NC Supreme Court Evaluates Traffic Stop for Fishtailing in Snow

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State v. Johnson, __ N.C. __ (August 18, 2017) opens like a novel:

Defendant was stopped at a red light on a snowy evening. When the light turned green, defendant’s truck abruptly accelerated, turned sharply left, and fishtailed, all in front of a police officer in his patrol car. The officer pulled defendant over for driving at an unsafe speed given the road conditions.

On second thought, maybe this reads more like a bar exam question (or a Dan Fogelberg song).

What say you, barristers?  Was the stop lawful?

The North Carolina Supreme Court held that the stop was lawful as these facts provided the officer with reasonable suspicion to believe the defendant was driving at an unsafe speed given the weather and road conditions.

If you thought the stop was unlawful, don’t feel badly.  A unanimous panel of court of appeals judges did too. See State v. Johnson, ___ N.C. App. ___, 784 S.E.2d 633 (2016), reversed, __ N.C. ___, ___ S.E.2d ___ (2017) (discussed in this earlier post).

Procedural history. The police officer who pulled over the defendant in Johnson gathered evidence during the course of the stop that caused him to believe Johnson was driving while impaired – the offense for which Johnson ultimately was arrested and charged. Johnson filed a motion in district court to suppress the evidence resulting from the stop on the basis that the officer lacked reasonable suspicion to believe he had committed a traffic offense. The district court judge preliminarily indicated his intent to grant the motion. The State appealed to superior court, and the superior court remanded the matter to district court with instructions to deny the motion to suppress. The defendant then pled guilty to impaired driving in district court and appealed for trial de novo in superior court. He refiled the motion to suppress, which was again denied.  The defendant then pled guilty, but preserved his right to appeal the denial of the motion to suppress. Following sentencing, the defendant appealed.

Court of appeals. The court of appeals reversed the superior court’s order, holding that the officer lacked reasonable suspicion to stop the defendant. The court reasoned that because the defendant was able to maintain lane control during his left-hand turn, there was “nothing illegal” about the turn. Though a legal maneuver can, in conjunction with other circumstances, constitute reasonable suspicion, the court found no other circumstances in Johnson’s case to justify the stop.  The court explained that the defendant’s turn did not affect other traffic or increase the risk of collision to any other motorists or pedestrians.

The State sought discretionary review, and, as mentioned above, the state supreme court reversed the court of appeals.

State supreme court’s analysis. The state supreme court explained that the lawfulness of the stop in Johnson hinged on whether the circumstances the officer observed provided him with a reasonable belief that a traffic violation had occurred and not on whether a traffic offense did, in fact, occur.

The officer in Johnson thought that the defendant violated G.S. 20-141(a), which prohibits the driving of a vehicle on a highway or a public vehicular area “at a speed greater than is reasonable and prudent under the conditions then existing.” The fact that the defendant abruptly accelerated during a turn while driving in snow and lost control of his truck as it fishtailed rendered reasonable the officer’s belief that the defendant was driving too fast for conditions.

The state supreme court further opined that the fact that the defendant stayed in his lane did not necessarily establish that he was driving at a safe speed given the road conditions. Sometimes, the court noted, drivers traveling at an unsafe speed are able to avoid accident or injury through sheer good fortune.

You might say that in the end, for Johnson, the snow turned into rain.

12 comments on “NC Supreme Court Evaluates Traffic Stop for Fishtailing in Snow

  1. I agree wholeheartedly with the Supreme Court decision here. Too often we are judged after the fact by parties with more knowledge than we had at the time of our initial involvement with a matter.

    Initially, I think a reasonable officer would assume a violation possibly occurred, and want to conduct, at the very least, an investigatory stop of the motorist. This behavior, the random acceleration, is a solid indicator of impairment.

    The snow isn’t really relevant except that it provided the defendant’s lawyer with a good reason to try and get the case tossed (kudos to the defense attorney for thinking of that).

  2. When was the last time the Supreme Court granted a Defendant’s request for discretionary review of a unanimous decision of Court of Appeals?

    • Such an event is as rare as hen’s teeth. Former Justice Robert Orr complained about the paucity of discretionary review in a law review article in Campbell Law Review. I think he found just one instance. The anomaly did occur in _State vs. Robert Bishop_ after the Court of Appeals flew off the rails and called speech “action.” UCLA law professor, Eugene Volokh, and his tenacious posse of free speech warriors filed a sizzling amicus curiae brief.

  3. Going by your write-up alone, there’s no reason to believe the truck fishtailed due to excessive speed. It’s possible to fishtail in snow (or even on dry asphalt) while standing still. Still excessive speed? The case opening explains that the defendant “abruptly accelerated” but said nothing of observing a high rate of travel. Acceleration alone does not indicate speed, much less excessive speed.

