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Search and Seizure--traffic stop--failure to signal--reasonable suspicion--motion to
suppress evidence of drugs
The trial court did not err in a possession of Schedule II controlled substances, drug
paraphernalia, and marijuana case by denying defendant's motion to suppress all evidence
obtained as a result of a traffic stop of defendant's vehicle based on his failure to signal in
violation of N.C.G.S. § 20-154(a), because: (1) reasonable suspicion is the necessary standard for
traffic stops regardless of whether the traffic violation was readily observed or merely suspected;
(2) defendant's vehicle was immediately in front of the officer's patrol vehicle when it changed
lanes without a signal, and changing lanes immediately in front of another vehicle may affect the
operation of the trailing vehicle; and (3) the officer's observation of defendant's traffic violation
gave him the required reasonable suspicion to stop defendant's vehicle.
Justice HUDSON concurrs in the result only.
Justice
BRADY dissenting.
Justice
TIMMONS-GOODSON joins in the dissenting opinion.
Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of
a divided panel of the Court of Appeals, 185 N.C. App. ___, 648
S.E.2d 214 (2007), affirming a judgment entered on 3 November
2005 by Judge C. Preston Cornelius in Superior Court, Swain
County. Heard in the Supreme Court 10 December 2007.
Roy Cooper, Attorney General, by
William B. Crumpler,
Assistant Attorney General, for the State.
Charlotte Gail Blake for defendant-appellant.
NEWBY, Justice.
In this case we must determine whether defendant's
Fourth Amendment rights were violated by the traffic stop that
led to his convictions. Because the stop of defendant's vehicle
was constitutional, we affirm the 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 1:00 a.m. on 28 February 2004, Officer Greg
Jones of the Bryson City Police Department was on duty and
traveling on Main Street, a three lane road with two lanes in
Officer Jones' direction of travel and one lane in the opposite
direction. Defendant, who was operating a vehicle moving in the
same direction and in front of Officer Jones' patrol vehicle,
changed lanes without signaling. Officer Jones stopped
defendant's vehicle. Upon approaching the driver's side of the
vehicle, Officer Jones immediately detected an odor of marijuana.
After defendant declined to consent to a search of his vehicle,
Officer Jones deployed a drug-sniffing dog that was in his patrol
vehicle. When the dog alerted to the presence of narcotics,
Officer Jones initiated a search of the interior of defendant's
vehicle, where he discovered marijuana and a pipe. Officer Jones
placed defendant under arrest and found methamphetamine on
defendant when he conducted a pat-down search.
Defendant was indicted for possession of Schedule II
controlled substances, drug paraphernalia, and marijuana. On 25
October 2005, defendant filed a motion to suppress all evidence
obtained as a result of Officer Jones' stop of defendant's
vehicle. Defendant's motion was denied on 31 October 2005, and
defendant pled guilty to all charges, expressly reserving the
right to appeal the denial of his motion to suppress under
N.C.G.S. § 15A-979(b). The trial court sentenced defendant to
six to eight months imprisonment, suspended the sentence, and
placed defendant on supervised probation for eighteen months.
On 7 August 2007, the Court of Appeals, in a divided
opinion, affirmed the trial court's denial of defendant's motion
to suppress. The majority held Officer Jones had probable causeto stop defendant's vehicle because Officer Jones observed a
traffic violation by defendant: changing lanes without
signaling. State v. Styles, 185 N.C. App. ___, ___, 648 S.E.2d
214, 217 (2007); see N.C.G.S. § 20-154(a) (2007). The dissent
argued Officer Jones did not have probable cause to stop
defendant's vehicle because there was no competent evidence that
defendant's actions constituted a traffic violation. 185 N.C.
App. at ___, 648 S.E.2d at 217 (Stephens, J., dissenting). On 11
September 2007, defendant filed an appeal of right to this Court
based on the dissenting opinion. See N.C.G.S. § 7A-30(2) (2007).
The Fourth Amendment protects individuals “against
unreasonable searches and seizures,” U.S. Const. amend. IV, and
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). Traffic
stops have “been historically reviewed 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 (3d Cir. 2006) (citation
omitted). Under Terry and subsequent cases, a traffic stop is
permitted 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).
Reasonable suspicion is a “less demanding standard than
probable cause and requires a showing considerably less than
preponderance of the evidence.” Id. at 123, 120 S. Ct. at 675-
76, 145 L. Ed. 2d at 576 (citation omitted). The standard issatisfied by “'some minimal level of objective justification.'”
