delaying, or obstructing an officer. The State dismissed the resisting charge before trial, and the defendant filed a motion to suppress the firearm. The trial judge denied the motion to suppress, the defendant did not object to the introduction of the firearm at trial, and the defendant was convicted. Because the defendant failed to object to the firearm at trial, the Court of Appeals applied plain error review to the denial of his suppression motion.

(1) The evidence showed that the police chief received a call about possible drug activity involving two black males outside a store and radioed the information to patrol officers. A patrol officer saw two men who matched the description walking on the sidewalk, and he parked his marked patrol car. The patrol officer testified that the two men saw him and continued walking. When the officer yelled for the defendant to stop, he looked at the officer and then ran. Another officer eventually located the defendant and arrested him for resisting, delaying, or obstructing an officer.

The Court of Appeals found that the evidence did not support the trial judge’s findings of fact in its denial of the defendant’s suppression motion. Thus, the trial judge found the area had been the scene of several drug investigations and shootings in the previous months, but the police chief testified that for approximately seven years he could recall three arrests for drugs and marijuana and did not testify that they took place in the past several months. The patrol officer testified that he had responded to one shooting in the area but didn’t indicate when the shooting occurred and since then had responded to loitering and loud music issues. The trial judge also found that the defendant walked away “briskly” when he first saw the patrol officer, but the officer testified that the defendant was just walking down the sidewalk. The officer’s later testimony at trial that the defendant kept walking away faster and faster was not before the judge at the suppression hearing and could not be used to support the judge’s findings of fact. The Court found next that the trial judge’s supported findings of fact did not support his conclusion that the officer had reasonable suspicion to stop the defendant initially or probable cause to arrest for resisting. Thus, even assuming the incident took place in a high crime area, the defendant’s presence there and his walking away from the officer did not provide reasonable suspicion to stop. (The Court noted that the patrol officer was unaware of the tip received by the police chief and therefore did not consider the tip in measuring the reasonableness of the stopping officer’s suspicion.) Because the officer did not have reasonable suspicion to stop, the Court found that the defendant was not fleeing from a lawful investigatory stop and the trial judge erred in concluding that there was probable cause to arrest the defendant for resisting.

(2) When the second officer detained the defendant, the defendant did not have a firearm on him. Rather, a K-9 unit recovered the firearm underneath a shed along the defendant’s “flight path.” The Court of Appeals found that the defendant voluntarily abandoned the firearm before he was seized by law enforcement officers. The evidence was therefore not the fruit of an unlawful seizure, and the Fourth Amendment did not bar its admission at trial.

In this drug case, the trial court erred by denying the defendant’s motion to suppress evidence obtained in a traffic stop. Sometime after 8:40 PM, an officer received a dispatch relating an anonymous report concerning a “suspicious white male,” with a “gold or silver vehicle” in the parking lot, walking around a closed business, Graham Feed & Seed. The officer knew that a business across the street had been broken into in the past and that residential break-ins and vandalism had occurred in the area. When the officer arrived at the location he saw a silver vehicle in the parking lot. The officer parked his vehicle and walked towards the car as it was approaching the parking lot exit. When he shined his flashlight towards the drivers side and saw the defendant, a black male, in the driver’s seat. The defendant did not open his window. When the officer asked the defendant, “What’s up boss man,” the defendant made no acknowledgment and continued exiting the parking lot. The officer considered this behavior a “little odd” and decided to follow the defendant. After catching up to the defendant’s vehicle on the main road, and without observing any traffic violations or furtive movements, the officer initiated a traffic stop. Contraband was found in the subsequent search of the vehicle and the defendant was arrested and charged. The trial court denied the defendant’s motion to suppress the evidence seized as a result of the stop. The defendant was convicted and he appealed. The court determined that the officer’s justification for the stop was nothing more than an inchoate and unparticularized suspicion or hunch. The anonymous tip reported no crime and was only partially correct. Although there was a silver car in the parking lot, the tip also said it could have been gold, and there was no white male in the lot or the vehicle. Additionally, the tip merely described the individual as “suspicious” without any indication as to why, and no information existed as to who the tipster was and what made the tipster reliable. As a result there is nothing inherent in the tip itself to allow a court to deem it reliable and provide reasonable suspicion. Additionally the trial court’s findings of fact concerning the officer’s knowledge about criminal activity refer to the area in general and to no particularized facts. The officer did not say how he was familiar with the area, how he knew that there had been break-ins, or how much vandalism or other crimes had occurred there. Additionally the trial court’s findings stipulated that there was no specific time frame given for when the previous break-ins had occurred. The court rejected the State’s argument that the officer either corroborated the tip or formed reasonable suspicion on his own when he arrived at the parking lot. It noted that factors such as a high-crime area, unusual hour of the day, and the fact that businesses in the vicinity were closed can help to establish reasonable suspicion, but are insufficient given the other circumstances in this case. The State argued that the defendant’s nervous conduct and unprovoked flight supported the officer’s reasonable suspicion. But, the court noted, the trial court did not make either of those findings. The trial court’s findings say nothing about the defendant’s demeanor, other than that he did not acknowledge the officer, nor do they speak to the manner in which he exited the parking lot. The court went on to distinguish cases offered by the State suggesting that reasonable suspicion can be based on a suspect’s suspicious activities in an area known for criminal activity and an unusual hour. The court noted that in those cases the officers were already in the areas in question because they were specifically known and had detailed instances of criminal activity. Here, the officer arrived at the parking lot because of the vague tip about an undescribed white male engaged in undescribed suspicious activity in a generalized area known for residential break-ins and vandalism. The trial court made no findings as to what suspicious activity by the defendant warranted the officer’s suspicion. In fact the officer acknowledged that the defendant was not required to stop when he approached the defendant’s vehicle. The court concluded:

Accordingly, we are unpersuaded by the State’s argument and agree with Defendant that the trial court erred in concluding that Officer Judge had reasonable suspicion to stop him. Though the tip did bring Officer Judge to the Graham Feed & Seed parking lot, where he indeed found a silver car in front of the then-closed business with no one else in its vicinity at 8:40 pm, and although Defendant did not stop for or acknowledge Officer Judge, we do not believe these circumstances, taken in their totality, were sufficient to support reasonable suspicion necessary to allow a lawful traffic stop. When coupled with the facts that (1) Defendant was in a parking lot that did “not have a ‘no trespassing’ sign on its premises”—making it lawful for Defendant to be there; (2) Defendant was not a white male as described in the tip; (3) Defendant’s car was possibly in motion when Officer Judge arrived in the parking lot; (4) Defendant had the constitutional freedom to avoid Officer Judge; and (5) Defendant did not commit any traffic violations or act irrationally prior to getting stopped, there exists insufficient findings that Defendant was committing, or about to commit, any criminal activity.

Concluding otherwise would give undue weight to, not only vague anonymous tips, but broad, simplistic descriptions of areas absent specific and articulable detail surrounding a suspect’s actions.

In this carrying a concealed handgun case, the trial court properly denied the defendant’s motion to suppress where the officer had reasonable suspicion to seize the defendant. While patrolling a high crime area, the officer saw the defendant and Ariel Peterson walking on a sidewalk. Aware of multiple recent crimes in the area, the officer stopped his car and approached the men. The officer had prior interactions with the defendant and knew he lived some distance away. The officer asked the men for their names. Peterson initially gave a false name; the defendant did not. The officer asked them where they were coming from and where they were going. Both gave vague answers; they claimed to have been at Peterson’s girlfriend’s house and were walking back to the defendant’s home, but were unable or unwilling to say where the girlfriend lived. When the defendant asked the officer for a ride to his house, the officer agreed and the three walked to the patrol car. The officer informed the two that police procedure required him to search them before entering the car. As the officer began to frisk Peterson, Peterson ran away. The officer turned to the defendant, who had begun stepping away. Believing the defendant was about to run away, the officer grabbed the defendant’s shoulders, placed the defendant on the ground, and handcuffed him. As the officer helped the defendant up, he saw that a gun had fallen out of the defendant’s waistband. Before the trial court, the defendant unsuccessfully moved to suppress discovery of the gun. He pleaded guilty, reserving his right to appeal the denial of his suppression motion. On appeal, the court rejected the defendant’s argument that he was unlawfully seized when the officer discovered the gun. Agreeing with the defendant that exercising a constitutional right to leave a consensual encounter should not be used against a defendant “to tip the scale towards reasonable suspicion,” the court noted that the manner in which a defendant exercises this right “could, in some cases, be used to tip the scale.” However, the court found that it need not determine whether it was appropriate for the trial court to consider the fact that the defendant was backing away in its reasonable suspicion calculus. Rather, the trial court’s findings regarding the men’s behavior before the defendant backed away from the officer were sufficient to give rise to reasonable suspicion. The defendant was in an area where a “spree of crime” had occurred; Peterson lied about his name; they both gave vague answers about where they were coming from; and Peterson ran away while being searched. This evidence supports the trial court’s conclusion that the officer had reasonable suspicion to seize the defendant.

Reasonable suspicion supported the traffic stop. At the time of the stop it was very late at night; the defendant’s vehicle was idling in front of a closed business; the business and surrounding properties had experienced several break-ins; and the defendant pulled away when the officer approached the car. Considered together, this evidence provides an objective justification for stopping the defendant.

Reasonable suspicion supported the stop. An officer patrolling a “known drug corridor” at 4 am observed the defendant’s car stopped in the lane of traffic. An unidentified pedestrian approached the defendant’s car and leaned in the window. The officer found these actions to be indicative of a drug transaction and thus conducted the stop.

An officer had reasonable suspicion to stop and frisk the defendant when the defendant was in a high crime area and made movements which the officer found suspicious. The defendant was in a public housing area patrolled by a Special Response Unit of U.S. Marshals and the DEA concentrating on violent crimes and gun crimes. The officer in question had 10 years of experience and was assigned to the Special Response Unit. Many persons were banned from the public housing area—in fact the banned list was nine pages long. On a prior occasion the officer heard shots fired near the area. The officer saw the defendant walking normally while swinging his arms. When the defendant turned and “used his right hand to grab his waistband to clinch an item” after looking directly at the officer, the officer believed the defendant was trying to hide something on his person. The officer then stopped the defendant to identify him, frisked him and found a gun in the defendant’s waistband.

The trial court erred denying the defendant’s motion to suppress. Officers responded to a complaint of loud music in a location they regarded as a high crime area. The officers did not see the defendant engaged in any suspicious activity and did not see any device capable of producing loud music. Rather, the defendant was merely standing outside at night, with two or three other men. These facts do not provide reasonable suspicion to justify an investigatory stop of the defendant. That being the case, the officer’s encounter with the defendant was entirely consensual, which the defendant was free to and did ignore by running away. Once the officer caught up with the defendant and handcuffed him for resisting arrest, a seizure occurred. However, because the defendant’s flight from the consensual encounter did not constitute resisting, the arrest was improper.

Officers had reasonable suspicion to stop the defendant. When officers on a gang patrol noticed activity at a house, they parked their car to observe. The area was known for criminal activity. The defendant exited a house and approached the officers’ car. One of the officers had previously made drug arrests in front of the house in question. As the defendant approached, one officer feared for his safety and got out of the car to have a better defensive position. When the defendant realized the individuals were police officers his “demeanor changed” and he appeared very nervous--he started to sweat, began stuttering, and would not speak loudly. Additionally, it was late and there was little light for the officers to see the defendant’s actions.

In this carrying a concealed handgun case, the trial court properly denied the defendant’s motion to suppress where the officer had reasonable suspicion to seize the defendant. While patrolling a high crime area, the officer saw the defendant and Ariel Peterson walking on a sidewalk. Aware of multiple recent crimes in the area, the officer stopped his car and approached the men. The officer had prior interactions with the defendant and knew he lived some distance away. The officer asked the men for their names. Peterson initially gave a false name; the defendant did not. The officer asked them where they were coming from and where they were going. Both gave vague answers; they claimed to have been at Peterson’s girlfriend’s house and were walking back to the defendant’s home, but were unable or unwilling to say where the girlfriend lived. When the defendant asked the officer for a ride to his house, the officer agreed and the three walked to the patrol car. The officer informed the two that police procedure required him to search them before entering the car. As the officer began to frisk Peterson, Peterson ran away. The officer turned to the defendant, who had begun stepping away. Believing the defendant was about to run away, the officer grabbed the defendant’s shoulders, placed the defendant on the ground, and handcuffed him. As the officer helped the defendant up, he saw that a gun had fallen out of the defendant’s waistband. Before the trial court, the defendant unsuccessfully moved to suppress discovery of the gun. He pleaded guilty, reserving his right to appeal the denial of his suppression motion. On appeal, the court rejected the defendant’s argument that he was unlawfully seized when the officer discovered the gun. Agreeing with the defendant that exercising a constitutional right to leave a consensual encounter should not be used against a defendant “to tip the scale towards reasonable suspicion,” the court noted that the manner in which a defendant exercises this right “could, in some cases, be used to tip the scale.” However, the court found that it need not determine whether it was appropriate for the trial court to consider the fact that the defendant was backing away in its reasonable suspicion calculus. Rather, the trial court’s findings regarding the men’s behavior before the defendant backed away from the officer were sufficient to give rise to reasonable suspicion. The defendant was in an area where a “spree of crime” had occurred; Peterson lied about his name; they both gave vague answers about where they were coming from; and Peterson ran away while being searched. This evidence supports the trial court’s conclusion that the officer had reasonable suspicion to seize the defendant.

State v. Goins, 370 N.C. 157 (Sept. 29, 2017)

For the reasons stated in the dissenting opinion below, the court reversed the decision of the Court of Appeals in State v. Goins___ N.C. App. ___, 789 S.E.2d 466 (July 5, 2016). In that case, the Court of Appeals held, over a dissent, that a stop of the defendant’s vehicle was not supported by reasonable suspicion. The stop occurred in an area of high crime and drug activity. The Court of Appeals majority concluded that the defendant’s mere presence in such an area cannot, standing alone, provide the necessary reasonable suspicion for the stop. Although headlong flight can support a finding of reasonable suspicion, here, it determined, the evidence was insufficient to show headlong flight. Among other things, there was no evidence that the defendant saw the police car before leaving the premises and he did not break any traffic laws while leaving. Although officers suspected that the defendant might be approaching a man at the premises to conduct a drug transaction, they did not see the two engage in suspicious activity. The officers’ suspicion that the defendant was fleeing from the scene, without more, did not justify the stop. The dissenting judge concluded that the officers had reasonable suspicion for the stop. The dissenting judge criticized the majority for focusing on a “fictional distinction” between suspected versus actual flight. The dissenting judge concluded: considering the past history of drug activity at the premises, the time, place, manner, and unbroken sequence of observed events, the defendant’s actions upon being warned of the police presence, and the totality of the circumstances, the trial court correctly found that the officers had reasonable suspicion for the stop.

State v. Jackson, 368 N.C. 75 (June 11, 2015)

Reversing the decision below, State v. Jackson, 234 N.C. App. 80 (2014), the court held that an officer had reasonable suspicion for the stop. The stop occurred at approximately 9:00 pm in the vicinity of Kim’s Mart. The officer knew that the immediate area had been the location of hundreds of drug investigations. Additionally, the officer personally had made drug arrests in the area and was aware that hand to hand drug transactions occurred there. On the evening in question the officer saw the defendant and another man standing outside of Kim’s Mart. Upon spotting the officer in his patrol car, the two stopped talking and dispersed in opposite directions. In the officer’s experience, this is typical behavior for individuals engaged in a drug transaction. The officer tried to follow the men, but lost them. When he returned to Kim’s Mart they were standing 20 feet from their original location. When the officer pulled in, the men again separated and started walking in opposite directions. The defendant was stopped and as a result contraband was found. The court found these facts sufficient to create reasonable suspicion to justify the investigatory stop. The court noted that its conclusion was based on more than the defendant’s presence in a high crime and high drug area.

The defendant was charged with possession of a firearm by a person previously convicted of a felony and resisting, delaying, or obstructing an officer. The State dismissed the resisting charge before trial, and the defendant filed a motion to suppress the firearm. The trial judge denied the motion to suppress, the defendant did not object to the introduction of the firearm at trial, and the defendant was convicted. Because the defendant failed to object to the firearm at trial, the Court of Appeals applied plain error review to the denial of his suppression motion.

(1) The evidence showed that the police chief received a call about possible drug activity involving two black males outside a store and radioed the information to patrol officers. A patrol officer saw two men who matched the description walking on the sidewalk, and he parked his marked patrol car. The patrol officer testified that the two men saw him and continued walking. When the officer yelled for the defendant to stop, he looked at the officer and then ran. Another officer eventually located the defendant and arrested him for resisting, delaying, or obstructing an officer.

The Court of Appeals found that the evidence did not support the trial judge’s findings of fact in its denial of the defendant’s suppression motion. Thus, the trial judge found the area had been the scene of several drug investigations and shootings in the previous months, but the police chief testified that for approximately seven years he could recall three arrests for drugs and marijuana and did not testify that they took place in the past several months. The patrol officer testified that he had responded to one shooting in the area but didn’t indicate when the shooting occurred and since then had responded to loitering and loud music issues. The trial judge also found that the defendant walked away “briskly” when he first saw the patrol officer, but the officer testified that the defendant was just walking down the sidewalk. The officer’s later testimony at trial that the defendant kept walking away faster and faster was not before the judge at the suppression hearing and could not be used to support the judge’s findings of fact. The Court found next that the trial judge’s supported findings of fact did not support his conclusion that the officer had reasonable suspicion to stop the defendant initially or probable cause to arrest for resisting. Thus, even assuming the incident took place in a high crime area, the defendant’s presence there and his walking away from the officer did not provide reasonable suspicion to stop. (The Court noted that the patrol officer was unaware of the tip received by the police chief and therefore did not consider the tip in measuring the reasonableness of the stopping officer’s suspicion.) Because the officer did not have reasonable suspicion to stop, the Court found that the defendant was not fleeing from a lawful investigatory stop and the trial judge erred in concluding that there was probable cause to arrest the defendant for resisting.

(2) When the second officer detained the defendant, the defendant did not have a firearm on him. Rather, a K-9 unit recovered the firearm underneath a shed along the defendant’s “flight path.” The Court of Appeals found that the defendant voluntarily abandoned the firearm before he was seized by law enforcement officers. The evidence was therefore not the fruit of an unlawful seizure, and the Fourth Amendment did not bar its admission at trial.

In this possession of a firearm by a felon case, the trial court did not err by allowing evidence of a handgun a police officer removed from the defendant’s waistband during a lawful frisk that occurred after a lawful stop. Police received an anonymous 911 call stating that an African-American male wearing a red shirt and black pants had just placed a handgun in the waistband of his pants while at a specified gas station. Officer Clark responded to the scene and saw 6 to 8 people in the parking lot, including a person who matched the 911 call description, later identified as the defendant. As Clark got out of his car, the defendant looked directly at him, “bladed” away and started to walk away. Clark and a second officer grabbed the defendant. After Clark placed the defendant in handcuffs and told him that he was not under arrest, the second officer frisked the defendant and found a revolver in his waistband. The defendant unsuccessfully moved to suppress evidence of the gun at trial. The court held that the trial court did not err by denying the motion to suppress. It began by holding that the anonymous tip was insufficient by itself to provide reasonable suspicion for the stop. However, here there was additional evidence. Specifically, as Clark exited his car, the defendant turned his body in such a way as to prevent the officer from seeing a weapon. The officer testified that the type of turn the defendant executed was known as “blading,” which is “[w]hen you have a gun on your hip you tend to blade it away from an individual.” Additionally the defendant began to move away. And, as the officers approached the defendant, the defendant did not inform them that he was lawfully armed. Under the totality of the circumstances, these facts support reasonable suspicion.

            The court then held that the frisk was proper. In order for a frisk to be proper officers must have reasonable suspicion that the defendant was armed and dangerous. Based on the facts supporting a finding of reasonable suspicion with respect to the stop, the officers had reasonable suspicion to believe that the defendant was armed. This, coupled with his struggle during the stop and continued failure to inform officers that he was armed, supported a finding that there was reasonable suspicion that the defendant was armed and dangerous.

In this carrying a concealed handgun case, the trial court properly denied the defendant’s motion to suppress where the officer had reasonable suspicion to seize the defendant. While patrolling a high crime area, the officer saw the defendant and Ariel Peterson walking on a sidewalk. Aware of multiple recent crimes in the area, the officer stopped his car and approached the men. The officer had prior interactions with the defendant and knew he lived some distance away. The officer asked the men for their names. Peterson initially gave a false name; the defendant did not. The officer asked them where they were coming from and where they were going. Both gave vague answers; they claimed to have been at Peterson’s girlfriend’s house and were walking back to the defendant’s home, but were unable or unwilling to say where the girlfriend lived. When the defendant asked the officer for a ride to his house, the officer agreed and the three walked to the patrol car. The officer informed the two that police procedure required him to search them before entering the car. As the officer began to frisk Peterson, Peterson ran away. The officer turned to the defendant, who had begun stepping away. Believing the defendant was about to run away, the officer grabbed the defendant’s shoulders, placed the defendant on the ground, and handcuffed him. As the officer helped the defendant up, he saw that a gun had fallen out of the defendant’s waistband. Before the trial court, the defendant unsuccessfully moved to suppress discovery of the gun. He pleaded guilty, reserving his right to appeal the denial of his suppression motion. On appeal, the court rejected the defendant’s argument that he was unlawfully seized when the officer discovered the gun. Agreeing with the defendant that exercising a constitutional right to leave a consensual encounter should not be used against a defendant “to tip the scale towards reasonable suspicion,” the court noted that the manner in which a defendant exercises this right “could, in some cases, be used to tip the scale.” However, the court found that it need not determine whether it was appropriate for the trial court to consider the fact that the defendant was backing away in its reasonable suspicion calculus. Rather, the trial court’s findings regarding the men’s behavior before the defendant backed away from the officer were sufficient to give rise to reasonable suspicion. The defendant was in an area where a “spree of crime” had occurred; Peterson lied about his name; they both gave vague answers about where they were coming from; and Peterson ran away while being searched. This evidence supports the trial court’s conclusion that the officer had reasonable suspicion to seize the defendant.

Reasonable suspicion supported the traffic stop. At the time of the stop it was very late at night; the defendant’s vehicle was idling in front of a closed business; the business and surrounding properties had experienced several break-ins; and the defendant pulled away when the officer approached the car. Considered together, this evidence provides an objective justification for stopping the defendant.

An officer had a reasonable, articulable suspicion that criminal activity was afoot when he detained the defendant. After 10 pm the officer learned of a report of suspicious activity at Auto America. When the officer arrived at the scene he saw the defendant, who generally matched the description of one of the individuals reported, peering from behind a parked van. When the defendant spotted the officer, he ran, ignoring the officer’s instructions to stop. After a 1/8 mile chase, the officer found the defendant trying to hide behind a dumpster. The defendant’s flight and the other facts were sufficient to raise a reasonable suspicion that criminal activity was afoot.

The trial court erred denying the defendant’s motion to suppress. Officers responded to a complaint of loud music in a location they regarded as a high crime area. The officers did not see the defendant engaged in any suspicious activity and did not see any device capable of producing loud music. Rather, the defendant was merely standing outside at night, with two or three other men. These facts do not provide reasonable suspicion to justify an investigatory stop of the defendant. That being the case, the officer’s encounter with the defendant was entirely consensual, which the defendant was free to and did ignore by running away. Once the officer caught up with the defendant and handcuffed him for resisting arrest, a seizure occurred. However, because the defendant’s flight from the consensual encounter did not constitute resisting, the arrest was improper.

Because the defendant was not stopped until after he ran away from the officers, his flight could be considered in determining that there was reasonable suspicion to stop.

State v. Burke, 365 N.C. 415 (Jan. 27, 2012)

In a per curiam opinion, the court affirmed the decision below in State v. Burke, 212 N.C. App. 654 (June 21, 2011) (over a dissent, the court held that the trial judge erred by denying the defendant’s motion to suppress when no reasonable suspicion supported a stop of the defendant’s vehicle; the officer stopped the vehicle because the numbers on the 30-day tag looked low and that the "low" number led him to "wonder[] about the possibility of the tag being fictitious"; the court noted that it has previously held that 30-day tags that were unreadable, concealed, obstructed, or illegible, justified stops of the vehicles involved; here, although the officer testified that the 30-day tag was dirty and worn, he was able to read the tag without difficulty; the tag was not faded; the information was clearly visible; and the information was accurate and proper).

An investigative stop of the defendant’s vehicle was lawful. Officers stopped the defendant’s vehicle because it was registered in her name, her license was suspended, and they were unable to determine the identity of the driver. 

Affirming State v. Heien, 366 N.C. 271 (Dec. 14, 2012), the Court held that because an officer’s mistake of law was reasonable, it could support a vehicle stop. In Heien, an officer stopped a vehicle because one of its two brake lights was out, but a court later determined that a single working brake light was all the law required. The case presented the question whether such a mistake of law can give rise to the reasonable suspicion necessary to uphold the seizure under the Fourth Amendment. The Court answered the question in the affirmative. It explained:

[W]e have repeatedly affirmed, “the ultimate touchstone of the Fourth Amendment is ‘reasonableness.’” To be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them “fair leeway for enforcing the law in the community’s protection.” We have recognized that searches and seizures based on mistakes of fact can be reasonable. The warrantless search of a home, for instance, is reasonable if undertaken with the consent of a resident, and remains lawful when officers obtain the consent of someone who reasonably appears to be but is not in fact a resident. By the same token, if officers with probable cause to arrest a suspect mistakenly arrest an individual matching the suspect’s description, neither the seizure nor an accompanying search of the arrestee would be unlawful. The limit is that “the mistakes must be those of reasonable men.”

But reasonable men make mistakes of law, too, and such mistakes are no less compatible with the concept of reasonable suspicion. Reasonable suspicion arises from the combination of an officer’s understanding of the facts and his understanding of the relevant law. The officer may be reasonably mistaken on either ground. Whether the facts turn out to be not what was thought, or the law turns out to be not what was thought, the result is the same: the facts are outside the scope of the law. There is no reason, under the text of the Fourth Amendment or our precedents, why this same result should be acceptable when reached by way of a reasonable mistake of fact, but not when reached by way of a similarly reasonable mistake of law.

Slip op. at 5-6 (citations omitted). The Court went on to find that the officer’s mistake of law was objectively reasonable, given the state statutes at issue:

Although the North Carolina statute at issue refers to “a stop lamp,” suggesting the need for only a single working brake light, it also provides that “[t]he stop lamp may be incorporated into a unit with one or more other rear lamps.” N. C. Gen. Stat. Ann. §20–129(g) (emphasis added). The use of “other” suggests to the everyday reader of English that a “stop lamp” is a type of “rear lamp.” And another subsection of the same provision requires that vehicles “have all originally equipped rear lamps or the equivalent in good working order,” §20–129(d), arguably indicating that if a vehicle has multiple “stop lamp[s],” all must be functional.

Slip op. at 12-13.

The trial court erred by denying the defendant’s motion to suppress where a stop was based on an officer’s mistake of law that was not objectively reasonable. An officer stopped a vehicle registered in Tennessee for driving without an exterior mirror on the driver’s side of the vehicle. The officer was not aware that the relevant statute—G.S. 20-126(b)—does not apply to vehicles registered out-of-state. A subsequent consent search led to the discovery of controlled substances and drug charges. On appeal, the State conceded, and the court concluded, following Heien v. North Carolina, 135 S. Ct. 530 (2014), that the officer’s mistake of law was not reasonable. Looking for guidance in other jurisdictions that have interpreted Heien, the court noted that cases from other jurisdictions “establish that in order for an officer’s mistake of law while enforcing a statute to be objectively reasonable, the statute at issue must be ambiguous.” “Moreover,” the court noted, “some courts applying Heien have further required that there be an absence of settled case law interpreting the statute at issue in order for the officer’s mistake of law to be deemed objectively reasonable.” The concluded that the statue at issue was clear and unambiguous; as a result “a reasonable officer reading this statute would understand the requirement that a vehicle be equipped with a driver’s side exterior mirror does not apply to vehicles that—like Defendant’s vehicle—are registered in another state.”

An officer lacked reasonable suspicion to stop the defendant’s vehicle. A “be on the lookout” call was issued after a citizen caller reported that there was a cup of beer in a gold Toyota sedan with license number VST-8773 parked at the Kangaroo gas station at the corner of Wake Forest Road and Ronald Drive. Although the complainant wished to remain anonymous, the communications center obtained the caller’s name as Kim Creech. An officer responded and observed a vehicle fitting the caller’s description. The officer followed the driver as he pulled out of the lot and onto Wake Forest Road and then pulled him over. The officer did not observe any traffic violations. After a test indicated impairment, the defendant was charged with DWI. Noting that the officer’s sole reason for the stop was Creech’s tip, the court found that the tip was not reliable in its assertion of illegality because possessing an open container of alcohol in a parking lot is not illegal. It concluded: “Accordingly, Ms. Creech’s tip contained no actual allegation of criminal activity.” It further found that the officer’s mistaken belief that the tip included an actual allegation of illegal activity was not objectively reasonable. Finally, the court concluded that even if the officer’s mistaken belief was reasonable, it still would find the tip insufficiently reliable. Considering anonymous tip cases, the court held that although Creech’s tip provided the license plate number and location of the car, “she did not identify or describe defendant, did not provide any way for [the] Officer . . . to assess her credibility, failed to explain her basis of knowledge, and did not include any information concerning defendant’s future actions.”

