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Search and Seizure_traffic stop_thirty-second delay at green light_reasonable suspicion of
driving while impaired
Defendant's thirty-second delay at a green traffic light under the circumstances
gave rise to a reasonable, articulable suspicion that defendant may have been driving while
impaired; the stop of his vehicle was constitutional, and the evidence (a crack pipe) obtained as a
result of the stop was properly admitted. It is irrelevant that part of the officer's motivation for
stopping defendant may have been a perceived, though apparently non-existent, statutory
violation of impeding traffic.
Justice BRADY dissenting.
Justice HUDSON dissenting.
Justice TIMMONs-GOODSON joins in this dissenting opinion.
Appeal pursuant to N.C.G.S. § 7A-30(2) from the
decision of a divided panel of the Court of Appeals, 184 N.C.
App. ___, 645 S.E.2d 780 (2007), finding no error in a judgment
entered 6 April 2005 by Judge James U. Downs in Superior Court,
Buncombe County. Heard in the Supreme Court 13 February 2008.
Roy Cooper, Attorney General, by
Daniel S. Johnson,
Special Deputy Attorney General, for the State.
Anne Bleyman for defendant-appellant.
The Avery, P.C., by Isaac T. Avery, III, for North
Carolina Association of Police Attorneys, and Kimberly
N. Overton for North Carolina Conference of District
Attorneys, amici curiae.
NEWBY, Justice.
In this case we determine whether defendant's
constitutional rights were violated by the traffic stop that led
to his convictions. Based on the totality of the circumstances
here, defendant's thirty-second delay before proceeding through agreen traffic light gave rise to a reasonable, articulable
suspicion that he may have been driving while impaired. Because
the stop of defendant's vehicle was constitutional, we affirm the
majority decision of the Court of Appeals that affirmed the trial
court's denial of defendant's motion to suppress all evidence
obtained as a result of the stop.
Around 12:15 a.m. on 2 December 2004, Officer Brett
Maltby was on patrol in a high crime area of downtown Asheville
where a number of bars are located. Officer Maltby's marked
patrol car was stopped behind defendant's vehicle at a red
traffic light. When the light turned green, defendant remained
stopped for approximately thirty seconds before making a legal
left turn. Officer Maltby initiated a stop of the vehicle.
When he approached defendant to ask for his driver's
license and registration, Officer Maltby noticed that defendant
was shaking and that his breathing was rapid. Officer Maltby
also detected a slight odor of alcohol on defendant's breath.
Defendant said he did not have his license with him and gave
Officer Maltby a name and birth date that did not match
information on the officer's computer. Officer Maltby returned
and asked defendant to step out of the vehicle. At that point,
he observed an open container of alcohol in defendant's vehicle.
After Officer Maltby placed defendant in investigatory detention,
defendant provided his correct name, and Officer Maltby
determined that defendant's driver's license was suspended.
Officer Dwight Arrowood arrived at the scene and recovered a
crack pipe (later determined to contain cocaine residue) andassociated paraphernalia from defendant's vehicle.
Defendant offered to make a controlled buy of narcotics
from a person known as “One-Arm Willy” if Officer Maltby would
void defendant's citations for possession of an open container,
driving while license suspended, and possession of drug
paraphernalia. Officer Maltby agreed he would void the citations
if defendant made a controlled buy. Later that night defendant
successfully purchased a crack rock from One-Arm Willy. However,
upon defendant's return to the police station, Officer Maltby
searched defendant and found a second rock of cocaine, which
defendant had obtained as a “front” from One-Arm Willy.
Defendant was subsequently charged with two counts of
possession of cocaine and two counts of having achieved habitual
felon status. Before trial, defendant moved to suppress evidence
seized as a result of the searches of his vehicle and his person,
as well as the statements he made to the police. Defendant's
motion to suppress was denied. A jury found defendant guilty of
two counts of possession of cocaine, and defendant pled guilty to
one count of having achieved habitual felon status. The
remaining habitual felon status charge was dismissed.
A divided Court of Appeals panel found no error. The
majority determined that the thirty-second delay after the
traffic light turned green gave Officer Maltby a reasonable
suspicion that defendant was driving while impaired. Therefore,
the evidence obtained as a result of the stop was properly
admitted. State v. Barnard, ___ N.C. App. ___, ___, 645 S.E.2d780, 784 (2007).
