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1. Search and Seizure--avoidance of DWI checkpoint--automobile followed--hiding in
driveway--reasonable and articulable suspicion of criminal activity
There was a reasonable and articulable suspicion of criminal activity prior to defendant's
seizure for driving while impaired where defendant made a quick left turn at the intersection
immediately preceding a DWI checkpoint, an officer followed without engaging his siren or blue
lights, the vehicle made a second abrupt left turn and parked in a residential driveway, the
officer used his lights to see into the vehicle, defendant did not attempt to restart or exit the
vehicle, all of its occupants remained “scrunched down” in the vehicle even though it was
parked with its engine and lights off, the officer continuously watched the vehicle until backup
arrived, and the occupants did not change positions. Although a legal left turn at an intersection
immediately preceding a posted DWI checkpoint does not justify an investigatory stop without
more, it is constitutionally permissible for officers to follow vehicles that legally avoid DWI
check points and the defendant here was seized, at the earliest, when backup arrived. The
objective facts the officer observed prior to the arrival of backup were sufficient to raise a
reasonable and articulable suspicion of criminal activity.
2. Motor Vehicles--driving while impaired--defendant as driver--evidence sufficient
The trial court did not err in a DWI prosecution by denying defendant's motion to
dismiss based upon insufficient evidence that she was the driver where an officer observed a
small red vehicle making two turns, he found the vehicle in a residential driveway approximately
forty-five seconds later, he pulled behind the vehicle and activated lights which enabled him to
see inside the vehicle, he watched the individuals in the vehicle until backup arrived and they
stayed in their respective positions, and defendant was sitting in the driver's seat with the keys in
the ignition when officers subsequently approached the vehicle. These facts and the reasonable
inferences drawn from them constitute substantial evidence that defendant was the driver of the
vehicle.
Appeal by defendant from judgment dated 25 February 1998 by
Judge James E. Ragan, III, in Craven County Superior Court.
Heard in the Court of Appeals 16 March 1999.
Attorney General Michael F. Easley, by Assistant Attorney
General Jonathan P. Babb, for the State.
William F. Ward, III, P.A., by William F. Ward, III, for
defendant-appellant.
GREENE, Judge.
Karen Foreman (Defendant) appeals her conviction for drivingwhile impaired (DWI).
Defendant received a DWI citation at 2:45 a.m. on 16
November 1996. Prior to trial, Defendant made a motion to
suppress the evidence obtained during the investigatory stop of
her vehicle on the grounds that the stop was unconstitutional.
At a voir dire hearing on Defendant's motion, Officer Doug Ipock
(Officer Ipock) testified that a DWI traffic enforcement
checkpoint had been established on Neuse Boulevard on 16 November
1996. At the intersection of Neuse Boulevard and Midgette Road,
which immediately preceded the DWI checkpoint, a large sign was
posted reading "DWI Checkpoint Ahead." At approximately 2:00
a.m., Officer Ipock observed a "small red vehicle" traveling
towards the DWI checkpoint on Neuse Boulevard. The vehicle "made
an immediate left onto Midgette Avenue . . . right there at the
[DWI Checkpoint Ahead] sign." Officer Ipock described the turn
as a "quick left turn," but noted that he "did not observe
anything illegal about the turn." At this point, he could not
see who was driving the vehicle. Officer Ipock began to follow
the small red vehicle, and was approximately thirty to forty-five
yards behind it. Officer Ipock continuously observed the vehicle
until it made a second left turn, "also quick and abrupt," onto
Taylor Street, the first street intersecting Midgette Road.
Officer Ipock briefly lost sight of the small red vehicle once it
turned onto Taylor Street. Officer Ipock immediately followed
onto Taylor Street, and drove about halfway down the block
without crossing any intersecting roads and without seeing a
moving vehicle. I said to myself at that point in time
there's no way the vehicle could have gotten
all the way to the other end of Taylor Street
before I would have been able to reacquire a
visual sighting of it. So, therefore, I
turned around on [Taylor Street, heading back
towards Midgette Road,] and began checking
each residence as I came down the road.
Approximately forty-five seconds after losing sight of the small
red vehicle, Officer Ipock "spotted a red small compact car"
parked in a residential driveway on Taylor Street. Officer Ipock
"pulled in behind it and I then shined my bright lights on the
vehicle and my takedown lights, at which time I then saw people
that were scrunched down in the vehicle."
(See footnote 1)
The vehicle's engine
was not running, its lights were off, and the doors of the
vehicle were closed. Officer Ipock radioed for backup, and
remained in his vehicle continuously watching the small red
vehicle until backup arrived less than two minutes later. The
occupants remained "scrunched" or "ducked" down and did not
change positions in the vehicle. After backup arrived, Officer
Ipock approached the vehicle. Defendant was sitting in the
driver's seat of the vehicle, and the keys were still in the
ignition. After hearing Officer Ipock's testimony and the
arguments of counsel, the trial court denied Defendant's motion
to suppress the evidence.
