Last April, 2015, the United States Supreme Court in Rodriguez v. United States, 135 S. Ct. 1609 (2015), significantly limited the scope of a traffic stop. The Court ruled that an officer may not extend a completed traffic stop for any period of time, no matter how brief, to conduct a dog sniff—absent reasonable suspicion of criminal activity (or consent). The Court rejected the government’s argument that an officer may incrementally prolong a traffic stop, which some lower courts, including North Carolina’s, had justified as a de minimis intrusion. The Court reasoned that a dog alert is not a permissible part of a traffic stop because it detects evidence of ordinary criminal wrongdoing, which is not part of an officer’s traffic mission. The Court, however, clearly indicated that if a dog sniff or other non-traffic-related activity does not add any time to the stop (in this case, it added 7–8 minutes), then the dog sniff or other activity is valid under the Fourth Amendment, as it previously had ruled in Illinois v. Caballes, 543 U.S. 405 (2005). Continue reading
Tag Archives: reasonable suspicion
Sometimes a legislature enacts a statute that has consequences beyond the direct impact of the statute’s provisions. West Virginia’s statute allowing the carrying of a concealed weapon with a permit may be such an example, based on the February 23, 2016, ruling of the Fourth Circuit Court of Appeals in United States v. Robinson. The court ruled that a West Virginia officer did not have reasonable suspicion to conduct a frisk because there was insufficient evidence of dangerousness, relying in part on a person’s right in West Virginia to carry a concealed weapon with a permit. And this ruling may impact cases in other states, such as North Carolina, that have a statute similar, although not identical, to West Virginia’s. This post discusses this ruling and its potential impact in North Carolina state courts. Continue reading →
Last summer, I wrote about State v. Jackson, __ N.C. App. __, 758 S.E.2d 39 (2014), in which the court of appeals ruled that an officer lacked reasonable suspicion to stop a pedestrian who engaged in what the officer viewed as suspicious and evasive behavior. Last month, the state supreme court reversed the court of appeals. The opinion is here; my summary and analysis of it is below. Continue reading →
Whether there was probable cause to arrest the driver is a hotly litigated issue in cases involving impaired driving. Unfortunately, there aren’t all that many appellate opinions addressing the hard calls in this area. Instead, many resemble State v. Tappe, 139 N.C. App. 33, 38 (2000), which found probable cause based on “defendant’s vehicle crossing the center line, defendant’s glassy, watery eyes, and the strong odor of alcohol on defendant’s breath.” It is difficult to imagine a court ruling otherwise. A few years ago, the court of appeals decided a tougher issue in Steinkrause v. Tatum, 201 N.C. App. 289 (2009), aff’d, 364 N.C. 419 (2010) (per curiam), concluding that the “fact and severity” of the defendant’s one-car accident coupled with a law enforcement officer’s observation that she smelled of alcohol provided probable cause to believe she was driving while impaired. This past year, the court issued two significant published opinions on probable cause for impaired driving—State v. Overocker, __ N.C. App. __, 762 S.E.2d 921 (Sept. 16, 2014), and State v. Townsend, __ N.C. App. __, 762 S.E.2d 898 (Sept. 16, 2014),—as well as opinions in State v. Veal, __ N.C. App. __, 760 S.E.2d 43 (July 1, 2014), and State v. Wainwright, __ N.C. App. __, 770 S.E.2d 99 (2015), better defining the threshold for reasonable suspicion of DWI.
Officer Fife is driving one car length behind Briscoe Darling at noon on a sunny day when he sees the tires on the right side of Darling’s car touch the fog line that borders Darling’s lane to the right. Darling drives on the fog line for a couple of seconds before his tires re-enter the unmarked portion of the lane. A half mile later, Darling’s tires again touch the fog line for a few seconds.
Officer Fife is driving one car length behind Charlene Darling at noon on a sunny day when he sees the tires on the right side of Darling’s car cross over the fog line that borders Darling’s lane to the right. Darling immediately moves her car back into the unmarked portion of the lane.
