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.
Tag Archives: reasonable suspicion
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.
Jeff has written before about whether a traffic stop may be prolonged to allow time for a drug-sniffing dog to arrive on the scene and sniff about the car (which itself is not a Fourth Amendment search, see Illinois v. Caballes, 543 U.S. 405, 409 (2005)). As Jeff noted in his paper, it is unclear whether a brief delay to allow time for a canine unit to arrive is permissible absent reasonable suspicion of criminal activity; however, it is well-established that an extended delay to await a drug dog’s arrival must be supported by reasonable suspicion. The North Carolina Court of Appeals in State v. Fisher, ___ N.C. App. ___ (March 20, 2012), recently considered whether a 20 to 25 minute detention of a defendant after he was stopped for a seatbelt violation was supported by the requisite suspicion. The case struck me as worth blogging about both because of the court’s view that any detention of the defendant beyond the issuance of the citation must be supported by reasonable suspicion and the ordinariness of the factors the State relied upon as evidence of criminal activity. Some, but not all, of those factors were accepted by the court as appropriate factors to consider in a reasonable suspicion analysis (hence, the title of this post).
The defendant in Fisher attracted the attention of a local police officer and drug investigator because he was not wearing his seatbelt and was driving “diligent[ly],” with “both hands on the wheel” in a “pack of traffic” traveling approximately 70 miles per hour along highway 70 West near Goldsboro. Slip op. at 2. The officer followed the defendant in his unmarked car for about three miles, during which time he ran the tag number on the vehicle, determining that it was registered to an elderly woman in Bayboro, N.C. The officer also saw a handprint on the trunk of the car, which was dirty. The officer considered suspicious the defendant’s driving, the registration of the car to someone else (since “90 percent of [his] drug seizures [came] from third party vehicles, meaning that the person driving the car is not the registered owner of the vehicle”) and the handprint, which indicated something had recently been placed in the trunk, “another indicator that defendant was a drug courier.” Slip op. at 2-3. The officer stopped the vehicle for the seatbelt violation.
When he approached the car, the officer noticed a strong odor of air freshener, which he also considered a sign of a drug courier. Defendant said he was going to Bayboro after a shopping trip to a mall in Smithfield. The officer thought this was suspicious since there were no bags in the car. The defendant said he went to shop for clothes, but nothing fit. Adding to the officer’s suspicion was that the defendant did not ask why he had been stopped. Furthermore, the officer considered it suspicious that the defendant had a fast food bag in the car, which he considered an indicator that the “person is in a hurry” and “does not want to leave their car unattended.” Slip. op. at 3.
After the defendant had been stopped for five or six minutes, the officer called for a canine unit because he believed the defendant was transporting drugs. He subsequently told the defendant that he would be given a warning ticket for the seatbelt violation and that he believed the defendant was transporting contraband. The defendant refused the officer’s request to search.
While he was waiting for the canine unit, the officer called the Pamlico County Sheriff’s Department (Bayboro is in Pamlico County) to ask about the defendant. A narcotics officer there told him that the defendant was “a known marijuana and cocaine distributor with pending drug charges.” Slip op. at 4. The officer further noted that defendant appeared nervous throughout the encounter “even after being told that he was only going to receive a warning.” Id.
When Emmy the drug dog arrived, she signaled to the officers that there were drugs in the defendant’s car. The officers found two pounds of marijuana in the trunk. In his trial on the drug charges that ensued, the defendant moved to suppress the evidence resulting from the search of the vehicle. The trial court granted the defendant’s motion, concluding that though the stop was justified, “there are not enough factors after the stop to continue with the detention of this defendant absent a search warrant.” Slip. op. at 7-8. The court of appeals reversed, finding that reasonable suspicion existed to detain the defendant beyond the time necessary to issue the warning citation for the seatbelt violation. The court’s analysis assumes that reasonable suspicion is required to detain a person stopped for a traffic infraction beyond the time necessary to issue a warning citation, a proposition espoused by the state’s appellate courts in several earlier opinions, see State v. McLendon, 350 N.C. 630 (1999); State v. Parker, 183 N.C. App. 1 (2007); State v. Euceda-Valle, 182 N.C. App. 268, 274 (2007), though somewhat at odds with the court of appeals’ holding in State v. Brimmer, 187 N.C. App. 451, 458 (2007), that reasonable suspicion was not required to extend a traffic stop for the time necessary for an officer to explain to the defendant a dog was going to walk around the car and the one-and-a-half minutes of the actual sniff, since “this very brief additional time did not prolong the detention beyond that reasonably necessary for the traffic stop.”
