Chapter 2 Appendix: Case Summaries

Arrests, Investigative Stops, and Related Issues

Jurisdiction

Territorial Jurisdiction

(This topic is discussed in the chapter text under “Limits on Law Enforcement Officers’ Jurisdiction,” “Territorial Jurisdiction.”)

Generally

NORTH CAROLINA SUPREME COURT

State v. Eubanks, 283 N.C. 556 (1973). Illegal, although constitutional, arrest for impaired driving did not require suppression of evidence found after the arrest. [Author’s note: G.S. 15A-974(a)(2) did not exist when this case was decided.] See generally Virginia v. Moore, 553 U.S. 164 (Virginia law enforcement officers who had probable cause to arrest defendant for a misdemeanor did not violate Fourth Amendment when they arrested him and conducted a search incident to arrest, although state law did not authorize an arrest).

NORTH CAROLINA COURT OF APPEALS

State v. Bernard, 236 N.C. App. 134 (2014). The court ruled that North Carolina A&T University (A&T) campus police had territorial jurisdiction to execute a search warrant at the defendant’s off-campus private residence when A&T had entered into a mutual aid agreement with local police. The agreement gave campus police authority to act off-campus concerning offenses committed on campus. The statutes governing unauthorized access to a computer—the crime in question—provide that any offense “committed by the use of electronic communication may be deemed to have been committed where the electronic communication was originally sent or where it was originally received.” (See G.S. 14-453.2.) The defendant “sent” an “electronic communication” when she accessed the email account of an A&T employee and sent a false email. The court concluded that the offenses were “committed on Campus” because she sent the email through the A&T campus computer servers.

State v. Scruggs, 209 N.C. App. 725 (2011). The court ruled that even if a stop and arrest of the defendant by campus police officers while off campus violated G.S. 15A-402(f), the violation was not substantial under G.S. 15A-974 to require the exclusion of evidence resulting from the stop and arrest, which were constitutionally authorized.

State v. Locklear, 136 N.C. App. 716 (2000). A Robeson County deputy sheriff called for assistance in responding to a stabbing at a home three to four miles outside the Red Springs city limits. A Red Springs law enforcement officer responded to the call and was later assaulted by the defendant there. The defendant argued that because the Red Springs officer was outside his territorial jurisdiction (a city officer’s jurisdiction is generally limited to one mile beyond a city’s limits) when the assault occurred, the officer was not acting as an officer and thus the defendant could not be convicted of assault with a firearm on a law enforcement officer. The court ruled that a mutual aid agreement between the Robeson County Sheriff’s Department and the Red Springs Police Department permitted the officer to respond to the request for assistance, based on the agreement’s permitting an oral request to be made for an “emergency.” The court ruled that an emergency existed: the deputy sheriff was transporting a prisoner when he received the order to investigate the stabbing, and he was the only deputy in the vicinity of the residence.

State v. Pearson, 131 N.C. App. 315 (1998). An officer arrested the defendant for DWI. When an Intoxilyzer malfunctioned, he took the defendant outside the officer’s territorial jurisdiction to administer the Intoxilyzer test. The court ruled, relying on State v. Satterfield, 300 N.C. 621 (1980), that the defendant’s failure to file an affidavit with his motion to suppress the chemical test result, based on an allegation of a substantial statutory violation, was a ground to deny the motion. The court also ruled, relying on State v. Afflerback, 46 N.C. App. 344 (1980), that even if the officer’s actions were a statutory violation (which the court said it did not believe to be true), it was not a substantial violation to require suppression of the chemical test result under G.S. 15A-974. [Author’s note: G.S. 20-38.3(2), enacted in 2006, authorizes an officer to take a defendant anywhere in the state for a chemical analysis.]

State v. Gwyn, 103 N.C. App. 369 (1991). An officer arrested the defendant for impaired driving just inside the boundary of the state of Virginia after he had seen the defendant driving in North Carolina. However, the officer did not know that he was in Virginia when he arrested the defendant. The court ruled that although the arrest was illegal, it was constitutionally valid because it was supported by probable cause. Evidence seized as a result of the arrest—the officer’s detection of alcohol on the defendant’s breath and the Breathalyzer test reading—was admissible under the balancing test of G.S. 15A‑974(2). [Author’s note: This statute was recodified as G.S. 15A-974(a)(2) in S.L. 2011-6, which added a good-faith exception to the application of G.S. 15A-974.] The defendant’s driving, which was a menace to public safety, outweighed the defendant’s illegal arrest under the balancing test of G.S. 15A-974(a), and the officer’s violation was neither extensive nor willful because he did not know the defendant was in Virginia.