(See footnote 1)
The dissent argued that a thirty-second delay,
standing alone, did not provide reasonable suspicion of driving
while impaired. As a result, the dissent would have excluded the
evidence obtained and statements made during the stop. Id. at
___, 645 S.E.2d at 789-90 (Calabria, J., dissenting). However,
the dissent recommended a remand to determine whether defendant
consented to the search that occurred following the controlled
buy. Id. at ___, 645 S.E.2d at 790-91.
The question before this Court is whether the stop of
defendant's vehicle was constitutional. The Fourth Amendment
protects individuals “against unreasonable searches and
seizures.” U.S. Const. amend. IV. The North Carolina
Constitution provides similar protection. N.C. Const. art. I, §
20. A traffic stop is a seizure “even though the purpose of the
stop is limited and the resulting detention quite brief.”
Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 1396, 59
L. Ed. 2d 660, 667 (1979). Such stops have “been historically
viewed under the investigatory detention framework first
articulated in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L.
Ed. 2d 889 (1968).” United States v. Delfin-Colina, 464 F.3d
392, 396 (3rd Cir. 2006) (citation omitted). Despite someinitial confusion following the United States Supreme Court's
decision in Whren v. United States, 517 U.S. 806, 116 S. Ct.
1769, 135 L. Ed. 2d 89 (1996), courts have continued to hold that
a traffic stop is constitutional if the officer has a
“reasonable, articulable suspicion that criminal activity is
afoot.” Illinois v. Wardlow, 528 U.S. 119, 123, 120 S. Ct. 673,
675, 145 L. Ed. 2d 570, 576 (2000) (citing Terry, 392 U.S. at 30,
88 S. Ct. at 1884, 20 L. Ed. 2d at 911); see Delfin-Colina, 464
F.3d at 396-97.
Reasonable suspicion is a “less demanding standard than
probable cause and requires a showing considerably less than
preponderance of the evidence.” Wardlow, 528 U.S. at 123, 120 S.
Ct. at 675-76, 145 L. Ed. 2d at 576 (citation omitted). Only
“'some minimal level of objective justification'” is required.
United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585,
104 L. Ed. 2d 1, 10 (1989) (quoting INS v. Delgado, 466 U.S. 210,
217, 104 S. Ct. 1758, 1763, 80 L. Ed. 2d 247, 255 (1984)). This
Court has determined that the reasonable suspicion standard
requires that “[t]he stop . . . be based on specific and
articulable facts, as well as the rational inferences from those
facts, as viewed through the eyes of a reasonable, cautious
officer, guided by his experience and training.” State v.
Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 70 (1994) (citing
Terry, 392 U.S. at 21-22, 88 S. Ct. at 1880, 20 L. Ed. 2d at
906). Moreover, “[a] court must consider 'the totality of the
circumstances--the whole picture' in determining whether a
reasonable suspicion” exists. Id. (quoting United States v.Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621,
629 (1981)).
Here, the trial court concluded that based on the
totality of the circumstances “a reasonable articulable suspicion
of wrongdoing on the part of the [d]efendant existed.” This
conclusion of law is supported by the trial court's finding of
fact that, after the traffic light turned green, defendant's
vehicle “remained stopped for some 30 seconds without any
reasonable appearance of explanation for doing so.” The trial
court's conclusion of law is also supported by Officer Maltby's
testimony showing that, based on his training and experience, he
made a rational inference from the thirty-second delay that
defendant might be impaired:
Q Based upon your training and
experience, do you have an opinion as to
whether or not that sort of delayed reaction
could usually involve an impaired substance
or driving while impaired?
A [Officer Maltby] Absolutely. Yes,
sir.
Q Can you articulate that?
A People's reaction is slowed down.
A red light turning green and hesitating for
30 seconds definitely would be an indicator
of impairment.
Because defendant's thirty-second delay at a green
traffic light under these circumstances gave rise to a
reasonable, articulable suspicion that defendant may have been
driving while impaired, the stop of defendant's vehicle was
constitutional and the evidence obtained as a result of the stop
was properly admitted. It is irrelevant that part of OfficerMaltby's motivation for stopping defendant may have been a
perceived, though apparently non-existent, statutory violation of
impeding traffic. The constitutionality of a traffic stop
depends on the objective facts, not the officer's subjective
motivation. See Whren, 517 U.S. at 811-13, 116 S. Ct. at 1773-
74, 135 L. Ed. 2d at 96-98; State v. McClendon, 350 N.C. 630,
634-36, 517 S.E.2d 128, 131-32 (1999).