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 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)). See generally State v. Barnard, ___ N.C. ___, ___,
658 S.E.2d 643, 645 (2008).
“The Terry standard was for many years accepted as the
standard governing [routine] traffic stops. But, in 1996, dictum
of the Supreme Court in Whren v. United States raised some
doubt.” Delfin-Colina, 464 F.3d at 396 (internal citations
omitted). In Whren, the Court stated that “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, 116 S. Ct. 1769, 1772, 135 L.
Ed. 2d 89, 95 (1996) (citations omitted).
In the years since Whren, this Court has occasionally
discussed whether a traffic stop was constitutional in terms of
probable cause. See State v. Ivey, 360 N.C. 562, 633 S.E.2d 459
(2006); State v. McClendon, 350 N.C. 630, 517 S.E.2d 128 (1999). At the same time, a distinction has developed in the Court of
Appeals by which that court has required probable cause for
traffic stops “made on the basis of a readily observed traffic
violation,” but reasonable suspicion for stops “based on an
officer's mere suspicion that a traffic violation is being
committed.” State v. Young, 148 N.C. App. 462, 470-71, 559
S.E.2d 814, 820-21 (Greene, J., concurring), appeal dismissed and
disc. rev. denied, 355 N.C. 500, 564 S.E.2d 233 (2002), quoted in
State v. Wilson, 155 N.C. App. 89, 94, 574 S.E.2d 93, 97-98
(2002), appeal dismissed and disc. rev. denied, 356 N.C. 693, 579
S.E.2d 98, and cert. denied, 540 U.S. 843, 124 S. Ct. 113, 157 L.
Ed. 2d 78 (2003). The State argues this distinction is incorrect
because reasonable suspicion is the standard for both types of
traffic stops. We agree.
Subsequent to Whren, federal courts have continued to
hold that reasonable suspicion remains the necessary standard for
stops based on traffic violations. Most recently, in Delfin-
Colina, the Third Circuit addressed whether, after Whren, the
required standard for a stop based on a readily observed traffic
violation was reasonable suspicion or probable cause: “Was the
Court, shifting gears, now requiring 'probable cause' as the
predicate for a traffic stop? The consensus is to the contrary.
. . . [T]he Second, Sixth, Eighth, Ninth, Tenth and Eleventh
Circuits have all 'construed Whren to require only that the
police have “reasonable suspicion” to believe that a traffic law
has been broken.'” 464 F.3d at 396 (quoting United States v.
Willis, 431 F.3d 709, 723 (9th Cir. 2005) (W. Fletcher, J.,
dissenting)). In accord with every federal circuit to consider
this issue, we hold that reasonable suspicion is the necessarystandard for traffic stops, regardless of whether the traffic
violation was readily observed or merely suspected.
(See footnote 1)
See id. at
396-97 (determining that reasonable suspicion is the appropriate
standard for a traffic stop based on a readily observed traffic
violation); Willis, 431 F.3d at 714-15 (applying reasonable
suspicion standard to a traffic stop based on readily observed
traffic violations); Holeman v. City of New London, 425 F.3d 184,
189 (2d Cir. 2005) (determining that either reasonable suspicion
or probable cause is sufficient to support all types of traffic
stops); United States v. Chanthasouxat, 342 F.3d 1271, 1275-76
(11th Cir. 2003) (concluding traffic stop based on a readily
observed traffic violation would have been reasonable if police
officer had either probable cause or reasonable suspicion);
United States v. Ramstad, 308 F.3d 1139, 1144 (10th Cir. 2002)
(requiring probable cause or reasonable suspicion for a traffic
stop based on a readily observed traffic violation); United
States v. Callarman, 273 F.3d 1284, 1286-87 (10th Cir. 2001)
(same), cert. denied, 535 U.S. 1072, 122 S. Ct. 1950, 152 L. Ed.
2d 853 (2002); United States v. Lopez-Soto, 205 F.3d 1101, 1104-
05 (9th Cir. 2000) (determining that reasonable suspicion is theappropriate standard for a traffic stop based on a readily
observed traffic violation); United States v. Ozbirn, 189 F.3d
1194, 1198-99 (10th Cir. 1999) (requiring either probable cause
or reasonable suspicion that a traffic violation had occurred).
Having determined that reasonable suspicion is the
appropriate standard, we now turn to the facts of this case.
Officer Jones stopped defendant's vehicle for failure to signal
in violation of N.C.G.S. § 20-154(a), which states in pertinent
part:
(a) 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 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.
Defendant argues there is no evidence that the movement of his
vehicle could have affected the operation of another vehicle. We
disagree.