In this Kansas driving with a revoked license case, the Court held that when a police officer knows that the registered owner of a vehicle has a revoked driver’s license and lacks information negating an inference that the owner is the driver of the vehicle, a traffic stop is supported by reasonable suspicion and does not violate the Fourth Amendment.  Recognizing that persons other than the registered owner sometimes may be lawfully driving, the Court said that knowledge of a registered owner’s revoked license “provided more than reasonable suspicion to initiate [a] stop” based on the “commonsense inference” that, in the absence of negating information, vehicles likely are being driven by their registered owners.  The Court emphasized the narrow scope of its holding, saying that the presence of additional facts may dispel reasonable suspicion and offering the example of a situation where an officer observes that a driver does not appear to be the registered owner.

Justice Kagan, joined by Justice Ginsburg, wrote a concurring opinion expressing the view that the stop in this case was reasonable given the particular nature of Kansas motor vehicle law, where a license revocation usually is the consequence of serious or repeated offenses, and in light of the fact that the “barebones [evidentiary] stipulation” before the court demonstrated a total absence of “additional facts” that might “dispel reasonable suspicion.”

Justice Sotomayor dissented, criticizing the majority’s approach for “absolving officers from any responsibility to investigate the identity of a driver” when feasible and arguing that inferences contributing to reasonable suspicion must be based on specialized law enforcement training and experience rather than layperson “common sense.”

Arizona v. Johnson, 555 U.S. 323 (Jan. 26, 2009)

Summarizing existing law, the Court noted that a “stop and frisk” is constitutionally permissible if: (1) the stop is lawful; and (2) the officer reasonably suspects that the person stopped is armed and dangerous. It noted that that in an on-the-street encounter, the first requirement—a lawful stop—is met when the officer reasonably suspects that the person is committing or has committed a criminal offense. The Court held that in a traffic stop setting, the first requirement—a lawful stop—is met whenever it is lawful for the police to detain an automobile and its occupants pending inquiry into a vehicular violation. The police do not need to have cause to believe that any occupant of the vehicle is involved in criminal activity. Also, an officer may ask about matters unrelated to the stop provided that those questions do not measurably extend the duration of the stop. The Court further held that to justify a frisk of the driver or a passenger during a lawful stop, the police must believe that the person is armed and dangerous. 

State v. Johnson, 370 N.C. 32 (Aug. 18, 2017)

The Supreme Court reversed the decision below, State v. James Johnson, ___ N.C. App. ___, 784 S.E.2d 633 (April 5, 2016), which had held that because a police officer lacked reasonable suspicion for a traffic stop in this DWI case, the trial court erred by denying the defendant’s motion to suppress. The defendant was stopped at a red light on a snowy evening. When the light turned green, the officer saw the defendant’s truck abruptly accelerate, turn sharply left, and fishtail. The officer pulled the defendant over for driving at an unsafe speed given the road conditions. The Supreme Court held that the officer had reasonable suspicion to stop the defendant’s vehicle. It noted that G.S. 20-141(a) provides that “[n]o person shall drive a vehicle on a highway or in a public vehicular area at a speed greater than is reasonable and prudent under the conditions then existing.” The Court concluded:

All of these facts show that it was reasonable for [the] Officer . . . to believe that defendant’s truck had fishtailed, and that defendant had lost control of his truck, because of defendant’s abrupt acceleration while turning in the snow. It is common knowledge that drivers must drive more slowly when it is snowing, because it is easier to lose control of a vehicle on snowy roads than on clear ones. And any time that a driver loses control of his vehicle, he is in danger of damaging that vehicle or other vehicles, and of injuring himself or others. So, under the totality of these circumstances, it was reasonable for [the] Officer . . . to believe that defendant had violated [G.S.] 20-141(a) by driving too quickly given the conditions of the road.

The Court further noted that no actual traffic violation need have occurred for a stop to occur. It clarified: “To meet the reasonable suspicion standard, it is enough for the officer to reasonably believe that a driver has violated the law.”

A police officer stopped the defendant for suspected texting while driving. When the officer returned to his vehicle to check on the defendant’s identity, the defendant fled. (1) Before his trial on charges of texting while driving and felony fleeing to elude, the defendant moved to suppress the evidence obtained during the stop. At the suppression hearing, the officer testified that he did not stop the defendant for merely using the phone, but rather for using it in a manner that he reasonably believed ran afoul of G.S. 20-137.4A(a), North Carolina’s prohibition on texting and emailing while driving. The officer testified that the defendant was using and handling the phone in a manner more consistent with texting or reading text messages than with using a mapping system. The trial court denied the defendant’s motion and the defendant was convicted of felonious fleeing to elude. On appeal, the defendant argued that the trial court committed plain error by concluding that the officer was justified in stopping his car solely based on his observation that the operator was using a cell phone while driving. The Court of Appeals disagreed, holding that under the specific facts of this case, which included additional indicia of criminal activity beyond mere phone use, the trial court did not err by finding that the officer had reasonable, articulable suspicion to believe that the defendant was using the phone in a manner proscribed by law. The Court emphasized that its holding should not be viewed as establishing a test for meeting the reasonable suspicion requirement in other texting while driving cases. (2) The Court remanded the case for the defendant to be sentenced at prior record level two instead of level three, as his prior record level worksheet improperly counted a point for a prior misdemeanor. The Court rejected the State’s argument that the improperly counted point could be offset by adding for the first time an additional point under G.S. 15A-1340-14(b)(7) for the defendant being on probation at the time of the offense, as the State did not comply with the statutory notice procedures for that point.

(1) In this drug trafficking case, the court held that the fact that the defendant’s truck crossed over a double yellow line justified the stop. The officer saw the defendant’s vehicle cross the center line of the road by about 1 inch. The court stated:

[T]here is a “bright line” rule in some traffic stop cases. Here, the bright line is a double yellow line down the center of the road. Where a vehicle actually crosses over the double yellow lines in the center of a road, even once, and even without endangering any other drivers, the driver has committed a traffic violation of N.C. Gen. Stat. § 20-146 (2017). This is a “readily observable” traffic violation and the officer may stop the driver without violating his constitutional rights.

(2) After a proper traffic stop, the officer had reasonable suspicion to extend the stop for six or seven minutes for a dog sniff. The officer was patrolling the road based on complaints about drug activity and had been advised by the SBI to be on the lookout for the defendant based upon reports that he was bringing large quantities of methamphetamine to a supplier who lived off of the road. After the officer stopped the defendant’s vehicle, he identified the defendant as the person noted in the lookout warning. The defendant was confused, spoke so quickly that he was hard to understand, and began to stutter and mumble. The defendant did not make eye contact with the officer and his nervousness was “much more extreme” than a typical stopped driver. His eyes were bloodshot and glassy and the skin under his eyes was ashy. Based on his training and experience, the officer believed the defendant’s behavior and appearance were consistent with methamphetamine use. The defendant told the officer he was going to “Rabbit’s” house. The officer knew that “Rabbit” was involved with methamphetamine and that he lived nearby. When the defendant exited his car, he put his hand on the car for stability. These facts alone would have given the officer reasonable suspicion. But additionally, a woman the officer knew had given drug information to law enforcement in the past approached and told the officer she had talked to Rabbit and the defendant had “dope in the vehicle.” These facts were more than sufficient to give the officer a reasonable suspicion that the defendant had drugs in his vehicle and justify extension of the stop for a dog sniff.

In this impaired driving case, an officer’s observation of a single instance of a vehicle crossing the double yellow centerline in violation of state motor vehicle law provided reasonable suspicion to support the traffic stop. While traveling southbound on Highway 32, NC Highway Patrol Trooper Myers was notified by dispatch that a caller had reported a black Chevrolet truck traveling northbound on Highway 32 at a careless, reckless, and high speed. Myers then saw a black Chevrolet truck travelling northbound cross the center double yellow line. Myers initiated a traffic stop, which resulted in impaired driving charges. The defendant argued that the stop was not supported by reasonable suspicion because Myers did not corroborate the caller’s information. The court rejected this argument, noting that Myer’s own observation of the vehicle driving left of center providing reasonable suspicion for the stop. Under G.S. 20-150(d), crossing a double yellow centerline constitutes a traffic violation. Citing prior case law, the court stated that an officer’s observation of such a violation is sufficient to constitute reasonable suspicion for a traffic stop.

The vehicle stop was supported by reasonable suspicion. An officer received an anonymous report that a drunk driver was operating a black, four-door Hyundai headed north on Highland Capital Boulevard. The officer located the vehicle as reported and observed that the defendant drove roughly 15 miles below the 35 mph speed limit; that the defendant stopped at an intersection without a stop sign or traffic signal for “longer than usual”; that the defendant stopped at a railroad crossing and remained motionless for 15 to 20 seconds, although no train was coming and there was no signal to stop; that after the officer activated his blue lights, the defendant continued driving for approximately two minutes, eventually stopping in the middle of the road, and in a portion of the road with no bank or curb, having passed several safe places to pull over.

Because the officer saw the defendant drive through a red light, the officer had reasonable suspicion to stop the defendant’s vehicle.

No reasonable suspicion supported a traffic stop. The State had argued reasonable suspicion based on the driver’s alleged crossing of the fog line, her and her passenger’s alleged nervousness and failure to make eye contact with officers as they drove by and alongside the patrol car, and the vehicle’s slowed speed. The court found that the evidence failed to show that the vehicle crossed the fog line and that in the absence of a traffic violation, the officers’ beliefs about the conduct of the driver and passenger were nothing more than an “unparticularized suspicion or hunch.” It noted that nervousness, slowing down, and not making eye contact is not unusual when passing law enforcement. The court also found it “hard to believe” that the officers could tell that the driver and passenger were nervous as they passed the officers on the highway and as the officers momentarily rode alongside the vehicle. The court also found the reduction in speed—from 65 mph to 59 mph—insignificant. 

(1) The trial court erred in connection with its ruling on a suppression motion in an impaired driving case. The trial court failed to look beyond whether the defendant’s driving was normal in assessing whether the officer had reasonable suspicion to stop the defendant’s vehicle. (2) The officer had a reasonable, articulable suspicion to stop the defendant’s vehicle based on observed traffic violations notwithstanding the officer’s mistaken belief that the defendant also had violated G.S. 20-146(a). The officer’s testimony that he initiated the stop after observing the defendant drive over the double yellow line was sufficient to establish a violation of G.S. 20-146(d)(3-4), 20-146(d)(1), and 20-153; therefore regardless of his subjective belief that the defendant violated G.S. 20-146(a), the officers testimony establishes objective criteria justifying the stop. The stop was reasonable and the superior court erred in holding otherwise. The court noted that because the officer’s reason for the stop was not based solely on his mistaken belief that the defendant violated G.S. 20-146(a) but also because the defendant crossed the double yellow line, the case was distinguishable from others holding that an officer’s mistaken belief that a defendant has committed a traffic violation is not an objectively reasonable basis for a stop.

An officer lawfully stopped a vehicle after observing the defendant drive approximately 10 mph above the speed limit. The court rejected the defendant’s argument that the traffic stop was a pretext to search for drugs as irrelevant in light of the fact that the defendant was lawfully stopped for speeding. 

Officers had reasonable suspicion to stop a vehicle in which the defendant was a passenger based on the officers’ good faith belief that the driver had a revoked license and information about the defendant’s drug sales provided by three informants. Two of the informants were confidential informants who had provided good information in the past. The third was a patron of the hotel where the drug sales allegedly occurred and met with an officer face-to-face. Additionally, officers corroborated the informants’ information. As such, the informants’ information provided a sufficient indicia of reliability. The officer’s mistake about who was driving the vehicle was reasonable, under the circumstances.

State v. Ford, 208 N.C. App. 699 (Dec. 21, 2010)

The trial court properly denied the defendant’s motion to suppress when officers had reasonable suspicion to believe that the defendant committed a traffic violation supporting the traffic stop. The stop was premised on the defendant’s alleged violation of G.S. 20-129(d), requiring that a motor vehicle’s rear plate be lit so that under normal atmospheric conditions it can be read from a distance of 50 feet. The trial court found that normal conditions existed when officers pulled behind the vehicle; officers were unable to read the license plate with patrol car’s lights on; when the patrol car’s lights were turned off, the plate was not visible within the statutory requirement; and officers cited the defendant for the violation. The defendant’s evidence that the vehicle, a rental car, was “fine” when rented did not controvert the officer’s testimony that the tag was not sufficiently illuminated on the night of the stop.

The trial court properly concluded that an officer had reasonable suspicion to believe that the defendant was committing a traffic violation when he saw the defendant driving on a public street while using his windshield wipers in inclement weather but not having his taillights on. The trial court’s conclusion that the street at issue was a public one was supported by competent evidence, even though conflicting evidence had been presented. The court noted that its conclusion that the officer correctly believed that the street was a public one distinguished the case from those holding that an officer’s mistaken belief that a defendant had committed a traffic violation is constitutionally insufficient to support a traffic stop.

The officer had reasonable suspicion to stop when the officer saw the defendant commit a violation of G.S. 20-154(a) (driver must give signal when turning whenever the operation of any other vehicle may be affected by such movement). Because the defendant was driving in medium traffic, a short distance in front of the officer, the defendant’s failure to signal could have affected another vehicle.

In this drug case, the trial court erred by denying the defendant’s motion to suppress evidence obtained in a traffic stop. Sometime after 8:40 PM, an officer received a dispatch relating an anonymous report concerning a “suspicious white male,” with a “gold or silver vehicle” in the parking lot, walking around a closed business, Graham Feed & Seed. The officer knew that a business across the street had been broken into in the past and that residential break-ins and vandalism had occurred in the area. When the officer arrived at the location he saw a silver vehicle in the parking lot. The officer parked his vehicle and walked towards the car as it was approaching the parking lot exit. When he shined his flashlight towards the drivers side and saw the defendant, a black male, in the driver’s seat. The defendant did not open his window. When the officer asked the defendant, “What’s up boss man,” the defendant made no acknowledgment and continued exiting the parking lot. The officer considered this behavior a “little odd” and decided to follow the defendant. After catching up to the defendant’s vehicle on the main road, and without observing any traffic violations or furtive movements, the officer initiated a traffic stop. Contraband was found in the subsequent search of the vehicle and the defendant was arrested and charged. The trial court denied the defendant’s motion to suppress the evidence seized as a result of the stop. The defendant was convicted and he appealed. The court determined that the officer’s justification for the stop was nothing more than an inchoate and unparticularized suspicion or hunch. The anonymous tip reported no crime and was only partially correct. Although there was a silver car in the parking lot, the tip also said it could have been gold, and there was no white male in the lot or the vehicle. Additionally, the tip merely described the individual as “suspicious” without any indication as to why, and no information existed as to who the tipster was and what made the tipster reliable. As a result there is nothing inherent in the tip itself to allow a court to deem it reliable and provide reasonable suspicion. Additionally the trial court’s findings of fact concerning the officer’s knowledge about criminal activity refer to the area in general and to no particularized facts. The officer did not say how he was familiar with the area, how he knew that there had been break-ins, or how much vandalism or other crimes had occurred there. Additionally the trial court’s findings stipulated that there was no specific time frame given for when the previous break-ins had occurred. The court rejected the State’s argument that the officer either corroborated the tip or formed reasonable suspicion on his own when he arrived at the parking lot. It noted that factors such as a high-crime area, unusual hour of the day, and the fact that businesses in the vicinity were closed can help to establish reasonable suspicion, but are insufficient given the other circumstances in this case. The State argued that the defendant’s nervous conduct and unprovoked flight supported the officer’s reasonable suspicion. But, the court noted, the trial court did not make either of those findings. The trial court’s findings say nothing about the defendant’s demeanor, other than that he did not acknowledge the officer, nor do they speak to the manner in which he exited the parking lot. The court went on to distinguish cases offered by the State suggesting that reasonable suspicion can be based on a suspect’s suspicious activities in an area known for criminal activity and an unusual hour. The court noted that in those cases the officers were already in the areas in question because they were specifically known and had detailed instances of criminal activity. Here, the officer arrived at the parking lot because of the vague tip about an undescribed white male engaged in undescribed suspicious activity in a generalized area known for residential break-ins and vandalism. The trial court made no findings as to what suspicious activity by the defendant warranted the officer’s suspicion. In fact the officer acknowledged that the defendant was not required to stop when he approached the defendant’s vehicle. The court concluded:

Accordingly, we are unpersuaded by the State’s argument and agree with Defendant that the trial court erred in concluding that Officer Judge had reasonable suspicion to stop him. Though the tip did bring Officer Judge to the Graham Feed & Seed parking lot, where he indeed found a silver car in front of the then-closed business with no one else in its vicinity at 8:40 pm, and although Defendant did not stop for or acknowledge Officer Judge, we do not believe these circumstances, taken in their totality, were sufficient to support reasonable suspicion necessary to allow a lawful traffic stop. When coupled with the facts that (1) Defendant was in a parking lot that did “not have a ‘no trespassing’ sign on its premises”—making it lawful for Defendant to be there; (2) Defendant was not a white male as described in the tip; (3) Defendant’s car was possibly in motion when Officer Judge arrived in the parking lot; (4) Defendant had the constitutional freedom to avoid Officer Judge; and (5) Defendant did not commit any traffic violations or act irrationally prior to getting stopped, there exists insufficient findings that Defendant was committing, or about to commit, any criminal activity.

Concluding otherwise would give undue weight to, not only vague anonymous tips, but broad, simplistic descriptions of areas absent specific and articulable detail surrounding a suspect’s actions.

Officers had reasonable suspicion to stop the defendant. When officers on a gang patrol noticed activity at a house, they parked their car to observe. The area was known for criminal activity. The defendant exited a house and approached the officers’ car. One of the officers had previously made drug arrests in front of the house in question. As the defendant approached, one officer feared for his safety and got out of the car to have a better defensive position. When the defendant realized the individuals were police officers his “demeanor changed” and he appeared very nervous--he started to sweat, began stuttering, and would not speak loudly. Additionally, it was late and there was little light for the officers to see the defendant’s actions.

An officer had reasonable suspicion to stop and frisk the defendant. The officer saw the defendant, who substantially matched a “be on the lookout” report following a robbery, a few blocks from the crime scene, only minutes after the crime occurred and travelling in the same direction as the robber. The defendant froze when confronted by the officer and initially refused to remove his hands from his pockets.

Because the officer saw the defendant drive through a red light, the officer had reasonable suspicion to stop the defendant’s vehicle.

An officer had a reasonable, articulable suspicion that criminal activity was afoot when he detained the defendant. After 10 pm the officer learned of a report of suspicious activity at Auto America. When the officer arrived at the scene he saw the defendant, who generally matched the description of one of the individuals reported, peering from behind a parked van. When the defendant spotted the officer, he ran, ignoring the officer’s instructions to stop. After a 1/8 mile chase, the officer found the defendant trying to hide behind a dumpster. The defendant’s flight and the other facts were sufficient to raise a reasonable suspicion that criminal activity was afoot. 

State v. Huey, 204 N.C. App. 513 (June 15, 2010)

An officer lacked reasonable suspicion for a stop. The State stipulated that the officer knew, at the time of the stop, that the robbery suspects the officer was looking for were approximately 18 years old. The defendant was 51 years old at the time of the stop. Even if the officer could not initially tell the defendant's age, once the officer was face-to-face with the defendant, he should have been able to tell that the defendant was much older than 18. In any event, as soon as the defendant handed the officer his identification card with his birth date, the officer knew that the defendant did not match the description of the suspects and the interaction should have ended.

An officer had reasonable suspicion to stop and frisk the defendant. The officer saw the defendant, who substantially matched a “be on the lookout” report following a robbery, a few blocks from the crime scene, only minutes after the crime occurred and travelling in the same direction as the robber. The defendant froze when confronted by the officer and initially refused to remove his hands from his pockets.

(1) An officer had reasonable suspicion to stop the defendant’s vehicle for speeding. The court rejected the defendant’s argument that because the officer only observed the vehicle for three to five seconds, the officer did not have a reasonable opportunity to judge the vehicle’s speed. The court noted that after his initial observation of the vehicle, the officer made a U-turn and began pursuing it; he testified that during his pursuit, the defendant “maintained his speed.” Although the officer did not testify to a specific distance he observed the defendant travel, “some distance was implied” by his testimony regarding his pursuit of the defendant. Also, although it is not necessary for an officer to have specialized training to be able to visually estimate a vehicle’s speed, the officer in question had specialized training in visual speed estimation. (2) The court rejected the defendant’s argument that an officer lacked reasonable suspicion to stop his vehicle for speeding on grounds that there was insufficient evidence identifying the defendant as the driver. Specifically, the defendant noted that the officer lost sight of the vehicle for a short period of time. The officer only lost sight of the defendant for approximately thirty seconds and when he saw the vehicle again, he recognized both the car and the driver. 

In this drug case, the officer had reasonable suspicion for the stop. The officer, who was in an unmarked patrol vehicle in the parking lot of a local post office, saw the defendant pull into the lot. The officer knew the defendant because he previously worked for the officer as an informant and had executed controlled buys. When the defendant pulled up to the passenger side of another vehicle, the passenger of the other vehicle rolled down his window. The officer saw the defendant and the passenger extend their arms to one another and touch hands. The vehicles then left the premises. The entire episode lasted less than a minute, with no one from either vehicle entering the post office. The area in question was not known to be a crime area. Based on his training and experience, the officer believed he had witnessed hand-to-hand drug transaction and the defendant’s vehicle was stopped. Based on items found during the search of the vehicle, the defendant was charged with drug crimes. The trial court denied the defendant’s motion to suppress. Although it found the case to be a “close” one, the court found that reasonable suspicion supported the stop. Noting that it had previously held that reasonable suspicion supported a stop where officers witnessed acts that they believed to be drug transactions, the court acknowledged that the present facts differed from those earlier cases, specifically that the transaction in question occurred in daylight in an area that was not known for drug activity. Also, because there was no indication that the defendant was aware of the officer’s presence, there was no evidence that he displayed signs of nervousness or took evasive action to avoid the officer. However, the court concluded that reasonable suspicion existed. It noted that the actions of the defendant and the occupant of the other car “may or may not have appeared suspicious to a layperson,” but they were sufficient to permit a reasonable inference by a trained officer that a drug transaction had occurred. The court thought it significant that the officer recognized the defendant and had past experience with him as an informant in connection with controlled drug transactions. Finally, the court noted that a determination that reasonable suspicion exists need not rule out the possibility of innocent conduct.

In this possession of a firearm by a felon case, the trial court did not err by allowing evidence of a handgun a police officer removed from the defendant’s waistband during a lawful frisk that occurred after a lawful stop. Police received an anonymous 911 call stating that an African-American male wearing a red shirt and black pants had just placed a handgun in the waistband of his pants while at a specified gas station. Officer Clark responded to the scene and saw 6 to 8 people in the parking lot, including a person who matched the 911 call description, later identified as the defendant. As Clark got out of his car, the defendant looked directly at him, “bladed” away and started to walk away. Clark and a second officer grabbed the defendant. After Clark placed the defendant in handcuffs and told him that he was not under arrest, the second officer frisked the defendant and found a revolver in his waistband. The defendant unsuccessfully moved to suppress evidence of the gun at trial. The court held that the trial court did not err by denying the motion to suppress. It began by holding that the anonymous tip was insufficient by itself to provide reasonable suspicion for the stop. However, here there was additional evidence. Specifically, as Clark exited his car, the defendant turned his body in such a way as to prevent the officer from seeing a weapon. The officer testified that the type of turn the defendant executed was known as “blading,” which is “[w]hen you have a gun on your hip you tend to blade it away from an individual.” Additionally the defendant began to move away. And, as the officers approached the defendant, the defendant did not inform them that he was lawfully armed. Under the totality of the circumstances, these facts support reasonable suspicion.

            The court then held that the frisk was proper. In order for a frisk to be proper officers must have reasonable suspicion that the defendant was armed and dangerous. Based on the facts supporting a finding of reasonable suspicion with respect to the stop, the officers had reasonable suspicion to believe that the defendant was armed. This, coupled with his struggle during the stop and continued failure to inform officers that he was armed, supported a finding that there was reasonable suspicion that the defendant was armed and dangerous.

An officer had reasonable suspicion to stop and frisk the defendant when the defendant was in a high crime area and made movements which the officer found suspicious. The defendant was in a public housing area patrolled by a Special Response Unit of U.S. Marshals and the DEA concentrating on violent crimes and gun crimes. The officer in question had 10 years of experience and was assigned to the Special Response Unit. Many persons were banned from the public housing area—in fact the banned list was nine pages long. On a prior occasion the officer heard shots fired near the area. The officer saw the defendant walking normally while swinging his arms. When the defendant turned and “used his right hand to grab his waistband to clinch an item” after looking directly at the officer, the officer believed the defendant was trying to hide something on his person. The officer then stopped the defendant to identify him, frisked him and found a gun in the defendant’s waistband.

An officer had reasonable suspicion to stop and frisk the defendant. The officer saw the defendant, who substantially matched a “be on the lookout” report following a robbery, a few blocks from the crime scene, only minutes after the crime occurred and travelling in the same direction as the robber. The defendant froze when confronted by the officer and initially refused to remove his hands from his pockets.

The Court held in this “close case” that an officer had reasonable suspicion to make a vehicle stop based on a 911 call. After a 911 caller reported that a truck had run her off the road, a police officer located the truck the caller identified and executed a traffic stop. As officers approached the truck, they smelled marijuana. A search of the truck bed revealed 30 pounds of marijuana. The defendants moved to suppress the evidence, arguing that the traffic stop violated the Fourth Amendment because the officer lacked reasonable suspicion of criminal activity. Even assuming that the 911 call was anonymous, the Court found that it bore adequate indicia of reliability for the officer to credit the caller’s account that the truck ran her off the road. The Court explained: “By reporting that she had been run off the road by a specific vehicle—a silver Ford F-150 pickup, license plate 8D94925—the caller necessarily claimed eyewitness knowledge of the alleged dangerous driving. That basis of knowledge lends significant support to the tip’s reliability.” The Court noted that in this respect, the case contrasted with Florida v. J. L., 529 U. S. 266 (2000), where the tip provided no basis for concluding that the tipster had actually seen the gun reportedly possessed by the defendant. It continued: “A driver’s claim that another vehicle ran her off the road, however, necessarily implies that the informant knows the other car was driven dangerously.” The Court noted evidence suggesting that the caller reported the incident soon after it occurred and stated, “That sort of contemporaneous report has long been treated as especially reliable.” Again contrasting the case to J.L., the Court noted that in J.L., there was no indication that the tip was contemporaneous with the observation of criminal activity or made under the stress of excitement caused by a startling event. The Court determined that another indicator of veracity is the caller’s use of the 911 system, which allows calls to be recorded and law enforcement to verify information about the caller. Thus, “a reasonable officer could conclude that a false tipster would think twice before using such a system and a caller’s use of the 911 system is therefore one of the relevant circumstances that, taken together, justified the officer’s reliance on the information reported in the 911 call.” But the Court cautioned, “None of this is to suggest that tips in 911 calls are per se reliable.”

          The Court went on, noting that a reliable tip will justify an investigative stop only if it creates reasonable suspicion that criminal activity is afoot. It then determined that the caller’s report of being run off the roadway created reasonable suspicion of an ongoing crime such as drunk driving. It stated:

The 911 caller . . . reported more than a minor traffic infraction and more than a conclusory allegation of drunk or reckless driving. Instead, she alleged a specific and dangerous result of the driver’s conduct: running another car off the highway. That conduct bears too great a resemblance to paradigmatic manifestations of drunk driving to be dismissed as an isolated example of recklessness. Running another vehicle off the road suggests lane positioning problems, decreased vigilance, impaired judgment, or some combination of those recognized drunk driving cues. And the experience of many officers suggests that a driver who almost strikes a vehicle or another object—the exact scenario that ordinarily causes “running [another vehicle] off the roadway”—is likely intoxicated. As a result, we cannot say that the officer acted unreasonably under these circumstances in stopping a driver whose alleged conduct was a significant indicator of drunk driving. (Citations omitted).

The court per curiam affirmed the decision of the Court of Appeals, ___ N.C. App. ___, 828 S.E.2.d 195 (2019), which had held over a dissent that no reasonable suspicion supported a warrantless traffic stop based on an anonymous tip. 