All other issues raised by defendant are not properly
before this Court. The decision of the Court of Appeals is
affirmed.
AFFIRMED.
No. 347A07--State v. Kenneth Barnard
BRADY, Justice, dissenting.
Defendant's thirty second delay at a traffic intersection
after the light turned green did not violate any law and,
standing alone, could not have raised a reasonable, articulable
suspicion that defendant was engaged in criminal activity.
Consequently, Officer Maltby's stop of defendant's vehicle for
purportedly “impeding flow of traffic” was an unconstitutional
seizure of defendant's person in violation of the Fourth
Amendment's prohibition against unreasonable searches and
seizures. The trial court erred when it concluded otherwise.
*** Converted from WordPerfect ***
By affirming the decision of a divided panel of the Court of
Appeals below and holding that the stop of defendant's vehicle
was constitutional, the majority has lowered the threshold of the
Fourth Amendment's standard of reasonable, articulable suspicion
to an unacceptable level, dangerously exposing the citizens of
North Carolina to the potential for unreasonable and arbitrary
police practices unchecked by our state's trial and appellate
courts. Accordingly, I am compelled to respectfully dissent.
A. The Foundational Importance of the Fourth Amendment
The Fourth Amendment protects the “right of the
people . . . against unreasonable searches and
seizures.” U.S. Const. amend. IV. It is applicable to
the states through the Due Process Clause of the
Fourteenth Amendment. It applies to seizures of the
person, including brief investigatory detentions such
as those involved in the stopping of a vehicle.
337 N.C. 437, 441, 446 S.E.2d 67, 69-70 (1994) (alteration in
original) (citations omitted). The Supreme Court of the United
States has held that a law enforcement officer may initiate a
brief stop and frisk of an individual if there are “specific and
articulable facts which, taken together with rational inferences
from those facts, reasonably warrant that intrusion.” Terry v.Ohio, 392 U.S. 1, 21 (1968). “And in determining whether the
officer acted reasonably in such circumstances, due weight must
be given, not to his inchoate and unparticularized suspicion or
'hunch,' but to the specific reasonable inferences which he is
entitled to draw from the facts in light of his experience.” Id.
at 27 (citation omitted). Since Terry, the reasonable,
articulable suspicion standard has been applied to brief
investigatory traffic stops. See United States v. Brignoni-
Ponce, 422 U.S. 873, 881-82 (1975); Watkins, 337 N.C. at 441,
443, 446 S.E.2d at 70-71.
The majority suggests there has been “confusion” following
Whren v. United States, 517 U.S. 806 (1996), as to whether “a
traffic stop” is constitutional if supported by reasonable,
articulable suspicion. I cannot acknowledge such confusion, at
least among the decisions of this Court issued after Whren was
decided. However, the imprecise language employed by the
majority opinion paints over the important and intuitive
distinction between an investigatory traffic stop, to which the
reasonable, articulable suspicion standard has been applied, and
a traffic stop performed on the basis of a “perceived traffic
violation,” to which we recently applied the standard of probable
cause in State v. Ivey. See 360 N.C. 562, 564, 633 S.E.2d 459,
461 (2006) (emphasis added).
As a consequence of the inherent risk that Terry stops will
be conducted against innocent persons, appellate courts should
take great care not to set the standard of reasonable,articulable suspicion so low that the Fourth Amendment is
rendered meaningless. It is true that the degree of suspicion
required for Terry stops is “considerably less than proof of
wrongdoing by a preponderance of the evidence” and “obviously
less demanding than that for probable cause.” Id. at 7
(citations omitted). On the other hand, the requisite degree of
suspicion must be high enough “to assure that an individual's
reasonable expectation of privacy is not subject to arbitrary
invasions solely at the unfettered discretion of officers in the
field.” See Brown v. Texas, 443 U.S. 47, 51 (1979). Such would
be the case if reasonable suspicion were to be founded upon an
“inchoate and unparticularized suspicion or 'hunch'” and nothing
more. See Terry, 392 U.S. at 27.
To the extent the majority reaches beyond the trial court's
findings of fact and relies substantially upon the testimony of
Officer Maltby to buttress the trial court's conclusion of law,
this action constitutes a usurpation of the trial court's
preeminence as finder of fact and is contrary to this Court's
settled precedent set forth in Cheek.