Officer Fife is driving one car length behind Mitch Darling at 9 a.m. on a cold winter morning when he sees the tires on the right side of Darling’s car cross over the fog line that border’s Darling’s lane to the right. After a few seconds, Darling moves his car back into the unmarked portion of the lane. Officer Fife is aware that the road the two are traveling is icy in spots.
Officer Fife is a stickler for compliance with motor vehicle laws. He believes it is his duty to stop anyone who commits a traffic offense, no matter how minor. Which Darling or Darlings may he lawfully stop, and why? Continue reading →
A traffic stop is valid if it is supported by reasonable suspicion. During a valid traffic stop, an officer may demand the driver’s license and registration, may run a computer check based on those documents, and so on. But what if the reasonable suspicion supporting the stop dissipates soon after the stop is made? Continue reading →
Shea blogged here about State v. Heien, the case in which the court of appeals ruled that having one burned-out brake light was not a violation of G.S. 20-129 and so did not support a vehicle stop. (The stop led to a consent search of the defendant’s vehicle, which led to the discovery of drugs and to drug trafficking charges.) The prosecution sought review in the state supreme court. That court assumed that the court of appeals was correct about the scope of the statute but determined (1) that an officer might reasonably think otherwise, given ambiguities in the statute, and (2) that reasonable suspicion may be based on a reasonable mistake of law. Conclusion (2) was the subject of a split of authority across the country, so the United States Supreme Court agreed to review the case. It issued its opinion yesterday. Continue reading →
In my first Warrantless Stops 101 post, I offered these basic questions to frame the analysis:
- Did a seizure occur?
- If so and it was a stop, was it supported by reasonable suspicion or other valid basis?
- If reasonable suspicion supported the stop, was the officer’s subsequent conduct sufficiently limited in scope?
- If the seizure was an arrest, was it supported by probable cause?
- If the arrest was supported by probable cause, was the search permissible?
My first post focused on whether a seizure occurred. This one looks at whether the stop was supported by reasonable suspicion. If so, the stop itself is constitutional and the only remaining issue is whether the officer’s conduct exceeded the scope of the stop, a topic I’ll take up in a later post. Continue reading →
The court of appeals recently decided a case about when a pedestrian’s efforts to avoid an officer provide reasonable suspicion for an investigative stop. The type of encounter involved is reasonably common and the case features a dissent, so it’s worth exploring.
The facts. The case is State v. Jackson, and it arose at 9:00 one evening when a Greensboro officer saw the defendant and another man talking outside a convenience store. The store was a frequent site of drug transactions, and the officer was familiar with both men from prior investigations. When the pedestrians saw the officer, they split and began walking away in opposite directions. The officer continued driving past the store, made a U-turn, and came back. The same two men were talking again outside the store. As the officer began pulling into the store’s parking lot, the men separated and began walking in opposite directions. The officer detained the defendant, obtained consent to search, and found a gun.
The case. The officer charged the defendant with being a felon in possession of a firearm. The defendant moved to suppress, arguing that the officer lacked reasonable suspicion for the stop. A superior court judge denied the motion and the defendant pled guilty, reserving the right to appeal the motion.
The appeal. The court of appeals reversed. It acknowledged that presence at a location known for drug activity, combined with evasive action, can provide reasonable suspicion. But it held that “merely walking away from one’s companion in the presence of law enforcement officers” does not amount to evasive action.
The opinion discusses the facts of a number of similar cases, and so is a nice repository of case law. Its ruling fits well with some of the precedents and less comfortably with others. The most difficult case for the court to harmonize is State v. Butler, 331 N.C. 227 (1992). In Butler, the North Carolina Supreme Court found reasonable suspicion when the defendant was among a group of people congregating on a corner known for drug activity, and “upon making eye contact with the uniformed officers, [the] defendant immediately moved away, behavior that is evidence of flight.” The court of appeals distinguished Butler by describing the defendant in Jackson as “simply observing [a] law enforcement officer before walking away,” rather than making eye contact with the officer. I’m not sure how robust that distinction is, but the Jackson court summed things up by saying that the defendant did nothing evasive or suspicious, and the officer “simply saw two young men standing in front of a convenience store move away from each other twice.”