State v. Afflerback, 46 N.C. App. 344 (1980). No federal or state constitutional right was violated when Raleigh police officers undertook undercover drug transactions with a defendant in Zebulon (and therefore presumably outside the officers’ jurisdiction). [Author’s note: North Carolina’s statutory exclusionary rule in G.S. 15A‑974 was not discussed.]

State v. Harris, 43 N.C. App. 346 (1979). Even assuming that a Stokes County deputy sheriff’s stop of a defendant in Forsyth County was included within the term “arrest” in G.S. 15A-402(b) and therefore was unlawful, it was constitutional; any possible violation of G.S. 15A-402(b) was not “substantial” under G.S. 15A-974 so as to require that evidence be excluded under North Carolina’s statutory exclusionary rule.

State v. Mangum, 30 N.C. App. 311 (1976). Although a city officer’s arrest of a defendant three miles outside the city violated G.S. 15A-402(b), the arrest was constitutionally valid because it was supported by probable cause. [Author’s note: North Carolina’s statutory exclusionary rule in G.S. 15A-974 was not discussed.]

Arrest after Continuous Flight (Hot Pursuit)

(This topic is discussed in the chapter text under “Arrest after Continuous Flight (Hot Pursuit).”)

North Carolina Court of Appeals

State v. Melvin, 53 N.C. App. 421 (1981). A Burlington police officer’s arrest of the defendants 1.67 miles outside the city boundary was justified because the defendants were in “immediate and continuous flight” (G.S. 15A-402(d)) from Burlington after they had committed an armed robbery.

Private Person’s Authority to Detain

(This topic is discussed in the chapter text under “Private Person’s Authority to Detain.”)

NORTH CAROLINA SUPREME COURT

State v. Wall, 304 N.C. 609 (1982). A convenience store cashier (the defendant) shot at a car leaving the store’s parking lot with a person inside the car who had committed misdemeanor larceny in the store in the cashier’s presence. The court ruled that the shooting was not justified under a private person’s authority to detain, because the cashier stated that he fired the weapon to force the victim to bring the beer back—not to prevent the victim from leaving. The court alternatively ruled that even if the cashier’s acts constituted an attempt to detain, deadly force was unreasonable because even a law enforcement officer would not have had authority to shoot at the fleeing misdemeanant under these circumstances.

NORTH CAROLINA COURT OF APPEALS

State v. Ataei-Kachuei, 68 N.C. App. 209 (1984). The court ruled that the jury should consider whether the defendant used reasonable force as a private person when he shot at a car to detain its driver, who had committed larceny from the defendant and a felonious assault with his car. [Author’s note: The court’s ruling is questionable because it appeared that the defendant’s use of deadly force was unreasonable as a matter of law because (1) he shot at the car as it was moving away from him, (2) there was no justification (such as self-defense) in using deadly force, and (3) it was unclear whether even a law enforcement officer in this case would have been entitled under G.S. 15A-401(d)(2) to use deadly force to arrest the driver, a fleeing felon. And even if an officer properly could have used deadly force to prevent an escape from an arrest under the same circumstances, that should not make “reasonable” a private person’s use of deadly force to detain.]

The Authority to Make an Investigative Stop: Reasonable Suspicion

(This topic is discussed in the chapter text under “The Authority to Make an Investigative Stop: Reasonable Suspicion.”)