The trial court found that at the time defendant's
vehicle changed lanes without a signal, it was “being operated by
the defendant immediately in front of” Officer Jones' patrol
vehicle. As defendant has not specifically assigned error to
this finding of fact, it is not reviewable on appeal. See State
v. Campbell, 359 N.C. 644, 662, 617 S.E.2d 1, 13 (2005), cert.
denied, 547 U.S. 1073, 126 S. Ct. 1773, 164 L. Ed. 2d 523 (2006).
This finding of fact indicates that defendant's failure to signal
violated N.C.G.S. § 20-154(a), because it is clear that changing
lanes immediately in front of another vehicle may affect the
operation of the trailing vehicle. Officer Jones' observation ofdefendant's traffic violation gave him the required reasonable
suspicion to stop defendant's vehicle. Thus, the trial court's
findings of fact support its conclusion of law that defendant's
constitutional rights were not violated by the stop.
AFFIRMED.
Justice HUDSON concurs in the result only
Justice BRADY dissenting.
I cannot concur in the majority's holding that the law
enforcement officer who stopped defendant's passenger vehicle had
the constitutional authority to do so because the officer had
reasonable, articulable suspicion that defendant violated
N.C.G.S. § 20-154(a). In doing so, the majority relies upon the
trial court's finding of fact that “on February 28th in the early
morning hours Officer Jones . . . observed a vehicle being
operated by the defendant immediately in front of him.”
(Emphasis added). This finding is based solely upon the
following statement made by the officer at the probable cause
hearing: “Upon getting behind the vehicle in question, the
defendant had changed lanes and failed to signal. That's why I
stopped the vehicle.” Moreover, the clear, established, and
indistinguishable precedent of this Court provides that probable
cause is the proper standard in this case. Because there was no
competent evidence presented at the suppression hearing or any
other proceeding tending to show that the movement of defendant's
vehicle affected or might have affected the travel of another
vehicle and that, therefore, defendant's failure to use a turn
signal violated N.C.G.S. § 20-154(a), I would reverse the
decision of the Court of Appeals and the trial court's order andremand the case for further factual findings. Thus, I am
compelled to respectfully dissent.
*** Converted from WordPerfect ***
One of the primary reasons for founding-era hatred of
general warrants and general writs of assistance was that both
writs conferred upon petty officers broad and unfettered
discretion to determine when it was legally proper to conduct asearch. See Original Fourth Amendment at 578, 582. In fact, Sir
Matthew Hale described such warrants as allowing the officer
executing the general warrant to be the judge in his own case.
Matthew Hale, 2 The History of the Pleas of the Crown 150 (George
Wilson ed., Dublin 1778). In the Colonies, the disdain for
general writs of assistance sparked James Otis's speech in the
case of Petition of Lechmere: “I will to my dying day oppose,
with all the powers and faculties God has given me, all such
instruments of slavery on the one hand, and villainy on the
other, as this writ of assistance is.” John Adams, “Abstract of
the Argument” in 2 Legal Papers of John Adams 139-40 (L. Kinvin
Wroth & Hiller B. Zobel eds., 1965); see also Quincy's Mass. Rep.
1761-1772, App. I 395-540 (1865) (detailing Massachusetts cases
on writs of assistance). John Adams described Otis's speech as
the thing that “breathed into this nation the breath of life.”
Letter from John Adams to H. Niles (Jan. 14, 1818), in X The
Works of John Adams 276 (Boston, Little, Brown & Co. 1856).
After the Revolution, many states inserted clauses
banning general warrants into the enumeration of rights in their
constitutions. See History and Development at 79-82 (discussing
state provisions). For instance, the North Carolina Constitution
has provided a prohibition against general warrants since the
first constitution in 1776: “General warrants, whereby any
officer or other person may be commanded to search suspected
places without evidence of the act committed, or to seize any
person or persons not named, whose offense is not particularly
described and supported by evidence, are dangerous to liberty and
shall not be granted.” N.C. Const. art. I, § 20. During the
state legislatures' debates on ratification of the United StatesConstitution, the lack of a bill of rights, specifically the
absence of a provision against general warrants, was discussed in
detail. See History and Development at 92-97. Eventually, a
search and seizure amendment was proposed by James Madison in the
United States Congress during the drafting of the Bill of Rights.
See id. at 97-100. Finally, what we now know as the Fourth
Amendment to the United States Constitution was submitted to the
states and thereafter ratified:
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but
upon probable cause, supported by oath or
affirmation, and particularly describing the
place to be searched, and the persons or
things to be seized.