(See footnote 3)
This overreach is
especially troublesome considering that the testimony quoted in
the majority opinion was provided by Officer Maltby in response
to a leading question from the prosecutor. In fact, the only
unprompted reasoning given by Officer Maltby for stopping
defendant's vehicle was that defendant was “impeding flow of
traffic,” which Officer Maltby mistakenly believed to be a
traffic violation, and that defendant's thirty second delay would
typically mean “that the Defendant was paying particularattention to the rear view mirror and noticing me and not the
actual traffic light,” which is an innocent explanation for the
officer's observations.
(See footnote 4)
It is readily apparent that Officer Maltby's decision to
stop defendant's vehicle was made under the misapprehension that
“impeding traffic” constitutes a violation of North Carolina's
motor vehicle safety regulations. This conclusion follows from
the officer's response on cross-examination regarding whetherdefendant's left turn into the intersection of Coxe Avenue and
Hilliard Avenue constituted a “legal turn”: “The stop at a green
light was impeding flow of traffic, yes, ma'am.”
The characterization of “impeding traffic” as a punishable
offense also occurred during the hearing on defendant's motion to
suppress when the prosecutor, who evidently lacked a clear
understanding of the law, argued:
[PROSECUTOR:] There's a crime of impeding traffic.
[Defendant] did impede traffic, the officer's vehicle,
was impeding traffic. The officer had a right to stop
him, had probable cause to believe he's -- that he was
impeding traffic. I would ask Your Honor to deny the
Defendant's motion in that regard.
(Emphasis added.) Finally, the trial court perpetuated this
mistake of law in its order denying defendant's motion to
suppress the evidence resulting from the traffic stop. The
court's finding of fact was that defendant “remained stopped [at
the green light] for some 30 seconds without any reasonable
appearance of explanation for doing so, and the officer observed
that the [defendant] was impeding traffic, if nothing else.”
(Emphasis added.) Based solely upon this finding of fact, the
court made its conclusion of law “that from the totality of the
circumstances that a reasonable articulable suspicion of
wrongdoing on the part of the Defendant existed to warrant
Officer Maltby's stop of the Defendant's vehicle in view of its
prolonged existence at this intersection without any reason for
doing so.”
The majority would have us believe that this mistake of law
is wholly “irrelevant,” citing Whren, 517 U.S. at 811-13, and
State v. McClendon, 350 N.C. 630, 634-35, 517 S.E.2d 128, 131-32(1999), for the proposition that courts are generally more
concerned with the “objective facts” of a case than with an
officer's “subjective motivation.” While it is true that “[i]n
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 the stop was
constitutional, see Ivey, 360 N.C. at 564, 633 S.E.2d at 460-61
(citing McClendon, 350 N.C. at 635, 517 S.E.2d at 132), neither
of the two decisions relied upon by the majority for this
assertion involved a mistake of law.
Indeed, since Whren was decided, federal circuit courts have
widely held that a law enforcement officer's mistake of law
concerning whether a traffic violation has occurred--as opposed
to a mistake of fact--will generally render a stop
unconstitutional. See, e.g., United States v. Chanthasouxat, 342
F.3d 1271, 1276-79 (11th Cir. 2003) (holding unconstitutional a
traffic stop that was based upon the defendant's failure to have
a rearview mirror affixed to the inside of his vehicle, which was
not a requirement under city ordinance or Alabama law); United
States v. Lopez-Soto, 205 F.3d 1101, 1105-06 (9th Cir. 2000)
(holding unconstitutional a traffic stop that was based upon the
defendant's failure to affix a registration sticker so that it
was visible from the rear of his vehicle, which “simply was not a
violation of Baja California law”); United States v.
Lopez-Valdez, 178 F.3d 282, 289 (5th Cir. 1999) (holding a
traffic stop unconstitutional because “no well-trained Texas
police officer could reasonably believe that white lightappearing with red light through a cracked red taillight lens
constituted a violation of traffic law”); United States v.
Miller, 146 F.3d 274, 276, 279 (5th Cir. 1998) (holding
unconstitutional a traffic stop that was based upon the
defendant's flashing his vehicle's turn signal without turning or
changing lanes, which did not violate the Texas Transportation
Code); see also Ivey, 360 N.C. at 566, 633 S.E.2d at 462
(“Because failure to give a signal, in and of itself, does not
constitute a violation of N.C.G.S. § 20-154(a), nothing in the
record suggests [the officer] had probable cause to believe any
traffic violation occurred.”). However, at least one federal
circuit court has held that the constitutionality of the traffic
stop might be based upon whether the defendant's actions gave
rise to a reasonable, articulable suspicion that criminal
activity was afoot, notwithstanding the officer's mistake of law.