Determination of Reasonable Suspicion

Generally

United States Supreme Court

Navarette v. California, 572 U.S. 393 (2014). The Court, in what it termed a “close case,” ruled that an officer had reasonable suspicion to make a vehicle stop based on a 911 call. After a 911 caller reported that a truck had run her off the road, a police officer located the truck the caller identified and executed a traffic stop. As officers approached the truck, they smelled marijuana. A search of the truck bed revealed 30 pounds of marijuana. The defendants moved to suppress the evidence, arguing that the traffic stop violated the Fourth Amendment because the officer lacked reasonable suspicion of criminal activity. Assuming based on the court record that the 911 call was anonymous, the Court found that it bore adequate indicia of reliability, so therefore the officer could credit the caller’s account that the truck ran her off the road. The Court explained: “By reporting that she had been run off the road by a specific vehicle—a silver Ford F-150 pickup, license plate 8D94925—the caller necessarily claimed eyewitness knowledge of the alleged dangerous driving. That basis of knowledge lends significant support to the tip’s reliability.” Id. at 399. The Court noted that in this respect, the case contrasted with Florida v. J. L., 529 U.S. 266 (2000), where the tip did not provide a basis to conclude that the tipster had actually seen the gun reportedly possessed by the defendant. It continued: “A driver’s claim that another vehicle ran her off the road, however, necessarily implies that the informant knows the other car was driven dangerously.” Id. at 399. The Court noted evidence suggesting that the caller reported the incident soon after it occurred and stated: “That sort of contemporaneous report has long been treated as especially reliable.” Id. at 399. Again contrasting the case with J.L., the Court noted that in J.L., there was no indication that the tip was contemporaneous with the observation of criminal activity or made under the stress of excitement caused by a startling event. The Court determined that another indicator of veracity is the caller’s use of the 911 system, which allows calls to be recorded and law enforcement to verify information about the caller. Thus, “a reasonable officer could conclude that a false tipster would think twice before using such a system . . . [and a] caller’s use of the 911 system is therefore one of the relevant circumstances that, taken together, justified the officer’s reliance on the information reported in the 911 call.” But the Court cautioned: “None of this is to suggest that tips in 911 calls are per se reliable.” Id. at 401.

The Court noted that a reliable tip will justify an investigative stop only if it creates reasonable suspicion of criminal activity. It then determined that the caller’s report of being run off the roadway created reasonable suspicion of an ongoing crime such as impaired driving. It stated:

The 911 caller . . . reported more than a minor traffic infraction and more than a conclusory allegation of drunk or reckless driving. Instead, she alleged a specific and dangerous result of the driver’s conduct: running another car off the highway. That conduct bears too great a resemblance to paradigmatic manifestations of drunk driving to be dismissed as an isolated example of recklessness. Running another vehicle off the road suggests lane positioning problems, decreased vigilance, impaired judgment, or some combination of those recognized drunk driving cues. And the experience of many officers suggests that a driver who almost strikes a vehicle or another object—the exact scenario that ordinarily causes “running [another vehicle] off the roadway”—is likely intoxicated. As a result, we cannot say that the officer acted unreasonably under these circumstances in stopping a driver whose alleged conduct was a significant indicator of drunk driving. Id. at 403 (citations omitted).

[Author’s note: The Court’s ruling raises questions about the continuing validity of prior North Carolina cases that had found insufficient evidence or reasonable suspicion based on an anonymous 911 caller, including State v. Blankenship, 230 N.C. App. 113 (2013), and State v. Peele, 196 N.C. App. 668 (2009).]

United States v. Arvizu, 534 U.S. 266 (2002). A Border Patrol agent stopped a vehicle in Arizona near the Arizona-Mexico border to investigate illegal activity, including drug and alien smuggling. The Court reviewed the detailed facts in this case and ruled that the agent had reasonable suspicion to stop the vehicle. (See the Court’s discussion of the facts in its opinion.) The Court expressly disavowed the method of analysis of the Ninth Circuit Court of Appeals, which had ruled that seven of the ten factors used by the trial court in considering the legality of the stop carried little or no weight in a reasonable suspicion analysis. The Court stated that the Ninth Circuit’s approach departed sharply from the totality of circumstances analysis mandated by such cases as United States v. Sokolow, 490 U.S. 1 (1989). The Ninth Circuit appeared to believe that each of the agent’s observations that was by itself readily susceptible to an innocent explanation was entitled to no weight. The Court stated that although each of the factors alone is susceptible to innocent explanation, and some factors are more probative than others, taken together they established reasonable suspicion to stop the vehicle.