U.S. Const. amend. IV.
Fourth Amendment jurisprudence initially developed
slowly in the new nation. However, as urban crime became a
concern of the federal and state governments, prompting the
formation of full-time police forces, Fourth Amendment
jurisprudence began to take shape with an increasing emphasis on
warrantless searches and seizures. See Original Fourth Amendment
at 724-34 (discussing modern Fourth Amendment doctrine); see also
History and Development at 106-43 (detailing early Fourth
Amendment precedent). Three Supreme Court of the United States
opinions on Fourth Amendment doctrine are apposite to the present
case: Whren v. United States, 517 U.S. 806 (1996); Delaware v.
Prouse, 440 U.S. 648 (1979); and Carroll v. United States, 267
U.S. 132 (1925).
The issue in Carroll was the validity of warrantless
automobile stops in the enforcement of the National ProhibitionAct. 267 U.S. at 143. Mentioning the similarities between
searches for contraband on ships and searches for contraband in
automobiles,
(See footnote 2)
the Court held a warrant was not required to search
an automobile under the circumstances of the case. Id. at 149-
53. In making this determination, the Court relied upon various
customs statutes which allowed warrantless searches of ships,
such as 1 Stat. 29, which was passed by the same Congress that
proposed the Fourth Amendment for ratification. Id. (citing Act
of July 31, 1789, Sess. I, ch. 5, Sec. 24, 1 Stat. 29, 43). The
Court in Carroll nonetheless limited warrantless automobile
searches by clarifying: “[T]hose lawfully within the country,
entitled to use the public highways, have a right to free passage
without interruption or search unless there is known to a
competent official authorized to search, probable cause for
believing that their vehicles are carrying contraband or illegal
merchandise.” 267 U.S. at 154.
Over fifty years later, the Court continued to develop
the jurisprudence surrounding warrantless automobile seizures and
searches in Delaware v. Prouse, in which the Court held an
officer's stop of an automobile unconstitutional because the stop
was performed without an articulable and reasonable suspicionthat the driver was unlicensed. 440 U.S. at 663. The Court
stated:
[E]xcept in those situations in which there
is at least articulable and reasonable
suspicion that a motorist is unlicensed or
that an automobile is not registered, or that
either the vehicle or an occupant is
otherwise subject to seizure for violation of
law, stopping an automobile and detaining the
driver in order to check his driver's license
and the registration of the automobile are
unreasonable under the Fourth Amendment.
Id.
The evolution of this concept was solidified in Whren
v. United States, when the Supreme Court held that if an officer
has probable cause to believe a traffic violation has occurred,
the officer's stop of the driver does not run afoul of the Fourth
Amendment. 517 U.S. at 811-19. This is true even if the
asserted traffic violation was merely a pretext hiding the
officer's subjective reason for the stop. Id. Certainly
applicable to the issue sub judice is that the Supreme Court
noted that probable cause is the “traditional justification” for
police intrusion. 517 U.S. at 817.
Another issue that has frequently arisen in Fourth
Amendment jurisprudence is equally applicable to traffic stop
cases: When is it permissible to seize a person in the absence
of probable cause that a crime has occurred? Beginning with
Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court of the United
States began developing the idea that in certain situations, a
suspect may be stopped for further investigation based upon a
reasonable, articulable suspicion that criminal activity is
afoot. In Terry, a Cleveland, Ohio police detective observed two
men, Chilton and Terry, standing at a street corner. Id. at 5. As he continued to observe the men, he noted that one would
“leave the other one and walk . . . past some stores,” turn
around, and then walk back toward the street corner, “peering in
the store window again” before conferring with his cohort at the
street corner. Id. at 6. Once he returned, the other would pace
down the street in the same manner. Id. The detective observed
the two men doing this “ritual alternately between five and six
times apiece--in all, roughly a dozen trips.” Id. The two men
then conferred with a third man. Id. The third man left, and
the two men walked together and stopped in front of Zucker's
store, where they once again conversed with the third man whom
the officer observed conferring with them earlier. Id. The
detective then approached the three men, “identified himself as a
police officer and asked for their names.” 392 U.S. at 6-7. The
detective then proceeded to pat down the outside of Terry's
clothing and felt a pistol “[i]n the left breast pocket of
Terry's overcoat.” Id. at 7. The detective then discovered a
firearm “in the outer pocket of Chilton's overcoat.” Id. The
issue in Terry was whether the admission of the firearm found on
Terry as evidence against him violated his rights under the
Fourth Amendment to the United States Constitution. 392 U.S. at
8.
