Appeal by defendant from judgment entered 25 April 2006 by
Judge Michael E. Beale in Cabarrus County Superior Court. Heard in
the Court of Appeals 21 August 2007.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Christopher W. Brooks, for the State.
The Law Office of Yolanda M. Trotman, PLLC, by Yolanda M.
Trotman, for defendant-appellant.
HUNTER, Judge.
Mary Roseman Jones (“defendant”) pled guilty to habitual
driving while impaired, conditioned on her right to appeal the
trial court's denial of a motion to suppress. Defendant was
sentenced to a minimum of twelve (12) months and a maximum of
fifteen (15) months. Defendant now appeals the denial of her
motion to suppress. After careful consideration, we affirm.
On 10 September 2005, defendant was traveling east on a two-
wheeled motorized vehicle
(See footnote 1)
in Kannapolis. Officer M.D. Barnhardt
(“Officer Barnhardt”) of the Kannapolis Police Department was in
his squad car and saw defendant make an “unsteady” turn onto Cannon
Boulevard and “put her foot down” as she made the right-hand turn.
Officer Barnhardt described defendant's operation of the vehicle as
“wobbly” and equated her driving to that of a child learning to
ride a bicycle without training wheels for the first time. Officer Barnhardt followed defendant down Cannon Boulevard, a
forty-five (45) mile per hour zone. At this time, Officer
Barnhardt formed the opinion that defendant's vehicle was traveling
in excess of thirty (30) miles per hour. As defendant was
traveling up a slight incline, Officer Barnhardt used his radar and
clocked the vehicle at a speed of thirty-two (32) miles per hour.
According to Officer Barnhardt, defendant's motorized vehicle was
traveling at such a rate of speed that it met the definition of a
motorcycle, and he pulled the vehicle over for not having a
registration plate. He also concluded that defendant may have been
operating this vehicle while impaired. As a result of the traffic
stop, defendant was charged with driving while impaired (“DWI”).
Defendant was not charged with the registration plate violation or
any other traffic violations.
At the hearing on defendant's motion to suppress, Officer
Barnhardt testified to the facts as set out above. Defendant
called one witness, Steven Halprin (“Halprin”), an owner of Accel
Motor Sports. Halprin testified that defendant was operating a
“noped,” which means there are two floorboards where the feet are
to remain while in operation and that the vehicle does not have
pedals. Halprin testified that nopeds are “anemic,” “accelerate
very slowly[,]” are “difficult to handle[,]” and are hard to
maneuver with smaller tires. Halprin, however, had no personal
knowledge as to the events of that day.
Defendant presents the following issues for this Court's
review: (1) whether the trial court erred in denying defendant'smotion to suppress; (2) whether the trial court's order presented
sufficient findings of fact to support its denial of defendant's
motion to suppress; and (3) whether the trial court erred in
eliciting testimony from a witness. We address each issue in turn.
I.
[1] In reviewing a ruling on a motion to suppress, the trial
court's findings of fact “are conclusive and binding on the
appellate courts when supported by competent evidence.”
State v.
Brooks, 337 N.C. 132, 140-41, 446 S.E.2d 579, 585 (1994). The
conclusions of law, however, “are binding upon us on appeal [only]
if they are supported by the trial court's findings.”
Id. at 141,
446 S.E.2d at 585. Defendant argues that the trial court erred in
denying defendant's motion to suppress because Officer Barnhardt
did not have probable cause to stop defendant. We disagree.
Before turning to the merits of the case, it is necessary to
discuss what level of suspicion is required under the Fourth
Amendment of the United States Constitution and under Article 1,
Section 20 of the North Carolina Constitution to make a traffic
stop. Defendant relies on
State v. Ivey, 360 N.C. 562, 633 S.E.2d
459 (2006), for the proposition that probable cause is required for
all traffic stops. In that case, our Supreme Court held that “the
United States and North Carolina Constitutions require an officer
who makes a [stop] on the basis of a perceived traffic violation to
have probable cause to believe the driver's actions violated a
motor vehicle law.”
Id. at 564, 633 S.E.2d at 461;
see Whren v.
United States, 517 U.S. 806, 810, 135 L. Ed. 2d 89, 95 (1996)(noting that “the decision to stop an automobile is reasonable
where the police have probable cause to believe that a traffic
violation has occurred”). The State argues that this statement is
dicta and that the standard for a traffic stop need only amount to
reasonable suspicion.