Florida v. J.L., 529 U.S. 266 (2000). An anonymous phone call to a police department reported that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun. There was no audio recording of the call, and nothing was known about the caller. Soon thereafter, officers went to the bus stop and saw three black males there. One of the three (the defendant) was wearing a plaid shirt. Officers did not see a firearm, and the defendant did not make any threatening or unusual movements. One officer stopped and frisked the defendant and seized a gun from his pocket. The Court ruled, distinguishing Alabama v. White, 496 U.S. 325 (1990) (reasonable suspicion to make investigative stop was supported by anonymous call predicting suspect’s future conduct and officers’ corroboration of caller’s information), and Adams v. Williams, 407 U.S. 143 (1972) (tip from known informant was sufficient to support stop and frisk for weapon), that this information was insufficient to support reasonable suspicion to make an investigative stop and frisk of the defendant. The Court concluded that the tip in this case lacked the moderate indicia of reliability present in Alabama v. White and essential to the Court’s ruling in that case. The tip was a bare report by an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing that he had inside information about the defendant. Responding to the State’s argument that the tip was reliable because its description of the suspect’s visible attributes proved accurate, the Court stated that the reasonable suspicion at issue in this case required that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person. The Court also rejected the argument that there should be a “firearm exception” to standard reasonable suspicion analysis.

The Court specifically reserved the issue of whether a report of a person carrying a bomb must bear the same indicia of reliability as a report of a person carrying a firearm. The Court stated that it did not hold that public safety officials in places where the reasonable expectation of privacy is diminished, such as airports or schools, are prohibited from conducting protective searches with information that would be insufficient to justify searches elsewhere. The Court also stated that the requirement that an anonymous tip bear standard indicia of reliability to justify a stop in no way diminishes an officer’s authority, in accord with Terry v. Ohio, 392 U.S. 1 (1968), to conduct a protective search of a person who has already been legitimately stopped. Its ruling in this case concerns only an officer’s authority to make the initial stop. The Court restated its ruling that an anonymous tip lacking indicia of reliability of the kind contemplated in Adams v. Williams and Alabama v. White does not justify a stop and frisk whenever and however it alleges the illegal possession of a firearm.

Illinois v. Wardlow, 528 U.S. 119 (2000). Uniformed officers A and B were driving the last car of a four-car caravan of officers who were converging on an area known for heavy drug trafficking to investigate drug transactions. They anticipated encountering a large number of people in the area, including drug customers and people serving as lookouts. Officer A saw the defendant standing next to a building and holding an opaque bag. The defendant looked in the direction of the officers and fled. Officers A and B turned their car, watched the defendant as he ran through a gangway and an alley, and eventually cornered him on the street. Officer A left his car and stopped the defendant. The Court ruled that these facts—the defendant’s unprovoked flight on seeing the officers and his presence in an area of heavy drug trafficking—provided reasonable suspicion to stop the defendant to investigate criminal activity. See also United States v. Gordon, 231 F.3d 750 (11th Cir. 2000) (defendant’s making eye contact with officers, thereafter moving quickly toward an adjacent car, entering that car, and then driving away in the opposite direction from the officers, coupled with the officers’ knowledge of frequent unlawful activity in neighborhood where defendant had been standing, supported reasonable suspicion to stop defendant; court’s ruling relied on Wardlow and stated that headlong flight is not always required—running or walking very quickly was sufficient in this case to establish unprovoked flight from the officers); United States v. Jordan, 232 F.3d 447 (5th Cir. 2000) (defendant’s running at full sprint from grocery store in high crime area, while looking back over his shoulder, provided reasonable suspicion under Wardlow to make investigative stop for robbery of store).

Ornelas v. United States, 517 U.S. 690 (1996). The Court ruled that an appellate court must exercise de novo review of a trial court’s determination of whether reasonable suspicion or probable cause existed. However, the Court noted, an appellate court should review findings of historical fact (that is, the facts underlying the issue of the existence of reasonable suspicion or probable cause) only for clear error and should give due weight to inferences drawn from those facts by trial courts and law enforcement officers.

Alabama v. White, 496 U.S. 325 (1990). An officer received an anonymous phone call stating that Vanessa White would be leaving a specified apartment at a particular time in a brown Plymouth station wagon with a broken right taillight lens, and that she would be going to Dobey’s Motel with an ounce of cocaine in a brown attaché case. This officer and another officer went to the specified building and saw a car of that description parked in front. The officers saw White leave the apartment building with nothing in her hands and get into the car. They followed it as White drove the most direct route to Dobey’s Motel. The officers stopped the car when it was on the highway on which the motel was located.