The Court, in determining that the admission of the
firearm did not violate Terry's Fourth Amendment rights, first
reaffirmed that “'[n]o right is held more sacred, or is more
carefully guarded, by the common law, than the right of every
individual to the possession and control of his own person, free
from all restraint or interference of others, unless by clear and
unquestionable authority of law.'” Id. at 9 (quoting Union Pac.Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891)). The Court noted
that “whenever a police officer accosts an individual and
restrains his freedom to walk away, he has 'seized' that person.”
Id. at 16. After determining that the “stop and frisk” did not
violate Terry's rights, the Court stated:
Each case of this sort will, of course, have
to be decided on its own facts. We merely
hold today that where a police officer
observes unusual conduct which leads him
reasonably to conclude in light of his
experience that criminal activity may be
afoot and that the persons with whom he is
dealing may be armed and presently dangerous,
where in the course of investigating this
behavior he identifies himself as a policeman
and makes reasonable inquiries, and where
nothing in the initial stages of the
encounter serves to dispel his reasonable
fear for his own or others' safety, he is
entitled for the protection of himself and
others in the area to conduct a carefully
limited search of the outer clothing of such
persons in an attempt to discover weapons
which might be used to assault him.
Id. at 30 (emphasis added).
The Court continued to expound upon the doctrine
articulated in Terry in subsequent cases. In Sibron v. New York,
392 U.S. 40 (1968), a companion case to Terry, the Court found
that a police officer lacked reasonable suspicion that a suspect
was involved in narcotics sales when the officer's conclusion was
based merely on having observed the suspect speak at length with
known narcotics addicts. Id. at 64. In so deciding, the Court
noted: “The police officer is not entitled to seize and search
every person whom he sees on the street or of whom he makes
inquiries. Before he places a hand on the person of a citizen in
search of anything, he must have constitutionally adequate,
reasonable grounds for doing so.” Id. In United States v. Sokolow, 490 U.S. 1 (1989), the
defendant had been seized at an airport on suspicion of criminal
activity involving controlled substances. The Court spelled out
the facts which amounted to reasonable suspicion to seize the
defendant for further investigation:
Paying $2,100 in cash for two airplane
tickets is out of the ordinary, and it is
even more out of the ordinary to pay that sum
from a roll of $20 bills containing nearly
twice that amount of cash. Most business
travelers, we feel confident, purchase
airline tickets by credit card or check so as
to have a record for tax or business
purposes, and few vacationers carry with them
thousands of dollars in $20 bills. We also
think the agents had a reasonable ground to
believe that respondent was traveling under
an alias; the evidence was by no means
conclusive, but it was sufficient to warrant
consideration. While a trip from Honolulu to
Miami, standing alone, is not a cause for any
sort of suspicion, here there was more:
surely few residents of Honolulu travel from
that city for 20 hours to spend 48 hours in
Miami during the month of July.
Id. at 8-9 (footnote omitted). In Sokolow, the Court noted the
difference between seizures of persons based upon probable cause
and reasonable suspicion:
In Terry v. Ohio, we held that the police can
stop and briefly detain a person for
investigative purposes if the officer has a
reasonable suspicion supported by articulable
facts that criminal activity “may be afoot,”
even if the officer lacks probable cause.
The officer, of course, must be able to
articulate something more than an “inchoate
and unparticularized suspicion or 'hunch.'”
The Fourth Amendment requires “some minimal
level of objective justification” for making
the stop. That level of suspicion is
considerably less than proof of wrongdoing by
a preponderance of the evidence. We have
held that probable cause means “a fair
probability that contraband or evidence of a
crime will be found,” and the level of
suspicion required for a Terry stop is
obviously less demanding than that for
probable cause. Id. at 7 (citations omitted).
It is in light of this rich historical background and
well-established judicial authority that I am compelled to
dissent.
The principle of stare decisis “is a maxim to be held
forever sacred.” Commonwealth v. Coxe, 4 U.S. (4 Dall.) 170, 192
(Pa. 1800); see also Allyson K. Duncan & Frances P. Solari, North
Carolina Appellate Advocacy § 1-9, at 8 (1989) (“[T]he principle
of stare decisis proclaims, in effect, that where a principle of
law has become settled by a series of decisions, it is binding on
courts and should be followed in similar cases.”). It has often
been stated that “[t]his Court has never overruled its decisions
lightly. No court has been more faithful to stare decisis.”
