An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1635


Filed: 7 October 2003


         v.                        Forsyth County
                                No. 01 CRS 54853

    Appeal by defendant from judgment entered 3 July 2002 by Judge Richard L. Doughton in Forsyth County Superior Court. Heard in the Court of Appeals 25 August 2003.

    Attorney General Roy Cooper, by Special Deputy Attorney General Isaac T. Avery, III, and Assistant Attorney General Patricia A. Duffy, for the State.

    Morrow Alexander Tash Kurtz & Porter, by Benjamin D. Porter, for defendant-appellant.

    GEER, Judge.

    This appeal presents the question whether a law enforcement officer, who has received an anonymous tip about a person driving while impaired, is required to have an articulable suspicion before approaching a person who has voluntarily stopped his car. Because we hold that defendant was not seized within the meaning of the Fourth Amendment when the police officer approached him, we affirm the trial court's denial of defendant Randy Dale Dixon's motion to suppress (entitled a "motion to dismiss" by defendant at trial).

    On 25 May 2001, Deputy Sheriff Philip Spainhour of the Forsyth County Sheriff's Department received a radio communicationregarding an anonymous tip. Deputy Spainhour was advised that a possible drunk driver (a white male) was leaving the Elbow Room bar driving a dark-colored Ford F-150 extended cab pickup truck with a license plate number of KNX 5679 and was proceeding towards Lewisville-Clemmons Road.
    Deputy Spainhour, who was parked directly across the street from the Elbow Room, proceeded towards Lewisville-Clemmons Road. He quickly located a truck matching the description given in the radio communication, including the license plate number, and began to follow it. Deputy Spainhour did not at any time activate his blue lights or siren. He testified that while he was following the truck, the driver did not violate any traffic laws and he did not notice any unusual driving.
    The truck ultimately pulled into the parking lot of Sherri's Bar and parked. Deputy Spainhour pulled in behind defendant at a forty-five degree angle to the rear of defendant's car. Deputy Spainhour exited his vehicle and approached defendant as he was exiting his truck. As soon as Deputy Spainhour came close to defendant, he immediately "noticed a strong odor of alcohol and that [defendant's] eyes appeared to be glassy." Defendant told Deputy Spainhour that "he had just left the Elbow Room bar and had had a few drinks." Defendant was then arrested.
    Prior to trial, defendant moved to dismiss the case, arguing that the stop and his subsequent arrest were in violation of his constitutional rights. The trial court denied the motion, finding that Deputy Spainhour "had a right to walk up to [defendant]," andthat "there was sufficient corroboration by the smell of alcohol . . . to investigate further."
    Defendant was convicted of impaired driving, given a suspended sentence, and placed on supervised probation for 60 months. As a term of probation, defendant was ordered to spend 30 days in active confinement, to be served over 14 consecutive weekends.
    Defendant's sole argument on appeal is that the trial court erred by denying his motion to suppress. Defendant argues that he was seized without reasonable suspicion that he was engaged in criminal activity because the seizure was made on the basis of an anonymous tip that had no independent indicia of reliability. The scope of review on appeal of the denial of a defendant's motion to suppress "is strictly limited to determining whether the trial court's findings of fact are supported by competent evidence, in which case they are binding on appeal, and in turn, whether those findings support the trial court's conclusions of law." State v. Corpening, 109 N.C. App. 586, 587-88, 427 S.E.2d 892, 893 (1993).
    Defendant does not contend that his arrest was unlawful if based on Deputy Spainhour's observation that defendant smelled of alcohol and his eyes appeared glazed and on defendant's acknowledgment that he had had a few drinks at the Elbow Room. Instead, defendant argues that he was seized earlier when Deputy Spainhour parked behind his car and approached him, at a point when the only information that Deputy Spainhour possessed was the anonymous tip. We disagree.
    We first observe that Deputy Spainhour was entitled to followdefendant's truck based on the anonymous tip. As this Court has already held, it is constitutionally permissible for officers to follow drivers suspected of impairment even in the absence of any apparent illegal conduct "to ascertain whether other factors exist which raise a reasonable and articulable suspicion that an occupant of the vehicle is engaged in criminal activity." State v. Foreman, 133 N.C. App. 292, 296, 515 S.E.2d 488, 492 (1999), aff'd in part and modified in part on other grounds, 351 N.C. 627, 527 S.E.2d 921 (2000).
    Foreman also resolves the question whether defendant was seized at the time Deputy Spainhour parked behind his truck. In Foreman, the officer observed the defendant make a quick, but legal, left turn immediately before a DWI checkpoint. He attempted to follow the car, lost sight of it briefly, and then located it parked in a residential driveway. The officer pulled up behind the defendant's car and turned on his "take-down lights." When back-up arrived, he approached the car, saw several open containers of alcohol in the car, and smelled a strong odor of alcohol on the defendant as she exited the car. The Foreman defendant _ identically with defendant here _ argued that the officer's observations should have been excluded since the officer did not have a reasonable suspicion of criminal activity prior to approaching the car and the observations were, therefore, the result of an invalid stop and seizure. The Supreme Court held that the trial court properly admitted the observations because the defendant "was not stopped . . . at all by the arresting officer"and no seizure occurred until the point when the officer approached the vehicle and made the observations. Foreman, 351 N.C. at 630, 527 S.E.2d at 923.
    Here, Deputy Spainhour did not stop defendant or defendant's truck at any time. Deputy Spainhour never activated his siren or lights. Nor did he order defendant to exit his truck. Defendant voluntarily parked at Sherri's Bar and got out to enter the bar. When defendant left his vehicle, there was no evidence that Deputy Spainhour made a show of authority or that defendant submitted to any show of force.
    The evidence establishes only that Deputy Spainhour parked his vehicle behind defendant's truck, got out of his patrol car, and approached defendant in the public parking lot. Under these circumstances, Deputy Spainhour was not required to have reasonable suspicion prior to approaching defendant: "'No one is protected by the Constitution against the mere approach of police officers in a public place.'" State v. Brooks, 337 N.C. 132, 141, 446 S.E.2d 579, 585 (1994) (quoting State v. Streeter, 283 N.C. 203, 208, 195 S.E.2d 502, 506 (1973)). Our Supreme Court has already held in Brooks that when an officer approaches a vehicle without making any show of force, such conduct "certainly [is] not a 'seizure' . . . [and] no reasonable suspicion [is] required for [the officer's] initial approach and questioning of the defendant." Id. at 142, 446 S.E.2d at 586 (citations omitted).
    As Deputy Spainhour approached defendant, he immediately noticed the odor of alcohol and that defendant's eyes appearedglassy. These facts provided a sufficient basis for reasonable suspicion permitting Deputy Spainhour to pursue further investigation and detention of the defendant. We accordingly affirm the trial court's denial of defendant's motion to suppress.

    Judges McGEE and HUDSON concur.
    Report per Rule 30(e).

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