The Court ruled that there was sufficient verification of the anonymous call to support reasonable suspicion to stop the vehicle. The Court noted that reasonable suspicion is a less-demanding standard than probable cause, because reasonable suspicion may be established not only with information different in quantity or content than that required for probable cause, but also with information less reliable than that required for probable cause. In this case, the officers’ independent corroboration of significant aspects of the anonymous caller’s information gave some degree of reliability to the caller’s allegations. In addition, the caller was able to predict White’s future behavior (leaving her apartment, getting into the described car, and driving toward Dobey’s Motel), which demonstrated the caller’s familiarity with White’s affairs. The Court concluded that the anonymous call, as corroborated, exhibited sufficient indicia of reliability to justify the investigatory stop of White’s car. See also State v. Maready, 362 N.C. 614 (2008) (witness was not completely anonymous informant because she provided information to officers through face-to-face encounter with them).

United States v. Sharpe, 470 U.S. 675 (1985). The Court stated that the following facts supported a conclusion that a drug agent had reasonable suspicion that the defendants were involved in marijuana trafficking: (1) he saw two vehicles traveling together for twenty miles in an area near the coast known to be frequented by drug traffickers; (2) the agent knew that pickup trucks with camper shells (one of the vehicles he was watching was such a truck) are often used to transport large quantities of marijuana; (3) the pickup truck appeared to be heavily loaded and the camper’s windows were covered with a quilted material instead of curtains; and (4) both vehicles took evasive actions and started speeding when another officer began following them in his marked car.

United States v. Hensley, 469 U.S. 221 (1985). An informant supplied great detail about a robbery to a law enforcement agency, leading the agency to create a “wanted flyer” for the defendant that it sent to other nearby police departments. The informant’s admission of tangential participation in the robbery established that she was sufficiently reliable and credible to supply reasonable suspicion that the defendant had driven the getaway car during the robbery. Therefore, the agency’s wanted flyer provided valid grounds to stop the defendant for further investigation.

United States v. Cortez, 449 U.S. 411 (1981). Border Patrol officers had reasonable suspicion to stop a vehicle to check for illegal aliens. The Court stated that reasonable suspicion is determined from the totality of circumstances based on evidence as it is perceived by law enforcement officers and that the suspicion must focus on criminal wrongdoing of the particular person being stopped. For other cases concerning border searches, see United States v. Villamonte-Marquez, 462 U.S. 579 (1983) (custom officer’s boarding of vessel without reasonable suspicion was proper); United States v. Martinez-Fuerte, 428 U.S. 543 (1976) (stopping vehicles at permanent checkpoints without reasonable suspicion was proper); United States v. Ortiz, 422 U.S. 891 (1975) (conducting warrantless vehicle searches of cars without probable cause or consent at traffic checkpoints removed from the border and its functional equivalents was improper); Almeida-Sanchez v. United States, 413 U.S. 266 (1973) (roving patrol’s conducting warrantless vehicle searches without probable cause or consent twenty miles from Mexican border was improper).

Brown v. Texas, 443 U.S. 47 (1979). Officers lacked reasonable suspicion of criminal activity to stop the defendant when they saw him and another person in an alley in an area where there was a high incidence of drug traffic; they had no reason to suspect any specific misconduct.

Delaware v. Prouse, 440 U.S. 648 (1979). The Court ruled that an officer had no authority to stop a car on a public highway to check the operator’s driver’s license or the car’s registration when the officer had neither probable cause nor reasonable suspicion that the occupant was violating the law. The Court did not decide the legality of conducting supervised roadblocks or spot checks without reasonable suspicion. For later cases addressing highway checkpoints, see Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990) (Court upheld impaired-driving highway checkpoint), and City of Indianapolis v. Edmond, 531 U.S. 32 (2000) (recognizing statements in Delaware v. Prouse approving of driver’s license checkpoints). See also the case summaries under “Conducting Impaired-Driving and Driver’s License Checkpoints” below in this appendix.

United States v. Brignoni-Ponce, 422 U.S. 873 (1975). Except at the border or its functional equivalents, the Border Patrol must have reasonable suspicion to stop vehicles that may contain illegal aliens. The Court defined reasonable suspicion as follows: “[Officers] are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion.” Id. at 884.

Adams v. Williams, 407 U.S. 143 (1972). An officer had authority to stop forcibly a person sitting in a car in a high-crime area late at night when a person known to the officer told him that the occupant of the car was carrying narcotics and had a gun at his waist.

