NO. COAO2-1006
Appeal by defendant from order filed 5 April 2002 by Judge
Sanford L. Steelman, Jr. in Onslow County Superior Court. Heard in
the Court of Appeals 16 April 2003.
Attorney General Roy Cooper, by Assistant Attorney General
Leonard G. Green, for the State.
Richard E. Jester for defendant appellant.
BRYANT, Judge.
Gary Richard Newkirk (defendant) appeals from a judgment dated
29 April 2002 following an order filed 5 April 2002 denying his
motion to suppress plastic baggies containing marijuana and a
partially smoked marijuana cigarette seized after a traffic stop of
a vehicle in which he was a passenger. Defendant, after the denial
of the motion to suppress, pled guilty to the crime of possession
with intent to sell and deliver marijuana. As part of a plea
arrangement, defendant preserved his right to appeal the denial of
this motion to suppress pursuant to N.C. Gen. Stat. § 15A-979(b)
(2001).
With respect to defendant's motion to suppress, the trialcourt found in pertinent part:
5. Sergeant Otto and Lieutenant Bryant
of the Holly Ridge Police Department testified
at this voir dire hearing.
6. On August 28, 2001, at approximately
5:45 p.m., Sergeant Otto and Lieutenant Bryant
of the Holly Ridge Police Department were
conducting a seat belt checkpoint on NC
Highway 50 and South Smith Street in the Town
of Holly Ridge. They were checking all
vehicles for seat belt use by occupants, but
were only stopping the vehicles if a passenger
or driver was not using their seatbelts. The
officers were standing in NC Highway 50, and
their patrol vehicles were parked on either
side of the checkpoint, with their lights
flashing. There was no challenge made to the
validity of the seat belt checkpoint.
7. Both of the officers observed a green
vehicle approach NC Highway 50 on Sanders
Street, and stop at the stop sign controlling
traffic entering NC Highway 50 from Sanders
Street. This intersection was approximately
200 feet away from the seat belt checkpoint.
The vehicle stopped at the stop sign, with its
right turn signal on. There was no traffic on
NC Highway 50 that would have prevented the
green vehicle from executing a right turn onto
NC Highway 50. There were no obstructions
that prevented the two officers from seeing
the green vehicle, or that prevented the
driver of the green vehicle from seeing the
officers. A right turn from Sanders Street
onto NC Highway 50 would have brought the
green vehicle directly to the seat belt
checkpoint and the officers. The green
vehicle hesitated at the intersection of
Sanders Street and NC Highway 50 for
approximately 10 seconds. The green vehicle
then put on its left turn signal and turned
left onto NC Highway 50, and proceeded away
from the seatbelt checkpoint. Sergeant Otto
pursued the green vehicle, and made an
investigatory stop. Upon the window of the
green vehicle being opened, Sergeant Otto
immediately smelled a strong odor of marijuana
smoke. The defendant admitted that he had
marijuana, which was sent to the SBI lab, and
confirmed to be marijuana. The defendant wasarrested and charged with possession with
intent to sell and deliver marijuana, and
manufacture of marijuana.
8. Our Supreme Court, in the case of
State v. Foreman, 351 N.C. 627, 527 S.E.2d 921
(2000), has defined the perimeter of a
checkpoint very broadly. . . . In this case,
the checkpoint was marked by the officers
presence in the roadway, and flashing lights
on the patrol[] vehicles on each side of NC
Highway 50.
. . . .
10. Based upon the vehicle hesitating at
the intersection of NC Highway 50 and Sanders
Street; the unobstructed visibility between
Sanders Street and the seatbelt checkpoint;
the lack of traffic between the checkpoint and
Sanders Street; the switching of the signals
from right to left; and the green vehicle
turning away from the seatbelt checkpoint,
Sergeant Otto had [a] reasonable articulable
suspicion sufficient to support the stop [of]
the green vehicle, in which the defendant was
a passenger.
Based on these findings, the trial court concluded that the
green vehicle in which the defendant was a passenger was within the
perimeter of the checkpoint when it executed a left turn away from
the seatbelt checkpoint and that Sergeant Otto had a reasonable,
articulable suspicion sufficient to support the stop of the green
vehicle.
_______________________________
The issue is whether Sergeant Otto had a reasonable,
articulable suspicion to support the stop of the green vehicle.
Defendant argues that (A) the vehicle in which he was a
passenger was not within the “perimeter of the checkpoint” as
defined by
State v. Foreman, 351 N.C. 627, 527 S.E.2d 921 (2000),an
d (B) the driver's legal left turn “away from the inspection” did
not constitute grounds to stop the vehicle.