Rabon v. Rowan Mem'l Hosp., Inc., 269 N.C. 1, 20, 152 S.E.2d 485,498 (1967). Nevertheless, today the majority has failed to
adhere to this high principle, thereby casting doubt on the
lasting precedential value of this Court's decisions.
Rather than rely upon the controlling authority of this
Court's prior decisions, the majority has sought out non-
authoritative opinions of federal circuit courts with which to
justify its departure from our case law. This Court has stated:
State courts are no less obligated to protect
and no less capable of protecting a
defendant's federal constitutional rights
than are federal courts. In performing this
obligation a state court should exercise and
apply its own independent judgment, treating,
of course, decisions of the United States
Supreme Court as binding and according to
decisions of lower federal courts such
persuasiveness as these decisions might
reasonably command.
State v. McDowell, 310 N.C. 61, 74, 310 S.E.2d 301, 310 (1984),
cert. denied, 476 U.S. 1165 (1986). We have no need to resort to
decisions of lower federal courts when this Court's precedent
speaks directly and clearly on the issue. When this Court has
spoken on an issue, our lower courts should be able to consider
the law settled by the opinions of this Court without the need to
resort to time-consuming and tedious searches of the decisions of
every other court in the nation in anticipation that the law of
North Carolina might change on appeal.
Moreover, thorough research of the federal circuit
court cases cited by the majority shows that reliance upon them
is misplaced. Nearly every federal circuit case cited by the
majority either relies directly on Berkemer v. McCarty, 468 U.S.
420 (1984), or cites as authority a circuit court decision that
relies on Berkemer for the proposition that reasonable suspicion
is the only requirement, regardless of the aim of the trafficstop.
(See footnote 3)
One case cited by the majority, United States v. Willis,
431 F.3d 709, 714 (9th Cir. 2005), goes so far as to
parenthetically state that Berkemer held “that a traffic stop
requires reasonable suspicion.” Even a cursory reading of
Berkemer would disclose that Berkemer did not address the issue
of the required level of suspicion to stop a vehicle. Instead,
the relevant issue in Berkemer was whether an individual detained
in a routine traffic stop was entitled to Miranda warnings. See
Berkemer, 468 U.S. at 422-23. In analyzing this Fifth Amendment
issue, the Court noted first that traffic stops are usually
brief, and second that “circumstances associated with the typical
traffic stop are not such that the motorist feels completely at
the mercy of the police.” Id. at 437-38. Therefore, the Court
wrote, “In both of these respects, the usual traffic stop is more
analogous to a so-called 'Terry stop,' than to a formal arrest.”
Id. at 439 (internal citation omitted). Because the Court did
not require Miranda warnings during Terry stops, the Court
likewise held that Miranda warnings are not required for persons
temporarily detained during routine traffic stops. Id. at 440.
In making this analogy the Court stated: No more is implied by this analogy than
that most traffic stops resemble, in duration
and atmosphere, the kind of brief detention
authorized in Terry. We of course do not
suggest that a traffic stop supported by
probable cause may not exceed the bounds set
by the Fourth Amendment on the scope of a
Terry stop.
Id. at 439 n.29. The circuit courts cited by the majority have
certainly assumed much more from this analogy, even turning it
into a “holding” that reasonable suspicion is the standard for
all traffic stops. Thus, the majority's analysis stands upon
cases that perpetuate a faulty reading of a Supreme Court of the
United States opinion.
(See footnote 4)
The better course of action would have
been to simply follow this Court's precedent in Ivey.
Although the law of this State was, before today's
decision, well settled that probable cause was required to stop
defendant for a purported violation of N.C.G.S. § 20-154(a), the
State made a lengthy and impassioned argument that probable cause
was not required. The State argued, and the majority has agreed,
that the standard for traffic stops in North Carolina is
reasonable suspicion. In fact, the Assistant Attorney General
representing the State at oral arguments said: “I am at war with
those who say that probable cause is the standard rather than
reasonable suspicion!”
The State is correct that in many situations all that
would be required to seize a vehicle and its occupants would be a
reasonable, articulable suspicion that criminal activity is
afoot. For instance, law enforcement may observe certain factsthat would, in the totality of the circumstances, lead a
reasonable officer to believe a driver is impaired, such as
weaving within the lane of travel or driving significantly slower
than the speed limit. It would be difficult in such a situation,
when no other traffic violation occurs, for an officer to
formulate probable cause that the driver is impaired. In such
circumstances, an officer would have reasonable suspicion to
believe that criminal activity (i.e. driving while impaired) was
afoot and could stop the vehicle to make reasonable inquiry. The
instances in which this Court has applied a reasonable suspicion
standard rather than requiring probable cause are those in which
further investigation is warranted to confirm or contradict the
officer's reasonable suspicion that criminal activity is afoot.