Peters v. New York, 392 U.S. 40 (1968). The Court ruled that an officer had probable cause to arrest the defendant for attempted burglary based on his own observations and the defendant’s furtive actions, including fleeing from an apartment hallway. Justice Harlan’s more-persuasive concurring opinion stated that there was no probable cause to arrest, but the officer had reasonable suspicion to stop the defendant forcibly and frisk him.

Terry v. Ohio, 392 U.S. 1 (1968). The Court in Terry recognized the authority of law enforcement officers to stop and frisk suspects with less than probable cause; the Court’s opinion did not articulate the standard, although it became known in later cases as “reasonable suspicion.” The opinion narrowly focused on the officer’s proper frisk of the defendant for weapons based on evidence that he and an accomplice were about to rob a store. However, Justice Harlan’s concurring opinion discussed the officer’s right to make a forcible stop with articulable suspicion, which requires less evidence to establish than probable cause.

North Carolina Supreme Court

State v. Ellis, 374 N.C. 340 (2020), rev’g 267 N.C. App. 65 (2019). The court ruled that reasonable suspicion of criminal activity (disorderly conduct) did not exist to justify an officer’s stop of a vehicle when the defendant gestured with his middle finger from the vehicle’s passenger side.

State v. Nicholson, 371 N.C. 284 (2018). On appeal from the decision of a divided panel of the court of appeals, 255 N.C. App. 665 (2017), the state supreme court reversed, holding that an officer’s decision to briefly detain the defendant for questioning was supported by reasonable suspicion of criminal activity. While on patrol at 4 a.m., Lieutenant Marotz noticed a car parked in a turn lane of the street, with its headlights on but no turn signal blinking. Marotz saw two men inside the vehicle, one in the driver’s seat and the other—later identified as the defendant—in the seat directly behind the driver. The windows were down despite rain and low temperatures. As Marotz pulled alongside the vehicle, he saw the defendant pull down a hood or toboggan-style mask with holes for the eyes but then push the item back up when he saw the officer. Marotz asked the two men whether everything was okay, and they responded that it was. The driver said that the man in the back was his brother and that they had been arguing. The driver said that the argument was over and everything was okay. Sensing that something was not right, the officer again asked if they were okay, and both men nodded that they were. Then the driver moved his hand near his neck, “scratching or doing something with his hand.” 371 N.C. at 286. Still feeling that something was amiss, Marotz drove to a nearby gas station to observe the situation. After the car remained immobile in the turn lane for another half minute, Marotz got out of his vehicle and started on foot toward the car. The defendant stepped out of the vehicle and the driver began to edge the car forward. Marotz asked the driver what he was doing, and the driver said that he was late and had to get to work. The officer again asked whether everything was okay, and both men said that everything was fine. However, although the driver responded “yes” to the officer’s question, he shook his head “no.” This prompted the officer to further question the defendant. The driver insisted that he just had to get to work, and the officer told him to go. After the driver left, the defendant asked the officer if he could walk to a nearby store. The officer responded, “[H]‌ang tight for me just a second . . . you don’t have any weapons on you, do you?” Id. at 286. The defendant said he had a knife, but a frisk by a backup officer did not reveal a weapon. After additional questioning, the officers learned the defendant’s identity and told him he was free to go. Later that day, the driver reported to the police that the defendant was not his brother and had been robbing him when Marotz pulled up. The defendant held a knife to the driver’s throat and demanded money. Officers later found a steak knife in the back seat of the vehicle. The defendant was charged with armed robbery and moved to suppress the evidence obtained as a result of his seizure by Marotz. The parties agreed that the defendant was seized when Marotz told him to “hang tight.” The court found that the circumstances established a reasonable, articulable suspicion that criminal activity was afoot. Although the facts might not establish reasonable suspicion when viewed in isolation, when considered in their totality they could lead a reasonable officer to suspect that he had just happened upon a robbery in progress. The court also found that the court of appeals placed undue weight on Marotz’s subjective interpretation of the facts (the officer’s testimony suggested that he did not believe he had reasonable suspicion of criminal activity), rather than focusing on how an objective, reasonable officer would have viewed them. The court noted that an action is reasonable under the Fourth Amendment, regardless of the officer’s state of mind, if the circumstances viewed objectively justify the action. Here they did.

