NO. COA02-1635
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.
Affirmed.
Judges McGEE and HUDSON concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***