See, e.g., State v. Foreman, 351 N.C. 627,
630, 527 S.E.2d 921, 923 (2000) (applying reasonable suspicion
analysis in the context of an investigatory stop);
State v. Aubin,
100 N.C. App. 628, 631-32, 397 S.E.2d 653, 655 (1990) (“[a]n
officer's stop of a car to investigate a potential traffic offense
does not require probable cause, but it is governed by the
reasonableness standards of the Fourth Amendment”).
Generally, reasonable suspicion is required to stop a motorist
on suspicion of DWI, while probable cause is required to stop a
motorist for a simple traffic violation, such as failure to use a
turn signal or speeding.
See State v. Styles, 185 N.C. App. 271,
274, 648 S.E.2d 214, 216 (2007). The reason for the distinction is
that in cases such as drunk driving or driving without a license,
the officer must make an investigatory stop to determine whether
criminal activity is afoot.
Id. Accordingly, the Constitution
only requires the officer to have reasonable suspicion before
making the investigatory stop.
Aubin, 100 N.C. App. at 631-32, 397
S.E.2d at 655. Such was not the case in
Ivey. In that case
, the
Court applied the probable cause standard because it was reviewing
a stop based on an alleged traffic violation -- failure to use a
turn signal -- not a stop that would require further investigation.
Thus, in this case, the officer's conduct will be constitutional ifhe had either: (1) reasonable suspicion to stop defendant on
suspicion of DWI; or (2) probable cause to stop defendant for
failure to register the vehicle. Because we find that Officer
Barnhardt had reasonable suspicion to stop defendant for DWI, we
need not determine whether he had probable cause to stop defendant
for a registration violation.
At the outset, we note that the trial court's findings of fact
are supported by competent evidence. The evidence in support of
those findings of fact consists of Officer Barnhardt's testimony
before the trial court as set out above. Accordingly, those
findings of fact are binding on this Court.
See Brooks, 337 N.C.
at 140-41, 446 S.E.2d at 585. Thus, the issue is whether those
findings of fact support the trial court's conclusion that Officer
Barnhardt had reasonable suspicion to stop defendant on the DWI
charge.
See id. at 141, 446 S.E.2d at 585.
“'A police officer may conduct a brief investigative stop of
a vehicle where justified by specific, articulable facts which give
rise to a reasonable suspicion of illegal conduct.'”
Aubin, 100
N.C. App. at 632, 397 S.E.2d at 655 (citation omitted). In this
case, Officer Barnhardt observed a motorized vehicle driven by
defendant operating in a “wobbly” manner and that defendant had to
“put her foot down” on the road in order to negotiate a right hand
turn and “almost dropped the moped.” He equated her operation of
the vehicle as she was turning to that of “a child learning to ride
a bicycle[]” for the first time. Officer Barnhardt testified that
these initial observations occurred within approximately ten (10)seconds. After defendant made the turn, Officer Barnhardt observed
defendant for “[t]wo to three” minutes and followed her for “two to
three blocks[.]” During this time, he watched defendant wobble on
the moped and described her operation of it as “jerky.”
We thus conclude that, under the totality of the
circumstances, reasonable suspicion existed that defendant was
driving while impaired.
See id. (finding reasonable suspicion of
DWI when defendant was weaving within his own lane and traveling
below the speed limit);
State v. Jones, 96 N.C. App. 389, 395, 386
S.E.2d 217, 221 (1989) (same). Accordingly, we need not address
whether there was probable cause to stop defendant for failure to
register her vehicle.
Defendant relies heavily on
Ivey for the proposition that, in
order for an officer to constitutionally stop a vehicle, the
vehicle must be interfering with traffic. Defendant
mischaracterizes that Court's holding. The reason the lack of
interference with surrounding traffic was relevant in
Ivey was
because that was a requirement of the statute at issue in that
case.
Ivey, 360 N.C. at 565, 633 S.E.2d at 461 (citation omitted)
(“'[t]he duty to give a statutory signal of an intended . . . turn
does not arise in any event unless the operation of some “other
vehicle may be affected by such movement”'”). In the instant case,
the DWI statute has no such requirement. Thus, we do not find
Ivey
persuasive on this issue. Because defendant's Fourth Amendment
rights under the United States Constitution and under Article 1,Section 20 of the North Carolina Constitution were not violated,
her assignments of error as to this issue are rejected.