See United States v. Delfin-Colina, 464 F.3d 392, 400-01 (3d Cir.
2006) (citing generally Whren, 517 U.S. 806). But see Lopez-
Valdez, 178 F.3d at 289 (“But if officers are allowed to stop
vehicles based upon their subjective belief that traffic laws
have been violated even where no such violation has, in fact,
occurred, the potential for abuse of traffic infractions as
pretext for effecting stops seems boundless and the costs to
privacy rights excessive.”).
It is unprecedented for a court to hold, as the majority
does, that a single act or omission that does not constitute a
punishable offense and is therefore, by definition, subject to a
myriad of innocent explanations, can nevertheless give rise to a
reasonable, articulable suspicion that criminal activity isafoot. The Fourth Amendment demands something more. When Terry
was decided in 1968, the Supreme Court of the United States
established a basic pattern of analysis to be employed when
courts apply the reasonable, articulable suspicion standard:
Even though the factors presented in a case, when analyzed
separately, might lend themselves to an innocent explanation, the
determination which must be made is whether, when taken together,
these otherwise innocent factors raise a reasonable, articulable
suspicion of criminal activity. As stated in Terry:
It was this legitimate investigative function Officer
McFadden was discharging when he decided to approach
petitioner and his companions. He had observed Terry,
Chilton, and Katz go through a series of acts, each of
them perhaps innocent in itself, but which taken
together warranted further investigation. There is
nothing unusual in two men standing together on a
street corner, perhaps waiting for someone. Nor is
there anything suspicious about people in such
circumstances strolling up and down the street, singly
or in pairs. Store windows, moreover, are made to be
looked in. But the story is quite different where, as
here, two men hover about a street corner for an
extended period of time, at the end of which it becomes
apparent that they are not waiting for anyone or
anything; where these men pace alternately along an
identical route, pausing to stare in the same store
window roughly 24 times; where each completion of this
route is followed immediately by a conference between
the two men on the corner; where they are joined in one
of these conferences by a third man who leaves swiftly;
and where the two men finally follow the third and
rejoin him a couple of blocks away.
392 U.S. at 22-23. The same basic pattern of analysis was
repeated by our nation's highest court more recently. See
Arvizu, 534 U.S. at 277-78 (“Undoubtedly, each of these factors
alone is susceptible of innocent explanation, and some factors
are more probative than others. Taken together, we believe they
sufficed to form a particularized and objective basis for [theofficer's] stopping the vehicle, making the stop reasonable
within the meaning of the Fourth Amendment.”); Sokolow, 490 U.S.
at 9 (“Any one of these factors is not by itself proof of any
illegal conduct and is quite consistent with innocent travel.
But we think taken together they amount to reasonable suspicion.”
(citations omitted)).
By departing from this basic, well-established pattern of
analysis, the majority has drastically lowered the bar for the
degree of suspicion required when applying the reasonable,
articulable suspicion standard. The majority begins with a
single innocent factor and concludes that it gives rise to a
reasonable, articulable suspicion of criminal activity. However,
at no point does the majority attempt to combine this factor with
others to reach the requisite degree of suspicion. The reason is
there were no additional factors to consider.
As a consequence of the majority's holding, one factor
“susceptible of innocent explanation,” see Arvizu, 534 U.S. at
277, can raise a sufficient level of suspicion for an
investigatory traffic stop to pass constitutional muster, so long
as that factor is also susceptible of a less-than-innocent
explanation. Single instances of conduct which the people of the
Old North State have always considered well within the boundaries
set by our criminal statutes will now subject all North
Carolinians, innocent and guilty alike, to limitless searches or
seizures by law enforcement personnel without the protection of
any meaningful judicial oversight.
Even more disturbing is the utter lack of evidence in therecord, much less contained in the trial court's findings of
fact, that defendant's thirty second delay is even rationally
related to a suspicion that he was operating his vehicle under
the influence of an impairing substance. The lone exception is
Officer Maltby's testimony, provided at the prosecutor's
prompting, that this conduct might be consistent with impairment.
The majority must be operating under the assumption that this
rational relationship is patently obvious, as the majority
provides no rationale to support its conclusion that a thirty
second delay could even indicate the possibility of a defendant's
impairment, apart from quoting the testimony of Officer Maltby,
who it seems certain had not considered this possibility at the
time he stopped defendant's vehicle.
