Appeal by defendant from order entered 12 February 2001 by
Judge Steve A. Balog in Beaufort County Superior Court. Heard in
the Court of Appeals 23 May 2002.
Attorney General Roy Cooper, by Special Deputy Attorney
General Isaac T. Avery, III, and Assistant Attorney General
Patricia A. Duffy, for the State.
Rodman, Holscher, Francisco & Peck, P.A., by Franz F.
Holscher, for defendant-appellant.
MARTIN, Judge.
Defendant was convicted of driving while impaired in Beaufort
County District Court. He appealed his conviction to the Beaufort
County Superior Court, and filed a motion to suppress evidence upon
grounds that the evidence was obtained after an unconstitutional
stop of the vehicle which he was operating. Evidence at the
suppression hearing tended to show that on the evening of 18 June
2000, Beaufort County Sheriff Alan Jordan was patrolling in the
county in an unmarked vehicle equipped with blue lights, strobe
markers, sirens, and alternating headlights. About 8:20 p.m.,
Sheriff Jordan noticed a moped being driven in a circle in the
parking lot of Chocowinity High School. Sheriff Jordan testifiedthat the parking area in which he saw the moped was surrounded by
a gate, which was open to permit incoming traffic off Highway 17.
Sheriff Jordan stated that he thought it unusual that anyone would
be in that parking area at that time of the evening, and he
thereupon activated the lights in his patrol car and turned into
the entrance of the parking lot. At that time, the operator of the
moped had pulled up to the entrance such that he faced Highway 17;
Sheriff Jordan, who had pulled up alongside, faced the parking
area. Sheriff Jordan identified defendant as the driver of the
moped. Sheriff Jordan approached defendant and introduced himself.
“Almost immediately,” Sheriff Jordan “noticed a [sic] what in my
opinion was a strong odor of alcohol coming from his person. I
noticed his eyes appeared red and glassy.” Sheriff Jordan called
for assistance from the North Carolina State Highway Patrol, and an
officer arrived less than five minutes later. During this time
defendant did not ask to leave and Sheriff Jordan did not place
defendant under arrest. Following a brief conversation with the
highway patrol officer, defendant was taken into custody.
The trial court denied defendant's motion to suppress. In its
order denying the motion, the trial court made findings of fact
consistent with the foregoing summary and concluded as a matter of
law:
(1) that the defendant was not stopped by
Sheriff Jordan at the time Sheriff Jordan
stopped his patrol vehicle and approached the
defendant; (2) the defendant voluntarily
engaged in conversation with Sheriff Jordan at
a time when he was free to leave; and (3) the
defendant was lawfully detained after Sheriff
Jordan detected a strong odor of alcoholicbeverage about the defendant's person and
observed the red and glassy eyes of the
defendant.
Following the trial court's order, defendant entered a plea of
guilty to the charge of driving while impaired, expressly reserving
the right to appeal the trial court's denial of his motion to
suppress. Defendant appeals.
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Defendant argues that the trial court erred in denying his
motion to suppress the evidence gathered by Sheriff Jordan because
Jordan's stop was an unconstitutional seizure. Review of the trial
court's denial of a motion to suppress is limited to determining
whether the findings of fact are supported by competent evidence,
and whether those findings support the trial court's conclusions of
law.
State v. Bone, 354 N.C. 1, 550 S.E.2d 482 (2001).
The Fourth Amendment guarantees that individuals will not be
subjected to “unreasonable searches and seizures.” U.S. Const.
amend. IV. A seizure occurs “when the officer, by means of
physical force or show of authority, has in some way restrained the
liberty of a citizen.”
State v. Foreman, 133 N.C. App. 292, 296,
515 S.E.2d 488, 492 (1999),
affirmed as modified, 351 N.C. 627, 527
S.E.2d 921 (2000) (quoting
Terry v. Ohio, 392 U.S. 1, 19 n. 16, 20
L. Ed. 2d 889, 905 n. 16 (1968)). Citizens, however, are not
protected by the Constitution from the mere approach of police
officers in a public place.
State v. Brooks, 337 N.C. 132, 446
S.E.2d 579 (1994). Law enforcement officers, in fact,
may approach individuals in public to ask them
questions and even request consent to searchtheir belongings, so long as a reasonable
person would understand that he or she could
refuse to cooperate. “A seizure does not
occur simply because a police officer
approaches an individual and asks a few
questions.”
Id. at 142, 446 S.E.2d at 585-86 (citations omitted). In
Brooks,
our Supreme Court held that it was neither an investigatory stop
nor a seizure for an officer to approach the defendant, offer a
greeting, then shine his flashlight inside the vehicle, while the
defendant was sitting in the driver's seat of his parked car
outside a nightclub.
Id. Under those circumstances, no
reasonable suspicion was required for the officer to approach and
question the defendant in his vehicle.
Id. This Court recently
held:
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.”
Foreman, 133 N.C. App. at 296, 515 S.E.2d at 492 (citations
omitted).
In the present case, there is no evidence that Sheriff Jordan
applied physical force or that defendant submitted to a show of
authority. Rather, the evidence showed, and the trial court found,
that Sheriff Jordan noticed defendant driving a moped in a circle
in the parking lot of the Chocowinity High School late on a summer
evening at a time when it was unusual for a person to be at that
location. Sheriff Jordan engaged his vehicle's emergency lightsand pulled the car into the parking area where defendant had been
observed driving in a circle. At this point defendant had stopped
the moped, facing Highway 17, as if preparing to exit the parking
lot. Sheriff Jordan approached defendant and introduced himself,
after which the two had a brief conversation. Sheriff Jordan
testified that defendant was “very pleasant and very cooperative.”
According to Sheriff Jordan, defendant told him that he was “test-
riding a friend's moped,” and that he had recently “left a bar
located a short distance south on Highway 17 and simply ridden up
to the school to test-ride the moped.” This encounter cannot be
characterized as a seizure such that a reasonable person would not
have believed himself “free to decline the officer's request or
otherwise terminate the encounter.”
Foreman, 133 N.C. App. at 296,
515 S.E.2d at 492. The evidence supports the trial court's
findings and conclusion that Sheriff Jordan did not “stop”
defendant on the evening of 18 June 2000, and further that
defendant voluntarily communicated with Sheriff Jordan after the
officer approached him. Because this encounter cannot be
characterized as either an investigatory stop or a seizure of
defendant, a reasonable suspicion of criminal activity was not
required for Sheriff Jordan to approach defendant. Defendant's
motion to suppress the evidence of his intoxication was properly
denied.
Affirmed.
Judges TIMMONS-GOODSON and CAMPBELL concur.
Report per Rule 30(e).
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