A sheriff’s deputy received a dispatch call, originating from an anonymous tipster, just before 11 PM. The deputy was advised of a vehicle in a ditch on a specified road, possibly with a “drunk driver, someone intoxicated” and that “a truck was attempting—getting ready to pull them out.” The tip provided no description of the car, truck or driver, nor was there information regarding the caller or when the call was received. When the deputy arrived at the scene about 10 minutes later, he noticed a white Cadillac at an angle partially in someone’s driveway. The vehicle had mud on the driver’s side and the deputy opined from gouges in the road that it was the vehicle that had run off the road. However he continued driving and saw a truck traveling away from his location. He estimated that the truck was travelling approximately 15 to 20 miles below the posted 55 mph speed limit. He testified that the truck was the only one on the highway and that it was big enough to pull the car out. He did not see any chains, straps, or other devices that would indicate it had just pulled the vehicle out of the ditch. He initiated a traffic stop. His sole reason for doing so was “due to what was called out from communications.” The truck was driven by Griekspoor; the defendant was in the passenger seat. When the deputy explained to the driver that there was a report of a truck attempting to pull a vehicle out of the ditch, the driver reported that he had pulled the defendant’s car out of the ditch and was giving him a ride home. The deputy’s supervisor arrived and went to talk with the defendant. The defendant was eventually charged with impaired driving. At trial he unsuccessfully moved to suppress, was convicted and appealed. The court found that the stop was improper. As the State conceded, the anonymous tip likely fails to provide sufficient reliability to support the stop. It provided no description of either the car or the truck or how many people were involved and there is no indication when the call came in or when the anonymous tipster saw the car in the ditch with the truck attempting to pull it out. The State argued however that because nearly every aspect of the tip was corroborated by the officer there was reasonable suspicion for the stop. The court disagreed. When the deputy passed the Cadillac and came up behind the truck, he saw no equipment to indicate the truck had pulled, or was able to pull, a car out of the ditch and could not see how many people were in the truck. He testified that it was not operating in violation of the law. “He believed it was a suspicious vehicle merely because of the fact it was on the highway.” The details in the anonymous tip were insufficient to establish identifying characteristics, let alone allow the deputy to corroborate the details. The tipster merely indicated a car was in a ditch, someone was present who may be intoxicated, and a truck was preparing to pull the vehicle out of the ditch. There was no description of the car, the truck, or any individuals who may have been involved. After the deputy passed the scene and the Cadillac he noticed a truck driving under the posted speed limit. He provided no testimony to show that the truck was engaging in unsafe, reckless, or illegal driving. He was unable to ascertain if it contained a passenger. The court concluded: “At best all we have is a tip with no indicia of reliability, no corroboration, and conduct falling within the broad range of what can be described as normal driving behavior.” (quotation omitted). Under the totality of the circumstances the deputy lacked reasonable suspicion to conduct a warrantless stop of the truck.

State v. Maready, 362 N.C. 614 (Dec. 12, 2008)

Reasonable suspicion supported the officer’s stop of a vehicle in a case in which the defendant was convicted of second-degree murder and other charges involving a vehicle crash and impaired driving. Officers saw an intoxicated man stumble across the road and enter a Honda. They then were flagged down by a vehicle that they observed driving in front of the Honda. The vehicle’s driver, who was distraught, told them that the driver of the Honda had been running stop signs and stop lights. The officers conducted an investigatory stop of the Honda, and the defendant was driving. The court considered the following facts as supporting the indicia of reliability of the informant’s tip: the tipster had been driving in front of the Honda and thus had firsthand knowledge of the reported traffic violations; the driver’s own especially cautious driving and apparent distress were consistent with what one would expect of a person who had observed erratic driving; the driver approached the officers in person and gave them information close in time and place to the scene of the alleged violations, with little time to fabricate; and because the tip was made face-to-face, the driver was not entirely anonymous.

An anonymous person contacted law enforcement to report that a small green vehicle with license plate RCW-042 was in a specific area, had run several vehicles off the road, had struck a vehicle, and was attempting to leave the scene. Deputies went to the area and immediately stopped a vehicle matching the description given by the caller. The defendant was driving the vehicle. She was unsteady on her feet and appeared to be severely impaired. A trooper arrived and administered SFSTs, which the trooper terminated because the defendant could not complete them safely. A subsequent blood test revealed multiple drugs in the defendant’s system. The defendant was charged with impaired driving, was convicted in district court and in superior court, and appealed.

The defendant argued that the stop was not supported by reasonable suspicion as it was based on an anonymous tip and was not corroborated by any observation of bad driving. The court of appeals disagreed, noting some tension between prior North Carolina case law emphasizing the need to corroborate anonymous tips and Navarette v. California, 572 U.S. 393 (2014), which found reasonable suspicion of impaired driving based on an anonymous caller’s report that a vehicle had nearly run the caller off the road. The court stated that it “need not resolve the apparent tension between our previous case law and Navarette” because the tip in this case involved a very timely report of multiple driving incidents and so was sufficiently reliable to provide reasonable suspicion.

In this drug case, the trial court erred by denying the defendant’s motion to suppress evidence obtained in a traffic stop. Sometime after 8:40 PM, an officer received a dispatch relating an anonymous report concerning a “suspicious white male,” with a “gold or silver vehicle” in the parking lot, walking around a closed business, Graham Feed & Seed. The officer knew that a business across the street had been broken into in the past and that residential break-ins and vandalism had occurred in the area. When the officer arrived at the location he saw a silver vehicle in the parking lot. The officer parked his vehicle and walked towards the car as it was approaching the parking lot exit. When he shined his flashlight towards the drivers side and saw the defendant, a black male, in the driver’s seat. The defendant did not open his window. When the officer asked the defendant, “What’s up boss man,” the defendant made no acknowledgment and continued exiting the parking lot. The officer considered this behavior a “little odd” and decided to follow the defendant. After catching up to the defendant’s vehicle on the main road, and without observing any traffic violations or furtive movements, the officer initiated a traffic stop. Contraband was found in the subsequent search of the vehicle and the defendant was arrested and charged. The trial court denied the defendant’s motion to suppress the evidence seized as a result of the stop. The defendant was convicted and he appealed. The court determined that the officer’s justification for the stop was nothing more than an inchoate and unparticularized suspicion or hunch. The anonymous tip reported no crime and was only partially correct. Although there was a silver car in the parking lot, the tip also said it could have been gold, and there was no white male in the lot or the vehicle. Additionally, the tip merely described the individual as “suspicious” without any indication as to why, and no information existed as to who the tipster was and what made the tipster reliable. As a result there is nothing inherent in the tip itself to allow a court to deem it reliable and provide reasonable suspicion. Additionally the trial court’s findings of fact concerning the officer’s knowledge about criminal activity refer to the area in general and to no particularized facts. The officer did not say how he was familiar with the area, how he knew that there had been break-ins, or how much vandalism or other crimes had occurred there. Additionally the trial court’s findings stipulated that there was no specific time frame given for when the previous break-ins had occurred. The court rejected the State’s argument that the officer either corroborated the tip or formed reasonable suspicion on his own when he arrived at the parking lot. It noted that factors such as a high-crime area, unusual hour of the day, and the fact that businesses in the vicinity were closed can help to establish reasonable suspicion, but are insufficient given the other circumstances in this case. The State argued that the defendant’s nervous conduct and unprovoked flight supported the officer’s reasonable suspicion. But, the court noted, the trial court did not make either of those findings. The trial court’s findings say nothing about the defendant’s demeanor, other than that he did not acknowledge the officer, nor do they speak to the manner in which he exited the parking lot. The court went on to distinguish cases offered by the State suggesting that reasonable suspicion can be based on a suspect’s suspicious activities in an area known for criminal activity and an unusual hour. The court noted that in those cases the officers were already in the areas in question because they were specifically known and had detailed instances of criminal activity. Here, the officer arrived at the parking lot because of the vague tip about an undescribed white male engaged in undescribed suspicious activity in a generalized area known for residential break-ins and vandalism. The trial court made no findings as to what suspicious activity by the defendant warranted the officer’s suspicion. In fact the officer acknowledged that the defendant was not required to stop when he approached the defendant’s vehicle. The court concluded:

Accordingly, we are unpersuaded by the State’s argument and agree with Defendant that the trial court erred in concluding that Officer Judge had reasonable suspicion to stop him. Though the tip did bring Officer Judge to the Graham Feed & Seed parking lot, where he indeed found a silver car in front of the then-closed business with no one else in its vicinity at 8:40 pm, and although Defendant did not stop for or acknowledge Officer Judge, we do not believe these circumstances, taken in their totality, were sufficient to support reasonable suspicion necessary to allow a lawful traffic stop. When coupled with the facts that (1) Defendant was in a parking lot that did “not have a ‘no trespassing’ sign on its premises”—making it lawful for Defendant to be there; (2) Defendant was not a white male as described in the tip; (3) Defendant’s car was possibly in motion when Officer Judge arrived in the parking lot; (4) Defendant had the constitutional freedom to avoid Officer Judge; and (5) Defendant did not commit any traffic violations or act irrationally prior to getting stopped, there exists insufficient findings that Defendant was committing, or about to commit, any criminal activity.

Concluding otherwise would give undue weight to, not only vague anonymous tips, but broad, simplistic descriptions of areas absent specific and articulable detail surrounding a suspect’s actions.

In this possession of a firearm by a felon case, the trial court did not err by allowing evidence of a handgun a police officer removed from the defendant’s waistband during a lawful frisk that occurred after a lawful stop. Police received an anonymous 911 call stating that an African-American male wearing a red shirt and black pants had just placed a handgun in the waistband of his pants while at a specified gas station. Officer Clark responded to the scene and saw 6 to 8 people in the parking lot, including a person who matched the 911 call description, later identified as the defendant. As Clark got out of his car, the defendant looked directly at him, “bladed” away and started to walk away. Clark and a second officer grabbed the defendant. After Clark placed the defendant in handcuffs and told him that he was not under arrest, the second officer frisked the defendant and found a revolver in his waistband. The defendant unsuccessfully moved to suppress evidence of the gun at trial. The court held that the trial court did not err by denying the motion to suppress. It began by holding that the anonymous tip was insufficient by itself to provide reasonable suspicion for the stop. However, here there was additional evidence. Specifically, as Clark exited his car, the defendant turned his body in such a way as to prevent the officer from seeing a weapon. The officer testified that the type of turn the defendant executed was known as “blading,” which is “[w]hen you have a gun on your hip you tend to blade it away from an individual.” Additionally the defendant began to move away. And, as the officers approached the defendant, the defendant did not inform them that he was lawfully armed. Under the totality of the circumstances, these facts support reasonable suspicion.

            The court then held that the frisk was proper. In order for a frisk to be proper officers must have reasonable suspicion that the defendant was armed and dangerous. Based on the facts supporting a finding of reasonable suspicion with respect to the stop, the officers had reasonable suspicion to believe that the defendant was armed. This, coupled with his struggle during the stop and continued failure to inform officers that he was armed, supported a finding that there was reasonable suspicion that the defendant was armed and dangerous.

No reasonable suspicion supported a stop. At approximately 5 pm dispatch notified a trooper on routine patrol that an informant-driver reported that another driver was driving while intoxicated. The informant reported that the driver was driving from the Hubert area towards Jacksonville, traveling about 80 to 100 mph while drinking a beer. He also claimed that the driver was driving “very erratically” and almost ran him off the road “a few times.” While responding to the dispatch, the informant flagged down the trooper and said that the vehicle in question had just passed through the intersection on US 258, heading towards Richlands. The trooper headed in that direction and stopped the defendant’s vehicle within 1/10 of a mile from the intersection. The defendant was arrested and charged with DWI and careless and reckless driving. The defendant unsuccessfully moved to suppress in District Court and appealed to Superior Court. After a hearing, the Superior Court granted the motion to suppress. The Court of Appeals found that the tip did not have sufficient indicia of reliability to provide reasonable suspicion for the stop. Although the informant was not anonymous, because the defendant’s vehicle was out of sight, the informant was unable to specifically point out the defendant’s vehicle to the trooper. The trooper did not observe the vehicle being driven in a suspicious or erratic fashion. Additionally, it is unknown whether the trooper had the vehicle’s license plate number before or after the stop and whether the trooper had any vehicle description besides a “gray Ford passenger vehicle.” The court distinguished prior case law involving tips that provided enough information so that there was no doubt as to which particular vehicle was being reported. Here, the informant’s ambiguous description did not specify a particular vehicle. Additionally, no other circumstances enabled the trooper to further corroborate the tip; the trooper did not witness the vehicle behaving as described by the informant.

In this drug case, the trial court erred by denying the defendant’s motion to suppress drug evidence seized after a traffic stop where the officer had no reasonable suspicion to stop the defendant’s vehicle. Officers received a tip from a confidential informant regarding “suspicious” packages that the defendant had received from a local UPS store. The informant was an employee of the UPS store who had been trained to detect narcotics; the informant had successfully notified the police about packages later found to contain illegal drugs and these tips were used to secure a number of felony drug convictions. With respect to the incident in question, the informant advised the police that a man, later identified as the defendant, had arrived at the UPS store in a truck and retrieved packages with a Utah a return address when in fact the packages had been sent from Arizona. After receiving this tip, the police arrived at the store, observed the defendant driving away, and initiated a traffic stop. During the stop they conducted a canine sniff, which led to the discovery of drugs inside the packages. Holding that the motion to suppress should have been granted, the court noted that there is nothing illegal about receiving a package with a return address which differs from the actual shipping address; in fact there are number of innocent explanations for why this could have occurred. Although innocent factors, when considered together may give rise to reasonable suspicion, the court noted that it was unable to find any case where reasonable suspicion was based solely on a suspicious return address. Here, the trial court made no finding that the informant or the police had any prior experience with the defendant; the trial court made no finding that the origination city was known as a drug source locale; and the trial court made no finding that the packages were sealed suspiciously, had a suspicious weight based on their size, had hand written labels, or had a suspicious odor.

Officers did not have reasonable suspicion to stop the defendant based on an anonymous tip from a taxicab driver. The taxicab driver anonymously contacted 911 by cell phone and reported that a red Mustang convertible with a black soft top, license plate XXT-9756, was driving erratically, running over traffic cones and continuing west on a specified road. Although the 911 operator did not ask the caller’s name, the operator used the caller’s cell phone number to later identify the taxicab driver as John Hutchby. The 911 call resulted in a “be on the lookout” being issued; minutes later officers spotted a red Mustang matching the caller’s description, with “X” in the license plate, heading as indicated by the caller. Although the officers did not observe the defendant violating any traffic laws or see evidence of improper driving that would suggest impairment, the officers stopped the defendant. The defendant was charged with DWI. The court began:

[T]he officers did not have the opportunity to judge Hutchby’s credibility firsthand or confirm whether the tip was reliable, because Hutchby had not been previously used and the officers did not meet him face-to-face. Since the officers did not have an opportunity to assess his credibility, Hutchby was an anonymous informant. Therefore, to justify a warrantless search and seizure, either the tip must have possessed sufficient indicia of reliability or the officers must have corroborated the tip.

The court went on to find that neither requirement was satisfied.

An officer lacked reasonable suspicion to stop the defendant’s vehicle. A “be on the lookout” call was issued after a citizen caller reported that there was a cup of beer in a gold Toyota sedan with license number VST-8773 parked at the Kangaroo gas station at the corner of Wake Forest Road and Ronald Drive. Although the complainant wished to remain anonymous, the communications center obtained the caller’s name as Kim Creech. An officer responded and observed a vehicle fitting the caller’s description. The officer followed the driver as he pulled out of the lot and onto Wake Forest Road and then pulled him over. The officer did not observe any traffic violations. After a test indicated impairment, the defendant was charged with DWI. Noting that the officer’s sole reason for the stop was Creech’s tip, the court found that the tip was not reliable in its assertion of illegality because possessing an open container of alcohol in a parking lot is not illegal. It concluded: “Accordingly, Ms. Creech’s tip contained no actual allegation of criminal activity.” It further found that the officer’s mistaken belief that the tip included an actual allegation of illegal activity was not objectively reasonable. Finally, the court concluded that even if the officer’s mistaken belief was reasonable, it still would find the tip insufficiently reliable. Considering anonymous tip cases, the court held that although Creech’s tip provided the license plate number and location of the car, “she did not identify or describe defendant, did not provide any way for [the] Officer . . . to assess her credibility, failed to explain her basis of knowledge, and did not include any information concerning defendant’s future actions.”

In a drug case, the trial court did not commit plain error by concluding that an officer had reasonable suspicion to conduct a warrantless stop. The officer received information from two informants who had previously provided him with reliable information leading to several arrests; the informants provided information about the defendant’s criminal activity, location, and appearance. The officer corroborated some of this information and on the day in question an informant saw the defendant with the contraband. Also, when the officer approached the defendant, the defendant exuded a strong odor of marijuana.

No reasonable and articulable suspicion supported seizure of the defendant made as a result of an anonymous tip. When evaluating an anonymous tip in this context, the court must determine whether the tip taken as a whole possessed sufficient indicia of reliability. If not, the court must assess whether the anonymous tip could be made sufficiently reliable by independent corroboration. The tip at issue reported that the defendant would be selling marijuana at a certain location on a certain day and would be driving a white vehicle. The court held that given the limited details contained in the tip and the failure of the officers to corroborate its allegations of illegal activity, the tip lacked sufficient indicia of reliability.

Officers had reasonable suspicion to stop the defendant’s vehicle. Officers had received an anonymous tip that a vehicle containing “a large amount of pills and drugs” would be traveling from Georgia through Macon County and possibly Graham County; the vehicle was described as a small or mid-sized passenger car, maroon or purple in color, with Georgia license plates. Officers set up surveillance along the most likely route. When a small purple car passed the officers, they pulled out behind it. The car then made an abrupt lane change without signaling and slowed down by approximately 5-10 mph. The officers ran the vehicle’s license plate and discovered the vehicle was registered a person known to have outstanding arrest warrants. Although the officers where pretty sure that the driver was not the wanted person, they were unable to identify the passenger. They also saw the driver repeatedly looking in his rearview mirror and glancing over his shoulder. They then pulled the vehicle over. The court concluded that the defendant’s lane change in combination with the anonymous tip and defendant’s other activities were sufficient to give an experienced law enforcement officer reasonable suspicion that some illegal activity was taking place. Those other activities included the defendant’s slow speed in the passing lane, frequent glances in his rearview mirrors, repeated glances over his shoulder, and that he was driving a car registered to another person. Moreover, it noted, not only was the defendant not the owner of the vehicle, but the owner was known to have outstanding arrest warrants; it was reasonable to conclude that the unidentified passenger may have been the vehicle’s owner.

State v. Ellison, 213 N.C. App. 300 (July 19, 2011) aff'd on other grounds, 366 N.C. 439 (Mar 8 2013)

An officer had reasonable suspicion to stop the defendant’s vehicle. An informant told the officer that after having his prescriptions for hydrocodone and Xanax filled, Mr. Shaw would immediately take the medication to defendant Treadway’s residence, where he sold the medications to Treadway; Treadway then sold some or all of the medications to defendant Ellison. Subsequently, the officer learned that Shaw had a prescription for Lorcet and Xanax, observed Shaw fill the prescriptions, and followed Shaw from the pharmacy to Treadway’s residence. The officer watched Shaw enter and exit Treadway’s residence. Minutes later the officer observed Ellison arrive. The officer also considered activities derived from surveillance at Ellison’s place of work, which were consistent with drug-related activities. Although the officer had not had contact with the informant prior to this incident, one of his co-workers had worked with the informant and found the informant to be reliable; specifically, information provided by the informant on previous occasions had resulted in arrests.

In re A.J.M-B, 212 N.C. App. 586 (June 21, 2011)

The trial court erred by denying the juvenile’s motion to dismiss a charge of resisting a public officer when no reasonable suspicion supported a stop of the juvenile (the activity that the juvenile allegedly resisted). An anonymous caller reported to law enforcement “two juveniles in Charlie district . . . walking, supposedly with a shotgun or a rifle” in “an open field behind a residence.” A dispatcher relayed the information to Officer Price, who proceeded to an open field behind the residence. Price saw two juveniles “pop their heads out of the wood line” and look at him. Neither was carrying firearms. When Price called out for them to stop, they ran around the residence and down the road.

Officers had reasonable suspicion to stop a vehicle in which the defendant was a passenger based on the officers’ good faith belief that the driver had a revoked license and information about the defendant’s drug sales provided by three informants. Two of the informants were confidential informants who had provided good information in the past. The third was a patron of the hotel where the drug sales allegedly occurred and met with an officer face-to-face. Additionally, officers corroborated the informants’ information. As such, the informants’ information provided a sufficient indicia of reliability. The officer’s mistake about who was driving the vehicle was reasonable, under the circumstances.

An anonymous tip lacked a sufficient indicia of reliability to justify the warrantless stop. The anonymous tip reported that a black male wearing a white t-shirt and blue shorts was selling illegal narcotics and guns at the corner of Pitts and Birch Streets in the Happy Hill Garden housing community. The caller said the sales were occurring out of a blue Mitsubishi, license plate WT 3456. The caller refused to provide a name, the police had no means of tracking him or her down, and the officers did not know how the caller obtained the information. Prior to the officers’ arrival in the Happy Hill neighborhood, the tipster called back and stated that the suspect had just left the area, but would return shortly. Due to construction, the neighborhood had only two entrances. Officers stationed themselves at each entrance and observed a blue Mitsubishi enter the neighborhood. The car had a license plate WTH 3453 and was driven by a black male wearing a white t-shirt. After the officers learned that the registered owner’s driver’s license was suspended, they stopped the vehicle. The court concluded that while the tip included identifying details of a person and car allegedly engaged in illegal activity, it offered few details of the alleged crime, no information regarding the informant’s basis of knowledge, and scant information to predict the future behavior of the alleged perpetrator. Given the limited details provided, and the officers’ failure to corroborate the tip’s allegations of illegal activity, the tip lacked sufficient indicia of reliability to justify the warrantless stop. The court noted that although the officers lawfully stopped the vehicle after discovering that the registered owner’s driver’s license was suspended, because nothing in the tip involved a revoked driver’s license, the scope of the stop should have been limited to a determination of whether the license was suspended.

A tip from a confidential informant had a sufficient indicia of reliability to support a stop of the defendant’s vehicle where the evidence showed that: (1) a confidential informant who had previously provided reliable information told police that the defendant would be transporting cocaine that day and described the vehicle defendant would be driving; (2) the informant indicated to police that he had seen cocaine in defendant’s possession; (3) a car matching the informant’s description arrived at the designated location at the approximate time indicated by the informant; and (4) the informant, waiting at the specified location, called police to confirm that the driver was the defendant.

In a drug case, a tip from a confidential informant provided reasonable suspicion justifying the stop where the relevant information was known by the officer requesting the stop but not by the officer conducting the stop. The confidential informant had worked with the officer on several occasions, had provided reliable information in the past that lead to the arrest of drug offenders, and gave the officer specific information (including the defendant’s name, the type of car he would be driving, the location where he would be driving, and the amount and type of controlled substance that he would have in his possession).

Anonymous informant’s tips combined with officers’ corroboration provided reasonable suspicion for a stop. The anonymous tips provided specific information of possessing and selling marijuana, including the specific location of such activity (a shed at the defendant's residence). The tips were buttressed by officers’ knowledge of the defendant’s history of police contacts for narcotics and firearms offenses, verification that the defendant lived at the residence, and subsequent surveillance of the residence. During surveillance an officer observed individuals come and go and observed the defendant remove a large bag from the shed and place it in a vehicle. Other officers then followed the defendant in the vehicle to a location known for drug activity. 

Neither an anonymous tip nor an officer’s observation of the vehicle weaving once in its lane provided reasonable suspicion to stop the vehicle in this DWI case. At approximately 7:50 p.m., an officer responded to a dispatch concerning “a possible careless and reckless, D.W.I., headed towards the Holiday Inn intersection.” The vehicle was described as a burgundy Chevrolet pickup truck. The officer immediately arrived at the intersection and saw a burgundy Chevrolet pickup truck. After following the truck for about 1/10 of a mile and seeing the truck weave once in its lane once, the officer stopped the truck. Although the anonymous tip accurately described the vehicle and its location, it provided no way for officer to test its credibility. Neither the tip nor the officer’s observation, alone or together established reasonable suspicion to stop.

Following Maready and holding that there was reasonable suspicion to stop the defendant’s vehicle. At 2:55 am, a man called the police and reported that his car was being followed by a man with a gun. The caller reported that he was in the vicinity of a specific intersection. The caller remained on the line and described the vehicle following him, and gave updates on his location. The caller was directed to a specific location, so that an officer could meet him. When the vehicles arrived, they matched the descriptions provided by the caller. The officer stopped the vehicles. The caller identified the driver of the other vehicle as the man who had been following him and drove away without identifying himself. The officer ended up arresting the driver of the other vehicle for DWI. No weapon was found. The court held that there were indicia of reliability similar to those that existed in Maready: (1) the caller telephoned police and remained on the telephone for approximately eight minutes; (2) the caller provided specific information about the vehicle that was following him and their location; (3) the caller carefully followed the dispatcher’s instructions, which allowed the officer to intercept the vehicles; (4) defendant followed the caller over a peculiar and circuitous route between 2 and 3 a.m.; (5) the caller remained on the scene long enough to identify defendant to the officer; and (6) by calling on a cell phone and remaining at the scene, caller placed his anonymity at risk.

In this Stanly County case, no reasonable suspicion existed when a trooper, already conducting a traffic stop, observed the defendant gesturing with his middle finger from the passenger side of a car driving past the stop. The Court of Appeals unanimously rejected the State’s argument that the stop of the defendant was justified by the community caretaking exception to the Fourth Amendment, but a majority of the panel found that the stop was supported by reasonable suspicion of disorderly conduct (here). Judge Arrowood dissented and would have ruled that the act was protected speech under the First Amendment and that the trooper lacked reasonable suspicion [Jeff Welty blogged about that decision here].

On appeal to the Supreme Court, the State waived oral argument and conceded that the trooper lacked reasonable suspicion. The court agreed. The State’s evidence at suppression showed that the trooper saw the defendant waving from the car, and then begin “flipping the bird,” perhaps vigorously. The trooper did not know for whom the gesture was intended, and otherwise observed no traffic violations or other suspect activities. This failed to establish reasonable suspicion of a crime. In the court’s words:

The fact that [the trooper] was unsure of whether defendant’s gesture may have been directed at another vehicle does not, on its own, provide reasonable suspicion that defendant intended to or was plainly likely to provoke violent retaliation from another driver. . .Based on the facts in the record, we are unable to infer that, by gesturing with his middle finger, defendant was intending to or was likely to provoke a violent reaction from another driver that would cause a breach of the peace. Slip op. at 6-7

The court did not consider the defendant’s First Amendment arguments in light of its ruling, and the matter was unanimously reversed and remanded.

On appeal from the decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 805 S.E.2d 348 (2017), the court reversed, holding that an officer’s decision to briefly detain the defendant for questioning was supported by reasonable suspicion of criminal activity. While on patrol at 4 AM, Lieutenant Marotz noticed a car parked in a turn lane of the street, with its headlights on but no turn signal blinking. Marotz saw two men inside the vehicle, one in the driver’s seat and the other—later identified as the defendant—in the seat directly behind the driver. The windows were down despite rain and low temperatures. As Marotz pulled alongside of the vehicle, he saw the defendant pull down a hood or toboggan style mask with holes in the eyes, but then push the item back up when he saw the officer. Martoz asked the two whether everything was okay and they responded that it was. The driver said that the man in the back was his brother and they had been arguing. The driver said the argument was over and everything was okay. Sensing that something was not right, the officer again asked if they were okay, and they nodded that they were. Then the driver moved his hand near his neck, “scratching or doing something with his hand,” but Marotz was not sure how to interpret the gesture. Still feeling that something was amiss, Marotz drove to a nearby gas station to observe the situation. After the car remained immobile in the turn lane for another half minute, Marotz got out of his vehicle and started on foot towards the car. The defendant stepped out of the vehicle and the driver began to edge the car forward. Marotz asked the driver what he was doing and the driver said he was late and had to get to work. The officer again asked whether everything was okay and the men said that everything was fine. However, although the driver responded “yes” to the officer’s question, he shook his head “no.” This prompted the officer to further question the defendant. The driver insisted he just had to get to work and the officer told him to go. After the driver left, the defendant asked the officer if he could walk to a nearby store. The officer responded, “[H]ang tight for me just a second . . . you don’t have any weapons on you do you?” The defendant said he had a knife but a frisk by a backup officer did not reveal a weapon. After additional questioning the officers learned the defendant’s identity and told him he was free to go. Later that day the driver reported to the police that the defendant was not his brother and had been robbing him when Marotz pulled up. The defendant held a knife to the driver’s throat and demanded money. Officers later found a steak knife in the back seat of the vehicle. The defendant was charged with armed robbery and he moved to suppress the evidence obtained as a result of his seizure by Marotz. The parties agreed that the defendant was seized when Marotz told him to “hang tight.” The court found that the circumstances established a reasonable, articulable suspicion that criminal activity was afoot. Although the facts might not establish reasonable suspicion when viewed in isolation, when considered in their totality they could lead a reasonable officer to suspect that he had just happened upon a robbery in progress. The court also found that the Court of Appeals placed undue weight on Marotz’s subjective interpretation of the facts (the officer’s testimony suggested that he did not believe he had reasonable suspicion of criminal activity), rather than focusing on how an objective, reasonable officer would have viewed them. The court noted that an action is reasonable under the fourth amendment regardless of the officer’s state of mind, if the circumstances viewed objectively justify the action. Here they do.

State v. Salinas, 366 N.C. 119 (June 14, 2012)

The court modified and affirmed State v. Salinas, 214 N.C. App. 408 (Aug. 16, 2011) (trial court incorrectly applied a probable cause standard instead of a reasonable suspicion standard when determining whether a vehicle stop was unconstitutional). The supreme court agreed that the trial judge applied the wrong standard when evaluating the legality of the stop. The court further held that because the trial court did not resolve the issues of fact that arose during the suppression hearing, but rather simply restated the officers’ testimony, its order did not contain sufficient findings of fact to which the court could apply the reasonable suspicion standard. It thus remanded for the trial court to reconsider the evidence pursuant to the reasonable suspicion standard.