In its brief and at oral argument, the State sought to have
this Court consider the National Highway Traffic Safety
Administration guide to the visual detection of motorists who are
driving while under the influence of an impairing substance.
Although this source was included in the appendix to the State's
brief before this Court, it was not made a part of the record at
trial and ought not to play a role in this Court's appellate
review. Nonetheless, that portion of the copied text which was
underlined by the State in its appendix is entirely unpersuasive:
“A driver whose vigilance has been impaired by alcohol also might
respond more slowly than normal to a change in a traffic signal.”
(Emphasis added). Again, the State has established no rational
relationship between impaired driving and such a lengthy delay ofthirty seconds.
(See footnote 6)
The State also contends that the greater weight of authority
from other states with regard to delayed reactions to traffic
signals turning green tends to support the Court of Appeals'
majority opinion in the instant case and to undermine that
court's earlier decision in State v. Roberson. See 163 N.C. App.
129, 134-35, 592 S.E.2d 733, 736-37, disc. rev. denied, 358 N.C.
240, 594 S.E.2d 199 (2004) (holding that the defendant's eight-
to-ten second delay did not give rise to reasonable, articulable
suspicion). One case cited by the State, State v. Liberda, 2002
Minn. App. LEXIS 1216 (Minn. Ct. App. Oct. 22, 2002), is an
unpublished decision of the Minnesota Court of Appeals and should
not be considered persuasive authority, as it serves no
precedential value for Minnesota courts. See Minn. Stat. Ann. §
480A.08 subdiv. 3(c) (West 2002). Another case cited by the
State, and also relied upon by the majority of the Court of
Appeals, is inapplicable in this case because the holding was
based upon the violation of a perceived motor vehicle safety
regulation, meaning a probable cause standard should be applied.
See People v. Kelly, 344 Ill. App. 3d 1058, 802 N.E.2d 850
(2003). In fact, the majority of cases from other states tend to
undermine the State's contention that a delayed reaction to a
traffic signal turning green, without more, can give rise toreasonable, articulable suspicion. See, e.g., State v. Emory,
119 Idaho 661, 664, 809 P.2d 522, 523, 525 (Ct. App. 1991)
(holding that a five-to-six second delay at a green traffic
light, coupled with defendant's proceeding to drive straight but
very close to a long line of parked cars on a narrow street,
failed to give rise to reasonable suspicion and “could just as
easily be explained as conduct falling within the broad range of
what can be described as normal driving behavior”); People v.
Dionesotes, 235 Ill. App. 3d 967, 968-70, 603 N.E.2d 118, 119-20
(1992) (holding that a ninety second stop in the middle of the
road for no apparent reason did not give rise to reasonable
suspicion); Minnetonka v. Shepherd, 420 N.W.2d 887, 891 n.2
(Minn. 1988) (commenting that being stopped in the middle of a
residential street for no apparent reason was “arguably not
enough by itself to justify the stop” of the subject vehicle);
State v. Hjelmstad, 535 N.W.2d 663, 666 (Minn. Ct. App. 1995)
(noting that a four second delay, “without more, does not
demonstrate erratic driving”); State v. Cryan, 320 N.J. Super.
325, 331-32, 727 A.2d 93, 96 (App. Div. 1999) (holding that a
five second delay at a green traffic light, followed by an
unusually slow left turn, would not have supported a finding of
reasonable suspicion). But see, e.g., State v. Puls, 13 Neb.
App. 230, 235, 690 N.W.2d 423, 428 (2004) (holding that a three-
to-seven second delay at a green traffic light, by itself, “could
promote a reasonable suspicion that [the defendant] was operating
her [vehicle] under the influence of alcohol or drugs”).
Defendant's thirty second delay was entirely consistent withany number of innocent explanations, such as changing a radio
station, consulting a map for directions, indecision as to which
direction one wishes to travel, placing or receiving a call on a
cellular phone, or even, as Officer Maltby himself testified, a
natural nervous reaction to observing an approaching law
enforcement vehicle in the rearview mirror. In fact, a delay of
thirty seconds is arguably more consistent with any of these
innocent explanations than a delayed reaction of only a few
seconds, which itself could be indicative of the slowed reaction
time one might expect to result from impairment.