For instance, in State v. Mitchell, this Court found an
officer had reasonable, articulable suspicion to believe that the
defendant was engaged in criminal activity when he accelerated
through a driver's license checkpoint even after being instructed
to stop by the officer. 358 N.C. 63, 69-70, 592 S.E.2d 543, 546-
47 (2004). In State v. Foreman, this Court held that an officer
had reasonable suspicion to make further inquiries of the
occupants of a vehicle that abruptly turned before reaching a
roadblock and who were later found parked in a nearby driveway
“bent or crouched down inside the car.” 351 N.C. 627, 628-29,
527 S.E.2d 921, 922-23 (2000). Frequently, this Court has
described those stops that can be made upon the basis of a
reasonable, articulable suspicion as investigatory stops. See
State v. Campbell, 359 N.C. 644, 664, 617 S.E.2d 1, 14 (2005),
cert. denied, 547 U.S. 1073 (2006); State v. Hughes, 353 N.C.
200, 206-07, 539 S.E.2d 625, 630 (2000); State v. Steen, 352 N.C.227, 238-39, 536 S.E.2d 1, 8-9 (2000), cert. denied, 531 U.S.
1167 (2001); State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67,
70 (1994).
Thus, this Court's precedent makes it clear that in
many situations in which further investigation is warranted by
the facts, an officer may stop a vehicle on the basis of a
reasonable, articulable suspicion that criminal activity is
afoot. However, in the case sub judice, no further investigation
would have been necessary. The officer indicated that he stopped
defendant on the basis of his failure to use his turn signal.
Either defendant's actions ran afoul of N.C.G.S. § 20-154(a) or
they did not. There was nothing further for the officer to
investigate. Because the officer made this stop on the basis of
a purported, clearly perceivable, readily observable traffic
violation in which further investigation would have been of no
value in determining whether a violation of N.C.G.S. § 20-154(a)
occurred, the officer was required to have probable cause to
believe that defendant violated a motor vehicle law before
seizing defendant.
The trial court's findings of fact were also
insufficient to support its conclusion of law that Officer Jones
had probable cause to stop defendant for a violation of N.C.G.S.
§ 20-154(a), which provides in pertinent part:
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.
N.C.G.S. § 20-154(a) (2007) (emphasis added). The trial court
made no finding of fact whether any vehicle, including Officer
Jones's patrol vehicle, may have been affected by defendant's
changing lanes. The mere finding by the trial court that Officer
Jones's vehicle was immediately behind defendant is not identical
to the required finding that Officer Jones's patrol vehicle might
have been affected by the movement of defendant's vehicle.
The trial court concluded as a matter of law that “the
stop by the officer was an investigatory stop in regards to a
moving violation that he observed committed in his presence.” As
noted above, the idea that the officer would have needed to stop
defendant in order to make reasonable inquiries whether defendant
violated N.C.G.S. § 20-154(a) borders upon the farcical. Either
defendant violated the statute in the presence of the officer or
he did not. No amount of further investigation was necessary to
allow the officer to revisit what he had just observed.
In Ivey, this Court noted that there was no indication
in the record that another vehicle or any pedestrian might have
been affected by the defendant's turn at a T-intersection that
only permitted a right turn. 360 N.C. at 565, 633 S.E.2d at 461-
62. The only distinction between the instant case and Ivey is
one without a difference. The fact that the defendant in Ivey
made a right turn without signaling when only a right turn was
available was not dispositive of the case. Rather, the total
lack of any evidence that the defendant's actions violated
N.C.G.S. § 20-154(a) controlled the case's disposition.
Similarly, in this case, there is no such competent evidence.
Ivey controls the instant case, and at the very least this case
should be remanded to the trial court with instructions to holdanother hearing to make a proper determination whether Officer
Jones's vehicle was or might have been affected by defendant's
movement. If not, evidence seized by Officer Jones should have
been suppressed by the trial court. See Wong Sun v. United
States, 371 U.S. 471, 484 (1963) (“The exclusionary prohibition
extends as well to the indirect as the direct products of such
invasions.”); Mapp v. Ohio, 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).
are not mere second-class rights but belong
in the catalog of indispensable freedoms.