The defendant was charged with driving while license revoked, not an impaired revocation; assault on a female; possession of a firearm by a person previously convicted of a felony; attempted robbery with a dangerous weapon; and habitual felon status. The State proceeded to trial on the charges of speeding to elude arrest and attaining habitual felon status, dismissing the other charges. The defendant was found guilty of both, and the trial judge sentenced the defendant to 97 to 129 months’ imprisonment. 

The defendant argued that the trial judge erred in failing to dismiss the speeding to elude arrest charge. According to the defendant, at the time the law enforcement officer activated his blue lights and siren to initiate a traffic stop, the officer did not have reasonable suspicion to stop the defendant and therefore was not performing a lawful duty of his office. The Court of Appeals rejected this argument, holding that the circumstances before and after an officer signals his intent to stop a defendant determine whether there was reasonable suspicion for a stop. Here, after the officer put on his lights and siren, the defendant accelerated to speeds of 90 to 100 miles per hour, drove recklessly by almost hitting other cars, pulled onto the shoulder to pass other cars, swerved and fishtailed across multiple lanes, crossed over the double yellow line, and ran a stop sign before he parked in a driveway and took off running into a cow pasture, where the officers found him hiding in a ditch. These circumstances gave the officer reasonable suspicion of criminal activity before he seized the defendant.

In this driving while impaired case, the officer observed the defendant sitting on a porch and drinking a tall beer at approximately 9:00pm. The defendant was known to the officer as someone he had previously stopped for driving while license revoked and an open container offense. Around 11:00pm, the officer encountered the defendant at a gas station, where she paid for another beer and returned to her car. The officer did not observe any signs of impairment while observing her at the store and did not speak to her. When the defendant drove away from the store, the officer followed her and saw her driving “normally”—she did not speed or drive too slow, she did not weave or swerve, she did not drink the beer, and otherwise conformed to all rules of the road. After two or three blocks, the officer stopped the car. He testified the stop was based on having seen her drinking beer earlier in the evening, then purchase more beer at the store later and drive away. The trial court denied the motion to suppress and the defendant was convicted at trial. The court of appeals unanimously reversed. The court noted that a traffic violation is not always necessary for reasonable suspicion to stop (collecting sample cases), but observed that “when the basis for an officer’s suspicion connects only tenuously with the criminal behavior suspected, if at all, courts have not found the requisite reasonable suspicion.” Here, the officer had no information that the defendant was impaired and did not observe any traffic violations. The court also rejected the State’s argument that the defendant’s past criminal history for driving while license revoked and open container supplemented the officer’s suspicions: “Prior charges alone, however, do not provide the requisite reasonable suspicion and these particular priors are too attenuated from the facts of the current controversy to aid the State’s argument.” Despite the lack of objection at trial, the court found the trial court’s finding of reasonable suspicion to be an error which had a probable impact on the jury’s verdict, reversing the denial of the motion and vacating the conviction under plain error review.

In this impaired driving case, the defendant was not seized within the meaning of the fourth amendment until he submitted to the officer’s authority by stopping his vehicle. The court rejected the defendant’s argument that the seizure occurred when the officer activated his blue lights. Because the defendant continued driving after the blue lights were activated, there was no submission to the officer’s authority and no seizure until the defendant stopped his vehicle. As a result, the reasonable suspicion inquiry can consider circumstances that arose after the officer’s activation of his blue lights but before the defendant’s submission to authority.

In this drug case, the trial court erred by denying the defendant’s motion to suppress evidence obtained in a traffic stop. Sometime after 8:40 PM, an officer received a dispatch relating an anonymous report concerning a “suspicious white male,” with a “gold or silver vehicle” in the parking lot, walking around a closed business, Graham Feed & Seed. The officer knew that a business across the street had been broken into in the past and that residential break-ins and vandalism had occurred in the area. When the officer arrived at the location he saw a silver vehicle in the parking lot. The officer parked his vehicle and walked towards the car as it was approaching the parking lot exit. When he shined his flashlight towards the drivers side and saw the defendant, a black male, in the driver’s seat. The defendant did not open his window. When the officer asked the defendant, “What’s up boss man,” the defendant made no acknowledgment and continued exiting the parking lot. The officer considered this behavior a “little odd” and decided to follow the defendant. After catching up to the defendant’s vehicle on the main road, and without observing any traffic violations or furtive movements, the officer initiated a traffic stop. Contraband was found in the subsequent search of the vehicle and the defendant was arrested and charged. The trial court denied the defendant’s motion to suppress the evidence seized as a result of the stop. The defendant was convicted and he appealed. The court determined that the officer’s justification for the stop was nothing more than an inchoate and unparticularized suspicion or hunch. The anonymous tip reported no crime and was only partially correct. Although there was a silver car in the parking lot, the tip also said it could have been gold, and there was no white male in the lot or the vehicle. Additionally, the tip merely described the individual as “suspicious” without any indication as to why, and no information existed as to who the tipster was and what made the tipster reliable. As a result there is nothing inherent in the tip itself to allow a court to deem it reliable and provide reasonable suspicion. Additionally the trial court’s findings of fact concerning the officer’s knowledge about criminal activity refer to the area in general and to no particularized facts. The officer did not say how he was familiar with the area, how he knew that there had been break-ins, or how much vandalism or other crimes had occurred there. Additionally the trial court’s findings stipulated that there was no specific time frame given for when the previous break-ins had occurred. The court rejected the State’s argument that the officer either corroborated the tip or formed reasonable suspicion on his own when he arrived at the parking lot. It noted that factors such as a high-crime area, unusual hour of the day, and the fact that businesses in the vicinity were closed can help to establish reasonable suspicion, but are insufficient given the other circumstances in this case. The State argued that the defendant’s nervous conduct and unprovoked flight supported the officer’s reasonable suspicion. But, the court noted, the trial court did not make either of those findings. The trial court’s findings say nothing about the defendant’s demeanor, other than that he did not acknowledge the officer, nor do they speak to the manner in which he exited the parking lot. The court went on to distinguish cases offered by the State suggesting that reasonable suspicion can be based on a suspect’s suspicious activities in an area known for criminal activity and an unusual hour. The court noted that in those cases the officers were already in the areas in question because they were specifically known and had detailed instances of criminal activity. Here, the officer arrived at the parking lot because of the vague tip about an undescribed white male engaged in undescribed suspicious activity in a generalized area known for residential break-ins and vandalism. The trial court made no findings as to what suspicious activity by the defendant warranted the officer’s suspicion. In fact the officer acknowledged that the defendant was not required to stop when he approached the defendant’s vehicle. The court concluded:

Accordingly, we are unpersuaded by the State’s argument and agree with Defendant that the trial court erred in concluding that Officer Judge had reasonable suspicion to stop him. Though the tip did bring Officer Judge to the Graham Feed & Seed parking lot, where he indeed found a silver car in front of the then-closed business with no one else in its vicinity at 8:40 pm, and although Defendant did not stop for or acknowledge Officer Judge, we do not believe these circumstances, taken in their totality, were sufficient to support reasonable suspicion necessary to allow a lawful traffic stop. When coupled with the facts that (1) Defendant was in a parking lot that did “not have a ‘no trespassing’ sign on its premises”—making it lawful for Defendant to be there; (2) Defendant was not a white male as described in the tip; (3) Defendant’s car was possibly in motion when Officer Judge arrived in the parking lot; (4) Defendant had the constitutional freedom to avoid Officer Judge; and (5) Defendant did not commit any traffic violations or act irrationally prior to getting stopped, there exists insufficient findings that Defendant was committing, or about to commit, any criminal activity.

Concluding otherwise would give undue weight to, not only vague anonymous tips, but broad, simplistic descriptions of areas absent specific and articulable detail surrounding a suspect’s actions.

Reasonable suspicion supported the traffic stop. At the time of the stop it was very late at night; the defendant’s vehicle was idling in front of a closed business; the business and surrounding properties had experienced several break-ins; and the defendant pulled away when the officer approached the car. Considered together, this evidence provides an objective justification for stopping the defendant.

State v. Griffin, 366 N.C. 473 (Apr. 12, 2013)

The defendant’s act of stopping his vehicle in the middle of the roadway and turning away from a license checkpoint gave rise to reasonable suspicion for a vehicle stop. The trial court denied the defendant’s motion to suppress, finding the stop constitutional. In an unpublished opinion, the court of appeals reversed on grounds that the checkpoint was unconstitutional. That court did not, however, comment on whether reasonable suspicion for the stop existed. The supreme court allowed the State’s petition for discretionary review to determine whether there was reasonable suspicion to initiate a stop of defendant’s vehicle and reversed. It reasoned:

Defendant approached a checkpoint marked with blue flashing lights. Once the patrol car lights became visible, defendant stopped in the middle of the road, even though he was not at an intersection, and appeared to attempt a three-point turn by beginning to turn left and continuing onto the shoulder. From the checkpoint [the officer] observed defendant’s actions and suspected defendant was attempting to evade the checkpoint. . . . It is clear that this Court and the Fourth Circuit have held that even a legal turn, when viewed in the totality of the circumstances, may give rise to reasonable suspicion. Given the place and manner of defendant’s turn in conjunction with his proximity to the checkpoint, we hold there was reasonable suspicion that defendant was violating the law; thus, the stop was constitutional. Therefore, because the [officer] had sufficient grounds to stop defendant‘s vehicle based on reasonable suspicion, it is unnecessary for this Court to address the constitutionality of the driver‘s license checkpoint.

 

State v. Kochuk, 366 N.C. 549 (June 13, 2013)

The court, per curiam and without an opinion, reversed the decision of the North Carolina Court of Appeals, State v. Kochuk, 223 N.C. App. 301 (2012), for the reasons stated in the dissenting opinion. An officer was on duty and traveling eastbound on Interstate 40, where there were three travel lanes. The officer was one to two car lengths behind the defendant’s vehicle in the middle lane. The defendant momentarily crossed the right dotted line once while in the middle lane. He then made a legal lane change to the right lane and later drove on the fog line twice. The officer stopped the vehicle, and the defendant was later charged with DWI. The dissenting opinion stated that this case is controlled by State v. Otto, 366 N.C. 134 (2012) (reasonable suspicion existed to support vehicle stop; unlike other cases in which weaving within a lane was held insufficient to support reasonable suspicion, weaving here was “constant and continual” over three-quarters of a mile; additionally, the defendant was stopped around 11:00 p.m. on a Friday night). The defendant was weaving within his own lane, and the vehicle stop occurred at 1:10 a.m. These two facts coupled together, under Otto’s totality of the circumstances analysis, constituted reasonable suspicion for the DWI stop.

State v. Otto, 366 N.C. 134 (June 14, 2012)

Reversing State v. Otto, 217 N.C. App. 79 (Nov. 15, 2011), the court held that there was reasonable suspicion for the stop. Around 11 pm, an officer observed a vehicle drive past. The officer turned behind the vehicle and immediately noticed that it was weaving within its own lane. The vehicle never left its lane, but was “constantly weaving from the center line to the fog line.” The vehicle appeared to be traveling at the posted speed limit. After watching the vehicle weave in its own lane for about ¾ of a mile, the officer stopped the vehicle. The defendant was issued a citation for impaired driving and was convicted. The court of appeals determined that the traffic stop was unreasonable because it was supported solely by the defendant’s weaving within her own lane. The supreme court disagreed, concluding that under the totality of the circumstances, there was reasonable suspicion for the traffic stop. The court noted that unlike other cases in which weaving within a lane was held insufficient to support reasonable suspicion, the weaving here was “constant and continual” over ¾ of a mile. Additionally, the defendant was stopped around 11:00 pm on a Friday night.

In this DWI case, the officer had reasonable suspicion to stop the defendant’s vehicle. The officer observed the defendant’s vehicle swerve right, cross the line marking the outside of his lane of travel and almost strike the curb. The court found that this evidence, along with “the pedestrian traffic along the sidewalks and in the roadway, the unusual hour defendant was driving, and his proximity to bars and nightclubs, supports the trial court’s conclusion that [the] Officer . . . had reasonable suspicion to believe defendant was driving while impaired.” 

In this DWI case, the court held that the officer lacked reasonable suspicion to stop the defendant’s vehicle. At 10:05 pm on a Wednesday night an officer noticed that the defendant’s high beams were on. The officer also observed the defendant weave once within his lane of travel. When pressed about whether he weaved out of his lane, the officer indicated that “just . . . the right side of his tires” crossed over into the right-hand lane of traffic going in the same direction. The State presented no evidence that the stop occurred in an area ocf high alcohol consumption or that the officer considered such a fact as a part of her decision to stop the defendant. The court characterized the case as follows: “[W]e find that the totality of the circumstances . . . present one instance of weaving, in which the right side of Defendant’s tires crossed into the right-hand lane, as well as two conceivable “plus” factors — the fact that Defendant was driving at 10:05 on a Wednesday evening and the fact that [the officer] believed Defendant’s bright lights were on before she initiated the stop.” The court first noted that the weaving in this case was not constant and continuous. It went on to conclude that driving at 10:05 pm on a Wednesday evening and that the officer believed that the defendant’s bright lights were on “are not sufficiently uncommon to constitute valid ‘plus’ factors” to justify the stop under a “weaving plus” analysis.

An officer had reasonable suspicion to stop the defendant’s vehicle where the defendant’s weaving in his own lane was sufficiently frequent and erratic to prompt evasive maneuvers from other drivers. Distinguishing cases holding that weaving within a lane, standing alone, is insufficient to support a stop, the court noted that here “the trial court did not find only that defendant was weaving in his lane, but rather that defendant's driving was 'like a ball bouncing in a small room'” and that “[t]he driving was so erratic that the officer observed other drivers -- in heavy  traffic -- taking evasive maneuvers to avoid defendant's car.” The court determined that none of the other cases involved the level of erratic driving and potential danger to other drivers that was involved in this case.

An officer had reasonable suspicion to stop the defendant’s vehicle after the officer observed the vehicle twice cross the center line of I-95 and pull back over the fog line.

Distinguishing State v. Fields, the court held that reasonable suspicion existed to support the stop. The defendant was not only weaving within his lane, but also was weaving across and outside the lanes of travel, and at one point ran off the road.

Neither an anonymous tip nor an officer’s observation of the vehicle weaning once in its lane provided reasonable suspicion to stop the vehicle in this DWI case. At approximately 7:50 p.m., an officer responded to a dispatch concerning “a possible careless and reckless, D.W.I., headed towards the Holiday Inn intersection.” The vehicle was described as a burgundy Chevrolet pickup truck. The officer immediately arrived at the intersection and saw a burgundy Chevrolet pickup truck. After following the truck for about 1/10 of a mile and seeing the truck weave once in its lane once, the officer stopped the truck. Although the anonymous tip accurately described the vehicle and its location, it provided no way for officer to test its credibility. Neither the tip nor the officer’s observation, alone or together established reasonable suspicion to stop.

No reasonable suspicion existed for the stop. Around 4:00 p.m., an officer followed the defendant’s vehicle for about 1 1/2 miles. After the officer saw the defendant’s vehicle swerve to the white line on the right side of the traffic lane three times, the officer stopped the vehicle for impaired driving. The court noted that the officer did not observe the defendant violating any laws, such as driving above or below the speed limit, the hour of the stop was not unusual, and there was no evidence that the defendant was near any places to purchase alcohol. 

On appeal from the decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 809 S.E.2d 340 (2018), the court per curiam vacated and remanded to the Court of Appeals for reconsideration in light of State v. Wilson, ___ N.C. ___, 821 S.E.2d 811 (2018). In the decision below the majority held, in relevant part, that where the trial court’s order denying the defendant’s suppression motion failed to resolve disputed issues of fact central to the court’s ability to conduct a meaningful appellate review, the case must be remanded for appropriate findings of fact. In its order denying the defendant’s suppression motion, the trial court concluded that, at the time defendant was asked for consent to search his car, he had not been seized. On appeal, the defendant challenged that conclusion, asserting that because the officers retained his driver’s license, a seizure occurred. It was undisputed that the law enforcement officers’ interactions with the defendant were not based upon suspicion of criminal activity. Thus, if a seizure occurred it was in violation of the Fourth Amendment. The State argued that the trial court’s findings of fact fail to establish whether the officers retained the defendant’s license or returned it to him after examination. The Court of Appeals agreed, noting that the evidence was conflicting on this critical issue and remanding for appropriate findings of fact. As noted, the Supreme Court remanded for reconsideration in light of Wilson. In Wilson,a felon in possession of a firearm case, the Supreme Court held that Michigan v. Summers justifies a seizure of the defendant where he posed a real threat to the safe and efficient completion of a search.

State v. Wilson, 371 N.C. 920 (Dec. 21, 2018)

On discretionary review of a unanimous, unpublished decision of the Court of Appeals, ___ N.C. App. ___, 803 S.E.2d 698 (2017), in this felon in possession of a firearm case, the court held that Michigan v. Summers justifies a seizure of the defendant where he posed a real threat to the safe and efficient completion of a search and that the search and seizure of the defendant were supported by individualized suspicion. A SWAT team was sweeping a house so that the police could execute a search warrant. Several police officers were positioned around the house to create a perimeter securing the scene. The defendant penetrated the SWAT perimeter, stating that he was going to get his moped. In so doing, he passed Officer Christian, who was stationed at the perimeter near the street. The defendant then kept going, moving up the driveway and toward the house to be searched. Officer Ayers, who was stationed near the house, confronted the defendant. After a brief interaction, Officer Ayers searched the defendant based on his suspicion that the defendant was armed. Officer Ayers found a firearm in the defendant’s pocket. The defendant, who had previously been convicted of a felony, was arrested and charged with being a felon in possession of a firearm. He unsuccessfully moved to suppress at trial and was convicted. The Court of Appeals held that the search was invalid because the trial court’s order did not show that the search was supported by reasonable suspicion. The Supreme Court reversed holding “that the rule in Michigan v. Summers justifies the seizure here because defendant, who passed one officer, stated he was going to get his moped, and continued toward the premises being searched, posed a real threat to the safe and efficient completion of the search.” The court interpreted the Summers rule to mean that a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain occupants who are within the immediate vicinity of the premises to be searched and who are present during the execution of a search warrant. Applying this rule, the court determined that “a person is an occupant for the purposes of the Summers rule if he poses a real threat to the safe and efficient execution of a search warrant.” (quotation omitted). Here, the defendant posed such a threat. It reasoned: “He approached the house being swept, announced his intent to retrieve his moped from the premises, and appeared to be armed. It was obvious that defendant posed a threat to the safe completion of the search.”

         Because the Summers rule only justifies detentions incident to the execution of search warrants, the court continued, considering whether the search of the defendant’s person was justified. On this issue the court held that “both the search and seizure of defendant were supported by individualized suspicion and thus did not violate the Fourth Amendment.”

State v. Verkerk, 367 N.C. 483 (June 12, 2014)

Reversing the court of appeals in a DWI case where the defendant was initially stopped by a firefighter, the court determined that the trial court properly denied the defendant’s motion to suppress which challenged the firefighter’s authority to make the initial stop. After observing the defendant’s erratic driving and transmitting this information to the local police department, the firefighter stopped the defendant’s vehicle. After some conversation, the driver drove away. When police officers arrived on the scene, the firefighter indicated where the vehicle had gone. The officers located the defendant, investigated her condition and charged her with DWI. On appeal, the defendant argued that because the firefighter had no authority to stop her, evidence from the first stop was improperly obtained. However, the court determined that it need not consider the extent of the firefighter’s authority to conduct a traffic stop or even whether the encounter with him amounted to a “legal stop.” The court reasoned that the firefighter’s observations of the defendant’s driving, which were transmitted to the police before making the stop, established that the police officers had reasonable suspicion to stop the defendant. The court noted that this evidence was independent of any evidence derived from the firefighter’s stop. 

In this Forsyth County case, the defendant was charged with possession of a firearm by a felon, several drug crimes including trafficking opium or heroin by possession, possession of a weapon on school property, and attaining the status of habitual felon after an investigatory stop on school grounds stemming from an anonymous tip. The police received a detailed anonymous report saying that a black male named Joseph Royster who went by the nickname “Gooney” had heroin and a gun in the armrest of his black Chevrolet Impala with a specific license plate number, that he was wearing a white t-shirt and blue jeans, had gold teeth and a gold necklace, and that he was parked near South Fork Elementary School. An experienced officer who received the tip searched a police database that showed a person by that name as a black male with gold teeth and a history of drug and weapon charges. Officers went to the named elementary school, saw a vehicle with the specified license plate number matching the description in the tip in the parking lot, and eventually saw a person matching the description in the tip return to the vehicle. When that person quickly exited the vehicle, reached back into it and turned it off, began to walk away from officers and reached for his waistband, officers frisked him for weapons and detained him for a narcotics investigation. The defendant moved to suppress, arguing that officers did not have reasonable articulable suspicion for the stop. The trial court denied the motion and the defendant pled guilty.

On appeal of the denial of the motion to suppress, the defendant argued that the anonymous call did not demonstrate sufficient reliability. The Court of Appeals noted that the anonymous call itself merely provided identifying information, and there was nothing inherent in the tip itself that would give officers reasonable suspicion to make the stop. The Court rejected the State’s argument, based on Navarette v. California, 572 U.S. 393 (2014), that the caller’s use of a phone to make the tip sufficiently bolstered its reliability, because there was no evidence as to whether the caller used 911 or a non-emergency number or otherwise preserved her anonymity. The Court was likewise unpersuaded that the caller’s use of the defendant’s nickname showed a level of familiarity with the defendant that made the call sufficiently reliable in its assertion of illegality. Thus, the anonymous call itself was insufficient to provide officers with reasonable articulable suspicion.

Looking at the totality of the circumstances, however, the Court concluded that officers did have reasonable articulable suspicion. The defendant’s actions in exiting the vehicle, reaching back into it, walking away from officers, and reaching for his waistband demonstrated evasive behavior that went beyond merely walking away from officers and supported a finding of reasonable suspicion for the stop. Additionally, the caller’s allegation that the defendant was in possession of a firearm, coupled with his presence on school grounds and his prior criminal record obtained through the police database gave officers reasonable suspicion that he was in possession of a firearm, and that he was thus violating the criminal statute prohibiting the possession of a firearm on school property. As a result, the stop was deemed proper, and the Court concluded that the trial court did not err in denying the defendant’s motion to suppress.

The defendant was speaking at an anti-abortion event outside an abortion clinic in Charlotte. He was using an amplified microphone and was sitting at the table where the amplification controls were located. Officers measured his amplified voice at more than 80 decibels and approached him to cite him for violating the city’s noise ordinance. The defendant refused to produce identification, so the officers arrested him and charged him with resisting, delaying, and obstructing a law enforcement officer as well as the noise ordinance violation. At a bench trial in superior court, a judge convicted the defendant of R/D/O and dismissed the noise ordinance violation because, although the judge concluded that the defendant had violated the ordinance, the city “had discretion to decide which enforcement penalties it would levy against a violator of the noise ordinance, but . . . failed to do so.” The judge sentenced the defendant to probation, one condition of which was that the defendant stay at least 1,500 feet away from the abortion clinic where the event took place. The defendant appealed. Among other issues: (1) The defendant’s conduct was covered by the ordinance, so the officers’ initial stop was valid. The ordinance applies, in part, to persons “operating . . . sound amplification equipment.” The defendant contended that simply speaking into a microphone does not amount to “operating” any “amplification equipment.” The court of appeals viewed that construction as “unduly narrow” and found that the “plain meaning” of the ordinance was that speaking into an amplified microphone, while sitting at a table with the amplification controls present, was covered. (2) The probation condition is reasonably related to the defendant’s rehabilitation as required by statute, in part because it reduces the likelihood that he will commit a similar offense again.

In a case in which the court determined that the defendant received ineffective assistance of appellate counsel, the court considered whether there was reasonable suspicion for the vehicle stop and found there was none. Having found that appellate counsel’s performance was deficient, the court moved on to the prejudice prong of the ineffective assistance of counsel claim. The analysis required it to evaluate how it would have ruled on direct appeal with respect to the defendant’s claim that there was no reasonable suspicion for the stop. Here, the conclusion that the officers had reasonable suspicion to stop the vehicle was based solely on the following facts: officers saw the defendant and a woman exit a China Bus carrying small bags at the “same bus stop that a lot of heroin is being transported from New York to the Greensboro area” and while waiting for his ride at an adjacent gas station, the defendant briefly looked towards an officer’s unmarked vehicle and “shooed” that vehicle away, at which point the defendant’s ride pulled into the parking lot. These facts do not support a finding of reasonable suspicion, particularly where the defendant was entirely unknown to the officers.

In this drug case, the trial court erred by denying the defendant’s motion to suppress drug evidence seized after a traffic stop where the officer had no reasonable suspicion to stop the defendant’s vehicle. Officers received a tip from a confidential informant regarding “suspicious” packages that the defendant had received from a local UPS store. The informant was an employee of the UPS store who had been trained to detect narcotics; the informant had successfully notified the police about packages later found to contain illegal drugs and these tips were used to secure a number of felony drug convictions. With respect to the incident in question, the informant advised the police that a man, later identified as the defendant, had arrived at the UPS store in a truck and retrieved packages with a Utah a return address when in fact the packages had been sent from Arizona. After receiving this tip, the police arrived at the store, observed the defendant driving away, and initiated a traffic stop. During the stop they conducted a canine sniff, which led to the discovery of drugs inside the packages. Holding that the motion to suppress should have been granted, the court noted that there is nothing illegal about receiving a package with a return address which differs from the actual shipping address; in fact there are number of innocent explanations for why this could have occurred. Although innocent factors, when considered together may give rise to reasonable suspicion, the court noted that it was unable to find any case where reasonable suspicion was based solely on a suspicious return address. Here, the trial court made no finding that the informant or the police had any prior experience with the defendant; the trial court made no finding that the origination city was known as a drug source locale; and the trial court made no finding that the packages were sealed suspiciously, had a suspicious weight based on their size, had hand written labels, or had a suspicious odor. 

(1) A stop of the defendant’s vehicle was justified by reasonable suspicion. While on patrol in the early morning, the officer saw the defendant walking down the street. Directly behind him was another male, who appeared to be dragging a drugged or intoxicated female. The defendant and the other male placed the female in the defendant’s vehicle. The two then entered the vehicle and left the scene. The officer was unsure whether the female was being kidnapped or was in danger. Given these circumstances, the officer had reasonable suspicion that the defendant was involved in criminal activity. (2) Additionally, and for reasons discussed in the opinion, the court held that the stop was justified under the community caretaking exception. 

In the course of rejecting the defendant’s ineffective assistance claim related to preserving a denial of a motion to suppress, the court held that no prejudice occurred because the trial court properly denied the motion. The officer received a report from an identified tipster that a window at a residence appeared to have been tampered with and the owner of the residence was incarcerated. After the officer confirmed that a window screen had been pushed aside and the window was open, he repeatedly knocked on the door. Initially there was no response. Finally, an individual inside asked, “Who’s there?” The officer responded, “It’s the police.” The individual indicated, “Okay,” came to the door and opened it. When the officer asked the person’s identity, the individual gave a very long, slow response, finally gave his name but either would not or could not provide any ID. When asked who owned the house, he gave no answer. Although the individual was asked repeatedly to keep his hands visible, he continued to put them in his pockets. These facts were sufficient to create reasonable suspicion that the defendant might have broken into the home and also justified the frisk. During the lawful frisk, the officer discovered and identified baggies of marijuana in the defendant’s sock by plain feel. 

The trial court did not err by concluding that the seizure was unsupported by reasonable suspicion. The officers observed the defendant walking down the sidewalk with a clear plastic cup in his hands filled with a clear liquid. The defendant entered his vehicle, remained in it for a period of time, and then exited his vehicle and began walking down the sidewalk, where he was stopped. The officers stopped and questioned the defendant because he was walking on the sidewalk with the cup and the officers wanted to know what was in the cup.

The trial court erred by denying the defendant’s motion to suppress evidence of his alleged impairment where the evidence was the fruit of an illegal stop. An officer who was surveying an area in the hope of locating robbery suspects saw the defendant pull off to the side of a highway in a wooded area. The officer heard yelling and car doors slamming. Shortly thereafter, the defendant accelerated rapidly past the officer, but not to a speed warranting a traffic violation. Thinking that the defendant may have been picking up the robbery suspects, the officer followed the defendant for almost a mile. Although he observed no traffic violations, the officer pulled over the defendant’s vehicle. The officer did not have any information regarding the direction in which the suspects fled, nor did he have a description of the getaway vehicle. The officer’s reason for pulling over the defendant’s vehicle did not amount to the reasonable, articulable suspicion necessary to warrant a Terry stop.

An officer lacked reasonable suspicion to stop the defendant’s vehicle. Around midnight, officers were conducting a traffic stop at Olde Waverly Place, a partially developed subdivision. While doing so, an officer noticed the defendant’s construction vehicle enter the subdivision and proceed to an undeveloped section. Although officers had been put on notice of copper thefts from subdivisions under construction in the county, no such thefts had been reported in Olde Waverly Place. When the defendant exited the subdivision 20-30 minutes later, his vehicle was stopped. The officer did not articulate any specific facts about the vehicle or how it was driven which would justify the stop; the fact that there had been numerous copper thefts in the county did not support the stop.