Although “[a] determination that reasonable suspicion exists
. . . need not rule out the possibility of innocent conduct,” see
Arvizu, 534 U.S. at 277 (citation omitted), a determination that
reasonable, articulable suspicion does not exist must be made by
an appellate court when faced with a single, isolated factor that
is susceptible to innocent explanation. To hold otherwise would
be to permit law enforcement officers to act upon a mere
“inchoate and unparticularized suspicion or 'hunch'” and would
expose law-abiding citizens to searches or seizures at the
slightest whiff of suspicion. See Terry, 392 U.S. at 27.
Lest the American people, and the people of North Carolina
in particular, forget the foundational importance of the Fourth
Amendment right to be secure against unreasonable searches and
seizures, we should recall that the cherished liberties enjoyed
in our brief historical moment have been inherited by this
generation only because they have been nurtured and protected by
earlier generations of Americans so driven in their pursuit of
liberty that life itself was not too great a cost to purchase
liberty for themselves and their posterity. If the Framers of
the first ten amendments of the Federal Constitution thought it
worthy to enshrine this liberty into the Bill of Rights,
conscious as they were of the abuses they endured under British
colonial rule, this Court should not be so quick to make a short
sighted and imprudent decision to render it obsolete.
The Supreme Court of North Carolina now stands alone among
the nation's courts of last resort in holding that a single
factor susceptible of innocent explanation can give rise to a
reasonable, articulable suspicion that criminal activity is
afoot. I would hold instead that the stop of defendant's vehicle
was unconstitutional and would reverse the decision of the Court
of Appeals and remand to that court for consideration of thoseissues not addressed in its initial opinion. For the multitude
of reasons set forth above, I respectfully dissent.
No.
347A07
HUDSON, Justice dissenting.
The officer here stopped defendant for “impeding traffic,”
because defendant delayed for thirty seconds after a traffic
light had turned green before making a legal turn. These were
the only reasons articulated for stopping defendant's vehicle,
and I do not agree that these reasons, without more, provide a
reasonable basis for the stop. Therefore, I respectfully
dissent.
Before trial, defendant moved to suppress evidence seized
from his vehicle and from his person when he was stopped in the
early morning hours of 2 December 2004 and to suppress any in-
custody statements in connection with the incident. Defendant
contended that “he was illegally seized and detained by Officer
Maltby . . . without reasonable and articulable suspicion of
criminal wrongdoing or probable cause for his arrest.”
Therefore, he argued, the physical evidence and statements he
made were all fruits of his illegal search and seizure.
The
trial court found as fact that defendant “remained stopped for
some 30 seconds without any reasonable appearance of explanation
for doing so, and the officer observed that the victim [sic] was
impeding traffic, if nothing else.” Based solely thereon, the
court denied defendant's motion.
Although Officer Maltby
testified that in his opinion, based on his training and
experience
, the delay “definitely would be an indicator of
impairment,”
the trial court did not find this to be a reason for
the stop. It is well established that an officer may make a brief,
investigatory stop of a vehicle if there are “specific and
articulable facts which, taken together with rational inferences
from those facts, reasonably warrant that intrusion.” Terry v.
Ohio, 392 U.S. 1, 21, 20 L. Ed. 2d 889, 906 (1968); State v.
Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 70 (1994). “[I]n
determining whether the officer acted reasonably in such
circumstances, due weight must be given, not to his inchoate and
unparticularized suspicion or 'hunch,' but to the specific
reasonable inferences which he is entitled to draw from the facts
in light of his experience.” Terry, 392 U.S. at 27, 20 L. Ed. 2d
at 909 (citation omitted). On review, we must evaluate the
totality of the circumstances to determine whether the officer
possessed the reasonable, articulable suspicion needed to justify
the stop. United States v. Cortez, 449 U.S. 411, 417, 66 L. Ed.
2d 621, 629 (1981); Watkins, 337 N.C. at 441, 446 S.E.2d at 70.
The State argues that there are no controlling authorities
and that defendant cites no cases dealing with a thirty second
delayed reaction to a green light. After also noting that this
Court is not bound by the decision in State v. Roberson, 163 N.C.
App. 129, 592 S.E.2d 733, disc. rev. denied, 358 N.C. 240, 594
S.E.2d 199 (2004), in which
an eight to ten second delay was held
not to justify a stop, the State also distinguishes Roberson on
the basis that a thirty second delay cannot be explained as
reasonable. However, in conducting its reasonable suspicion
analysis, this Court does not review the thirty second delay in
isolation, but rather, views the delay as part of the totality ofthe circumstances.
