1. Search and Seizure--traffic stop--officer in place or position to apprehend or warn
The trial court did not err in a driving while impaired case by denying defendant's motion
to suppress all evidence obtained as a result of the stop of his vehicle, because: (1) two officers
entered the area to investigate a reported breaking and entering; (2) one officer was positioned to
apprehend the suspects or warn incoming residents of possible criminal activity; and (3) the officer
stopped two vehicles, the second one being defendant's, in order to perform that very function.
2. Search and Seizure--traffic stop--impaired driving checkpoint not required
Although defendant contends an officer's stop of his vehicle was illegal based on an
alleged failure to establish a valid checking station for impaired driving checks as required by
N.C.G.S. § 20-16.3A, it was reasonable for an officer to briefly stop and detain defendant to
ascertain defendant's identity and his possible involvement in criminal activity or to warn him as a
resident, because: (1) the stop in this case did not arise pursuant to an impaired driving case,
making this statute inapplicable; and (2) the stop of defendant's automobile was predicated on the
fact that a break-in had been reported recently in the area, revealing that the stop was based on
reasonable and articulable facts.
3. Evidence--suppression hearing--presumption judge disregards improper evidence
The trial court did not err in a driving while impaired case by admitting testimony at the
suppression hearing concerning events subsequent to the stop of defendant's vehicle, because: (1)
defendant has not presented authority limiting the scope of evidence presented at a suppression
hearing; and (2) it is presumed that a judge hearing a matter without a jury disregards any
improper evidence.
Attorney General Michael F. Easley, by Special Deputy Attorney
General Isaac T. Avery, III, for the State.
James Hill, Jr. for the defendant-appellant.
LEWIS, Judge.
Defendant was found guilty of driving while impaired in
Randolph County Criminal District Court on 16 December 1997 and
appealed to superior court for a trial de novo. On 18 March 1998,the Randolph County Superior Court denied defendant's motion to
suppress evidence obtained from the stop of defendant's vehicle.
At a hearing at the 18 March 1998 session of Randolph County
Superior Court, defendant entered a plea of guilty and was
sentenced to two years supervised probation and one year
unsupervised probation and fined $200.
The State's evidence tended to show the following. On 23
December 1996 at approximately 3:00 a.m., Officer Paul Maness and
his training officer, Scott Messenger, of the Asheboro Police
Department, received a call reporting that two males had broken
into an apartment building in Asheboro, and that the assailants
were leaving the apartment building, heading toward Morgan Avenue.
The officers drove to an intersection approximately 300 yards from
the reported break-in and separated; Officer Messenger proceeded to
the apartment building on Morgan Avenue and Officer Maness remained
at the intersection. Officer Messenger ordered Officer Maness to
stop any pedestrians or vehicles entering the area.
Two vehicles entered the area, and Officer Maness stopped them
both by waving his flashlight. Officer Maness asked the driver of
the first vehicle for his license, spoke with the driver and
passengers briefly and allowed them to proceed. Defendant's
vehicle approached the intersection next, and Officer Maness again
waved his flashlight. Defendant stopped and rolled down his
window. Officer Maness explained that he was investigating apossible breaking and entering in the area and was stopping all
pedestrians and vehicles as part of the investigation. Without
being asked to do so by Officer Maness, defendant exited the
vehicle, staggering and talking about what he would do if someone
had broken into his house. Having detected an odor of alcohol on
defendant when he exited his vehicle, Officer Maness contacted
Officer Messenger. When Officer Messenger returned to the
intersection, he informed Officer Maness that the breaking and
entering report was false. Officer Maness was not made aware of
this before stopping defendant's vehicle.
Defendant was given a breath test using an Intoxilyzer, whichrevealed an alcohol concentration of .19. Defendant w
as then
arrested for driving while impaired in violation of N.C. Gen. Stat.
§ 20-138.1.
[1]On appeal, defendant sets forth several arguments
surrounding the trial court's denial of his motion to suppress all
evidence obtained as a result of the stop of his vehicle. In his
first argument, defendant contends the court's finding that Officer
Maness was "in a place or a position to apprehend or to warn
incoming residents of the subdivision of any criminal activity that
might be taking place" is not supported by the evidence. Defendant
has not taken issue with any of the trial court's conclusions of
law.