[T]he scope of appellate review of an order
such as this is strictly limited to
determining whether the trial judge's
underlying findings of fact are supported by
competent evidence, in which event they are
conclusively binding on appeal, and whether
those factual findings in turn support the
judge's ultimate conclusions of law.
State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982).
Further, “the trial court's ruling on a motion to suppress is
afforded great deference upon appellate review as it has the duty
to hear testimony and weigh the evidence.”
State v. McClendon, 130
N.C. App. 368, 377, 502 S.E.2d 902, 908 (1998),
aff'd, 350 N.C.
630, 517 S.E.2d 128 (1999).
The Fourth Amendment to the Constitution of the United States
and Section 20 of Article I of the North Carolina Constitution
prohibit unreasonable searches and seizures.
State v. Garner, 331
N.C. 491, 506-07, 417 S.E.2d 502, 510 (1992). It is well
established, however, that police officers may conduct a brief
investigatory stop of a vehicle without probable cause “when
justified by specific, articulable facts which would lead a police
officer 'reasonably to conclude in light of his experience that
criminal activity may be afoot.'”
State v. Battle, 109 N.C. App.
367, 370, 427 S.E.2d 156, 158 (1993) (quoting
Terry v. Ohio, 392
U.S. 1, 30, 20 L. Ed. 2d 889, 911 (1968)).
In
Foreman, our Supreme Court recognized:
[I]t is reasonable and permissible for an
officer to monitor a checkpoint's entrance for
vehicles whose drivers may be attempting toavoid the checkpoint, and it necessarily
follows that an officer, in light of and
pursuant to the totality of the circumstances
or the checkpoint plan, may pursue and stop a
vehicle which has turned away from a
checkpoint within its perimeters for
reasonable inquiry to determine why the
vehicle turned away.
Foreman, 351 N.C. at 633-4, 527 S.E.2d at 924.
A
We first address the question of whether the green vehicle was
in the perimeter of the seatbelt checkpoint. In
Foreman, “[t]he
perimeters of the checkpoint were marked with signs stating that
there was a DWI checkpoint ahead, and the signs were posted
approximately one-tenth of a mile prior to the actual stop.”
Id.
at 632, 527 S.E.2d at 924. Our Supreme Court, in defining the
perimeters of a checkpoint, stated that perimeters of a checkpoint
“would include the area within which drivers may become aware of
its presence by observation of any sign marking or giving notice of
the checkpoint.”
Id.
The evidence at the suppression hearing demonstrated that
although
the seatbelt checkpoint in this case did not have a posted
sign stating that there was a checkpoint ahead like the
Foreman
case, the seatbelt checkpoint was clearly marked by the two patrol
cars with their lights flashing, parked on both sides of the
highway, and two uniformed police officers standing in the middle
of the highway. The flashing lights, the positioning of the patrol
cars, and the officers gave drivers notice of the checkpoint at the
intersection of Highway 50 and South Smith Street. The evidence
also showed the green vehicle stopped 200 feet away from thecheckpoint at the intersection of Highway 50 and Sanders Street,
with no traffic to prevent the driver of the green vehicle from
observing the checkpoint. Thus, we conclude, there was sufficient
evidence to support the trial court's findings and those findings
support the conclusion that the green vehicle was in the perimeter
of the seatbelt checkpoint.
B
We now turn to the question of whether Sergeant Otto had a
reasonable, articulable suspicion to support the stop of the green
vehicle to inquire into why the driver sought to evade the
checkpoint. Our Supreme Court clarified in
Foreman that
[a]lthough a legal turn, by itself, is
not
sufficient to establish a reasonable,
articulable suspicion, a legal turn in
conjunction with other circumstances, such as
the time, place and manner in which it is
made, may constitute a reasonable, articulable
suspicion which could justify an investigatory
stop.
Id. at 631, 527 S.E.2d at 923 (emphasis in original). In this
case, the evidence showed that Sergeant Otto and Lieutenant Bryant
noticed that the green vehicle had its right turn signal on when it
stopped at the stop sign, that the vehicle hesitated for
approximately ten seconds even though there was no traffic, that
the driver put on the vehicle's left turn signal, and that the
driver then turned left, away from the checkpoint. The officers
noted that there was no traffic to prevent the green vehicle from
turning right onto Highway 50. This evidence supports the trial
court's findings of fact and its conclusion, based on the totality
of the circumstances, that the officers had a reasonable,articulable suspicion sufficient to support the stop of the green
vehicle, “which has turned away from a checkpoint within its
perimeters for reasonable inquiry to determine why the vehicle
turned away.”
Id. at 633-4, 527 S.E.2d at 924. Accordingly, the
trial court properly denied defendant's motion to suppress.
Affirmed.
Judges HUNTER and ELMORE concur.
Report per Rule 30(e).
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