At trial, Officer Ipock offered substantially the same
testimony as had been elicited during voir dire. He further
testified that several open containers of alcohol were found inthe vehicle once backup arrived, and that the vehicle emitted a
"[s]trong odor of alcohol." Officer Ipock testified that
Defendant had a "strong to moderate" odor of alcohol about her
person once she was removed from the vehicle.
Officer Kenneth Hunter (Officer Hunter) testified that he
arrived at the driveway on Taylor Street in response to Officer
Ipock's call for backup. Officer Ipock "identified [Defendant]
as the individual who had been behind the wheel of the car," and
asked Officer Hunter to check Defendant's sobriety. Officer
Hunter testified that Defendant had a "[v]ery strong odor of
alcohol about her breath. She was unsteady on her feet."
Officer Hunter further testified:
Upon observing her and learning from Officer
Ipock that she was behind the wheel of the
car, I did not perform the standardized field
sobriety test there at the scene, for two
reasons. One, the driveway was not level.
It was sloped. And the weather was somewhat
cold, if I remember. It was a little chilly
on the outside at that time of night. But
based on my observations of her I arrested
her for driving while impaired.
When he arrived with Defendant at the police station, Officer
Hunter asked Defendant to perform various standardized sobriety
tests. He testified that Defendant could not maintain her
balance and noticeably wobbled and swayed while trying to perform
these tests. Defendant refused to undergo chemical analysis of
her breath on an Intoxilyzer.
At the close of the State's evidence, Defendant made a
motion to dismiss on the ground that the evidence was
insufficient to show that Defendant was the driver of the small
red vehicle. The trial court denied the motion. Defendant didnot present any evidence.
The issues are whether: (I) Officer Ipock had a reasonable and articulable suspicion that Defendant was engaged in criminal activity prior to her seizure; and (II) there is substantial evidence that Defendant was the driver of the small red vehicle.
[1]For purposes of the Fourth Amendment, an "investigatory stop" is a seizure which must be supported by "a reasonable and articulable suspicion that the person seized is engaged in criminal activity." State v. Hendrickson, 124 N.C. App. 150, 155, 476 S.E.2d 389, 392 (1996); see also Reid v. Georgia, 448 U.S. 438, 440, 65 L. Ed. 2d 890, 893-94 (1980) (per curiam) (noting that "probable cause" is not constitutionally required for brief detentions short of arrest that are supported by a reasonable and articulable suspicion that the seized individual is engaged in criminal activity). Defendant first contends a legal left turn at the intersection immediately preceding a posted DWI checkpoint, without more, does not provide a reasonable and articulable suspicion that the driver is engaged in criminal activity. We agree. (See footnote 2)
An individual may legally avoid contact with the police. State v. Fleming, 106 N.C. App. 165, 170-71, 415 S.E.2d 782, 785 (1992) (individuals walked "in a direction which led away fromthe group of officers"). This avoidance, standing alone, is not sufficient to raise a reasonable and articulable suspicion of criminal activity. Id.
[An individual] need not answer any question put to him [by an officer]; indeed he may decline to listen to the questions at all and may go on his way. He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds.
State v. Farmer, 333 N.C. 172, 186, 424 S.E.2d 120, 128 (1993) (quoting Florida v. Royer, 460 U.S. 491, 498, 75 L. Ed. 2d 229, 236 (1983) (citations omitted)). Accordingly, a legal left turn at the intersection immediately preceding a posted DWI checkpoint, without more, does not justify an investigatory stop. We emphasize, however, that it is constitutionally permissible, and undoubtedly prudent, for officers to follow vehicles that legally avoid DWI checkpoints, in order to ascertain whether other factors exist which raise a reasonable and articulable suspicion that an occupant of the vehicle is engaged in criminal activity. See California v. Hodari D., 499 U.S. 621, 628, 113 L. Ed. 2d 690, 698 (1991) (noting that a "police cruiser's slow following of the defendant did not convey the message that he was not free to disregard the police and go about his business" and thus did not constitute seizure). Thus, if Defendant was seized solely based on a legal left turn preceding the DWI checkpoint, that seizure was unconstitutional.
Seizure occurs "when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen." Terry v. Ohio, 392 U.S. 1, 19 n.16, 20 L. Ed. 2d 889,905 n.16 (1968). Police conduct does not constitute a seizure unless, in view of all of the circumstances, "'a reasonable person would not feel free to decline the officer's request or otherwise terminate the encounter.' In other words, a seizure does not occur until there is a physical application of force or submission to a show of authority." State v. Cuevas, 121 N.C. App. 553, 563, 468 S.E.2d 425, 431 (quoting State v. West, 119 N.C. App. 562, 566, 459 S.E.2d 55, 58, appeal dismissed and disc. review denied, 341 N.C. 656, 462 S.E.2d 524 (1995)), disc. review denied, 343 N.C. 309, 471 S.E.2d 77 (1996). For example, no seizure occurs when an officer approaches an individual in a public place and asks that individual questions. State v. Brooks, 337 N.C. 132, 142, 446 S.E.2d 579, 586 (1994) (holding no seizure occurred where officer approached and questioned individual sitting in parked car); Cuevas, 121 N.C. App. at 563, 468 S.E.2d at 431 (holding no seizure occurred where officer followed taxicab and opened its door after it stopped because he did not order it to stop, did not engage his siren, and did not order defendant to stay in the taxicab).
Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.
Farmer, 333 N.C. at 187, 424 S.E.2d at 129 (quoting United States v. Mendenhall, 446 U.S. 544, 554, 64 L. Ed. 2d 497, 509 (1980)). A seizure does not occur, however, "when an officer shouts,'Stop, in the name of the law,' and the person continues to flee. To constitute a seizure, there must be . . . a submission to the officer's show of authority ([i.e.,] the person stops as a result of the officer's command)." Robert L. Farb, Arrest, Search, and Investigation in North Carolina at 286 (2d ed. 1992); see Hodari D., 499 U.S. at 629, 113 L. Ed. 2d at 699 (holding officer's pursuit of defendant did not constitute seizure until officer tackled defendant).
In this case, when Officer Ipock began following Defendant's vehicle, he did not engage his sirens or his flashing blue lights, and he did not otherwise indicate that he was stopping the vehicle. After locating Defendant's vehicle parked in a driveway with its lights and engine off, Officer Ipock pulled behind it and turned on his "takedown" lights to enable him to see into the vehicle. Defendant did not attempt to restart or exit the vehicle. At that point, Defendant was not restrained by Officer Ipock and had not submitted to any show of authority, and a reasonable person would have felt free to terminate the encounter. Accordingly, Defendant was seized, at the very earliest, when backup arrived. See Farmer, 333 N.C. at 187, 424 S.E.2d at 129 (noting "the threatening presence of several officers" may constitute seizure).
In determining whether Officer Ipock had a reasonable and articulable suspicion that Defendant was engaged in criminal activity, therefore, we consider the objective facts Officer Ipock observed prior to the arrival of backup, the earliest point at which Defendant could have been seized. Prior to this point,Officer Ipock observed Defendant's vehicle make a "quick left turn" at the intersection immediately preceding a DWI checkpoint. Officer Ipock observed the vehicle make a second "abrupt" left turn, and then observed the vehicle parked in a residential driveway. The occupants remained in the vehicle even though the vehicle was parked with its engine and lights off. Finally, the occupants of the vehicle were "scrunched down." All of these facts were available to Officer Ipock before Defendant was seized, and these facts are sufficient to raise a reasonable and articulable suspicion of criminal activity.
[2]Defendant next contends the trial court erred in denying her motion to dismiss because the evidence was insufficient to establish that she was the driver of the small red vehicle.
A motion to dismiss should be denied if there is substantial evidence of each essential element of the charged offense and substantial evidence that the defendant is the individual who committed it. State v. Stone, 323 N.C. 447, 451, 373 S.E.2d 430, 433 (1988). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (quoting State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 387 (1984)). The court must consider the evidence in the light most favorable to the State. Id. Furthermore, the State is entitled to every reasonable inference to be drawn from the evidence. Id. at 452, 373 S.E.2d at 433.
Circumstantial evidence may withstand a motion to dismiss and support a conviction even when the evidence does not rule out every hypothesis of innocence. The evidenceneed only give rise to a reasonable inference of guilt in order for it to be properly submitted to the jury for a determination of defendant's guilt beyond a reasonable doubt.
Id. (citations omitted).
In this case, Officer Ipock observed a small red vehicle
driving along Neuse Boulevard turn onto Midgette Road, and from
there, onto Taylor Street. Officer Ipock found the small red
vehicle in a residential driveway on Taylor Street approximately
forty-five seconds later. When Officer Ipock pulled in behind
the vehicle, he activated his vehicle's high beams and "takedown"
lights, which enabled him to see inside the vehicle. Officer
Ipock testified that he watched the individuals in the vehicle
until backup arrived, and they stayed in their respective
positions. When the officers subsequently approached the
vehicle, Defendant was sitting in the driver's seat and the keys
to the vehicle were in the ignition. These facts, along with the
reasonable inferences drawn from these facts, constitute
substantial evidence that Defendant was the driver of the small
red vehicle when it was traveling on Neuse Boulevard, Midgette
Road, and Taylor Street. Accordingly, the trial court did not
err in refusing to dismiss the charges against Defendant.
We have thoroughly reviewed Defendant's remaining
contentions and find them to be unpersuasive.
No error.
Judges LEWIS and HORTON concur.
Footnote: 1
Footnote: 2
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