II.
[2] Defendant argues that the trial court did not make
sufficient findings of fact. We disagree.
In essence, defendant argues that the trial court's factual
findings were insufficient because the court did not make any
findings “that the defendant committed any traffic violations.” As
seen in the order entered in open court and the written order
signed by the trial court, the court clearly found such violations.
Specifically, the trial court found that: “13. Based on the
foregoing, Officer Barnhardt initiated a traffic stop on his
suspicion that the Defendant could have violated North Carolina law
including driving while under the influence and for a registration
plate law violation.” (Emphasis added.) Thus, defendant's
assignment of error as to this issue is rejected.
III.
Defendant makes two arguments in this section. First, that
the trial court erred in hearing testimony regarding defendant's
behavior after the traffic stop, and second, that the trial court
committed prejudicial error in questioning Officer Barnhardt after
the close of the evidence. We disagree and address each argument
in turn.
A.
[3] At the conclusion of re-cross examination by defendant's
counsel, Officer Barnhardt was told to step down and the State wastold to call its next witness. Before Officer Barnhardt stepped
down the trial judge asked him, “[a]fter you stopped her[,] what
did you do next?” Officer Barnhardt responded, “[m]y field
sobriety tests. Well, I approached her and asked for her license
and she didn't have any.” At this point, defense counsel objected
and pointed out to the trial court that the purpose of the hearing
was limited to the narrow issue of whether the stop was
constitutional and not whether the defendant was in fact under the
influence at the time of the stop.
Because of this additional questioning, defendant argues that
the trial judge violated defendant's constitutional right to a
“trial[] by an impartial jury of the state[.]” U.S. Const. amend.
VI. We fail to see how these questions demonstrate that the trial
judge was partial to the State's case. As the trial judge stated,
he was trying to understand “the whole picture on what happened[.]”
Although “the whole picture on what happened” that night was
outside the scope of what was appropriate for such a hearing,
defendant has made no legitimate argument that the judge was
partial to the State's case.
In fact, “[w]hen the trial judge questions a witness to
clarify his testimony or to promote an understanding of the case,
such questioning does not amount to an expression of the trial
judge's opinion as to defendant's guilt or innocence.”
State v.
Davis, 294 N.C. 397, 402, 241 S.E.2d 656, 659 (1978). Furthermore,
the trial court is presumed to disregard incompetent evidence in
making its decisions as a finder of fact.
State v. Allen, 322 N.C.176, 185, 367 S.E.2d 626, 631 (1988). There has been no showing by
defendant to overcome this presumption. None of the trial court's
findings of fact were related to any testimony received after
Officer Barnhardt was asked to step down. Accordingly, we find no
prejudicial error, and defendant's assignment of error as to this
issue is overruled.
B.
[4] Defendant also argues that the trial court erred in
questioning Officer Barnhardt after the close of the evidence
without again informing the officer that he was still under oath.
At the conclusion of the evidence by the State and defendant,
the trial court stood in recess while the trial judge left the
bench to render his decision. The trial judge returned and asked
Officer Barnhardt, who was sitting next to the assistant district
attorney and not on the witness stand, “what was your suspicion for
stopping the defendant on this date? What were you suspicious of
her doing?” Officer Barnhardt responded that “[a]fter her wobbling
and the clocking of the moped it was a DWI.” The trial court also
asked “[d]id the registration plate have any reason why you stopped
her?” Officer Barnhardt responded that it did.
“[W]here the trial court fails to administer the oath to a
witness, the defendant's failure to object waives appellate review
of the court's error.”
State v. Beane, 146 N.C. App. 220, 225, 552
S.E.2d 193, 196 (2001). The rationale for this rule is that upon
objection the trial court could have corrected any error.
Id.
Defense counsel neither objected nor attempted to question OfficerBarnhardt at any time before, during, or after the trial court's
questions. Accordingly, defendant has waived review of this error.
IV.
In summary, we hold that neither defendant's Fourth
Amendment
rights under the United States Constitution nor defendant's rights
under Article I, Section 20 of the North Carolina Constitution were
violated. We find no error in the trial court's findings of fact
and no prejudicial error in the trial court eliciting testimony
from the officer.
Affirmed.
Judges WYNN and BRYANT concur.
Footnote: 1