Reasonable suspicion existed for a stop. An assault victim reported to a responding officer that the perpetrator was a tall white male who left in a small dark car driven by a blonde, white female. The officer saw a small, light-colored vehicle travelling away from the scene; driver was a blonde female. The driver abruptly turned into a parking lot and drove quickly over rough pavement. When the officer approached, the defendant was leaning on the vehicle and appeared intoxicated. Although there was a passenger in the car, the officer could not determine if the passenger was male or female. The officer questioned the defendant, determined that she was not involved in the assault, but arrested her for impaired driving. The court held that although there was no information in the record about the victim’s identity, this was not an anonymous tip case; it was a face-to-face encounter with an officer that carried a higher indicia of reliability than an anonymous tip. Additionally, the officer’s actions were not based solely on the tip. The officer observed the defendant’s “hurried actions,” it appeared that the defendant was trying to avoid the officer, and the defendant was in the proximity of the crime scene. Even though the defendant’s vehicle did not match the description given by the victim, the totality of the circumstances supported a finding of reasonable suspicion. 

State v. Shaw, 238 N.C. App. 151 (Dec. 16, 2014)

When determining whether an officer had reasonable suspicion to stop the defendant’s vehicle, the trial court properly considered statements made by other officers to the stopping officer that the defendant’s vehicle had weaved out of its lane of travel several times. Reasonable suspicion may properly be based on the collective knowledge of law enforcement officers.

Because an officer violated the defendant’s fourth amendment rights by searching the curtilage of his home without a warrant, the trial court erred by denying the defendant’s motion to suppress. The officer saw a vehicle with its doors open at the back of a 150-yard driveway leading to the defendant’s home. Concerned that the vehicle might be part of a break-in or home invasion, the officer drove down the driveway, ran the vehicle’s tags, checked—but did not knock—on the front door, checked the windows and doors of the home for signs of forced entry, “cleared” the sides of the house, and then went through a closed gate in a chain-link fence enclosing the home’s backyard and approached the storm door at the back of the house. As the officer approached the door, which was not visible from the street, he smelled marijuana, which led to the defendant’s arrest for drug charges. At the suppression hearing, the State relied on two exceptions to the warrant requirement to justify the officer’s search of the curtilage: the knock and talk doctrine and the community caretaker doctrine. The court found however that neither exception applies. First, the officer did more than nearly knock and talk. Specifically, he ran a license plate not visible from the street, walked around the house examining windows and searching for signs of a break-in, and went first to the front door without knocking and then to a rear door not visible from the street and located behind a closed gate. “These actions went beyond what the U.S. Supreme Court has held are the permissible actions during a knock and talk.” Likewise, the community caretaker doctrine does not support the officer’s action. “The presence of a vehicle in one’s driveway with its doors open is not the sort of emergency that justifies the community caretaker exception.” The court also noted that because the fourth amendment’s protections “are at their very strongest within one’s home,” the public need justifying the community caretaker exception “must be particularly strong to justify a warrantless search of a home.”

(1) A stop of the defendant’s vehicle was justified by reasonable suspicion. While on patrol in the early morning, the officer saw the defendant walking down the street. Directly behind him was another male, who appeared to be dragging a drugged or intoxicated female. The defendant and the other male placed the female in the defendant’s vehicle. The two then entered the vehicle and left the scene. The officer was unsure whether the female was being kidnapped or was in danger. Given these circumstances, the officer had reasonable suspicion that the defendant was involved in criminal activity. (2) Additionally, and for reasons discussed in the opinion, the court held that the stop was justified under the community caretaking exception. 

In a case where the State conceded that the officer had neither probable cause nor reasonable suspicion to seize the defendant, the court decided an issue of first impression and held that the officer’s seizure of the defendant was justified by the “community caretaking” doctrine. The officer stopped the defendant to see if she and her vehicle were “okay” after he saw her hit an animal on a roadway. Her driving did not give rise to any suspicion of impairment. During the stop the officer determined the defendant was impaired and she was arrested for DWI. The court noted that in adopting the community caretaking exception, “we must apply a test that strikes a proper balance between the public’s interest in having officers help citizens when needed and the individual’s interest in being free from unreasonable governmental intrusion.” It went on adopt the following test for application of the doctrine:

[T]he State has the burden of proving that: (1) a search or seizure within the meaning of the Fourth Amendment has occurred; (2) if so, that under the totality of the circumstances an objectively reasonable basis for a community caretaking function is shown; and (3) if so, that the public need or interest outweighs the intrusion upon the privacy of the individual.

After further fleshing out the test, the court applied it and found that the stop at issue fell within the community caretaking exception.

In this DWI case, the court held that a traffic checkpoint had a valid programmatic purpose and that G.S. 20-16.3A is constitutional.  Troopers testified that the primary purpose of the checkpoint, which was conducted with prior approval from a supervisor, with an established plan, and without narcotics officers or drug dogs, was to check for driver’s licenses and evidence of impairment.  The defendant’s primary challenge to the programmatic purpose of the checkpoint was that its location changed throughout the evening.  Given that changing the location was planned prior to establishing the checkpoint and was authorized by the supervisor, the trial court properly determined that the checkpoint had a valid programmatic purpose.  The court went on to hold G.S. 20-16.3A constitutional, specifically finding that the statute does not violate the right to free travel and does not impermissibly foreclose equal protection challenges arising from the placement of checkpoints.

The defendant was charged with driving while impaired after being stopped at a checkpoint on Highway 27 in Harnett County.  She moved to suppress the evidence on the basis that the checkpoint violated her Fourth Amendment rights. The trial court denied the motion, and the defendant pled guilty preserving her right to appeal the denial of the motion to suppress. She then appealed.

The Court of Appeals, over a dissent, determined that the trial court did not adequately weigh the factors necessary to judge the reasonableness and hence, the constitutionality, of the checkpoint.  Those factors are: (1) the gravity of the public concern served by the seizure; (2) the degree to which the seizure advances the public interest; and (3) the severity of the interference with individual liberty. If, on balance, these factors weigh in favor of the public interest, the checkpoint is reasonable and therefore constitutional.

As for the first factor, the Court of Appeals determined that the trial court failed to make findings that assessed the importance of this particular checkpoint stop to the public. While the trial court made ample findings, in the Court’s view, that the checkpoint’s primary purpose (detecting violations of the state’s motor vehicle laws) was lawful, those findings did not substitute for findings that the checkpoint furthered the public concern.

As for the second factor, the Court of Appeals noted that while the trial court made pertinent findings regarding the location of the checkpoint, the time it occurred and its duration, it failed to consider other relevant factors such as whether it “was set up on a whim,” had a predetermined start and end time, why the time was chosen, and why its location was chosen (beyond the finding that it was a major thoroughfare that was heavily traveled at times).

The Court of Appeals determined that the trial court thoroughly considered the final factor; nevertheless, the deficiencies related to the findings on the first two factors prevented it from meaningfully applying the three-prong test. 

Finally, the appellate court declined to consider whether the trial court erred in concluding that the checkpoint complied with statutory requirements as that issue was not preserved for review.

Judge Stroud dissented from the majority’s resolution of the constitutional issue, expressing her view that the trial court made findings of fact sufficient to permit appellate review and that it correctly addressed the three prongs of the balancing test. The dissent would have held that the trial court’s findings supported the conclusion that the checkpoint was reasonable.

In this impaired driving case, the trial court erred by denying the defendant’s motion to suppress, which had asserted that a checkpoint stop violated his constitutional rights. When considering a constitutional challenge to a checkpoint, a two-part inquiry applies: the court must first determine the primary programmatic purpose of the checkpoint; if a legitimate primary programmatic purpose is found the court must judge its reasonableness. The defendant did not raise an issue about whether the checkpoint had a proper purpose. The court noted when determining reasonableness, it must weigh the public’s interest in the checkpoint against the individual’s fourth amendment privacy interest. Applying the Brown v. Texas three-part test (gravity of the public concerns served by the seizure; the degree to which the seizure advances the public interest; and the severity of the interference with individual liberty) to this balancing inquiry, the court held that the trial court’s findings of fact did not permit the judge to meaningfully weigh the considerations required under the second and third prongs of the test. This constituted plain error.

Although the trial court properly found that the checkpoint had a legitimate proper purpose of checking for driver’s license and vehicle registration violations, the trial court failed to adequately determine the checkpoint’s reasonableness. The court held that the trial court’s “bare conclusion” on reasonableness was insufficient and vacated and remanded for appropriate findings as to reasonableness.

The trial court did not err by denying the defendant’s motion to suppress evidence obtained as a result of a vehicle checkpoint. The checkpoint was conducted for a legitimate primary purpose of checking all passing drivers for DWI violations and was reasonable.

In a DWI case, the court rejected the defendant’s argument that the checkpoint at issue was unconstitutional. The court first found that the checkpoint had a legitimate primary programmatic purpose, checking for potential driving violations. Next, it found that the checkpoint was reasonable.

The trial court did not err by granting the defendant’s motion to suppress evidence obtained as a result of a vehicle checkpoint. Specifically, the trial court did not err by concluding that a lack of a written policy in full force and effect at the time of the defendant’s stop at the checkpoint constituted a substantial violation of G.S. 20-16.3A (requiring a written policy providing guidelines for checkpoints). The court also rejected the State’s argument that a substantial violation of G.S. 20-16.3A could not support suppression; the State had argued that evidence only can be suppressed if there is a Constitutional violation or a substantial violation of Chapter 15A.

The trial court erred by granting the defendant's motion to suppress on grounds that a checkpoint was unlawful under G.S. 20-16.3A. Because the defendant did not actually stop at the checkpoint, its invalidity was irrelevant to whether an officer had sufficient reasonable suspicion to stop the defendant once he attempted to evade the checkpoint. The court vacated the order granting the motion to suppress and remanded.

The trial court did not err by concluding that the vehicle checkpoint passed constitutional muster. The trial court properly concluded that the primary programmatic purpose of the checkpoint was “the detection of drivers operating a motor vehicle while impaired and that the ‘procedure was not merely to further general crime control’” and that this primary programmatic purpose was constitutionally permissible. Applying the three-pronged test of Brown v. Texas, 443 U.S. 47, 50 (1979), the trial court properly determined that the checkpoint was reasonable.

The vehicle checkpoint did not violate the defendant’s Fourth Amendment rights. The primary programmatic purpose of the checkpoint—to determine if drivers were complying with drivers license laws and to deter citizens from violating these laws—was a lawful one. Additionally, the checkpoint itself was reasonable, based on the gravity of the public concerns served by the seizure, the degree to which the seizure advanced the public interest, and the severity of the interference with individual liberty. The court also held that the officer had reasonable, articulable suspicion to continue to detain the 18-year-old defendant after he produced a valid license and registration and thus satisfied the primary purpose of the vehicle checkpoint. Specifically, when the officer approached the car, he saw an aluminum can between the driver’s and passenger’s seat, and the passenger was attempting to conceal the can. When the officer asked what was in the can, the defendant raised it, revealing a beer can.

Declining to consider the defendant’s challenge to the constitutionality of a vehicle checkpoint where officers did not stop the defendant’s vehicle as a part of the checkpoint but rather approached it after the defendant parked it on the street about 100-200 feet from the checkpoint.

A dog sniff that prolongs the time reasonably required for a traffic stop violates the Fourth Amendment. After an officer completed a traffic stop, including issuing the driver a warning ticket and returning all documents, the officer asked for permission to walk his police dog around the vehicle. The driver said no. Nevertheless, the officer instructed the driver to turn off his car, exit the vehicle and wait for a second officer. When the second officer arrived, the first officer retrieved his dog and led it around the car, during which time the dog alerted to the presence of drugs. A search of the vehicle revealed a large bag of methamphetamine. All told, 7-8 minutes elapsed from the time the officer issued the written warning until the dog’s alert. The defendant was charged with a drug crime and unsuccessfully moved to suppress the evidence seized from his car, arguing that the officer prolonged the traffic stop without reasonable suspicion to conduct the dog sniff. The defendant was convicted and appealed. The Eighth Circuit held that the de minimus extension of the stop was permissible. The Supreme Court granted certiorari “to resolve a division among lower courts on the question whether police routinely may extend an otherwise-completed traffic stop, absent reasonable suspicion, in order to conduct a dog sniff.”

The Court reasoned that an officer may conduct certain unrelated checks during an otherwise lawful traffic stop, but “he may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual.” The Court noted that during a traffic stop, beyond determining whether to issue a traffic ticket, an officer’s mission includes “ordinary inquiries incident to [the traffic] stop” such as checking the driver’s license, determining whether the driver has outstanding warrants, and inspecting the automobile’s registration and proof of insurance. It explained: “These checks serve the same objective as enforcement of the traffic code: ensuring that vehicles on the road are operated safely and responsibly.” A dog sniff by contrast “is a measure aimed at detect[ing] evidence of ordinary criminal wrongdoing.” (quotation omitted). It continued: “Lacking the same close connection to roadway safety as the ordinary inquiries, a dog sniff is not fairly characterized as part of the officer’s traffic mission.”

Noting that the Eighth Circuit’s de minimus rule relied heavily on Pennsylvania v. Mimms, 434 U.S. 106 (1977) (per curiam) (reasoning that the government’s “legitimate and weighty” interest in officer safety outweighs the “de minimis” additional intrusion of requiring a driver, already lawfully stopped, to exit the vehicle), the Court distinguished Mimms:

Unlike a general interest in criminal enforcement, however, the government’s officer safety interest stems from the mission of the stop itself. Traffic stops are “especially fraught with danger to police officers,” so an officer may need to take certain negligibly burdensome precautions in order to complete his mission safely. On-scene investigation into other crimes, however, detours from that mission. So too do safety precautions taken in order to facilitate such detours. Thus, even assuming that the imposition here was no more intrusive than the exit order in Mimms, the dog sniff could not be justified on the same basis. Highway and officer safety are interests different in kind from the Government’s endeavor to detect crime in general or drug trafficking in particular. (citations omitted)

The Court went on to reject the Government’s argument that an officer may “incremental[ly]” prolong a stop to conduct a dog sniff so long as the officer is reasonably diligent in pursuing the traffic-related purpose of the stop, and the overall duration of the stop remains reasonable in relation to the duration of other traffic stops involving similar circumstances. The Court dismissed the notion that “by completing all traffic-related tasks expeditiously, an officer can earn bonus time to pursue an unrelated criminal investigation.” It continued:

If an officer can complete traffic-based inquiries expeditiously, then that is the amount of “time reasonably required to complete [the stop’s] mission.” As we said in Caballes and reiterate today, a traffic stop “prolonged beyond” that point is “unlawful.” The critical question, then, is not whether the dog sniff occurs before or after the officer issues a ticket . . . but whether conducting the sniff “prolongs”—i.e., adds time to—“the stop”. (citations omitted).

In this case, the trial court ruled that the defendant’s detention for the dog sniff was not independently supported by individualized suspicion. Because the Court of Appeals did not review that determination the Court remanded for a determination by that court as to whether reasonable suspicion of criminal activity justified detaining the defendant beyond completion of the traffic infraction investigation.

State v. White, 836 F.3d 437 (Sept. 9, 2016)

A local West Virginia law enforcement officer stopped a car that had veered out of its lane. In addition to the driver, there was a front seat passenger, the defendant, and one back seat passenger, Bone. When approaching the driver’s window, he smelled an odor of burned marijuana emanating from the car. The driver, whom the officer concluded was not impaired, denied knowledge of the marijuana. The officer requested that the defendant exit the car and asked him about the marijuana odor, but he denied anything illegal in the car. While talking with Bone, the officer saw a firearm in a piece of plastic molding on the front side of the passenger seat where the defendant had been sitting. The defendant was arrested and later convicted in federal district court of possession of a firearm by a felon.

The defendant conceded that the stop of the vehicle was supported by reasonable suspicion of a traffic violation under West Virginia law, but he contended that the officer unconstitutionally prolonged the stop. The fourth circuit noted that its case law provides that the odor of marijuana alone can provide probable cause to believe that marijuana is present in a particular place. So the officer had reasonable suspicion to extend the traffic stop to investigate the marijuana odor. And during that investigation the officer found the firearm. The court ruled that therefore the officer did not unconstitutionally prolong the traffic stop.

In this drug trafficking case arising out of a traffic stop, the court affirmed the conclusion of the Court of Appeals that the law enforcement officer who arrested the defendant violated the Fourth amendment by prolonging the stop without the defendant’s consent or a reasonable articulable suspicion of criminal activity.  Highway Patrol Trooper Lamm, a member of the Patrol’s Criminal Interdiction Unit who was assigned to aggressively enforce traffic laws while being on the lookout for other criminal activity including drug interdiction and drug activity, clocked the black male defendant’s vehicle by radar being operated at a speed of 78 miles per hour in a 65 mile-per-hour zone.  Lamm initiated a traffic stop and observed at its outset that there was a black female passenger and a female pit bull dog inside the vehicle.  The defendant provided Lamm with his New York driver’s license and the rental agreement for the vehicle, which indicated that the female passenger, Usha Peart who also was the defendant’s fiancée, was the renter and that the defendant was an additional authorized driver.  Trooper Lamm ordered the defendant out of the vehicle, which Lamm characterized as displaying “signs of . . . hard [continuous] driving,” and into the front seat of Lamm’s patrol car, where he further ordered the defendant to close the door of the patrol car, which the defendant did after expressing some reluctance.  Trooper Lamm did not consider the defendant to be free to leave at this point and began to question the defendant about his travel and other activities.  Upon confirming that things were sufficiently in order regarding the rental car, Lamm completed the traffic stop and returned all paperwork to the defendant, telling him that the stop was concluded.  About 20 minutes had elapsed at this point.  After telling the defendant that the stop had ended, Lamm said “I’m going to ask you a few more questions if it is okay with you,” and construed the defendant’s continued presence in his patrol car as voluntary.  Lamm testified that despite informing the defendant that the stop had ended, defendant would still have been detained, even if he denied consent to search the vehicle and wanted to leave.  Lamm asked the defendant for consent to search the vehicle, to which he replied “you could break the car down,” but further explained that Lamm should seek consent from Peart since she had rented the car.  Lamm told the defendant to “sit tight” in the patrol vehicle as Lamm went to confer with Peart.  At this time, Trooper Ellerbe, also a member of the Criminal Interdiction Unit, arrived at the scene in response to Lamm’s request for backup where he was informed by Lamm that Lamm was going to attempt to obtain consent to search from Peat.  Ellerbe then stationed himself next to Lamm’s passenger seat where the defendant remained seated with the door closed.  Lamm proceeded to talk with Peart and obtained her signature on the State Highway Patrol form “Written Consent to Search,” which he had completed himself.  Lamm then discovered cocaine in the backseat area of the vehicle and directed Ellerbe to place the defendant in handcuffs.

With this recitation of the factual circumstances surrounding the stop and search, the court proceeded to analyze, under the two-pronged analysis of Terry v. Ohio, 392 U.S. 1 (1968), (1) whether the stop was reasonable at its inception, and (2) whether the continued stop was “sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure.”  Focusing on the second prong of the analysis because the defendant conceded that the stop was lawful at is inception, the court cited its previous decision in State v. Bullock, 370 N.C. 256 (2017) while explaining that “the duration of a traffic stop must be limited to the length of time that is reasonably necessary to accomplish the mission of the stop,” and that a law enforcement officer may not detain a person “even momentarily without reasonable, objective grounds for doing so.”  The critical question on this second prong in the traffic stop context is whether Trooper Lamm “diligently pursued a means of investigation that was likely to confirm or dispel [his] suspicions quickly, during which time it was necessary to detain the defendant” or whether Lamm unlawfully extended an otherwise-completed stop.  Reviewing its own precedent and that of the U.S. Supreme Court, the court explained that all of Trooper Lamm’s investigative activities until the point where Lamm returned the defendant’s paperwork, issued the warning ticket, and told the defendant that the stop had ended were lawful.  At that point, however, the mission of the stop was accomplished and Lamm unlawfully prolonged it by detaining the defendant in his patrol car and asking the defendant further questions without reasonable suspicion.  As to whether reasonable suspicion existed to prolong the stop, the court found that inconsistencies in Lamm’s testimony demonstrated that he was unable to articulate an objective basis for his purported reasonable suspicion and was unable to articulate the time at which he formulated such suspicion.  The court disagreed with dissenting justices who took the view that the defendant’s nervousness, his explanation of travel plans, the condition of the rental car, and the fact that it had been paid for in cash provided reasonable suspicion, saying that these circumstances were generally consistent with lawful travel and were unremarkable.  The court concluded by agreeing with the Court of Appeals that the trial court erred in denying the defendant’s motion to suppress evidence obtained as a result of the defendant’s unlawful detention.

Justice Newby dissented, explaining that in his view, and as the trial court had found, the defendant consented to the prolonging of the stop in order to allow Trooper Lamm to ask him a few more questions.

Justice Davis, joined by Justices Newby and Ervin, also dissented, expressing the view that even is the defendant’s consent to search was not voluntary, Trooper Lamm possessed reasonable suspicion to extend the stop.  In finding that reasonable suspicion existed, Justice Davis noted the defendant and his passenger’s inconsistent statements regarding their travel plans, certain features of the rental car agreement, the fact that the car had been paid for in cash, and the condition of the interior of the car, including that dog food was strewn about and that air fresheners were present.

State v. Downey, 370 N.C. 507 (Mar. 2, 2018)

The court per curiam affirmed a divided decision of the Court of Appeals, ___ N.C. App. ___, 796 S.E.2d 517 (2017), affirming an order denying the defendant’s motion to suppress. Over a dissent, the court of appeals had held that reasonable suspicion supported extension of the traffic stop. After an officer stopped the defendant for a traffic violation, he approached the vehicle and asked to see the driver’s license and registration. As the defendant complied, the officer noticed that his hands were shaking, his breathing was rapid, and that he failed to make eye contact. He also noticed a prepaid cell phone inside the vehicle and a Black Ice air freshener. The officer had learned during drug interdiction training that Black Ice freshener is frequently used by drug traffickers because of its strong scent and that prepaid cell phones are commonly used in drug trafficking. The officer determined that the car was not registered to the defendant, and he knew from his training that third-party vehicles are often used by drug traffickers. In response to questioning about why the defendant was in the area, the defendant provided vague answers. When the officer asked the defendant about his criminal history, the defendant responded that he had served time for breaking and entering and that he had a cocaine-related drug conviction. After issuing the defendant a warning ticket for the traffic violation and returning his documentation, the officer continued to question the defendant and asked for consent to search the vehicle. The defendant declined. He also declined consent to a canine sniff. The officer then called for a canine unit, which arrived 14 minutes after the initial stop ended. An alert led to a search of the vehicle and the discovery of contraband. The court of appeals rejected the defendant’s argument that the officer lacked reasonable suspicion to extend the traffic stop, noting that before and during the time in which the officer prepared the warning citation, he observed the defendant’s nervous behavior; use of a particular brand of powerful air freshener favored by drug traffickers; the defendant’s prepaid cell phone; the fact that the defendant’s car was registered to someone else; the defendant’s vague and suspicious answers to the officer’s questions about why he was in the area; and the defendant’s prior conviction for a drug offense. These circumstances, the court of appeals held, constituted reasonable suspicion to extend the duration of stop.

State v. Reed, 370 N.C. 267 (Nov. 3, 2017)

On appeal from a divided panel of the Court of Appeals, ___ N.C. App. ___, 791 S.E.2d 486 (2016), the court vacated and remanded for reconsideration in light of its decision in State v. Bullock, ___ N.C. ___, ___ S.E.2d ___ (2017), holding that a stop was not unduly prolonged.

State v. Bullock, 370 N.C. 256 (Nov. 3, 2017)

On an appeal from a divided panel of the Court of Appeals, ___ N.C. App. ___, 785 S.E.2d 746 (2016), the court reversed, concluding that the stop at issue was not unduly prolonged. An officer puller over the defendant for several traffic violations. During the traffic stop that ensued, officers discovered heroin inside a bag in the car. The defendant moved to suppress the evidence, arguing that the search was unduly prolonged under Rodriguez. The trial court denied the motion and the Court of Appeals reversed, concluding that the stop had been unduly prolonged. The Supreme Court reversed. After initiating the stop, the officer asked the defendant, the vehicle’s sole occupant, for his license and registration. The defendant’s hand trembled as he provided his license. Although the car was a rental vehicle, the defendant was not listed as a driver on the rental agreement. The officer noticed that the defendant had two cell phones, a fact he associated, based on experience, with those transporting drugs. The defendant was stopped on I-85, a major drug trafficking thoroughfare. When the officer asked the defendant where he was going, the defendant said he was going to his girlfriend’s house on Century Oaks Drive and that he had missed his exit. The officer knew however that the defendant was well past the exit for that location, having passed three exits that would have taken him there. The defendant said that he recently moved to North Carolina. The officer asked the defendant to step out of the vehicle and sit in the patrol car, telling him that he would receive a warning, not a ticket. At this point the officer frisked the defendant, finding $372 in cash. The defendant sat in the patrol car while the officer ran the defendant’s information through law enforcement databases, and the two continued to talk. The defendant gave contradictory statements about his girlfriend. Although the defendant made eye contact with the officer when answering certain questions, he looked away when asked about his girlfriend and where he was traveling. The database checks revealed that the defendant was issued a driver’s license in 2000 and that he had a criminal history in North Carolina starting in 2001, facts contradicting his earlier claim to have just moved to the state. The officer asked the defendant for permission to search the vehicle. The defendant agreed to let the officer search the vehicle but declined to allow a search of a bag and two hoodies. When the officer found the bag and hoodies in the trunk, the defendant quickly objected that the bag was not his, contradicting his earlier statement, and said he did not want it searched. The officer put the bag on the ground and a police dog alerted to it. Officers opened the bag and found a large amount of heroin. The defendant did not challenge the validity of the initial stop. The court began by noting during a lawful stop, an officer can ask the driver to exit the vehicle. Next, it held that the frisk was lawful for two reasons. First, frisking the defendant before putting them in the patrol car enhanced the officer safety. And second, where, as here, the frisk lasted only 8-9 seconds it did not measurably prolong stop so as to require reasonable suspicion. The court went on to find that asking the defendant to sit in the patrol car did not unlawfully extend the stop. The officer was required to check three databases before the stop could be finished and it was not prolonged by having the defendant in the patrol car while this was done. This action took a few minutes to complete and while it was being done, the officer was free to talk with the defendant “at least up until the moment that all three database checks had been completed.” The court went on to conclude that the conversation the two had while the database checks were running provided reasonable suspicion to prolong the stop. It noted that I-85 is a major drug trafficking corridor, the defendant was nervous and had two cell phones, the rental car was in someone else’s name, the defendant gave an illogical account of where he was going, and cash was discovered during the frisk. All of this provided reasonable suspicion of drug activity that justified prolonging the stop shortly after the defendant entered the patrol car. There, as he continued his conversation with the officer, he gave inconsistent statements about his girlfriend and the database check revealed that the defendant had not been truthful about a recent move to North Carolina. This, combined with the defendant’s broken eye contact, allowed the officer to extend the stop for purposes of the dog sniff.

State v. Warren, 368 N.C. 756 (Mar. 18, 2016)

On appeal pursuant from the decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 775 S.E.2d 362 (2015), the court per curiam affirmed. In this post-Rodriguez case, the court of appeals had held that the officer had reasonable suspicion to extend the scope and duration of a routine traffic stop to allow a police dog to perform a drug sniff outside the defendant’s vehicle. The court of appeals noted that under Rodriguez v. United States, ___ U.S. ___, 191 L.Ed. 2d 492 (2015), an officer who lawfully stops a vehicle for a traffic violation but who otherwise does not have reasonable suspicion that any crime is afoot beyond a traffic violation may execute a dog sniff only if the check does not prolong the traffic stop. It further noted that earlier N.C. case law applying the de minimus rule to traffic stop extensions had been overruled by Rodriguez. The court of appeals continued, concluding that in this case the trial court’s findings support the conclusion that the officer developed reasonable suspicion of illegal drug activity during the course of his investigation of the traffic offense and was therefore justified to prolong the traffic stop to execute the dog sniff. Specifically:

Defendant was observed and stopped “in an area [the officer] knew to be a high crime/high drug activity area[;]” that while writing the warning citation, the officer observed that Defendant “appeared to have something in his mouth which he was not chewing and which affected his speech[;]”that “during his six years of experience [the officer] who has specific training in narcotics detection, has made numerous ‘drug stops’ and has observed individuals attempt to hide drugs in their mouths and . . . swallow drugs to destroy evidence[;]” and that during their conversation Defendant denied being involved in drug activity “any longer.”

State v. Leak, 368 N.C. 570 (Dec. 18, 2015)

The supreme court vacated the decision below, State v. Leak, ___ N.C. App. ___, 773 S.E.2d 340 (2015), and ordered that the court of appeals remand to the trial court for reconsideration of the defendant’s motion to suppress in light of Rodriguez v. United States, ___ U.S. ___, 135 S. Ct. 1609 (2015). The court of appeals had held that the defendant’s Fourth Amendment rights were violated when an officer, who had approached the defendant’s legally parked car without reasonable suspicion, took the defendant’s driver’s license to his patrol vehicle. The court of appeals concluded that until the officer took the license, the encounter was consensual and no reasonable suspicion was required: “[the officer] required no particular justification to approach defendant and ask whether he required assistance, or to ask defendant to voluntarily consent to allowing [the officer] to examine his driver’s license and registration.” However, the court of appeals concluded that the officer’s conduct of taking the defendant’s license to his patrol car to investigate its status constituted a seizure that was not justified by reasonable suspicion. Citing Rodriguez (police may not extend a completed vehicle stop for a dog sniff, absent reasonable suspicion), the court of appeals rejected the suggestion that no violation occurred because any seizure was “de minimus” in nature.