Here, in addition to the basis noted by the trial court
, the
circumstances included that the officer had followed defendant
and observed no problems with his driving and that after the
delay at the stoplight, defendant made a legal turn. Further,
defendant contends that the sheer presence of a police cruiser
immediately behind a vehicle can distract even law abiding
citizens and that the officer's own testimony supports this
reasonable, innocent explanation for the delay at the stoplight.
The officer testified that the delay could have been due to the
fact that “Defendant was paying particular attention to the rear
view mirror and noticing [the officer] and not the actual traffic
light.”
It appears that the officer and the trial court here
mistakenly believed that impeding the flow of traffic was a
violation of the law which justified the stop and that the trial
court rested its denial of defendant's motion to suppress solely
on this mistaken belief and the thirty second delay. Because
impeding the flow of traffic is not a violation of law and
because the thirty second delay is easily explained as innocent,
I do not agree that under the totality of these circumstances,
the officer here had reasonable suspicion to stop defendant's
vehicle. Thus, I respectfully dissent.
Justice TIMMONS-GOODSON joins in this dissenting opinion.
Footnote: 1 The majority also affirmed the admission of defendant's
statements to Officer Maltby. Although defendant made the
statements before he was advised of his Miranda rights, the
evidence showed the statements were volunteered and not the
result of an interrogation. Barnard, ___ N.C. App. at ___, 645
S.E.2d at 784-85. The dissent did not address this Miranda
issue. As such, defendant's arguments on this issue are not
properly before this Court. See, e.g., Steingress v. Steingress,
350 N.C. 64, 67, 511 S.E.2d 298, 300 (1999) (citing Clifford v.
River Bend Plantation, Inc., 312 N.C. 460, 463, 323 S.E.2d 23, 25
(1984)).
Footnote: 2 It is apropos, perhaps, that even the trial court referred
to defendant as “the victim” when describing the unconstitutional
seizure of defendant in making its findings of fact.
Footnote: 3 Apart from relying upon Officer Maltby's testimony that
defendant's thirty second delay might have been consistent with
impairment, the majority also asserts in its statement of the
facts: “Around 12:15 a.m. on 2 December 2004, Officer Brett
Maltby was on patrol in a high crime area of downtown Asheville
where a number of bars are located.” (Emphasis added.) However,
neither the time at which the traffic stop occurred nor the
characterization of the area in which it occurred as a “high
crime area” comprised any part of the trial court's findings of
fact. The majority has simply assumed the role of a trial court
in order to “establish” these facts and cast defendant's thirty
second delay in a more inculpatory light. Nevertheless, the
majority is still left with only one factor to support its
holding that the traffic stop was constitutional: defendant's
thirty second delay.
Footnote: 4 The majority never contends, as indeed it cannot, that
Officer Maltby subjectively believed defendant was driving while
impaired at any time before he stopped defendant's vehicle. As
reflected in his testimony under cross-examination, Officer
Maltby never sounded his horn to alert defendant of the traffic
signal turning green because he “wanted to further [his]
investigation and watch [defendant] in his -- in his driving
demeanor at that point.” However, under direct examination,
Officer Maltby testified that he stopped defendant's vehicle “as
he was turning.” Thus, at no point does it appear that Officer
Maltby actually attempted to observe defendant's driving demeanor
for further signs of defendant's impairment, which clearly
indicates that impairment played no part in Officer Maltby's on-
the-spot decision to stop defendant's vehicle.
Footnote: 5 Apart from the lack of precedent to support such a
holding, there are two additional problems with the majority's
reliance upon the particular suspicion that defendant was
“driving while impaired,” as have been noted above: First, there
is no indication from the record that a suspicion of “driving
while impaired” had anything to do with Officer Maltby's actual
reasons for stopping defendant's vehicle. Second, the trial
court made no finding of fact that defendant's conduct would have
indicated he was impaired, but merely found that “defendant
remained stopped for some 30 seconds without any reasonable
appearance of explanation for doing so.” Thus, the majority has
usurped the trial court's role as finder of fact in order to
establish the connection between a thirty second delay at an
intersection and impaired driving.
Footnote: 6 Likewise, the facts of the instant case are not probative
of this connection between a thirty second delay and impaired
driving, since upon stopping defendant's vehicle, Officer Maltby
almost immediately ascertained that defendant was not, in fact,
impaired. Thus, there was by necessity some other explanation
for defendant's conduct besides impairment.