The court then noted that several of the factors identified as suspicious in Fisher—the defendant’s nervousness, the inconsistency in his explanation that he had been shopping two hours away but had made no purchases, the smell of an air freshener, and the defendant’s driving of a car registered to someone else—were similar to factors considered as among those establishing reasonable suspicion in earlier cases and were sufficient to establish the reasonable suspicion necessary for the officer to detain the defendant beyond the time necessary to issue the warning citation. And while the defendant’s pending drug charges did not support the prolonged detention at its inception, since the officer learned about those while he was awaiting arrival of the canine unit, the court held that this knowledge provided additional support for the reasonable suspicion required to justify the continued detention of the defendant.
As to the more ordinary factors relied upon by the officer, the court assumed, for the sake of argument, that driving in the flow of traffic, and having a handprint on the trunk and a fast food bag in in the car were not proper factors to consider in a reasonable suspicion analysis. So, at least for now, road trips with my family (which nearly always involve driving a dirty, hand-print laden car in a pack of traffic while consuming fast food) don’t give rise to a suspicion that criminal activity is afoot. Plus, we’ll all be wearing our seat belts.
Two recent cases from the court of appeals have added to our state’s weaving jurisprudence. One of them is a pretty big deal, as I’ll explain below.
But first, the background. G.S. 20-146 requires that “[a] vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.” Weaving within a single lane does not appear to violate G.S. 20-146 and so is not itself a crime or infraction.
Nor is weaving within a single lane, by itself, generally sufficient to provide reasonable suspicion of DWI. In State v. Fields, 195 N.C. App. 740 (2009), The court of appeals considered a stop made by an officer who had followed the defendant for 1.5 miles and “saw defendant’s car swerve to the white line on the right side of the traffic lane” three times. The court invalidated the stop, stating that a “defendant’s weaving within his lane, standing alone, is insufficient to support a reasonable suspicion that defendant was driving under the influence of alcohol.” The Fields court did acknowledge that weaving may contribute to reasonable suspicion, and specifically observed that the defendant in that case was not speeding, was not driving significantly below the speed limit, was stopped in the afternoon rather than an “unusual hour,” and was not stopped near “any places to purchase alcohol.” See also State v. Peele, 196 N.C. App. 668 (2009) (no reasonable suspicion of DWI where, around 8 p.m., an officer received an anonymous tip about a burgundy truck that was a “possible careless and reckless, D.W.I.,” quickly located the truck, and observed it for 0.1 miles, during which the truck weaved once within its lane).
The court of appeals’ recent decision in State v. Otto, __ N.C. App. __, 718 S.E.2d 181 (2011), is generally in keeping with Fields and Peele. At 11 p.m., an officer noticed the defendant weaving within her lane. The officer initiated a stop after following the defendant for approximately ¾ of a mile. When the officer initially observed the defendant, she was approximately half a mile from the Rock Springs Equestrian Club, and was coming from the direction of the club. The officer was aware that a banquet was being held at the club that evening, and the officer had heard that alcohol was sometimes served at club events. The court of appeals determined there was no evidence that the club regularly served alcohol and so there was no basis for the officer to presume that alcohol was served that evening. The court then held that the trial court erred in concluding that the officer had a reasonable, articulable suspicion for stopping the defendant’s vehicle, stating: “Without any additional circumstances giving rise to a reasonable suspicion that criminal activity is afoot, stopping a vehicle for weaving is unreasonable.” There was a dissent in Otto, so we may hear more about it, but it is in line with the “weaving plus” requirement of Fields.