State v. Heien, 367 N.C. 163 (Nov. 8, 2013) aff'd on other grounds, 574 U.S. ___, 135 S. Ct. 530 (Dec 15 2014)

The court per curiam affirmed the decision below, State v. Heien, 226 N.C. App. 280 (2013). Over a dissent the court of appeals had held that a valid traffic stop was not unduly prolonged and as a result the defendant’s consent to search his vehicle was valid. The stop was initiated at 7:55 am and the defendant, a passenger who owned the vehicle, gave consent to search at 8:08 am. During this time, the two officers discussed a malfunctioning vehicle brake light with the driver, discovered that the driver and the defendant claimed to be going to different destinations, and observed the defendant behaving unusually (he was lying down on the backseat under a blanket and remained in that position even when approached by an officer requesting his driver’s license). After each person’s name was checked for warrants, their licenses were returned. The officer then requested consent to search the vehicle. The officer’s tone and manner were conversational and non-confrontational. No one was restrained, no guns were drawn and neither person was searched before the request to search the vehicle was made. The trial judge properly concluded that the defendant was aware that the purpose of the initial stop had been concluded and that further conversation was consensual. The court of appeals also had held, again over a dissent, that the defendant’s consent to search the vehicle was valid even though the officer did not inform the defendant that he was searching for narcotics.

State v. Williams, 366 N.C. 110 (June 14, 2012)

The court affirmed State v. Williams, 215 N.C. App. 1 (Aug. 16, 2011) (reasonable articulable suspicion justified extending the traffic stop). The officer stopped the vehicle in which the defendant was a passenger for having illegally tinted windows and issued a citation. The officer then asked for and was denied consent to search the vehicle. Thereafter he called for a canine trained in drug detection; when the dog arrived it alerted on the car and drugs were found. Several factors supported the trial court’s determination that reasonable suspicion supported extending the stop. First, the driver told the officer that she and the defendant were coming from Houston, Texas, which was illogical given their direction of travel. Second, the defendant’s inconsistent statement that they were coming from Kentucky and were traveling to Myrtle Beach “raises a suspicion as to the truthfulness of the statements.” Third, the driver’s inability to tell the officer where they were going, along with her illogical answer about driving from Houston, permitted an inference that she “was being deliberately evasive, that she had been hired as a driver and intentionally kept uninformed, or that she had been coached as to her response if stopped.” Fourth, the fact that the defendant initially suggested the two were cousins but then admitted that they just called each other cousins based on their long-term relationship “could raise a suspicion that the alleged familial relationship was a prearranged fabrication.” Finally, the vehicle, which had illegally tinted windows, was owned by a third person. The court concluded:

Viewed individually and in isolation, any of these facts might not support a reasonable suspicion of criminal activity. But viewed as a whole by a trained law enforcement officer who is familiar with drug trafficking and illegal activity on interstate highways, the responses were sufficient to provoke a reasonable articulable suspicion that criminal activity was afoot and to justify extending the detention until a canine unit arrived.

 

In this case involving drug offenses, the trial court did not err by denying the defendant’s motion to suppress evidence arising from a traffic stop because the duration of the stop was not impermissibly prolonged under Rodriguez v. United States, 575 U.S. 348 (2015).  Two officers with the Winston-Salem Police Department conducted a traffic stop of a vehicle based upon observing its broken taillight.  One officer requested identification from the occupants of the car, informed them of the reason for the stop, and returned to the patrol car to conduct warrant checks.  During this time the other officer requested that a canine unit respond to the stop.  The officer conducting warrant checks learned that a passenger had outstanding arrest warrants and placed him under arrest, at which time the officer discovered that the passenger was carrying a pistol and disarmed him.  The other officer immediately returned to the patrol car to begin the process of issuing a citation for the taillight and finish warrant checks on the remaining occupants.  While drafting the citation, the canine unit arrived and indicated a positive alert after walking around the vehicle.  The officers then searched the vehicle and found drug evidence.  The court determined that at all times prior to the canine alert the officers were diligently pursuing the purpose of the stop, conducting ordinary inquiries incident to the stop, or taking necessary safety precautions.  The court further determined that the request for the canine unit did not measurable extend the stop.  Assuming for argument that any of the officers’ actions unrelated to the initial purpose of the stop did extend its duration, they were justified by reasonable suspicion because a stopping officer encountered the defendant’s vehicle earlier in the evening and witnessed a hand-to-hand drug transaction, the stop occurred in a high crime area late at night, and a passenger with outstanding arrest warrants was armed with a loaded gun.

The court vacated a civil judgment for attorney’s fees because the trial court erred by not providing the defendant notice and an opportunity to be heard before entering the judgment.

In this felony possession of cocaine case, the trial court erred by denying the defendant’s motion to suppress evidence that was discovered pursuant to a consent search where the request for consent and the search measurably extended a traffic stop without reasonable suspicion in violation of Rodriguez.  An officer made a traffic stop of the defendant after observing him driving without wearing a seatbelt.  “Almost immediately,” the officer asked the defendant to exit the vehicle and accompany him to his patrol car.  As they walked, the officer asked if the defendant possessed anything illegal and whether he could search the defendant.  The defendant raised his hands above his waist and the officer reached into the defendant’s sweatshirt pocket, discovering a plastic wrapper containing soft material he believed to be powder cocaine.

The court first determined that the defendant had preserved his undue delay argument for appellate review by generally arguing to the trial court that the stop was unsupported by reasonable suspicion and the search was unreasonable under the Fourth Amendment, regardless of the fact that the defendant’s precise Fourth Amendment argument on appeal differed slightly from his argument to the trial court.  The court went on to say that it would exercise Rule 2 discretion to address the merits in any event.

Addressing the merits, the court determined that while it may have been permissible on the grounds of officer safety to conduct an external frisk if the officer had reasonable suspicion that the defendant was armed and dangerous, the search in this case went beyond such a frisk, lasting almost thirty seconds and appearing to miss areas that would be searched in a safety frisk.  The State also made no argument that reasonable suspicion of being armed and dangerousness justified the search.  The court proceeded to distinguish case law the State argued supported the position that officers need no additional reasonable suspicion to request consent to search during a traffic stop as a universal matter, explaining that in the case at hand the request for consent and the full search were not related to the mission of the stop and were not supported by additional reasonable suspicion beyond the observed seatbelt violation.  The court concluded that any consent the defendant gave for the search was involuntary as a matter of law, reversed the trial court’s denial of the defendant’s motion to suppress, and vacated the judgement entered against the defendant based on his guilty pleas.

Judges Carpenter and Griffin concurred with separate opinions, each agreeing with the Fourth Amendment analysis.  Judge Griffin wrote to address an argument in the defendant’s brief “raising a question of impartiality in traffic stops, and our justice system generally, based on the color of a person’s skin and their gender.”  Judge Griffin rejected that argument, characterizing it as “inflammatory and unnecessary.”  Judge Carpenter wrote that “[c]hoosing to inject arguments of disparate treatment due to race into matters before the Court where such treatment is not at issue . . . does not further the goal of the equal application of the law to everyone.”

In this case from Burke County, an officer observed the defendant driving ten miles over the speed limit and believed that the vehicle’s window tint was illegal. When the officer approached, he smelled a slight odor of marijuana and a strong odor of cologne. He also observed that the car windows were not tinted but rather had “shades” covering them. While running license and background checks of the defendant, the officer called for a canine unit and a backup officer. When he returned to the defendant’s vehicle, the odor of marijuana was stronger. The defendant denied having drugs in the car and gave no indications of impairment during field sobriety testing. While the officer was writing a warning ticket, a canine unit arrived. The dog alerted on the car, and the defendant ultimately admitted that a gun was inside. A search revealed the gun, cash, digital scales, cocaine, and synthetic opioids. The defendant moved to suppress. He also sought to admit evidence of a relationship between the backup officer on scene and a woman whose house the defendant had been at immediately before the stop and challenged the reliability of the canine sniff. The trial court denied the motion to suppress, allowed a limited offer of proof regarding the relationship between the woman and the officer (but excluded the evidence as irrelevant), and found the canine was reliable. The defendant pled guilty to trafficking opium and appealed.

(1) The stop of the defendant’s car was supported by reasonable suspicion based on the officer’s observation of speeding (which was confirmed by radar), as well as the suspected window tint violation. The officer developed additional reasonable suspicion of a drug offense based on the odor of marijuana emanating from the defendant’s car. The canine unit arrived on scene 12 minutes into the traffic stop and conducted its sniff of the defendant’s car within one minute while the stopping officer was writing a warning ticket. The officer therefore acted within the mission of the stop throughout the encounter and the stop was not improperly extended. The search of the defendant’s car was also supported by probable cause based on the odor of marijuana and the positive canine alert.

(2) The defendant complained that his offer of proof regarding the relationship between one officer on the scene and a woman whose house the defendant had traveled from prior to the stop was improperly limited. The Court of Appeals noted that “a trial court may limit an offer of proof by allowing counsel to articulate what a defendant’s showing would have been by identifying witnesses and presenting a detailed forecast of evidence for the record.” Walton Slip op. at 11. Here, the fact of the relationship was established before the trial court and that was a sufficient offer of proof on the issue. The court also found that because this officer was not the stopping officer and had limited involvement in the case, the trial court did not commit prejudicial error in limiting or excluding this evidence.

(3) The defendant also argued that the trial court incorrectly found the canine was properly trained and reliable. Under Florida v. Harris, 568 U.S. 237 (2013), a certified or well-trained canine’s alert can supply probable cause to search under the totality of circumstances. A defendant is permitted to demonstrate that the animal was not properly trained or reliable in arguing against probable cause based on the alert. The defendant pointed to the fact that one of the dog’s certifications was expired at the time of the sniff. The court rejected this a determinative factor, finding the dog had been repeatedly certified by two different organizations and had at least one unexpired certification at the time. This was sufficient evidence of the dog’s reliability, absent any showing by the defendant that its training or performance was deficient. The fact that the officer handling the canine had gaps in his training inconsistent with departmental policies was similarly not determinative. While the officer’s training is a relevant consideration in the analysis, this alone was insufficient to overcome the showing that the dog was properly trained and reliable.

The case was therefore affirmed in all respects.

While parked on the side of the road, a trooper saw a truck pass by and believed that the passenger was not wearing a seat belt. After the trooper stopped the truck and approached the passenger side, he realized that passenger was wearing his seat belt, but the gray belt had not been visible against the passenger’s gray shirt. The passenger stated that he was wearing his seat belt the whole time, and the trooper did not cite him for a seat belt infraction.

However, upon approaching the window, the trooper had also immediately noticed an odor of alcohol coming from the vehicle. The trooper asked the passenger and the driver (the defendant) if they had been drinking, and both men said yes. The trooper asked the men to step out of the truck, and saw that the defendant’s eyes were red, glassy, and bloodshot. After further investigation, the trooper determined the defendant was impaired and charged him with DWI. The defendant filed a motion to suppress, arguing there was no reasonable suspicion to support the initial or extended vehicle stop. The trial court denied the motion, finding that the trooper had a mistaken but lawful basis for the initial stop, and he developed reasonable suspicion of other criminal activity that warranted an extension of the stop. The defendant proceeded to trial, was convicted of DWI, and appealed.

The appellate court affirmed the findings and rulings denying the suppression motion. First, the trial court’s findings of fact were adequately supported by the trooper’s testimony. Second, even though the trooper’s initial belief that the passenger was not wearing a seat belt turned out to be mistaken, it was nevertheless objectively reasonable (“failing to see a gray seat belt atop a gray shirt is one a reasonable officer could make”) and the extension of the stop was permissible based on the trooper “instantaneously” smelling an odor of alcohol coming from the vehicle, raising a reasonable suspicion of DWI. Defendant’s related constitutional arguments concerning the extension of the stop and probable cause to arrest were not properly raised at the trial level, so they were dismissed on appeal. As to defendant’s remaining arguments regarding his trial (denial of motion to dismiss at close of evidence, allowing a “positive” PBT reading into evidence, and qualifying the trooper as an expert in HGN), the appellate court likewise found no error.

The trial court did not err by denying the defendant’s motion to suppress, which argued that officers improperly extended a traffic stop. Officers initiated a traffic stop of the vehicle for a passenger seatbelt violation. The defendant was in the passenger seat. That seat was leaned very far back while the defendant was leaning forward with his head near his knees in an awkward position. The defendant’s hands were around his waist, not visible to the officer. The officer believed that based on the defendant’s position he was possibly hiding a gun. When the officer introduced himself, the defendant glanced up, looked around the front area of the vehicle, but did not change position. The officer testified that the defendant’s behavior was not typical. The defendant was unable to produce an identity document, but stated that he was not going to lie about his identity. The officer testified that this statement was a sign of deception. The officer asked the defendant to exit the vehicle. When the defendant exited, he turned and pressed against the vehicle while keeping both hands around his waist. The defendant denied having any weapons and consented to a search of his person. Subsequently a large wad of paper towels fell from the defendant’s pants. More than 56 grams of cocaine was in the paper towels and additional contraband was found inside the vehicle. The defendant was charged with drug offenses. He unsuccessfully moved to suppress. On appeal he argued that the officer lacked reasonable suspicion to extend the traffic stop. The court disagreed, holding that the officer’s conduct did not prolong the stop beyond the time reasonably required to complete its mission. When the defendant was unable to provide identification, the officer “attempted to more efficiently conduct the requisite database checks” and complete the mission of the stop by asking the defendant to exit the vehicle. Because the officer’s conduct did not extend the traffic stop, no additional showing of reasonable suspicion was required.

In this DWI case, an officer did not unduly prolong a traffic stop. While on patrol, officers ran a vehicle’s tag and learned that the registered owner was a male with a suspended license. An officer stopped the vehicle based on the suspicion that it was being driven without a valid license. The officer who approached the vehicle immediately saw that the defendant, a female, was in the driver’s seat and that a female passenger was next to her. Although the officer determined that the owner was not driving the vehicle, the defendant ended up charged with DWI. On appeal, the defendant argued that while the officers may have had reasonable suspicion to stop the vehicle, the stop became unlawful when they verified that the male owner was not driving the vehicle. The court disagreed, stating:

Defendant’s argument is based upon a basic erroneous assumption: that a police officer can discern the gender of a driver from a distance based simply upon outward appearance. Not all men wear stereotypical “male” hairstyles nor do they all wear “male” clothing. The driver’s license includes a physical description of the driver, including “sex.” Until [the] Officer . . . had seen Defendant’s driver’s license, he had not confirmed that the person driving the car was female and not its owner. While he was waiting for her to find her license, he noticed her difficulty with her wallet, the odor of alcohol, and her slurred speech.

Additionally, the time needed to complete a stop includes the time for ordinary inquiries incident to the stop, including checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the vehicle’s registration and proof of insurance. The officer’s mission upon stopping the vehicle included talking with the defendant to inform her of the basis for the stop, asking for her driver’s license, and checking that the vehicle’s registration and insurance had not expired. While the officer was pursuing these tasks, the defendant avoided rolling her window all the way down and repeatedly fumbled through cards trying to find her license. Additionally because she was mumbling and had a slight slur in her speech, the officer leaned towards the window where he smelled an odor of alcohol. This evidence gave him reasonable suspicion to believe that the defendant was intoxicated. Because he developed this reasonable suspicion while completing the original mission of the stop, no fourth amendment violation occurred.

In this DWI case, the trial court properly denied the defendant’s motion to suppress evidence discovered after a roadside breath test. Specifically, the defendant asserted that the results of roadside sobriety tests and intoxilyzer test should be suppressed as fruit of the poisonous tree of an illegal search and seizure caused by an unlawfully compelled roadside breath test. The court disagreed. An officer observed the defendant exit a bar after midnight and swerve several times within his driving lane; after the initial traffic stop—the legality of which the defendant did not challenge—the officer smelled a strong odor of alcohol, the defendant presented his debit card when asked for his driver’s license, and the defendant initially denied but later admitted drinking alcohol. These facts were sufficient to establish reasonable suspicion to justify prolonging the initial stop to investigate the defendant’s potential impairment, including administering the roadside sobriety tests. These findings, in conjunction with findings regarding the defendant’s performance on the roadside sobriety tests supported a conclusion that the officer had probable cause to arrest the defendant for DWI, justifying the later intoxilyzer test. Therefore, the trial court properly refused to suppress the results of the roadside sobriety tests and the intoxilyzer test.

In this case involving drug charges and a charge of driving without an operator’s license, the court declined to address the defendant’s argument that the officer lacked reasonable suspicion to prolong the traffic stop and search the defendant, finding that the search was justified as a search incident to arrest for two offenses for which the officer had probable cause to arrest. An officer was on the lookout for a gold Kia sedan in connection with an earlier incident at the Green Valley Inn. As the officer was monitoring an intersection, he saw a Kia sedan drive through a red light. The officer conducted a traffic stop. The officer approached the vehicle and immediately saw an open beer container in the center console. The officer asked the defendant for his license and registration. The defendant said he did not have a license but handed over a Pennsylvania ID card, with a shaky hand. After noticing the defendant’s red, glassy eyes and detecting an odor of alcohol from the vehicle, the officer asked the defendant to exit the car so that he could search it and have the defendant perform sobriety tests. Before searching the vehicle the officer frisked the defendant. As the officer returned to his police car to check the defendant’s license for outstanding warrants, the defendant spontaneously handed the officer his car keys. Because it was cold, the officer allowed the defendant to sit in the back of the patrol car as he ran the license and warrant checks. The officer determined that the defendant’s license was expired, the vehicle was not registered to the defendant, and the defendant had no outstanding warrants. While sitting in the officer’s vehicle, the defendant voluntarily made a variety of spontaneous statements and asked the officer if he could drive him back to the Green Valley Inn after the traffic stop completed. After doing the license and warrants check, the officer conducted standardized field sobriety tests, which were performed to his satisfaction. He then asked for and got consent to search the defendant, finding powder and crack cocaine in the defendant’s pockets.

          On appeal, the defendant argued that the officer lacked reasonable suspicion to extend the stop after determining that the defendant was not intoxicated. The court however concluded that the officer did not need reasonable suspicion to extend the stop; the court reasoned that because the officer had probable cause to justify arrest, the search was justified as a search incident to arrest. Specifically, the officer’s discovery of the open container and that the defendant was driving without an operator’s license gave the officer probable cause to arrest. An officer may conduct a warrantless search incident to a lawful arrest; a search is incident to an arrest even if conducted prior to the formal arrest.

          For similar reasons, the court rejected the defendant’s argument that his consent to search was invalid because it was given while the stop was unduly prolonged. The court reasoned that because probable cause existed for the arrest and the search was justified as a search incident to an arrest, the defendant’s consent was unnecessary.

          The court went on to hold that even if the search was unlawful, discovery of the contraband on the defendant’s person was inevitable. Here, the officer testified that he would not have allowed the defendant to drive away from the traffic stop because he was not licensed to operate a motor vehicle. The officer testified that he would have searched the defendant before giving him a ride or transporting him to jail because of his practice of searching everyone transported in his patrol car. Also, the defendant repeatedly asked the officer if he would give him a ride back to the Green Valley Inn. Thus, the State established that the cocaine would have been inevitably discovered because the officer would have searched the defendant for weapons or contraband before transporting him to another location or jail.

(1) In this drug trafficking case, the court held that the fact that the defendant’s truck crossed over a double yellow line justified the stop. The officer saw the defendant’s vehicle cross the center line of the road by about 1 inch. The court stated:

[T]here is a “bright line” rule in some traffic stop cases. Here, the bright line is a double yellow line down the center of the road. Where a vehicle actually crosses over the double yellow lines in the center of a road, even once, and even without endangering any other drivers, the driver has committed a traffic violation of N.C. Gen. Stat. § 20-146 (2017). This is a “readily observable” traffic violation and the officer may stop the driver without violating his constitutional rights.

(2) After a proper traffic stop, the officer had reasonable suspicion to extend the stop for six or seven minutes for a dog sniff. The officer was patrolling the road based on complaints about drug activity and had been advised by the SBI to be on the lookout for the defendant based upon reports that he was bringing large quantities of methamphetamine to a supplier who lived off of the road. After the officer stopped the defendant’s vehicle, he identified the defendant as the person noted in the lookout warning. The defendant was confused, spoke so quickly that he was hard to understand, and began to stutter and mumble. The defendant did not make eye contact with the officer and his nervousness was “much more extreme” than a typical stopped driver. His eyes were bloodshot and glassy and the skin under his eyes was ashy. Based on his training and experience, the officer believed the defendant’s behavior and appearance were consistent with methamphetamine use. The defendant told the officer he was going to “Rabbit’s” house. The officer knew that “Rabbit” was involved with methamphetamine and that he lived nearby. When the defendant exited his car, he put his hand on the car for stability. These facts alone would have given the officer reasonable suspicion. But additionally, a woman the officer knew had given drug information to law enforcement in the past approached and told the officer she had talked to Rabbit and the defendant had “dope in the vehicle.” These facts were more than sufficient to give the officer a reasonable suspicion that the defendant had drugs in his vehicle and justify extension of the stop for a dog sniff.

The traffic stop at issue was not unduly extended. The defendant, a passenger in the stopped vehicle, argued that officers extended, without reasonable suspicion, the traffic stop after issuing the driver a warning citation. The stopping officer had extensive training in drug interdiction, including the detection of behaviors by individuals tending to indicate activity related to the use, transportation, and other activity associated with controlled substances, and had investigated more than 100 drug cases. The officer observed a sufficient number of “red flags” before issuing the warning citation to support a reasonable suspicion of criminal activity and therefore justifying extending the stop. When the officer first encountered the vehicle, he observed body language by both the driver and the defendant that he considered evasive; the driver exhibited extreme and continued nervousness throughout the stop and was unable to produce any form of personal identification; the driver and the defendant gave conflicting accounts of their travel plans and their relationship to each other; the officer observed an open sore on the defendant’s face that appeared, based on the officer’s training and experience, related to the use of methamphetamine; and background checks revealed that the driver had an expired license.

An officer had reasonable suspicion to prolong the traffic stop. A six-year officer who had received training in identification of drugs and had participated in 100 drug arrests pulled into the parking lot of a Motel 6, a high crime area. When he entered the lot, he saw two men sitting in a car. After the officer passed, the vehicle exited the lot at high speed. The officer stopped the car after observing a traffic violation. The vehicle displayed a temporary license tag. When the officer approached for the driver’s information, the driver was “more nervous than usual.” The officer asked why the two were at the motel, and the driver stated that they did not enter a room there. The passenger—the defendant—did not have any identifying documents but gave the officer his name. The officer went to his patrol car to enter the information in his computer and called for backup, as required by department regulations when more than one person is in a stopped vehicle. While waiting for backup to arrive, he entered the vehicle’s VIN number in a 50-state database, not having a state registration to enter. He determined that the vehicle was not stolen. Although neither the driver nor the passenger had outstanding warrants, both had multiple prior drug arrests. Shortly after, and 12 minutes after the stop began, the backup officer arrived. The two discussed the stop; the stopping officer told the backup officer that he was going to issue the driver a warning for unsafe movement but asked the backup officer to approach the defendant. The two approached the vehicle some 14 minutes after the stop was initiated. The stopping officer asked the driver to step to the rear the vehicle so that they could see the intersection where the traffic violation occurred while the officer explained his warning. The officer gave the driver a warning, returned his documents and asked to search the vehicle. The driver declined. While the stopping officer was speaking with the driver, the backup officer approached the defendant and saw a syringe in the driver’s seat. He asked the defendant to step out of the car and the defendant complied, at which point the officer saw a second syringe in the passenger seat. Four minutes into these conversations, the backup officer informed the stopping officer of the syringe caps. The stopping officer asked the driver if he was a diabetic and the driver said that he was not. The stopping officer then searched the vehicle, finding the contraband at issue. On appeal, the court held that the stop was not improperly extended. It noted that the stopping officer was engaged in “conduct within the scope of his mission” until the backup officer arrived after 12 minutes. Database searches of driver’s licenses, warrants, vehicle registrations, and proof of insurance all fall within the mission of a traffic stop. Additionally the officer’s research into the men’s criminal histories was permitted as a precaution related to the traffic stop, as was the stopping officer’s request for backup. Because officer safety stems from the mission of the traffic stop itself, time devoted to officer safety is time that is reasonably required to complete the mission of the stop. Even if a call for backup was not an appropriate safety precaution, here the backup call did not actually extend the stop because the stopping officer was still doing the required searches when the backup officer arrived. By the time the backup officer arrived, the stopping officer had developed a reasonable suspicion of criminal activity sufficient to extend the stop. The stopping officer was a trained officer who participated 100 drug arrests; he saw the driver and passenger in a high crime area; after he drove by them they took off at a high speed and made an illegal turn; the driver informed the officer that the two were at the motel but did not go into a motel room; the driver was unusually nervous; and both men had multiple prior drug arrests. These facts provided reasonable suspicion to extend the stop. Even if these facts were insufficient, other facts support a conclusion that reasonable suspicion existed, including the men’s surprise at seeing the officer in the motel lot; the titling of the vehicle to someone other than the driver or passenger; the driver’s statement that he met a friend at the motel but did not know the friend’s name; and the fact that the officer recognized the defendant as someone who had been involved in illegal drug activity. Finally, drawing on some of the same facts, the court rejected the defendant’s argument that any reasonable suspicion supporting extension of the stop was not particularized to him. The court also noted that an officer may stop and detain a vehicle and its occupants if an officer has reasonable suspicion that criminal activity is afoot.

 

The court rejected the defendant’s argument that his consent to search his rental vehicle was involuntary because it was given at a time when the stop had been unduly prolonged. Specifically, the defendant argued that the stop was prolonged because of questioning by the officer and the time he was detained while waiting for a second officer to arrive to assist with the search. An officer stopped the defendant for traffic violations. After routine questioning, the officer asked the defendant to step out of the vehicle and for permission to search the defendant. The defendant consented. After frisking the defendant, the officer placed the defendant in the patrol car and ran database checks on the defendant’s license. The officer continued to ask the defendant questions while waiting for the checks to finish. The officer asked the defendant if there were guns or drugs in the car and for consent to search the vehicle. The defendant said he did not want the officer to search “my shit,” meaning his property. The officer asked the defendant what property he had in the vehicle. The defendant said that his property included a bag and two hoodies. The defendant said that the officer could search the car but not his personal property. The officer then called for backup, explaining that he could not search the car without another officer present. A second officer arrived 3 to 5 minutes after the backup call and the defendant’s property was removed from the vehicle. One of the officers began to search the defendant’s vehicle. The officer brought his K-9 to the vehicle and it failed to alert to narcotics. The dog then sniffed the bag and indicated that there were narcotics inside. The case was before the court on remand from the state Supreme Court. That court had held that the initial traffic stop was valid; that the officer lawfully frisked the defendant without prolonging the stop; that the officer’s database checks on the defendant’s license did not unduly prolong the stop; and that the conversation that occurred was sufficient to form reasonable suspicion authorizing the dog sniff of the vehicle and bag. Because all parts of the stop were lawfully extended, the trial court did not err in determining that the defendant’s consent to search his vehicle was voluntary.

Because the trial court’s findings of fact do not support its conclusion that the defendant was legally seized at the time consented to a search of his person, the court reversed the trial court’s order denying the defendant’s motion to suppress contraband found on his person. Officers were conducting surveillance on a known drug house. They noticed the defendant leave the residence in a truck and return 20 minutes later. He parked his truck in the driveway and walked toward a woman in the driveway of a nearby residence. The two began yelling at each other. Thinking the confrontation was going to escalate, the officers got out of their vehicle and separated the two. One officer asked the defendant for his identification. The officer checked the defendant’s record, verifying that the defendant had no pending charges. Without returning the defendant’s identification, the officer then asked the defendant if he had any narcotics on him and the defendant replied that he did not. At the officer’s request, the defendant consented to a search of his person and vehicle. Drugs were found in his pants pocket. On appeal, the defendant argued that when the officer failed to return his identification after finding no outstanding warrants and after the initial reason for the detention was satisfied, the seizure became unlawful and the defendant’s consent was not voluntary. The court agreed. It noted that the officer failed to return the defendant’s identification before pursuing an inquiry into possession of drugs. It found that the trial court’s order failed to provide findings of fact which would give rise to a reasonable suspicion that the defendant was otherwise subject to detention. Absent a reasonable suspicion to justify further delay, retaining the defendant’s driver’s license beyond the point of satisfying the initial purpose of the detention—the escalating the conflict, checking the defendant’s identification, and verifying that he had no outstanding warrants—was unreasonable. Thus, the defendant’s consent to search his person, given during the period of unreasonable detention, was not voluntary.

