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STATE OF NORTH CAROLINA
TWANPRECE NESHAWN IVEY
On discretionary review pursuant to N.C.G.S. § 7A-31 of a
unanimous, unpublished decision of the Court of Appeals, 171 N.C.
App. 516, 615 S.E.2d 738 (2005), affirming a judgment entered on
25 May 2004 by Judge David S. Cayer in Superior Court,
Mecklenburg County. Heard in the Supreme Court 18 April 2006.
Roy Cooper, Attorney General, by
Clinton C. Hicks, Assistant
Attorney General, for the State.
Isabel Scott Day, Mecklenburg County Public Defender,
by Julie Ramseur Lewis, Assistant Public Defender, for
On 11 September 2002, Charlotte-Mecklenburg Police
Officer Christopher Rush (Officer Rush) stopped a sport utility
vehicle driven by defendant Twanprece Neshawn Ivey after
defendant made a right turn without using a turn signal. Officer
Rush subsequently obtained defendant's consent and searched the
vehicle, recovering a firearm. The fruit of this search was the
basis of defendant's convictions of possession of a firearm by a
felon and carrying a concealed weapon. We must determine the
constitutionality of the traffic stop by ascertaining whetherOfficer Rush had probable cause to believe defendant's operation
of his vehicle violated any applicable traffic statute.
Before the trial court, defendant made a motion in
limine to exclude the firearm from evidence, arguing Officer Rush
lacked probable cause to believe a traffic violation had
occurred. The trial court denied defendant's motion, and
defendant then pleaded guilty to both offenses, which were
consolidated under the possession of a firearm by a felon charge.
The trial court sentenced defendant, who had a prior record level
of II, at the maximum of the presumptive range to a term of
fifteen to eighteen months imprisonment.
Defendant appealed the denial of his motion to suppress
to the Court of Appeals, which unanimously affirmed the trial
court's decision in an unpublished opinion. State v. Ivey, 171
N.C. App. 516, 615 S.E.2d 738, 2005 WL 1669023 (July 19, 2005)
(No. COA04-1420). We hold a reasonable officer, under the
circumstances presented, would not have had probable cause to
believe that a traffic violation occurred and, thus, the seizure
and subsequent search of defendant's vehicle were unreasonable
and violated defendant's rights under the Fourth Amendment to the
United States Constitution and Article I, Section 20 of the North
Carolina Constitution. Therefore, we reverse the decision of the
Court of Appeals and remand with instructions to vacate
defendant's convictions and remand to the trial court for
proceedings not inconsistent with this opinion.
On 11 September 2002, while on routine patrol of an
urban area, Officer Rush observed defendant driving a white
Chevrolet Tahoe sport utility vehicle with tinted windows and
expensive, fancy chrome wheels on Monument Street in Charlotte,
North Carolina. There is no indication that any other automobile
or pedestrian traffic which might have been in the area would
have been affected by defendant's operation of the vehicle.
Officer Rush, some distance directly behind the automobile, saw
defendant come to a complete stop at a T-intersection and then
make a right turn without signaling. A concrete median at the T-
intersection blocked a left turn, so that, as Officer Rush
confirmed at the suppression hearing, defendant had no choice but
to turn right. After observing defendant's turn, Officer Rush
initiated a traffic stop of the sport utility vehicle and issued
a uniform citation to defendant for unsafe movement under
N.C.G.S. § 20-154(a) for failure to signal. During this traffic
stop, Officer Rush solicited and received defendant's consent to
a warrantless search of the automobile. During this search,
Officer Rush discovered a firearm, which was the basis for
defendant's convictions of possession of a firearm by a felon and
carrying a concealed weapon.
As a general rule, the decision to stop an automobile
is reasonable where the police have probable cause to believe
that a traffic violation has occurred. Whren v. United States
517 U.S. 806, 810 (1996). In examining the legality of a traffic
stop, the proper inquiry is not the subjective reasoning of the
officer, but whether the objective facts support a finding that
probable cause existed to stop the defendant. See State v.McClendon
, 350 N.C. 630, 635, 517 S.E.2d 128, 132 (1999).
Probable cause exists when there is a fair probability or
substantial chance a crime has been committed and that the
defendant committed it. See Illinois v. Gates
, 462 U.S. 213,
245-46 (1983). Thus, the United States and North Carolina
Constitutions require an officer who makes a seizure on the basis
of a perceived traffic violation to have probable cause to
believe the driver's actions violated a motor vehicle law. See
, 350 N.C. at 635-36, 517 S.E.2d at 132 (adopting the
reasoning of Whren v. United States
in interpreting Article I,
Section 20 of the North Carolina Constitution). The standard of
probable cause is a basic tenet that applies regardless of
whether the action is taken by a deputy sheriff, a city police
officer, a state Alcohol Law Enforcement agent, or a wildlife
Although neither party briefed the issue, there was
discussion at oral argument concerning whether this traffic stop
was a case of driving while black. 'Driving while black'
refers to the charge that police stop, question, warn, cite or
search African American citizens because of their race. Matthew
T. Zingraff et al., Evaluating North Carolina State Highway
Patrol Data: Citations, Warnings, and Searches in 1998
, at 2
(Nov. 1, 2000) (report submitted to North Carolina Department of
Crime Control & Public Safety). From the record in the instant
case, we cannot determine whether the stop of defendant, a black
male, was a selective enforcement of the law based upon race.
