Searches and Seizures_traffic stop_speed of vehicle_personal observation of
officer_probable cause
The trial court erred by suppressing DWI evidence seized as a result of a speeding stop
on the grounds that the officer had no speed detection device nor training in estimating speed and
could not articulate objective criteria on which to base his opinion of the vehicles's speed. The
officer had an unobstructed view of the vehicle and ample opportunity to observe its progress,
and his observation of its speed, the sound of its racing engine, and the car bouncing as it passed
through an intersection furnished a sufficient blend of circumstances to establish a fair
probability that defendant was speeding.
Attorney General Roy Cooper, by Special Deputy Attorney
General Isaac T. Avery, III and Assistant Attorney General
Patricia A. Duffy, for the State.
Angela H. Brown for defendant-appellant.
STEELMAN, Judge.
The State appeals the trial court's order suppressing all the
evidence obtained by an officer pursuant to his stop of defendant's
vehicle. As a result of the stop, defendant was charged with
speeding and driving while impaired.
The evidence presented at the hearing on the motion to
suppress tended to show that on 22 June 2001, Officer Matthew
Malone of the East Carolina University Police Department was on
duty. He had parked his patrol car in a parking lot belonging to
the university, which was on Fourth Street. At approximately 1:50
a.m., Officer Malone noticed a white Chevrolet truck headingeastbound on Fourth Street towards him. In Officer's Malone's
opinion the vehicle was exceeding a safe speed, as he estimated the
vehicle to be traveling 40 m.p.h. in a 25 m.p.h. zone. He
testified he was basing this estimation on the fact he observed the
truck for approximately five to ten seconds, and in that time the
truck traveled approximately 750 feet, or a block and a half.
However, on cross-examination, Officer Malone acknowledged he may
have previously testified at defendant's civil revocation hearing,
on 19 July 2001, that defendant's vehicle traveled 750 feet in
thirty-five to forty seconds. Officer Malone also based his
opinion that defendant was speeding on the fact that when he first
saw the truck he could hear the vehicle's engine racing and the
sound was “pretty loud” as defendant accelerated. Officer Malone
further testified that the intersection through which defendant
proceeded was slightly elevated in the middle and when defendant
came through the intersection it appeared the truck was bouncing
because it had gone through at a high rate of speed. After
observing defendant's vehicle, Officer Malone activated his blue
lights and initiated a traffic stop. Defendant immediately began
to brake and pulled over to the curb. As a result of that stop,
defendant was charged with driving while impaired in violation of
N.C. Gen. Stat. § 20-138.1 and driving a vehicle at “a speed
greater than is reasonable and prudent under the conditions then
existing” in violation of N.C. Gen. Stat. § 20-141(a).
On cross-examination, Officer Malone admitted he had never
received any training in visually estimating the speed of moving
vehicles, he was not certified to operate any type of speeddetection device, and he did not know in measurable terms the
actual distance the vehicle traveled, but estimated the distance.
Additionally, the trial court found that Officer Malone did not
testify that he witnessed defendant engage in any other criminal,
traffic, or equipment violations.
The trial court concluded Officer Malone had not articulated
any objective criteria on which to base his opinion of the
vehicle's speed. As a result, the trial judge ordered all evidence
obtained by the police as a result of the vehicle stop, be
suppressed as its procurement violated defendant's constitutional
right to be free from unreasonable search and seizure. The State
appeals.
The State has the right to appeal an order by the superior
court granting a motion to suppress prior to trial. N.C. Gen.
Stat. § 15A-979(c) (2003). The sole issue before this Court is
whether the trial court erred in granting defendant's motion to
suppress. We conclude the trial court erred, and we accordingly
reverse.
When evaluating a trial court's ruling on a motion to
suppress, its findings of fact will be binding on appeal if
supported by any competent evidence. State v. Barden, 356 N.C.
316, 332, 572 S.E.2d 108, 120-21 (2002), cert. denied, 538 U.S.