The relative blockbuster is the second recent case, State v. Fields, __ N.C. App. __, __S.E.2d __ (Mar. 6, 2012). I wish it had a different name, but it doesn’t, so to distinguish it from the previous Fields case, I’ll note the year of each decision. In the 2012 Fields case, an officer followed the defendant for ¾ of a mile and saw him “weaving in his own lane . . . sufficiently frequent[ly] and erratic[ly] to prompt evasive maneuvers from other drivers.” The officer stopped the defendant on suspicion of DWI. The defendant was indeed impaired, and was charged with habitual DWI. The defendant moved to suppress, arguing that weaving within a single lane doesn’t provide reasonable suspicion to support a stop. The trial court denied the motion, and after the defendant was convicted, the court of appeals affirmed. Distinguishing the 2009 Fields case, the court stated that the defendant in this case did not merely weave once or twice within his lane, but rather drove like a “ball bouncing in a small room.”
The 2012 Fields case strikes me as a very big deal, because it holds that an officer doesn’t always need “weaving plus,” notwithstanding the fact that the 2009 Fields case pretty clearly said that weaving alone isn’t enough. How severe must a driver’s weaving be before it is alone sufficient to support a stop? We don’t know exactly, but the fact that other drivers were taking evasive action appears to be a significant factor in the court’s analysis. The court also seems to have been impressed with the officer’s colorful description of the defendant’s driving. Officers, this case suggests that you need to polish up your similes. Was a driver weaving like a squirrel caught in a roadway? Like a skier racing a slalom? How you capture the driver’s conduct in words may determine whether you are permitted to capture the driver in the Fields.
The Fourth Circuit recently decided a very interesting case with a lot of North Carolina connections. The case is United States v. Foster, and it’s available here.
The facts were as follows. A police officer in Henderson, North Carolina was eating lunch at a restaurant with his wife. As he left the restaurant, he saw the driver of a parked SUV speak, at which point another man — the eventual defendant — sat up in the passenger seat from a crouching position. The defendant then moved his arms in what the officer believed was a furtive manner, though he couldn’t see the defendant’s hands. The officer was familiar with the defendant and knew that he had been arrested previously for a drug-related crime, so the officer spoke briefly to him, and the defendant said that he was “just chilling.”
After watching the SUV from across the street for fifteen minutes, the officer conducted a Terry stop, based on “(1) his prior knowledge of Foster’s criminal record; (2) Foster’s sudden appearance from a crouched position in a parked [SUV], immediately after the driver had apparently said something to him after seeing the detective walking towards them; and (3) Foster’s frenzied arm movements, including the movement of his arms down toward the floor of the car [as the officer neared].” The Terry stop led to the discovery of drugs, and to federal charges in the United States District Court for the Eastern District of North Carolina. The defendant moved to suppress, and when his motion was denied by Judge Boyle, entered a conditional guilty plea, reserving the right to appeal the denial of the motion.
Durham lawyer Scott Holmes represented the defendant in the Fourth Circuit, and the court reversed. (Another North Carolina connection: Judge Wynn was on the panel.) The court didn’t view the facts observed by the officer as being strongly indicative of criminal activity, especially given that the interaction took place in a low-crime area and that the defendant was not noticeably nervous. In particular, the court seemed to view the defendant’s arm movements as ambiguous — echoing a thread in North Carolina case law that distinguishes between movements that are clearly furtive and those susceptible to multiple interpretations.
Although the decision itself may not be terribly surprising, the strong language used by the court is striking. (Judge Gregory wrote the opinion, and Judge Motz joined it, along with Judge Wynn.) The panel admonished the prosecution by saying “[w]e also note our concern about the inclination of the Government toward using whatever facts are present, no matter how innocent, as indicia of suspicious activity” and “we are deeply troubled by the way in which the Government attempts to spin these largely mundane acts into a web of deception.” Some folks I’ve spoken to think that the quoted language just reflects the views of the particular judges on the panel, while others are inclined to see this decision as exemplifying a broader trend on the Fourth Circuit towards being less friendly to the prosecution. Anyone have any insights on that issue?