The dissent. Judge Dillon dissented, arguing that the defendant engaged in a “sequence of suspicious behaviors,” i.e., separating from his companion upon seeing the officer; reuniting with him when the officer departed; and separating from him again when the officer returned. Although any one of those steps alone might be of little import, together, Judge Dillon reasoned, they amount to evasion.
Supreme court to weigh in. The State has appealed to the state supreme court based on the dissent, and that court has granted a temporary stay. Briefing isn’t complete so it will be some time before the next, and likely final, chapter in this story is written.
I’ve had several questions lately about driving slowly, so I took some time this weekend to add a section to my paper on traffic stops on the subject. The new section appears below as today’s blog post, and the complete updated paper is available here.
Driving substantially under the posted speed limit is not itself unlawful. In fact, it is sometimes required by G.S. 20-141(a), which states 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.” On the other hand, in some circumstances, driving slowly may constitute obstruction of traffic under G.S. 20-141(h) (“No person shall operate a motor vehicle on the highway at such a slow speed as to impede the normal and reasonable movement of traffic.”). Furthermore, the fact that a driver is proceeding unusually slowly may contribute to reasonable suspicion that the driver is impaired. See, e.g., State v. Bonds, 139 N.C. App. 627 (2000) (driver’s blank look, slow speed, and the fact that he had his window down in cold weather provided reasonable suspicion; opinion quotes NHTSA regarding the connection between slow speeds, blank looks, and DWI); State v. Aubin, 100 N.C. App. 628 (1990) (fact that defendant slowed to 45 mph on I-95 and weaved within his lane supported reasonable suspicion of DWI); State v. Jones, 96 N.C. App. 389 (1989) (although the defendant did not commit a traffic infraction, “his driving 20 miles per hour below the speed limit and weaving within his lane were actions sufficient to raise a suspicion of an impaired driver in a reasonable and experienced [officer’s] mind”).
Whether slow speed alone is sufficient to provide reasonable suspicion of impairment is not completely settled in North Carolina. The state supreme court seemed to suggest that it might be in State v. Styles, 362 N.C. 412 (2008) (“For instance, law enforcement may observe certain facts that would, in the totality of the circumstances, lead a reasonable officer to believe a driver is impaired, such as weaving within the lane of travel or driving significantly slower than the speed limit.”), but the court of appeals stated that it is not in an unpublished decision, State v. Brown, 2010 WL 3860440 (N.C. Ct. App. Oct. 5, 2010) (unpublished) (stating that traveling 10 m.p.h. below the speed limit is not alone enough to create reasonable suspicion, but finding reasonable suspicion based on speed, weaving, and the late hour). The weight of authority in other states is that it is not. See, e.g., State v. Bacher, 867 N.E.2d 864 (Ohio Ct. App. 1 Dist. 2007) (holding that “slow travel alone [in that case, 23 m.p.h. below the speed limit on the highway] does not create a reasonable suspicion,” and collecting cases from across the country).
It is also unclear just how slowly a driver must be travelling in order to raise suspicions. Of course, driving a few miles per hour under the posted limit is not suspicious. State v. Canty, __ N.C. App. __, 736 S.E.2d 532 (2012) (fact that vehicle slowed to 59/65 upon seeing officers did not provide reasonable suspicion). Ten miles per hour under the limit, however, may be enough to contribute to suspicion. State v. Brown, supra (finding reasonable suspicion where defendant was driving 10 m.p.h. under the speed limit and weaving within lane); State v. Bradshaw, 2009 WL 2369281 (N.C. Ct. App. Aug. 4, 2009) (unpublished) (late hour, driving 10 m.p.h. below the limit, and abrupt turns provided reasonable suspicion). Certainly, the more sustained and the more pronounced the slow driving, the greater the suspicion.