(1) In this post-Rodriguez case, the court held that because no reasonable suspicion existed to prolong the defendant’s detention once the purpose of a traffic stop had concluded, the trial court erred by denying the defendant’s motion to suppress evidence obtained as a result of a consent search of her vehicle during the unlawful detention. The court found that the evidence showed only two circumstances that could possibly provide reasonable suspicion for extending the duration of the stop: the defendant was engaging in nervous behavior and she had associated with a known drug dealer. It found the circumstances insufficient to provide the necessary reasonable suspicion. Here, the officer had a legitimate basis for the initial traffic stop: addressing the defendant’s failure to dim her high beam lights. Addressing this infraction was the original mission of the traffic stop. Once the officer provided the defendant with a warning on the use of high beams, the original mission of the stop was concluded. Although some of his subsequent follow-up questions about the address on her license were supported by reasonable suspicion (regarding whether she was in violation of state law requiring a change of address on a drivers license), this “new mission for the stop” concluded when the officer decided not to issue her a ticket in connection with her license. At this point, additional reasonable suspicion was required to prolong the detention. The court agreed with the defendant that her nervousness and association with a drug dealer did not support a finding of reasonable suspicion to prolong the stop. Among other things, the court noted that nervousness, although a relevant factor, is insufficient by itself to establish reasonable suspicion. It also concluded that “a person’s mere association with or proximity to a suspected criminal does not support a conclusion of particularized reasonable suspicion that the person is involved in criminal activity without more competent evidence.” These two circumstances, the court held, “simply give rise to a hunch rather than reasonable, particularized suspicion.” (2) The defendant’s consent to search the vehicle was not obtained during a consensual encounter where the officer had not returned the defendant’s drivers license at the time she gave her consent.

(1) In this post-Rodriguez case, the court held that reasonable suspicion supported the officer’s extension of the duration of the stop, including: the officer smelled marijuana on the defendant’s person, the officer learned from the defendant him that he had an impaired driving conviction based on marijuana usage, the defendant provided a “bizarre” story regarding the nature of his travel, the defendant was extremely nervous, and the officer detected “masking odors.” (2) The defendant’s consent to search his car, given during a lawful extension of the stop, was clear and unequivocal.

In this drug trafficking case, the officer had reasonable suspicion to extend a traffic stop. After Officer Ward initiated a traffic stop and asked the driver for his license and registration, the driver produced his license but was unable to produce a registration. The driver’s license listed his address as Raleigh, but he could not give a clear answer as to whether he resided in Brunswick County or Raleigh. Throughout the conversation, the driver changed his story about where he resided. The driver was speaking into one cell phone and had two other cell phones on the center console of his vehicle. The officer saw a vehicle power control (VPC) module on the floor of the vehicle, an unusual item that might be associated with criminal activity. When Ward attempted to question the defendant, a passenger, the defendant mumbled answers and appeared very nervous. Ward then determined that the driver’s license was inactive, issued him a citation and told him he was free to go. However, Ward asked the driver if he would mind exiting the vehicle to answer a few questions. Officer Ward also asked the driver if he could pat him down and the driver agreed. Meanwhile, Deputy Arnold, who was assisting, observed a rectangular shaped bulge underneath the defendant’s shorts, in his crotch area. When he asked the defendant to identify the item, the defendant responded that it was his male anatomy. Arnold asked the defendant to step out of the vehicle so that he could do a patdown; before this could be completed, a Ziploc bag containing heroin fell from the defendant’s shorts. The extension of the traffic stop was justified: the driver could not answer basic questions, such as where he was coming from and where he lived; the driver changed his story; the driver could not explain why he did not have his registration; the presence of the VPC was unusual; and the defendant was extremely nervous and gave vague answers to the officer’s questions.

The trial court erred by denying the defendant’s motion to suppress where the defendant was subjected to a seizure in violation of the Fourth Amendment. Specifically, the officer continued to detain the defendant after completing the original purpose of the stop without having reasonable, articulable suspicion of criminal activity. The officer initiated a traffic stop because of a headlights infraction and a potential noise violation. The defendant turned his headlights on before he stopped and apologized to the officer for not having his headlights on. The officer asked the defendant for his license and registration and said that if everything checked out, the defendant would soon be cleared to go. The defendant did not smell of alcohol, did not have glassy eyes, was not sweating or fidgeting, and made no contradictory statements. A check revealed that the defendant's license and registration were valid. However a criminal history check revealed that the defendant had a history of drug charges and felonies. When the officer re-approached the car, he told the defendant to keep his music down because of a noise ordinance. At this point the officer smelled a strong odor that he believed was a fragrance to cover up the smell of drugs. The officer asked the defendant about the odor, and the defendant showed him a small, clear glass bottle, stating that it was a body oil. Still holding the defendant’s license and registration, the officer asked for consent to search. The defendant declined consent but after the officer said he would call for a drug dog, the defendant agreed to the search. Contraband was found and the defendant moved to suppress. The court began by following State v. Myles, 188 N.C. App. 42, aff'd per curiam, 362 N.C. 344 (2008), and concluding that the purpose of the initial stop was concluded by the time the officer asked for consent to search. The court held that once the officer returned to the vehicle and told the defendant to keep his music down, the officer had completely addressed the original purpose for the stop. It continued:

Defendant had turned on his headlights, he had been warned about his music, his license and registration were valid, and he had no outstanding warrants. Consequently, [the officer] was then required to have "defendant's consent or 'grounds which provide a reasonable and articulable suspicion in order to justify further delay' before" asking defendant additional questions.

Next, the court held that the officer had no reasonable and articulable suspicion of criminal activity in order to extend the stop beyond its original scope: “a strong incense-like fragrance, which the officer believes to be a ‘cover scent,’ and a known felony and drug history are not, without more, sufficient to support a finding of reasonable suspicion of criminal activity.” Finally, the court rejected the argument that the detention of the defendant after the original purpose had ended was proper because it equated to a “de minimis” extension for a drug dog sniff. The court declined to extend the de minimis analysis to situations where—as here—no drug dog was at the scene prior to the completion of the purpose of the stop.

In a drug trafficking case, the trial court did not err by denying the defendant’s motion to suppress drugs seized from a truck during a vehicle stop. The defendant argued that once the officer handed the driver the warning citation, the purpose of the stop was over and anything that occurred after that time constituted unconstitutionally prolonged the stop. The court noted that officers routinely check relevant documentation while conducting traffic stops. Here, although the officer had completed writing the warning citation, he had not completed his checks related to the licenses, registration, insurance, travel logs, and invoices of the commercial vehicle. Thus, “The purpose of the stop was not completed until [the officer] finished a proper document check and returned the documents to [the driver and the passenger, who owned the truck].” The court noted that because the defendant did not argue the issue, it would not address which documents may be properly investigated during a routine commercial vehicle stop.

The trial court erred by granting the defendant’s motion to suppress on grounds that officers impermissibly prolonged a lawful vehicle stop. Officers McKaughan and Jones stopped the defendant’s vehicle after it twice weaved out of its lane. The officers had a drug dog with them. McKaughan immediately determined that the defendant was not impaired. Although the defendant’s hand was shaking, he did not show extreme nervousness. McKaughan told the defendant he would not get a citation but asked him to come to the police vehicle. While “casual conversation” ensued in the police car, Jones stood outside the defendant’s vehicle. The defendant was polite, cooperative, and responsive. Upon entering the defendant’s identifying information into his computer, McKaughan found an “alert” indicating that the defendant was a “drug dealer” and “known felon.” He returned the defendant’s driver’s license and issued a warning ticket. While still in the police car, McKaughan asked the defendant if he had any drugs or weapons in his car. The defendant said no. After the defendant refused to give consent for a dog sniff of the vehicle, McKaughan had the dog do a sniff. The dog alerted to narcotics in the vehicle and a search revealed a bag of cocaine. The period between when the warning ticket was issued and the dog sniff occurred was four minutes and thirty-seven seconds. Surveying two lines of cases from the court which “appear to reach contradictory conclusions” on the question of whether a de minimis delay is unconstitutional, the court reconciled the cases and held that any prolonged detention of the defendant for the purpose of the drug dog sniff was de minimis and did not violate his rights. [Author’s note: State v. Warren, ___ N.C. App. ___, 775 S.E.2d 362 (2015), indicates that this case was overruled by Rodriguez].

The trial court erred by concluding that an officer lacked reasonable suspicion to detain the defendant beyond the scope of a routine traffic stop. The officer lawfully stopped the vehicle for a seatbelt violation but then extended the detention for arrival of a canine unit. The State argued that numerous factors established reasonable suspicion that the defendant was transporting contraband: an overwhelming odor of air freshener in the car; the defendant claimed to have made a five hour round trip to go shopping but had not purchased anything; the defendant was nervous; the defendant had pending drug charges and was known as a distributor of marijuana and cocaine; the defendant was driving in a pack of cars; the car was registered to someone else; the defendant never asked why he had been stopped; the defendant was “eating on the go”; and a handprint indicated that something recently had been placed in the trunk. Although the officer did not know about the pending charges until after the canine unit was called, the court found this to be a relevant factor. It reasoned: “The extended detention of defendant is ongoing from the time of the traffic citation until the canine unit arrives and additional factors that present themselves during that time are relevant to why the detention continued until the canine unit arrived.” Even discounting several of these factors that might be indicative of innocent behavior, the court found that other factors--nervousness, the smell of air freshener, inconsistency with regard to travel plans, driving a car not registered to the defendant, and the pending charges--supported a finding that reasonable suspicion existed.

Reasonable suspicion supported the length of the stop. The officer’s initial questions regarding the defendant’s license, route of travel, and occupation were within the scope of the traffic stop. Any further detention was appropriate in light of the following facts: the defendant did not have a valid driver’s license; although the defendant said he had just gotten off work at a construction job, he was well kept with clean hands and clothing; the defendant “became visibly nervous by breathing rapidly[;] . . . his heart appeared to be beating rapidly[,] he exchanged glances with his passenger and both individuals looked at an open plastic bag in the back seat of the vehicle”; an officer observed dryer sheets protruding from an open bag containing a box of clear plastic wrap, which, due to his training and experience, the officer knew were used to package and conceal drugs; and the defendant told the officer that the car he was driving belonged to a friend but that he wasn’t sure of the friend’s name.

The trial court properly denied a motion to suppress asserting that a vehicle stop was improperly prolonged. An officer stopped the truck after observing it follow too closely and make erratic lane changes. The occupants were detained until a Spanish language consent to search form could be brought to the location. The defendant challenged as unconstitutional this detention, which lasted approximately one hour and ten minutes. The court distinguished cases cited by the defendant, explaining that in both, vehicle occupants were detained after the original purpose of the initial investigative detention had been addressed and the officer attempted to justify an additional period of detention solely on the basis of the driver’s nervousness or uncertainty about travel details, a basis held not to provide a reasonable suspicion that criminal activity was afoot. Here, however, since none of the occupants had a driver’s license or other identification, the officer could not issue a citation and resolve the initial stop. Because the challenged delay occurred when the officer was attempting to address issues arising from the initial stop, the court determined that it need not address whether the officer had a reasonable suspicion of criminal activity sufficient to justify a prolonged detention. Nevertheless, the court went on to conclude that even if the officer was required to have such a suspicion in order to justify the detention, the facts supported the existence of such a suspicion. Specifically: (a) the driver did not have a license or registration; (b) a man was in the truck bed covered by a blanket; (c) the defendant handed the driver a license belonging to the defendant’s brother; (d) the occupants gave inconsistent stories about their travel that were confusing given the truck’s location and direction of travel; (e) no occupant produced identification or a driver’s license; (f) the men had no luggage despite the fact that they were traveling from North Carolina to New York; and (g) the driver had tattoos associated with criminal gang activity.

There were no grounds providing reasonable and articulable suspicion for extending a vehicle stop once the original purpose of the stop (suspicion that the driver was operating the vehicle without a license) had been addressed. After the officer verified that the driver had a valid license, she extended the stop by asking whether there was anything illegal in the vehicle, and the defendant gave consent to search the vehicle. The encounter did not become consensual after the officer verified that the driver was licensed. Although such an encounter could have become consensual if the officer had returned the driver’s license and registration, here there was no evidence that the driver’s documentation was returned. Because the extended detention was unconstitutional, the driver’s consent was ineffective to justify the search of the vehicle and the weapon and drugs found were fruits of the poisonous tree.

Reasonable suspicion supported prolonging the detention of the defendant after the officer returned his license and the car rental contract and issued him a verbal warning for speeding. The defendant misidentified his passenger and was nervous. Additionally other officers had informed the officer that they had been conducting narcotics surveillance on the vehicle; that they had observed passenger appear to put something under his seat which might be drugs or a weapon; and that the officer should be careful in conducting the traffic stop.

Arizona v. Johnson, 555 U.S. 323 (Jan. 26, 2009)

Summarizing existing law, the Court noted that a “stop and frisk” is constitutionally permissible if: (1) the stop is lawful; and (2) the officer reasonably suspects that the person stopped is armed and dangerous. It noted that that in an on-the-street encounter, the first requirement—a lawful stop—is met when the officer reasonably suspects that the person is committing or has committed a criminal offense. The Court held that in a traffic stop setting, the first requirement—a lawful stop—is met whenever it is lawful for the police to detain an automobile and its occupants pending inquiry into a vehicular violation. The police do not need to have cause to believe that any occupant of the vehicle is involved in criminal activity. Also, an officer may ask about matters unrelated to the stop provided that those questions do not measurably extend the duration of the stop. The Court further held that to justify a frisk of the driver or a passenger during a lawful stop, the police must believe that the person is armed and dangerous.

An officer on patrol ran the license plate of the car the defendant was driving and discovered that the license plate was registered to another car. The officer initiated a traffic stop. As the officer approached the driver’s side of the car, he noticed that the defendant had raised his hands in the air. On inquiry, the defendant denied the presence of any weapons in the car. When the officer explained that the mismatched license plate served as the reason for the traffic stop, the defendant responded that he had just purchased the car in a private sale that day. The defendant produced his driver’s license, the car’s registration, and bill of sale. The officer sensed that the defendant seemed nervous and was “blading his body” as he searched for the requested documentation. Slip op. at ¶ 3.

When the officer ran the defendant’s information through the police database, he found that the defendant had been charged with multiple violent crimes and offenses related to weapons over the span of several years. When the officer returned, he asked the defendant to step out of the car with the intent of conducting a frisk of defendant’s person and a search of the vehicle. The defendant consented to be frisked for weapons, and a pat down of the defendant’s clothing revealed no weapons or other indicia of contraband. The defendant refused to grant consent to search the car, but the officer explained that he was going to conduct a limited search of car nonetheless based on the defendant’s “criminal history . . . and some other things.” Slip op. at ¶ 5. The officer found a baggie of powder cocaine and arrested the defendant.

The defendant was indicted for possession of cocaine. At trial, the defendant file a motion to suppress, which the trial court ultimately denied. The defendant agreed to plead guilty to felony possession of cocaine and misdemeanor possession of drug paraphernalia. The defendant appealed, and the Court of Appeals, in a divided opinion, affirmed the trial court’s denial of the defendant’s motion to suppress. The defendant appealed to the Supreme Court based on the dissenting opinion from the Court of Appeals.

The defendant’s first argument was that the officer did not have a reasonable suspicion that defendant was armed. In rejecting this argument, the Court noted that the officer rendered uncontroverted testimony that he conducted a late-night traffic stop of the defendant’s vehicle in a high-crime area and encountered the defendant who acted very nervous, appeared to purposely hamper the officer’s open view of the defendant’s entry into the vehicle’s center console, and possessed a criminal history which depicted a “trend in violent crime.” Slip op. at ¶ 18. The Court thus concluded that the officer’s suspicion of the defendant’s potentially armed and dangerous status was reasonable.

The defendant next argued that the Terry search of defendant’s vehicle represented an unconstitutional extension of the traffic stop. The Court rejected this argument, noting that the testimony rendered by the officer as to the actual chain of events and the observations by the officer which culminated in the Terry search did not equate to a conclusion that the officer unreasonably prolonged the traffic stop.

The defendant finally argued that the Court’s correction of the trial court’s supposed error should result in an outcome which vacates the trial court’s order and overturns defendant’s conviction. The Court concluded that the unconflicted evidence introduced by the State at the suppression hearing was sufficient for the trial court to make findings of fact and conclusions of law that the investigating officer had reasonable suspicion to conduct a Terry search of the defendant’s person and car. The Court thus left the lower court’s ruling undisturbed.

Justice Earls, joined by Justice Hudson, dissented. She wrote that the result reached by the majority is a decision inconsistent with the Fourth Amendment and fails to consider the racial dynamics underlying reasonable suspicion determinations.

On an appeal from a divided panel of the Court of Appeals, ___ N.C. App. ___, 785 S.E.2d 746 (2016), the court reversed, concluding that the stop at issue was not unduly prolonged. An officer puller over the defendant for several traffic violations. During the traffic stop that ensued, officers discovered heroin inside a bag in the car. The defendant moved to suppress the evidence, arguing that the search was unduly prolonged under Rodriguez. The trial court denied the motion and the Court of Appeals reversed, concluding that the stop had been unduly prolonged. The Supreme Court reversed. After initiating the stop, the officer asked the defendant, the vehicle’s sole occupant, for his license and registration. The defendant’s hand trembled as he provided his license. Although the car was a rental vehicle, the defendant was not listed as a driver on the rental agreement. The officer noticed that the defendant had two cell phones, a fact he associated, based on experience, with those transporting drugs. The defendant was stopped on I-85, a major drug trafficking thoroughfare. When the officer asked the defendant where he was going, the defendant said he was going to his girlfriend’s house on Century Oaks Drive and that he had missed his exit. The officer knew however that the defendant was well past the exit for that location, having passed three exits that would have taken him there. The defendant said that he recently moved to North Carolina. The officer asked the defendant to step out of the vehicle and sit in the patrol car, telling him that he would receive a warning, not a ticket. At this point the officer frisked the defendant, finding $372 in cash. The defendant sat in the patrol car while the officer ran the defendant’s information through law enforcement databases, and the two continued to talk. The defendant gave contradictory statements about his girlfriend. Although the defendant made eye contact with the officer when answering certain questions, he looked away when asked about his girlfriend and where he was traveling. The database checks revealed that the defendant was issued a driver’s license in 2000 and that he had a criminal history in North Carolina starting in 2001, facts contradicting his earlier claim to have just moved to the state. The officer asked the defendant for permission to search the vehicle. The defendant agreed to let the officer search the vehicle but declined to allow a search of a bag and two hoodies. When the officer found the bag and hoodies in the trunk, the defendant quickly objected that the bag was not his, contradicting his earlier statement, and said he did not want it searched. The officer put the bag on the ground and a police dog alerted to it. Officers opened the bag and found a large amount of heroin. The defendant did not challenge the validity of the initial stop. The court began by noting during a lawful stop, an officer can ask the driver to exit the vehicle. Next, it held that the frisk was lawful for two reasons. First, frisking the defendant before putting them in the patrol car enhanced the officer safety. And second, where, as here, the frisk lasted only 8-9 seconds it did not measurably prolong stop so as to require reasonable suspicion. The court went on to find that asking the defendant to sit in the patrol car did not unlawfully extend the stop. The officer was required to check three databases before the stop could be finished and it was not prolonged by having the defendant in the patrol car while this was done. This action took a few minutes to complete and while it was being done, the officer was free to talk with the defendant “at least up until the moment that all three database checks had been completed.” The court went on to conclude that the conversation the two had while the database checks were running provided reasonable suspicion to prolong the stop. It noted that I-85 is a major drug trafficking corridor, the defendant was nervous and had two cell phones, the rental car was in someone else’s name, the defendant gave an illogical account of where he was going, and cash was discovered during the frisk. All of this provided reasonable suspicion of drug activity that justified prolonging the stop shortly after the defendant entered the patrol car. There, as he continued his conversation with the officer, he gave inconsistent statements about his girlfriend and the database check revealed that the defendant had not been truthful about a recent move to North Carolina. This, combined with the defendant’s broken eye contact, allowed the officer to extend the stop for purposes of the dog sniff.

State v. Morton, 363 N.C. 737 (Dec. 11, 2009)

For reasons stated in a dissent to the opinion below, the North Carolina Supreme Court reversed a Court of Appeals ruling that the trial judge erred by concluding that a frisk was justified because officers had reasonable suspicion to believe that the defendant was armed or dangerous. The dissent had concluded that, under the totality of the circumstances, the officers had reasonable suspicion to frisk the defendant for officer safety.

The defendant was stopped by a Charlotte-Mecklenburg police officer for a broken taillight and a passenger seatbelt violation. A second officer arrived shortly after the stop. The stopping officer saw an approximately five-inch closed pocketknife in the center console between the driver and passenger. The officer then asked the defendant to step out of the car so the knife could be secured and to check the defendant for weapons. The defendant exited the car and stated that having the knife was not a crime. The officer agreed, stating he was acting out of officer safety. The defendant stated he was not armed and did not consent to a frisk. When the officer said he was “just going to pat [Defendant] down,” the defendant said, “all right,” and raised his arms. The officer felt a bulge the size of a “large grape” near the defendant’s exterior coat pocket but could not locate the item within the pocket. The officer suspected the item was marijuana and asked the defendant about it. The defendant replied that it was an item he purchased from a store. When asked to remove the item, the defendant produced several items wrapped in plastic, telling the officer, “It’s not illegal, man.” The officer then grabbed the bulge from the outside, lifted the defendant’s coat, and reached inside an interior pocket. The defendant repeatedly asked for a supervisor on scene and protested: “This is not a Terry frisk, man. You’re illegally searching me.” At one point the defendant pushed the officer’s arm away. The officer did not remove his hands from the defendant’s pockets and the defendant eventually fled, falling nearby. As the defendant got up from the fall, the officer observed the defendant “digging in his waistband.”  The defendant was then tased and arrested at gunpoint. A bag was found nearby containing crack and powder cocaine. More crack, marijuana, and cash were found on the defendant. The defendant stated the drugs were for personal use during arrest processing. He was charged with possession with intent to sell or deliver cocaine and possession of cocaine and moved to suppress.

The trial court denied the motion. It found the frisk was not based on reasonable suspicion and was therefore unconstitutional, but the defendant’s act of fleeing sufficiently attenuated that violation from the discovery of evidence. The defendant was convicted of two counts of possession of cocaine at trial and appealed. A divided Court of Appeals reversed.

(1) The State argued that the frisk was justified by the presence of the knife in the center console—since the defendant was armed, he was dangerous—and that the trial court erred in concluding otherwise. The majority disagreed. Two officers were present, the defendant was stopped for equipment violations only, and the stop occurred in the middle of the day in uptown Charlotte near the courthouse. The defendant was generally cooperative, did not attempt to conceal the knife, got out of the car (and away from the knife) upon request, and did not otherwise act suspiciously. These facts were “entirely inapposite” from cases where police had “reason to suspect the defendant possessed and concealed a dangerous weapon on their person, coupled with behavior giving rise to a suspicion the defendant may be dangerous.” Slip op. at 12-13 (emphasis in original) (distinguishing State v. Malachi, ___ N.C. App. ___, 825 S.E.2d 666 (2019)). The trial court therefore did not err in concluding the frisk was unconstitutional.

(2) Under the attenuation doctrine, evidence that would be subject to suppression via the exclusionary rule is nonetheless admissible when the connection between the illegal action of law enforcement and the evidence is “remote or has been interrupted by some intervening circumstance.” See Utah v. Strieff, ___ U.S. ___, 136 S. Ct. 2056 (2016). Courts must examine the closeness in time between the police illegality and the discovery of the evidence, any intervening circumstances, and the “purpose and flagrancy of the official misconduct” when deciding whether the attenuation exception applies. Duncan Slip op. at 16 (citation omitted). As to the first factor, Strieff held that only the passing of “substantial time” between the police misconduct and the discovery of evidence favors attenuation. Because the discovery of evidence here occurred within minutes of the illegal frisk, this factor weighed against attenuation. As to the second factor, the trial court found that the defendant committed the crime of resisting a public officer by fleeing the encounter—officers then had probable cause to arrest for that offense and to search incident to the arrest, which was a sufficient intervening circumstance. The Court of Appeals disagreed, finding that even if the frisk was within the mission of the stop, the officer’s search of the defendant’s pocket for suspected marijuana was not. “Because the traffic stop was unlawful at the point of [the officer’s] unconstitutional search, the defendant had ‘the right to resist [the] unlawful arrest.’” Id. at 21. The court rejected the State’s contention that the defendant could have resisted the search by lesser means, pointing out that the defendant repeatedly asked for a supervisor, repeatedly objected to the search, and tried to remove the officer’s hand from his pocket before fleeing. Thus, the defendant’s flight did not constitute a crime or intervening circumstance weighing in favor of attenuation. The court observed that the final factor, the purpose and flagrancy of law enforcement misconduct, was the most significant factor in the analysis. The trial court found the officers acted in good faith and that this supported application of the attenuation doctrine. The majority again disagreed. “Instead of taking the opportunity—indeed, at Defendant’s invitation—to deescalate the situation, [the officer] proceeded with the flagrantly unconstitutional search.” Id. at 26. These “extraordinary facts” weighed against attenuation and in favor of suppression. The trial court’s order denying the motion to suppress was therefore reversed and a new trial ordered.

Judge Tyson dissented. He would have found that the frisk was justified and that attenuation applied to the extent the search became illegal, as well as other grounds supporting the denial of the motion.

A police offer stopped at a gas station for a cup of coffee, and on his way inside he noticed the defendant standing outside the gas station, talking loudly and using abusive language on his cell phone. The clerk inside told the officer she thought the defendant was bothering other customers. The officer called for backup, approached the defendant, and asked him to end his conversation. The defendant complied “after some delay,” but then began shifting from foot to foot and looking from side to side. His nervous behavior made the officer concerned that he might have a weapon, so he asked the defendant if he could pat him down. The defendant hesitated, but then consented. While conducting the pat-down, the officer felt a soft, rubbery wad in the defendant’s pocket that the officer immediately believed to be narcotics packaged in plastic baggies. After completing the pat-down, the officer manipulated the rubbery wad again, ensuring it was what he believed it to be, and then reached into the defendant’s pocket and withdrew the object. The wad was made up of plastic baggie corners containing a white powdery substance that looked like cocaine and a tube of Orajel. The defendant stated that the substance was baking soda, which he mixed with Orajel to fool buyers into thinking it was cocaine. Field and lab testing confirmed the defendant’s statements. The defendant was charged with possession with intent to sell and deliver a counterfeit controlled substance. The trial court denied the defendant’s motion to suppress the fruits of the search on the grounds that he was illegally detained, he did not consent to the search, and the search exceeded the scope of a permissible pat-down. The defendant pled guilty and appealed.

The appellate court affirmed the trial court’s ruling denying the motion. The defendant was not seized by the officers, who initially told him he should “finish his conversation elsewhere.” It was only when the defendant hesitated and began acting nervous that the officer became concerned that the defendant might be armed, and the defendant then consented to be searched for weapons. The counterfeit drugs discovered during that weapons search were admissible under the “plain feel” doctrine. Even before he manipulated the object a second time or removed it from the defendant’s pocket, the officer testified that based on his years of experience in narcotics investigations, it was “immediately apparent” to him that the object would be drugs in plastic packaging. After reviewing several cases on the plain feel doctrine, the court explained that the standard to be applied is analogous to the probable cause standard. In this case, the officer’s training and experience in narcotics investigations, the circumstances surrounding the defendant’s nervous behavior, and the readily apparent nature of the item in the defendant’s pocket established “that [the officer’s] subsequent manipulation of the objects and search of defendant’s pocket for confirmation was therefore supported by probable cause.”

In this possession of a firearm by a felon case, the trial court did not err by allowing evidence of a handgun a police officer removed from the defendant’s waistband during a lawful frisk that occurred after a lawful stop. Police received an anonymous 911 call stating that an African-American male wearing a red shirt and black pants had just placed a handgun in the waistband of his pants while at a specified gas station. Officer Clark responded to the scene and saw 6 to 8 people in the parking lot, including a person who matched the 911 call description, later identified as the defendant. As Clark got out of his car, the defendant looked directly at him, “bladed” away and started to walk away. Clark and a second officer grabbed the defendant. After Clark placed the defendant in handcuffs and told him that he was not under arrest, the second officer frisked the defendant and found a revolver in his waistband. The defendant unsuccessfully moved to suppress evidence of the gun at trial. The court held that the trial court did not err by denying the motion to suppress. It began by holding that the anonymous tip was insufficient by itself to provide reasonable suspicion for the stop. However, here there was additional evidence. Specifically, as Clark exited his car, the defendant turned his body in such a way as to prevent the officer from seeing a weapon. The officer testified that the type of turn the defendant executed was known as “blading,” which is “[w]hen you have a gun on your hip you tend to blade it away from an individual.” Additionally the defendant began to move away. And, as the officers approached the defendant, the defendant did not inform them that he was lawfully armed. Under the totality of the circumstances, these facts support reasonable suspicion.

            The court then held that the frisk was proper. In order for a frisk to be proper officers must have reasonable suspicion that the defendant was armed and dangerous. Based on the facts supporting a finding of reasonable suspicion with respect to the stop, the officers had reasonable suspicion to believe that the defendant was armed. This, coupled with his struggle during the stop and continued failure to inform officers that he was armed, supported a finding that there was reasonable suspicion that the defendant was armed and dangerous.