1040, 155 L. Ed. 2d 1074 (2003). “'“Although the trial court's
findings of fact are generally deemed conclusive where supported by
competent evidence, 'a trial court's conclusions of law regarding
whether the officer had reasonable suspicion [or probable cause] to
detain a defendant is reviewable de novo.”'” State v. Wilson, 155N.C. App. 89, 93-94, 574 S.E.2d 93, 97 (2002) (citations omitted)
(alteration in original), cert. denied, 540 U.S. 843, 157 L. Ed. 2d
78 (2003). Furthermore, the trial court's conclusions of law
“'must be legally correct, reflecting a correct application of
applicable legal principles to the facts found.'” Barden, 356 N.C.
at 332, 572 S.E.2d at 121 (citations omitted).
In the instant case, the trial court's conclusions of law
reflect an incorrect application of legal principles to the facts
found. In the trial court's conclusion of law it stated:
3. Any and all evidence obtained by the
police as a result of the vehicle stop should
be suppressed because the seizure of Mr.
Barnhill's vehicle was an unreasonable
investigatory stop and not justified by a
reasonable and articulable suspicion so as to
yield a substantial possibility that criminal
conduct had occurred, was occurring, or was
about to occur. State v. Battle, 109 N.C.
App. 367(1993)
(emphasis in original). The trial court applied the “reasonable
and articulable suspicion” standard to determine whether the stop
of defendant's vehicle was justified. “While there are instances
in which a traffic stop is also an investigatory stop, warranting
the use of the lower standard of reasonable suspicion, the two are
not always synonymous.” Wilson, 155 N.C. App. at 94, 574 S.E.2d at
97. Where an officer makes a traffic stop based on a readily
observed traffic violation, such as speeding or running a red
light, such a stop will be valid if it was supported by probable
cause. Id. See also State v. Reynolds, 161 N.C. App. 144, 147,
587 S.E.2d 456, 458 (2003). The standard the trial court applied,
the reasonable suspicion standard, does not apply here, as thebasis for the stop was speeding, a readily observed traffic
violation.
Thus, we apply the probable cause standard to the facts of
this case to determine if Officer Malone had sufficient
justification to stop defendant's vehicle. “Probable cause is 'a
suspicion produced by such facts as indicate a fair probability
that the person seized has engaged in or is engaged in criminal
activity.'” Wilson, 155 N.C. App. at 94, 574 S.E.2d at 97-98
(citations omitted). Officer Malone testified at the suppression
hearing that he believed defendant to be speeding based on his
personal observation of the speed of the vehicle, the racing of the
engine, and the bouncing of the car through the intersection.
The trial court concluded, in what was designated as finding
of fact No. 13,
(See footnote 1)
that “[i]n the absence of any objective facts, or
specific training in speed estimation the Officer's opinion that
the vehicle was traveling 40 m.p.h. is subjective and therefore
immaterial and did not give the Officer legal justification to stop
the Defendant's vehicle.” The court also made the following
findings regarding Officer Malone:
12(d). He could not provide any objective
facts as to corroborate his opinion as to his
opined distance or time.
12(g). He could not articulate any objective
criteria on which to base his opinion of the
vehicle's speed;
The order of the trial court would have the effect of preventing an
officer from stopping a vehicle based solely upon the officer's
observations, in the absence of some additional “objective facts”
or “objective criteria” which supported the officer's opinion based
upon his or her personal observations. This is contrary to the
established case law and the North Carolina Rules of Evidence.
The North Carolina Rules of Evidence allow the opinion of a
layperson to be admissible evidence if the witness is not
testifying as an expert and his opinions or inferences are “(a)
rationally based on the perception of the witness and (b) helpful
to a clear understanding of his testimony or the determination of
a fact in issue.” N.C. Gen. Stat. § 8C-1, Rule 701 (2003).
Furthermore, it is well established in this State, that any person
of ordinary intelligence, who had a reasonable opportunity to
observe a vehicle in motion and judge its speed may testify as to
his estimation of the speed of that vehicle. Insurance Co. v.