Among deprivations of rights, none is so
effective in cowing a population, crushing
the spirit of the individual and putting
terror in every heart. Uncontrolled search
and seizure is one of the first and most
effective weapons in the arsenal of every
arbitrary government. And one need only
briefly to have dwelt and worked among a
people possessed of many admirable qualities
but deprived of these rights to know that the
human personality deteriorates and dignity
and self-reliance disappear where homes,
persons and possessions are subject at any
hour to unheralded search and seizure by the
police.
But the right to be secure against
searches and seizures is one of the most
difficult to protect. Since the officers are
themselves the chief invaders, there is no
enforcement outside of court.
Brinegar v. United States, 338 U.S. 160, 180-181 (1949) (Jackson,
J., dissenting). I cannot agree that a brief, cryptic, and
confusing statement by a law enforcement officer, which conveys
insufficient information whether a purported traffic violationoccurred, is a sufficient factual basis to support a finding of
probable cause. The effect of the majority opinion is to
retroactively issue a general warrant to Officer Jones, allowing
him to be the judge in his own case, thereby “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.” Barnard, __ N.C. at __, 658
S.E.2d at 646 (Brady, J., dissenting). Today, the Court has
fallen disappointingly short of enforcing the dictates of the
Fourth Amendment and of Article I, Section 20 of the North
Carolina Constitution and has disregarded our longstanding
precedent. I therefore respectfully dissent.
Justice TIMMONS-GOODSON joins in this dissenting
opinion.
Footnote: 1 Our holding is consistent with McClendon and Ivey.
Neither case concerned a factual situation in which the
distinction between probable cause and reasonable suspicion was
relevant. As in Whren, the issue in McClendon was not whether
the officer had probable cause to stop the defendant's vehicle,
but what weight to give the officer's subjective motivations.
350 N.C. at 635-36, 517 S.E.2d at 131-32. Although we used the
term “probable cause” in Ivey, the facts of that case make it
clear that the officer did not have probable cause or reasonable
suspicion to stop the defendant's vehicle. 360 N.C. at 563, 565-
66, 633 S.E.2d at 460-62. To the extent language in Ivey may be
interpreted as requiring probable cause, we specifically disavow
that interpretation. In short, under this Court's post-Whren
cases, probable cause is sufficient, but not necessary, for a
traffic stop.
Footnote: 2 The Court declined to apply the same analogy in a later
Fourth Amendment case when a defendant sought exclusion of
contraband found on a ship, claiming the same standard should
apply to ships as to automobiles. In United States v.
Villamonte-Marquez, the Court held it was constitutional for
customs officers to board any vessel at any time and any place
without any suspicion of wrongdoing in order to examine the
vessel's manifest or other documents. 462 U.S. 579, 580-81
(1983). In doing so, the Court noted that “important factual
differences between vessels located in waters offering ready
access to the open sea and automobiles on principal thoroughfares
in the border area” require a different result. Id. at 588; see
also Martin J. Norris, 1 The Law of Seamen § 10:43, at 403-09
(4th ed. 1985).
Footnote: 3 At times the path back to a misapplication of Berkemer
twists and turns through several intermediary cases, a thorough
presentation of which would only serve to obfuscate, rather than
clarify. The only federal circuit court case cited by the
majority that does not rely on a faulty interpretation of
Berkemer is Holeman v. City of New London, 425 F.3d 184 (2d Cir.
2005). Holeman cites both Whren and United States v. Arvizu, 534
U.S. 266 (2002), for the proposition that “[t]he Fourth Amendment
requires that an officer making such a stop have probable cause
or reasonable suspicion that the person stopped has committed a
traffic violation or is otherwise engaged in or about to be
engaged in criminal activity.” Holeman, 425 F.3d at 189-90.
Neither Whren nor Arvizu supports the contention that reasonable
suspicion of a traffic violation (as opposed to a crime) is a
sufficient basis upon which to stop a vehicle.
Footnote: 4 Moreover, the majority simply makes a blanket statement
that reasonable suspicion is the proper standard, without
conducting the required balancing test. See United States v.
Place, 462 U.S. 696, 703 (1983).
Footnote: 5 The majority asserts: “As defendant has not specifically
assigned error to this finding of fact, it is not reviewable on
appeal.” Assuming arguendo that defendant's assignments of
error are not specific enough as to this finding of fact, this
Court should invoke Rule 2 of the North Carolina Rules of
Appellate Procedure to “prevent manifest injustice to a party,”
N.C. R. App. P. 2, as this “[issue raises] important
constitutional questions.” State v. Barden, 356 N.C. 316, 332,
572 S.E.2d 108, 120 (2002), cert. denied, 538 U.S. 1040 (2003).