Regardless, this Court will not tolerate discriminatory
application of the law based upon a citizen's race. As espoused
by the Supreme Court of the United States, the Constitutionprohibits selective enforcement of the law based on
considerations such as race, because such enforcement violates
the Fourteenth Amendment's Equal Protection Clause. Whren
U.S. at 806. However, such [s]ubjective intentions play no role
in ordinary, probable-cause Fourth Amendment analysis. Id.
In making a determination of whether Officer Rush had
probable cause to stop defendant, we must consider the alleged
violation of North Carolina traffic law. Our General Statutes
The driver of any vehicle upon a highway or
public vehicular area before starting,
stopping or turning from a direct line shall
first see that such movement can be made in
safety, and if any pedestrian may be affected
by such movement shall give a clearly audible
signal by sounding the horn, and whenever the
operation of any other vehicle may be
affected by such movement, shall give a
signal as required in this section, plainly
visible to the driver of such other vehicle,
of the intention to make such movement. The
driver of a vehicle shall not back the same
unless such movement can be made with safety
and without interfering with other traffic.
N.C.G.S. § 20-154(a) (2005). Consistent with subsection 20-
154(a), [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.' Cooley v.
, 231 N.C. 533, 536, 58 S.E.2d 115, 117 (1950) (quoting
N.C.G.S. § 20-154(a)); accord Clarke v. Holman
, 274 N.C. 425,
429-30, 163 S.E.2d 783, 786-87 (1968).
Therefore, unless a reasonable officer would have
believed, under the circumstances of the stop, that defendant's
actions violated subsection 20-154(a), Officer Rush lacked
probable cause to stop defendant's vehicle. More specifically,
unless a reasonable officer would have believed that defendant'sfailure to use his turn signal at this intersection might have
affected the operation of another vehicle, then Officer Rush's
stop and subsequent search were unconstitutional.
The record in the case sub judice
simply does not
support a finding of probable cause. The record does not
indicate that any other vehicle or any pedestrian was, or might
have been, affected by the turn. Therefore, the only question is
whether Officer Rush's vehicle may have been affected by the
turn. Officer Rush was traveling at some distance behind the
sport utility vehicle and observed defendant come to a complete
stop at the stop sign. Defendant then turned right, the only
legal movement he could make at the intersection. Regardless of
whether defendant used a turn signal, Officer Rush's vehicle
would not have been affected. Officer Rush's only option was to
stop at the intersection. Accordingly, Officer Rush's vehicle
could not have been affected by defendant's maneuver.
This case is readily distinguishable from Whren
which the officers observed
a dark Pathfinder truck with temporary
license plates and youthful occupants waiting
at a stop sign, the driver looking down into
the lap of the passenger at his right. The
truck remained stopped at the intersection
for what seemed an unusually long time--more
than 20 seconds. When the police car
executed a U-turn in order to head back
toward the truck, the Pathfinder turned
suddenly to its right, without signaling, and
sped off at an unreasonable speed.
517 U.S. at 808. As noted by the United States Court of Appeals
for the District of Columbia in Whren
, the officers observed
three violations of District of Columbia motor vehicle laws
committed by the defendant: failure to give 'full time and
attention' to his driving, turning without signaling, anddriving away at an unreasonable speed. See United States v.
, 53 F.3d 371, 376 (D.C. Cir. 1995), aff'd
517 U.S. 806
(1996). Because failure to give a signal, in and of itself, does
not constitute a violation of N.C.G.S. § 20-154(a),
the record suggests Officer Rush had probable cause to believe
any traffic violation occurred.
We conclude that Officer Rush's stop violated
defendant's rights under the Fourth Amendment to the United
States Constitution and Article I, Section 20 of the North
Carolina Constitution. Because the fruit of Officer Rush's
search of the vehicle arose from the illegal stop, all evidence
seized during the search should have been excluded by the trial
court, and it was therefore error to deny defendant's motion to
suppress. See Wong Sun v. United States
, 371 U.S. 471, 484-87
(The exclusionary prohibition extends as well to the
indirect as the direct products of such invasions.); Mapp v.
367 U.S. 643, 654-55 (1961)
(applying the exclusionary rule
to the states, thereby barring admission of evidence obtained in
violation of the Fourth Amendment in state criminal trials).
Accordingly, we reverse the decision of the Court of
Appeals and remand to that court with instructions to vacate
defendant's convictions and remand to the trial court for further
proceedings not inconsistent with this opinion.
REVERSED AND REMANDED.
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