(1) In this drug trafficking case, the officer had reasonable suspicion to extend a traffic stop. After Officer Ward initiated a traffic stop and asked the driver for his license and registration, the driver produced his license but was unable to produce a registration. The driver’s license listed his address as Raleigh, but he could not give a clear answer as to whether he resided in Brunswick County or Raleigh. Throughout the conversation, the driver changed his story about where he resided. The driver was speaking into one cell phone and had two other cell phones on the center console of his vehicle. The officer saw a vehicle power control (VPC) module on the floor of the vehicle, an unusual item that might be associated with criminal activity. When Ward attempted to question the defendant, a passenger, the defendant mumbled answers and appeared very nervous. Ward then determined that the driver’s license was inactive, issued him a citation and told him he was free to go. However, Ward asked the driver if he would mind exiting the vehicle to answer a few questions. Officer Ward also asked the driver if he could pat him down and the driver agreed. Meanwhile, Deputy Arnold, who was assisting, observed a rectangular shaped bulge underneath the defendant’s shorts, in his crotch area. When he asked the defendant to identify the item, the defendant responded that it was his male anatomy. Arnold asked the defendant to step out of the vehicle so that he could do a patdown; before this could be completed, a Ziploc bag containing heroin fell from the defendant’s shorts. The extension of the traffic stop was justified: the driver could not answer basic questions, such as where he was coming from and where he lived; the driver changed his story; the driver could not explain why he did not have his registration; the presence of the VPC was unusual; and the defendant was extremely nervous and gave vague answers to the officer’s questions. (2) The officer properly frisked the defendant. The defendant’s nervousness, evasiveness, and failure to identify what was in his shorts, coupled with the size and nature of the object supported a reasonable suspicion that the defendant was armed and dangerous.

Even if the defendant had properly preserved the issue, a frisk conducted during a valid traffic stop was proper where the officer knew that the defendant had prior drug convictions; the defendant appeared nervous; the defendant deliberately concealed his right hand and refused to open it despite repeated requests; and the officer knew from his training and experience that people who deal drugs frequently carry weapons and that weapons can be concealed in a hand. 

The trial court improperly denied the defendant’s motion to suppress. An officer saw the defendant walking in the middle of the street. The officer stopped the defendant to warn him about impeding the flow of street traffic. After issuing this warning, the officer frisked the defendant because of his “suspicious behavior,” specifically that the “appeared to be nervous and kept moving back and forth.” The court found that “the nervous pacing of a suspect, temporarily detained by an officer to warn him not to walk in the street, is insufficient to warrant further detention and search.”

The court rejected the defendant’s argument that an officer’s discovery of drugs in his buttocks occurred during a separate, second search after a pat down was completed. The drugs were found during a valid pat down for weapons.

An officer had a reasonable, articulable suspicion that criminal activity was afoot when he detained the defendant. After 10 pm the officer learned of a report of suspicious activity at Auto America. When the officer arrived at the scene he saw the defendant, who generally matched the description of one of the individuals reported, peering from behind a parked van. When the defendant spotted the officer, he ran, ignoring the officer’s instructions to stop. After a 1/8 mile chase, the officer found the defendant trying to hide behind a dumpster. The defendant’s flight and the other facts were sufficient to raise a reasonable suspicion that criminal activity was afoot.

In re D.B., 214 N.C. App. 489 (Aug. 16, 2011)

The trial court erred by admitting evidence obtained by an officer who exceeded the proper scope of a Terry frisk. After the officer stopped the juvenile, he did a weapons frisk and found nothing. When the officer asked the juvenile to identify himself, the juvenile did not respond. Because the officer thought he felt an identification card in the juvenile’s pocket during the frisk, he retrieved it. It turned out to be a stolen credit card, which was admitted into evidence. Although officers who lawfully stop a person may ask a moderate number of questions to determine his or her identity and to gain information confirming or dispelling the officers' suspicions that prompted the stop, no authority suggests that an officer may physically search a person for evidence of his identity in connection with a Terry stop.

State v. King, 206 N.C. App. 585 (Aug. 17, 2010)

An officer had reasonable suspicion to believe that the defendant was armed and dangerous justifying a pat-down frisk. Around midnight, the officer stopped the defendant’s vehicle after determining that the tag was registered to a different car; prior to the stop, the defendant and his passenger had looked oddly at the officer. After the stop, the defendant held his hands out of the window, volunteered that he had a gun, which was loaded, and when exiting the vehicle, removed his coat, even though it was cold outside. At this point, the pat down occurred. The court rejected the defendant’s argument that his efforts to show that he did not pose a threat obviated the need for the pat down. It also rejected the defendant’s argument that the discovery of the gun could not support a reasonable suspicion that he still might be armed and dangerous; instead the court concluded that the confirmed presence of a weapon is a compelling factor justifying a frisk, even where that weapon is secured and out of the defendant’s reach. Additionally, the officer was entitled to formulate “common-sense conclusions,” based upon an observed pattern that one weapon often signals the presence other weapons, in believing that the defendant, who had already called the officer’s attention to one readily visible weapon, might be armed.

On remand, the court held that officers did not exceed the scope of the frisk by confiscating a digital scale from the defendant’s pocket. An officer testified that he knew the object was a digital scale based on his pat-down without manipulation of the object and that individuals often carry such scales in order to weigh controlled substances. When asked, the defendant confirmed that the object was a scale. These facts in conjunction with informant tips that the defendant was engaging in the sale of illegal drugs are sufficient to support the trial court’s conclusion that the officer was reasonable and justified in seizing the scale.

An officer had reasonable suspicion to frisk the defendant after stopping him for a traffic violation. Even though the officer could see something in the defendant’s clenched right hand, the defendant stated that he had nothing in his hand; the defendant appeared to be attempting to physically evade the officer; the defendant continually refused to show the officer what was in his hand; and the defendant raised his fist, suggesting an intent to strike the officer.

Even if the defendant had properly preserved the issue, the officer did not use excessive force by taking the defendant to the ground during a valid traffic stop.

The trial court’s findings of fact support its rejection of the defendant’s argument that the show of force by law enforcement during a traffic stop amounted to an arrest.

An officer’s act of handcuffing the defendant during a Terry stop was reasonable and did not transform the stop into an arrest. The officer observed what he believed to be a hand-to-hand drug transaction between the defendant and another individual; the defendant was sitting in the back seat of a car, with two other people up front. Upon frisking the defendant, the officer felt an item consistent with narcotics, corroborating his suspicion of drug activity. The officer then handcuffed the defendant and recovered crack cocaine from his pocket. The circumstances presented a possible threat of physical violence given the connection between drugs and violence and the fact that the officer was outnumbered by the people in the car.

The trial court applied the wrong legal standard when granting the defendant’s motion to suppress. The trial court held that an arrest occurred when the defendant was handcuffed by an officer, and the arrest was not supported by probable cause. The trial court should have determined whether special circumstances existed that would have justified the officer’s use of handcuffs as the least intrusive means reasonable necessary to carry out the purpose of the investigative stop. The court remanded for the required determination.

When, under G.S. 122C-303, an officer takes a publicly intoxicated person to jail to assist that person and the action is taken against the person’s will, an arrest occurs. 

Because the trial court failed to make adequate findings to permit review of its determination on the defendant’s motion to suppress that the defendant was not placed under arrest when he was detained by an officer for nearly two hours, the court remanded for findings on this issue. The court noted that the officer’s stop of the defendant was not a “de facto” arrest simply because the officer handcuffed the defendant and placed him in the front passenger seat of his police car. However, it continued, “the length of Defendant’s detention may have turned the investigative stop into a de facto arrest, necessitating probable cause . . . for the detention.” It added: “Although length in and of itself will not normally convert an otherwise valid seizure into a de facto arrest, where the detention is more than momentary, as here, there must be some strong justification for the delay to avoid rendering the seizure unreasonable.”

State v. Mello, 200 N.C. App. 561 (Nov. 3, 2009) aff’d per curiam, 364 N.C. 421 (Oct 8 2010)

A provision in a city ordinance prohibiting loitering for the purpose of engaging in drug-related activity and allowing the police to arrest in the absence of probable cause violated the Fourth Amendment.

Ruling in a civil suit against the District of Columbia and five of its police officers brought by individuals arrested for holding a raucous, late-night party in a house they did not have permission to enter, the Court held that the officers had probable cause to arrest the partygoers and were entitled to qualified immunity. As to probable cause, the Court concluded that “[c]onsidering the totality of the circumstances, the officers made an entirely reasonable inference that the partygoers were knowingly taking advantage of a vacant house as a venue for their late-night party.” (quotation omitted). In this respect, the Court noted the condition of the house, including among other things that multiple neighbors told the officers that the house had been vacant for several months and that the house had virtually no furniture and few signs of inhabitance. The Court also noted the partygoers’ conduct, including among other things that the party was still going strong when the officers arrived after 1 am, with music so loud that it could be heard from outside; upon entering, multiple officers smelled marijuana; partygoers left beer bottles and cups of liquor on the floor; the living room had been converted into a makeshift strip club; and the officers found upstairs a group of men with a single, naked woman on a bare mattress—the only bed in the house—along with multiple open condom wrappers and a used condom. The Court further noted the partygoers’ reaction to the officers, including scattering and hiding at the sight of the uniformed officers. Finally, the Court noted the partygoers’ vague and implausible answers to the officers’ questions about who had given them permission to be at the house. The Court went on to hold that the officers were entitled to qualified immunity.

On appeal from a divided panel of the Court of Appeals, State v. Parisi, ___ N.C. App. ___, 817 S.E.2d 228 (2018) (discussed in an earlier blog post by Shea Denning, https://nccriminallaw.sog.unc.edu/got-probable-cause-for-impaired-driving/), the Supreme Court held that the trial court erred by granting the defendant’s motion to suppress in this impaired driving case. The Supreme Court considered whether the trial courts’ findings—which are conclusive on appeal if supported by competent evidence—supported the ultimate conclusions of law. Here, where the trial court made findings that the defendant admitted to consuming three beers, that defendant’s eyes were red and glassy, that a moderate odor of alcohol emanated from defendant’s person, and that the defendant exhibited multiple indicia of impairment while performing various sobriety tests, the Supreme Court had “no hesitation” in concluding that those facts sufficed, as a matter of law, to support the officer’s decision to arrest the defendant for impaired driving.

The court per curiam affirmed a decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 814 S.E.2d 618 (2018), holding that because an officer had probable cause to arrest the defendant for impaired driving, the trial court erred by granting the defendant’s motion to suppress. Here, the trooper “clocked” the defendant traveling at 80 miles per hour in a 65 mile per hour zone on a highway. As the trooper approached the defendant’s vehicle, the defendant abruptly moved from the left lane of the highway into the right lane, nearly striking another vehicle before stopping on the shoulder. During the stop, the trooper noticed a moderate odor of alcohol emanating from the defendant and observed an open 24-ounce container of beer in the cup-holder next to the driver’s seat. The defendant told the trooper that he had just purchased the beer, and was drinking it while driving down the highway. The defendant admitted that he had been drinking heavily several hours before the encounter with the trooper. The trooper did not have the defendant perform any field sobriety tests but did ask the defendant to submit to two Alco-sensor tests, both of which yielded positive results for alcohol. The Court of Appeals noted that while swerving alone does not give rise to probable cause, additional factors creating dangerous circumstances may, as was the case here.

State v. Biber, 365 N.C. 162 (June 16, 2011)

The court reversed a decision of the Court of Appeals and held that probable cause supported the defendant’s arrest for drug possession. In the decision below, the Court of Appeals held that there was insufficient evidence that the defendant had constructive possession of the substance at issue, found in a motel room’s bathroom light fixture while the defendant and two others were present. Although the case was before the Court of Appeals on an adverse ruling on a suppression motion, the court reached the issue of sufficiency of the evidence. The North Carolina Supreme Court concluded that the Court of Appeals applied the wrong analysis, conflating the sufficiency of the evidence standard with the standard that applies when assessing whether officers had probable cause to arrest. The court went on to conclude that unchallenged facts supported the trial court’s conclusion that the officers had probable cause to arrest. Specifically, responding officers knew they were being dispatched to a motel to assist its manager in determining whether illegal drug use was occurring in Room 312, after a complaint had been made. The officers’ initial conversation with the manager confirmed the possibility of suspicious activities. When the door to the room was opened, they saw a woman with a crack pipe and drug paraphernalia next to her. The woman fled to the bathroom, ignoring instructions to open the door while she flushed the toilet. A search of the bathroom revealed a bag of what looked like narcotics in the light fixture. The defendant ignored instructions to remain still. When asked, the defendant claimed the room was his and that a bag containing clothing was his.

The court affirmed per curiam Steinkrause v. Tatum, 201 N.C. App. 289 (Dec. 8, 2009) (holding, over a dissent, that there was probable cause to arrest the defendant for impaired driving in light of the severity of the one-car accident coupled with an odor of alcohol).

The defendant was charged with impaired driving, was convicted in district court, appealed to superior court, and prevailed on a motion to suppress at a pretrial hearing in superior court. The State appealed. (1) The Court of Appeals rejected the State’s argument that the superior court judge lacked jurisdiction to enter a written order after the State gave oral notice of appeal at the conclusion of the hearing at which the judge granted the motion to suppress. At the hearing, the trial judge stated that the State could not establish a nexus between the person the officer saw driving and the defendant who later walked up to the officer. The Court found that the judge’s written order was a chronicle of the findings and conclusions he decided at the motion hearing and was not a new order affecting the merits of the case. (2) The Court rejected the State’s argument that certain findings of fact were not supported by the evidence. In regard to the green pickup truck that the defendant was allegedly driving, the trial judge found that the arresting officer testified that he did not see the truck park or anyone get in or out of the truck. The State asserted that the officer testified that he observed a video at the mini-mart where the truck was parked showing the defendant getting out of the truck. The Court found that the officer testified that the video was lost because he left the flash drive containing the video in his patrol car when he took the car to a mechanic. The Court held that the trial judge determines the credibility of witnesses, the weight to be given to testimony, and reasonable inferences. “The trial court was free to give no weight to [the officer’s] testimony regarding viewing the Mini-mart video.” (3) The Court rejected the State’s argument that probable cause existed to arrest the defendant for impaired driving. The Court found that the trial judge’s findings supported his conclusion that the State failed to show that the defendant was driving and, although the truck was registered to the defendant, failed to establish a connection between the driver of the truck and the defendant.

In this case involving drug charges and a charge of driving without an operator’s license, the court declined to address the defendant’s argument that the officer lacked reasonable suspicion to prolong the traffic stop and search the defendant, finding that the search was justified as a search incident to arrest for two offenses for which the officer had probable cause to arrest. An officer was on the lookout for a gold Kia sedan in connection with an earlier incident at the Green Valley Inn. As the officer was monitoring an intersection, he saw a Kia sedan drive through a red light. The officer conducted a traffic stop. The officer approached the vehicle and immediately saw an open beer container in the center console. The officer asked the defendant for his license and registration. The defendant said he did not have a license but handed over a Pennsylvania ID card, with a shaky hand. After noticing the defendant’s red, glassy eyes and detecting an odor of alcohol from the vehicle, the officer asked the defendant to exit the car so that he could search it and have the defendant perform sobriety tests. Before searching the vehicle the officer frisked the defendant. As the officer returned to his police car to check the defendant’s license for outstanding warrants, the defendant spontaneously handed the officer his car keys. Because it was cold, the officer allowed the defendant to sit in the back of the patrol car as he ran the license and warrant checks. The officer determined that the defendant’s license was expired, the vehicle was not registered to the defendant, and the defendant had no outstanding warrants. While sitting in the officer’s vehicle, the defendant voluntarily made a variety of spontaneous statements and asked the officer if he could drive him back to the Green Valley Inn after the traffic stop completed. After doing the license and warrants check, the officer conducted standardized field sobriety tests, which were performed to his satisfaction. He then asked for and got consent to search the defendant, finding powder and crack cocaine in the defendant’s pockets.

          On appeal, the defendant argued that the officer lacked reasonable suspicion to extend the stop after determining that the defendant was not intoxicated. The court however concluded that the officer did not need reasonable suspicion to extend the stop; the court reasoned that because the officer had probable cause to justify arrest, the search was justified as a search incident to arrest. Specifically, the officer’s discovery of the open container and that the defendant was driving without an operator’s license gave the officer probable cause to arrest. An officer may conduct a warrantless search incident to a lawful arrest; a search is incident to an arrest even if conducted prior to the formal arrest.

          For similar reasons, the court rejected the defendant’s argument that his consent to search was invalid because it was given while the stop was unduly prolonged. The court reasoned that because probable cause existed for the arrest and the search was justified as a search incident to an arrest, the defendant’s consent was unnecessary.

          The court went on to hold that even if the search was unlawful, discovery of the contraband on the defendant’s person was inevitable. Here, the officer testified that he would not have allowed the defendant to drive away from the traffic stop because he was not licensed to operate a motor vehicle. The officer testified that he would have searched the defendant before giving him a ride or transporting him to jail because of his practice of searching everyone transported in his patrol car. Also, the defendant repeatedly asked the officer if he would give him a ride back to the Green Valley Inn. Thus, the State established that the cocaine would have been inevitably discovered because the officer would have searched the defendant for weapons or contraband before transporting him to another location or jail.

Probable cause supported the defendant’s second arrest for impaired driving. After the defendant’s first arrest for DWI, he signed a written promise to appear and was released. Thirty minutes later Officer Hall saw the defendant in the driver’s seat of his vehicle at a gas station, with the engine running. The defendant had an odor of alcohol, slurred speech, red, glassy eyes, and was unsteady on his feet. The defendant told the officer that he was driving his vehicle to his son’s residence. The officer did not perform field sobriety tests because the defendant was unable to safely stand on his feet. Based on the defendant’s prior blood-alcohol reading--done less than two hours before the second incident--and the officer’s training about the rate of alcohol elimination from the body, the officer formed the opinion that the defendant still had alcohol in his system. The defendant was arrested a second time for DWI and, because of his first arrest, driving while license revoked. The trial court granted the defendant’s motion to suppress evidence in connection with his second arrest. The State appealed and the court reversed. The court began by determining that certain findings made by the trial court were not supported by competent evidence. The court then held that probable cause supported the defendant’s second arrest. The defendant admitted that he drove his vehicle between his two encounters with the police. During the second encounter, Hall observed that the defendant had red, glassy eyes, an odor of alcohol, slurred speech and was unsteady on his feet to the extent that it was unsafe to conduct field sobriety tests. While Hall did not observe the defendant’s driving behavior, he had personal knowledge that the defendant had a blood alcohol concentration of .16 one hour and 40 minutes prior to the second encounter. And Hall testified that based on standard elimination rates of alcohol for an average individual, the defendant probably still would be impaired.

In this murder case, officers had probable cause to arrest the defendant. Thus, the trial court did not err by denying the defendant’s motion to suppress incriminating statements made by the defendant after arrest. After law enforcement discovered a woman’s body inside an abandoned, burned car, officers arrested the defendant. During question after arrest, the defendant implicated himself in the woman’s murder. He unsuccessfully moved to suppress those incriminating statements and challenged the trial court’s denial of his suppression motion on appeal. At the time the officers arrested the defendant, they had already visited the victim’s home and found a knife on the chair near a window with the cut screen. When they questioned the victim’s boyfriend, he admitted that he was with the defendant at the victim’s home on the night of the murder and that, after the victim locked the two men out of her house, the boyfriend cut the screen, entered the house through the window, unlocked the door from the inside, and let the defendant in. These facts and circumstances constituted sufficient, reasonably trustworthy information from which a reasonable officer could believe that the defendant had committed a breaking and entering. Thus, regardless of whether the officers had probable cause to arrest the defendant for murder, they had probable cause to arrest the defendant for that lesser crime.

In this armed robbery and murder case, the trial court did not err by concluding that law enforcement officers had probable cause to arrest the defendant. Among other things, the defendant placed a telephone call using the victim’s cell phone about 20 minutes before the victim’s death was reported to law enforcement; the defendant spent the previous night at the victim’s residence; the victim’s son had last seen his father with the defendant; the victim’s Smith and Wesson revolver was missing and a Smith and Wesson revolver was found near the victim’s body; and the defendant was seen on the day of the victim’s death driving an automobile matching the description of one missing from the victim’s used car lot.

An officer had probable cause to arrest the defendant for DWI. After the officer stopped the defendant’s vehicle, he smelled a moderate odor of alcohol coming from the defendant and noticed that the defendant’s eyes were red and glassy. Upon administration of an HGN test the officer observed five of six indicators of impairment. The defendant was unable to provide a breath sample for an alco-sensor, which the officer viewed as willful refusal. The defendant admitted that he had consumed three beers, though he said his last consumption was nine hours prior. The officer arrested at the defendant for DWI. The court held: “Without even considering defendant’s multiple failed attempts to provide an adequate breath sample on an alco-sensor device, we hold the trial court’s findings support its conclusion that there was probable cause to arrest defendant for DWI.”

An officer had probable cause to arrest the defendant for DWI. The officer responded to a call involving operation of a golf cart and serious injury to an individual. The defendant admitted to the officer that he was the driver of the golf cart. The defendant had “very red and glassy” eyes and “a strong odor of alcohol coming from his breath.” The defendant’s clothes were bloody, and he was very talkative, repeating himself several times. The defendant’s mannerisms were “fairly slow” and the defendant placed a hand on the deputy’s patrol car to maintain his balance. The defendant stated that he had “6 beers since noon” and he submitted to an Alco-Sensor test, which was positive for alcohol.

(1) Because the officer saw the defendant drive through a red light, the officer had reasonable suspicion to stop the defendant’s vehicle. (2) Where upon stopping the defendant’s vehicle the officer smelled a strong odor of alcohol and saw that the defendant had red glassy eyes, the defendant failed field sobriety tests, and admitted to drinking before driving, the officer had probable cause to arrest the defendant for DWI.

The trial court properly granted the defendant’s motion to suppress where no probable cause supported the defendant’s arrest for impaired driving and unsafe movement. The defendant was arrested after he left a bar, got in his SUV and backed into a motorcycle that was illegally parked behind him. The officer relied on the following facts to support probable cause: the accident, the fact that the defendant had been at a bar and admitted to having three drinks (in fact he had four), the defendant’s performance tests, and the odor of alcohol on the defendant. However, the trial court found that the officer testified that the alcohol odor was “light.” Additionally, none of the officers on the scene observed the defendant staggering or stumbling, and his speech was not slurred. Also, the only error the defendant committed in the field sobriety tests was to ask the officer half-way through each test what to do next. When instructed to finish the tests, the defendant did so. The court concluded:

[W]hile defendant had had four drinks in a bar over a four-hour time frame, the traffic accident . . . was due to illegal parking by another person and was not the result of unsafe movement by defendant. Further, defendant's performance on the field sobriety tests and his behavior at the accident scene did not suggest impairment. A light odor of alcohol, drinks at a bar, and an accident that was not defendant's fault were not sufficient circumstances, without more, to provide probable cause to believe defendant was driving while impaired.

The court also rejected the State’s argument that the fact that the officer knew the defendant’s numerical reading from a portable breath test supported the arrest, noting that under G.S. 20-16.3(d), the alcohol concentration result from an alcohol screening test may not be used by an officer in determining if there are reasonable grounds to believe that the driver committed an implied consent offense, such as driving while impaired.

Probable cause supported the defendant’s arrest for DWI. When the officer stopped the defendant at a checkpoint, the defendant had bloodshot eyes and a moderate odor of alcohol. The defendant admitted to “drinking a couple of beers earlier” and that he “stopped drinking about an hour” before being stopped. Two alco-sensor tests yielded positive results and the defendant exhibited clues indicating impairment on three field sobriety tests. The court rejected the defendant’s argument that because he did not exhibit signs of intoxication such as slurred speech, glassy eyes, or physical instability, there was insufficient probable cause, stating: “as this Court has held, the odor of alcohol on a defendant’s breath, coupled with a positive alco-sensor result, is sufficient for probable cause to arrest a defendant for driving while impaired.”

Officers had probable cause to arrest the defendant for impaired driving. An officer saw the defendant lying behind a car on the ground, with his shirt over his head and his head in the sleeve hole. The defendant appeared unconscious. When the officer tried to arouse the defendant, he woke up and started chanting. His speech was slurred, he had a strong odor of alcohol, he was unsteady on his feet, and his eyes were bloodshot. The keys were in the ignition and the car was not running. Another officer searched the area and found no sign of anyone else present.

An officer had probable cause to arrest the defendant after he felt something hard between the defendant’s buttocks during a weapons pat down. Based on his training and experience the officer inferred that the defendant may have been hiding drugs in his buttocks. The court noted that the location of the item was significant, since the buttocks is an unlikely place for carrying legal substances. Additionally, the officer knew that the defendant was sitting in a car parked in a high crime area; a large machete was observed in the car; a passenger possessed what appeared to be cocaine; when officers began speaking with the vehicle’s occupants the defendant dropped a large sum of cash onto the floor; and after dropping the money on the floor, the defendant made a quick movement behind his back.

Because probable cause supported the issuance of arrest warrants for assault on a female, the defendants were shielded by public official immunity from the plaintiff’s claims based on false imprisonment and other grounds. The defendant officer told the magistrate that the plaintiff, a teacher, had “touched [the] breast area” of two minor female students after at least one of the students had covered herself with her arms and asked the plaintiff not to touch her. This evidence was enough for a reasonable person to conclude that an offense had been committed and that the plaintiff was the perpetrator.

A detailed tip by an individual, who originally called the police anonymously but then identified himself and met with the police in person, was sufficiently corroborated by the police to establish probable cause to arrest the defendant. 

There was probable cause to arrest the defendant for resisting, delaying, and obstructing when the defendant fled from an officer who was properly making an investigatory stop. Although the investigatory stop was not justified by the fact that a passenger in the defendant’s car was wanted on several outstanding warrants, it was justified by the fact that the defendant was driving a car that had no insurance and with an expired registration plate. It was immaterial that the officer had not explained the proper basis for the stop before the defendant fled. 

Provided the underlying charges that form the basis for an order for arrest (OFA) for failure to appear remain unresolved at the time the OFA is executed, the OFA is not invalid and an arrest made pursuant to it is not unconstitutional merely because a clerk or judicial official failed to recall the OFA after learning that it was issued erroneously. On February 22, 2007, the defendant was cited to appear in Wilkes County Court for various motor vehicle offenses (“Wilkes County charges”). On June 7, 2007 he was convicted in Caldwell County of unrelated charges (“unrelated charges”) and sent to prison. When a court date was set on the Wilkes County charges, the defendant failed to appear because he was still in prison on the unrelated charges and no writ was issued to secure his presence. The court issued an OFA for the failure to appear. When the defendant was scheduled to be released from prison on the unrelated charges, DOC employees asked the Wilkes County clerk’s office to recall the OFA, explaining defendant had been incarcerated when it was issued. However, the OFA was not recalled and on October 1, 2007, the defendant was arrested pursuant to that order, having previously been released from prison. When he was searched incident to arrest, officers found marijuana and cocaine on his person. The court rejected the defendant’s argument that the OFA was invalid because the Wilkes County clerk failed to recall it as requested, concluding that because the underlying charges had not been resolved at the time of arrest, no automatic recall occurred. The court further noted that even if good cause to recall existed, recall was not mandatoryand therefore failure to recall did not nullify the OFA. Thus, the officers were entitled to rely on it, and no independent probable cause was required to arrest the defendant. The court declined to resolve the issue of whether there is a good faith exception to Article I, Section 20 of the state Constitution.

The Court reversed and remanded a decision by the Ninth Circuit, holding that because police officers had probable cause to arrest Respondent Bartlett, his First Amendment retaliatory arrest claim fails as a matter of law. Russell Bartlett sued petitioners—two police officers—alleging that they retaliated against him for his protected First Amendment speech by arresting him for disorderly conduct and resisting arrest. The Court held that probable cause to make an arrest defeats a claim that the arrest was in retaliation for speech protected by the First Amendment.

Officers did not use excessive force in violation of the Fourth Amendment when using deadly force to end a high speed car chase. The chase ended when officers shot and killed the fleeing driver. The driver’s daughter filed a § 1983 action, alleging that the officers used excessive force in terminating the chase in violation of the Fourth Amendment. Given the circumstances of the chase—among other things, speeds in excess of 100 mph when other cars were on the road—the Court found it “beyond serious dispute that [the driver’s] flight posed a grave public safety risk, and . . . the police acted reasonably in using deadly force to end that risk.” Slip Op. at 11. The Court went on to reject the respondent’s contention that, even if the use of deadly force was permissible, the officers acted unreasonably in firing a total of 15 shots, stating: “It stands to reason that, if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended.” Id.

In the context of a qualified immunity analysis, the Court reversed the Ninth Circuit and held, in relevant part, that an objectively reasonable arrest and detention pursuant to a validly obtained material witness arrest warrant cannot be challenged as unconstitutional on the basis of allegations that the arresting authority had an improper motive. The complaint had alleged that in the aftermath of the September 11th terrorist attacks, then-Attorney General John Ashcroft authorized federal prosecutors and law enforcement officials to use the material-witness statute to detain individuals with suspected ties to terrorist organizations, that federal officials had no intention of calling most of these individuals as witnesses, and that they were detained, at Ashcroft’s direction, because officials suspected them of supporting terrorism but lacked sufficient evidence to charge them with a crime.

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