In reviewing the trial court's order following a motion to
suppress, the trial court's findings of fact are conclusive if
supported by competent evidence in the record. State v. Mahaley,
332 N.C. 583, 592-93, 423 S.E.2d 58, 64 (1992), cert. denied, 513
U.S. 1089, 130 L. Ed. 2d 649 (1995). As previously stated, the
evidence in this case indicates that the officers here entered the
area to investigate a reported breaking and entering. Officer
Maness was positioned to apprehend the suspects or warn incoming
residents of possible criminal activity. The testimony indicates
that Officer Maness stopped two vehicles in order to perform that
very function. We find the evidence sufficient to support the
trial court's finding.
[2]Defendant next contends the stop itself was illegal, since
the officers here failed to establish a valid checking station inviolation of N.C. Gen. Stat. § 20-16.3A, which sets forth the
requirements for impaired driving checks. Because the stop here
did not arise pursuant to an impaired driving check, this provision
does not apply. Instead, the officers' conduct in this case is
governed by Delaware v. Prouse, 440 U.S. 648, 59 L. Ed. 2d 660
(1979). There, the United States Supreme Court held that random
stops of automobiles and detention of drivers for license and
registration checks violate the Fourth Amendment. However, the
Prouse Court stated this rule is inapplicable in situations where
there is an "articulable and reasonable suspicion" that an occupant
of the vehicle is subject to seizure for violation of the law. Id.
at 663, 159 L. Ed. 2d at 673. This standard falls short of the
traditional notion of probable cause, which is required for an
arrest.
Likewise, our courts have established that police officers may
be warranted in making investigatory stops and detaining the
occupants of motor vehicles when the facts would justify an
"articulable and reasonable suspicion" that the occupants of that
vehicle may be engaged in or connected with some form of criminal
activity. State v. Thompson, 296 N.C. 703, 706, 252 S.E.2d 776,
779 (1979); State v. Douglas, 54 N.C. App. 85, 91, 282 S.E.2d 832,
835 (1981); State v. Greenwood, 47 N.C. App. 731, 735, 268 S.E.2d
835, 838 (1980), rev'd on other grounds, 301 N.C. 237, 273 S.E.2d
438 (1981). The relevant standard for testing the conduct of law
enforcement officers in effecting a warrantless "seizure" of an
individual is that "the police officer must be able to point tospecific and articulable facts, which taken together with rational
inferences from those facts, reasonably warrant [the] intrusion."
Thompson, 296 N.C. at 706, 252 S.E.2d at 779 (quoting Terry v.
Ohio, 392 U.S. 1, 21, 20 L. Ed. 2d 889, 906 (1968)).
The evidence in this case shows that the stop of defendant's
automobile was predicated on the fact that a break-in had been
reported recently in the area. The hour was late, after 3 a.m.,
and very few cars were in the area. These facts and the natural
inferences arising from them show the stop of defendant was based
on reasonable and articulable facts. See, e.g., State v. Tillett
and State v. Smith, 50 N.C. App. 520, 274 S.E.2d 361 (1981). Thus,
we conclude it was reasonable for Officer Maness to stop and detain
defendant briefly to ascertain his identity and his possible
involvement in criminal activity or to warn him as a resident.
[3]Defendant next contends the trial court erred in admitting
testimony at the suppression hearing as to events subsequent to the
stop of defendant's vehicle. Defendant contends that the only
issue at the suppression hearing was whether the officer had the
right to stop defendant's vehicle, and any evidence regarding what
happened after the initial stop was improper. Defendant has
presented no authority limiting the scope of evidence presented at
a suppression hearing. Nonetheless, we note:
[T]he rule is well established that in a
hearing before a judge on a preliminary
motion, the ordinary rules as to the
competency of evidence that apply in a trial
before a jury are relaxed because the judge,
being knowledgeable in the law, is able to
eliminate immaterial and incompetent testimony
and to consider only that evidence properlytending to prove the facts to be found.
State v. Allen, 90 N.C. App. 15, 23, 367 S.E.2d 684, 689 (1988)
(emphasis added). Further, it is presumed that a judge hearing a
matter without a jury disregards any improper evidence unless it
affirmatively appears that he was influenced by the evidence.
State v. Harris, 43 N.C. App. 346, 350, 258 S.E.2d 802, 805 (1979).
Given our conclusion that the trial court found specific,
articulable facts sufficient to justify Officer Maness in making an
investigatory stop of defendant's car, we find defendant's argument
unpersuasive.
We have reviewed defendant's remaining argument and find it to
be without merit.
No error.
Judges JOHN and EDMUNDS concur.
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