  4. In a police state every action is a crime. A fish tail in snow is not a crime. The last ice storm we had I saw hundreds of vehicles sliding and fishtailing in the snow and ice. The snow is relevant. Random acceleration is not a indicator of impairment go stand in the high school parking lot after school.

  5. Sounds as if the Court of Appeals got it right and the Supreme Court blew it. The driver had to accelerate because he had been stopped at the light. Pick-up trucks with nothing in their beds have very poor grip on the road. The driver fishtailed a bit, not enough to leave his lane even though he was turning. He did not drive too fast for conditions; he had to be going quite slowly, almost or possibly actually not moving forward at all. He just accelerated too fast for his tires to properly grip in the snow, coming from a complete stop. It is possible that he accelerated as slowly as his truck is capable of accelerating. This scenario is common for all drivers of pick-up trucks with empty beds accelerating from stops in the snow. Our courts are too eager to convict people of DWIs. Based on the description Shea gave above this officer did not have reasonable, articulable suspicion to pull this driver over. It isn’t even close.

  6. Has no one on the Supreme Court ever driven in snow? Because, as someone who lives in Boone on a slope with northern exposure, and who therefore must deal with snow and ice on a regular basis for about half the year, the holding in Johnson sounds utterly ridiculous. I have seen many days here where half the town was sliding, skidding and fishtailing while trying to get to work or class, and where, with a keen eye, one could observe our local law enforcement officers doing the same while trying to get to Court (and yes, we do hold Court on some snowy days). Should they be citing themselves for a violation of GS 20-141(a)? (And I mean no disrespect to the officers in question – it’s just that traction control and all wheel drive only go so far in the frozen stuff). What about when a car skids ever so slightly upon approaching a down-hill traffic light that just turned on them? Surely they’re driving too fast for conditions when their vehicle doesn’t roll to a stop without skidding or sliding on solid ice while going downhill toward a stop-light at 5 mph.

  7. Driver should have been charged with Reckless Driving, misdemeanor, failure to properly control a motor vehicle as the driver was NOT speeding, but accelerated improperly, causing the driver to lose traction and control of his vehicle during inclement and icy road conditions. Purposely “fishtailing” on public highways IS, in fact, a traffic crime!

    • The justices should be sentence to a winter in the upper Midwest (where I am from) with a back wheel drive car. Do they have any idea what it is like to drive on snow, or snow over ice, or ice? Not in Raleigh around their houses where the snow is cleared by the time they get out in their front wheel drive cars, but in areas the snow is not cleared because of budget cuts and either continues to fall or gets smoothed out by other cars. Perhaps we can make citizen’s arrests of a few court officials in Raleigh next year after a snowfall for fishtailing.. .

  8. It’s important to ACTUALLY read the opinion in this case. It lays out more of the details of the officer’s testimony about what he observed. In this case, the officer described that snow was just “starting to hold on to the ground.” The officer described that the truck “screeched” tires as it accelerated, making an immediate left hand turn. Finally, the officer concluded that the truck’s back end “jackknifed” and appeared as if it was going to strike the sidewalk at the corner of the intersection, but ultimately did not.

    The point is this: this case doesn’t mean that officers now have a license to stop any/every car that slides ever so slightly while driving/turning on a snowy road. It will still work on a case-by-case basis. The sky is not falling. We don’t live in a police state. We don’t live in the upper Midwest.

    Anyone who has ever seen snow has seen some idiot screech his tires and accelerate through a turn too fast causing their car to fishtail. Unless you are that person, you probably can’t stand that person and think their driving is not appropriate given the conditions. Especially if you have kids in the car. Or on the sidewalk. That is probably why there is a statute that prevents such driving. So don’t be surprised that driving like this (like a jerk), even without causing a wreck, can rise to the level of a traffic infraction that warrants a traffic stop.

    • Since you ACTUALLY read the opinion then I’m sure you noted that the officer testified that he, “had to switch
      to an “older model” marked police car that “had snow tires on it”” because of the conditions. I’m sure you also noted that one of the lower Court’s findings of fact was that, “slush had begun to accumulate on the roads.” The conditions were clearly deteriorating and obviously did require extra care. But sometimes extra care means controlling the vehicle once it starts sliding so that it doesn’t slide into a sidewalk or a parked car or something worse. The relevant question is not whether the vehicle slid, spun, or fishtailed on ice or snow – in slick weather that can sometimes happen regardless of how carefully you drive – the relevant question is how the driver dealt the skid. Sounds like this driver dealt with it pretty well. Your conclusion that the driver was driving like a jerk (and if THAT is the legal standard, then . . . ) is not supported by the evidence. And neither was the officer’s stop of Johnson’s vehicle.

  9. Erik, I loved your response to Michael:

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