Chantos, 298 N.C. 246, 250, 258 S.E.2d 334, 336 (1979); State v.
Clayton, 272 N.C. 377, 382, 158 S.E.2d 557, 560 (1968). “'Absolute
accuracy, however, is not required to make a witness competent to
testify as to speed.'” Clayton, 272 N.C. at 382, 158 S.E.2d at
561.
Defendant suggests that it is irrelevant whether the officer's
testimony was admissible or whether he was competent to testify at
trial, as the issue is whether he had sufficient cause to stop
defendant's truck. We disagree. Here, Officer Malone's competencyto estimate the speed of the truck is being called into question
because of his lack of specialized training to visually estimate
speed. We find it relevant that if an ordinary citizen can
estimate the speed of a vehicle, so can Officer Malone.
Furthermore, it is not necessary that an officer have
specialized training to be able to visually estimate the speed of
a vehicle. Excessive speed of a vehicle may be established by a
law enforcement officer's opinion as to the vehicle's speed after
observing it. In State v. Wilson, this Court found that a
trooper's personal observation of the speed of defendant's vehicle,
coupled with his observation that the vehicle was following to
closely, provided him with “a sufficient blend of circumstances to
establish . . . probable cause” to believe a violation had
occurred. 155 N.C. App. at 95, 574 S.E.2d at 98 (2002).
The facts here are analogous. In the instant case, Officer
Malone had an unobstructed view of the vehicle, as well as ample
opportunity to observe defendant's progress up Fourth Street.
Furthermore, Officer Malone's personal observation of the speed of
defendant's truck, coupled with the sound of the engine racing and
the bouncing of the car as it passed through the intersection,
furnished him with a sufficient blend of circumstances to establish
there was a fair probability that defendant was exceeding a speed
greater than was reasonable and prudent under the conditions
existing at that time in violation of N.C. Gen. Stat. § 20-141(a).
Thus, Officer Malone had probable cause to stop defendant's
vehicle. As a result, the stop did not violate defendant's right to be
free from unreasonable search and seizure. Since the stop was
valid, any evidence which resulted from the stop need not be
suppressed. See State v. Carter, 322 N.C. 709, 712, 370 S.E.2d
553, 555 (1988). Accordingly, we find the trial court erred in
granting defendant's motion to suppress.
It should also be noted that in the trial court's conclusion
of law No. 4, it stated: “Further, the Charging Officer's stated
suspicion for the stop of the Defendant's vehicle was not based on
any objective criteria, but rather on the Officer's subjective
opinion, as such, an officer's subjective opinion is immaterial.
State v. McClendon, 350 N.C. 630 (1999)[.]” (emphasis in original).
The trial court's reliance on State v. McClendon is misplaced. In
McClendon, our Supreme Court adopted the holding in Whren v. United
States, 517 U.S. 806, 135 L. Ed. 2d (1996), and held that when
judging police action related to probable cause, it should be
judged in objective and not subjective terms. State v. McClendon,
350 N.C. 630, 635-36, 517 S.E.2d 128, 132 (1999). McClendon does
not stand for the proposition that an officer cannot entertain a
subjective impression, such as to speed. Rather, it holds that an
officer's subjective motivation for stopping a vehicle is
irrelevant as to whether there are other objective criteria
justifying the stop. Id. at 636, 517 S.E.2d at 131-32 (concluding
police had probable cause and were justified in stopping
defendant's vehicle for a speeding violation, despite the
subsequent investigation for illegal drugs). Thus, the trial
court's reliance on McClendon, for the proposition that anofficer's suspicion for a stop which was based on that officer's
subjective opinion was immaterial, is incorrect.
For the reasons discussed herein, we reverse the order of the
trial court and this matter is remanded to the trial court for
proceedings consistent with this opinion.
REVERSED AND REMANDED.
Judges WYNN and CALABRIA concur.
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