State v. Goins, 370 N.C. 157 (2017). For the reasons stated in the dissenting opinion in the court of appeals decision, 248 N.C. App. 265, the state supreme court reversed its ruling that a stop of the defendant’s vehicle was not supported by reasonable suspicion. Just after midnight, officers were on patrol near an apartment complex that they knew was an area of high crime and drug activity. The officers observed a car, a Hyundai Elantra, enter the apartment complex parking lot and drive toward a man standing in front of one of the apartment buildings. The man looked directly at their patrol vehicle and then made a loud “warning noise” directed at the Elantra. Immediately thereafter, the Elantra accelerated and quickly exited the apartment complex, an action the trial court characterized as unprovoked fleeing from the officers. The dissenting judge in the court of appeals concluded, under a totality of the circumstances analysis, that the officers had reasonable suspicion to justify an investigatory stop of the Elantra based on the vehicle’s presence in a high-crime area and its apparent flight from the officers.

State v. Jackson, 230 N.C. 113 (2015). Reversing the court of appeals, 234 N.C. App. 80 (2014), the court ruled that an officer had reasonable suspicion for an investigative stop, which occurred at approximately 9:00 p.m. in the vicinity of Kim’s Mart. The officer knew that the immediate area had been the location of hundreds of drug investigations. Additionally, the officer personally had made drug arrests in the area and was aware that hand-to-hand drug transactions occurred there. The officer saw the defendant and another man standing outside of Kim’s Mart. Upon spotting the officer in his patrol car, the two stopped talking and dispersed in opposite directions. In the officer’s experience, this is typical behavior for individuals engaged in a drug transaction. The officer tried to follow the men but lost them. When he returned to Kim’s Mart, they were standing twenty feet from their original location. When the officer pulled in, the men again separated and started walking in opposite directions. The defendant was stopped and, as a result, contraband was found. The court ruled that these facts were sufficient to support reasonable suspicion to justify the investigatory stop. The court noted that its conclusion was based on more than the defendant’s presence in a high-crime and high-drug area.

State v. Maready, 362 N.C. 614 (2008). A witness was not a completely anonymous informant because she provided information to officers through a face-to-face encounter with them. (A detailed summary of this case is provided under “Non-DWI Traffic Stops,” below.)

State v. Campbell, 359 N.C. 644 (2005). An Aiken, South Carolina, law enforcement officer arrived at a Kmart parking lot in Aiken in response to an employee’s report of a suspicious person (the defendant) whose car had been parked in the lot for three to four hours with the person inside the entire time. The employee pointed toward the car as it left the parking lot. The officer followed the car until it stopped at a convenience store. The defendant got out of the vehicle and started walking toward the store. The officer pulled behind the defendant’s vehicle and stopped without activating a siren or blue lights. She asked the defendant if she could speak with him. He walked toward her, and a conversation ensued. The defendant told her that he had been sleeping in the Kmart parking lot. He said that he had stopped in Aiken to take a nap and was driving home to North Carolina after finishing a job in Columbia, South Carolina. (Aiken is forty-five miles west of Columbia.) Responding to the officer’s request for his driver’s license and car registration, the defendant said that he did not have any identification, but he told the officer his name and date of birth. He said that the car belonged to a friend, but he could not recall the friend’s name. As a result of this conversation, the officer asked the defendant to “hold up and [said] she would be back up with him.” Id. at 663–64. He was later arrested for driving without a license.

(1) The court ruled, relying on Florida v. Bostick, 501 U.S. 429 (1991), and other cases, that the defendant was not seized under the Fourth Amendment when the officer approached him and conversed with him about his presence in the Kmart parking lot and about his driver’s license and car registration. (2) The court ruled, assuming arguendo that the defendant had been seized under the Fourth Amendment when the officer asked him to “hold up and [said] she would be back up with him,” that reasonable suspicion of criminal activity supported the seizure based on the following: the defendant’s activity in the Kmart parking lot; his statement about going to North Carolina but stopping in Aiken, which is not on the route to North Carolina; and the defendant’s not having a driver’s license and not knowing the name of his friend to whom the car belonged.

State v. Hughes, 353 N.C. 200 (2000). On the morning of March 13, 1998, Officer A was sitting in Officer B’s office when Officer B received a phone call. At the call’s conclusion, Officer B told Officer A that he had been talking with a confidential, reliable informant who said that a dark-skinned Jamaican (nicknamed “Markie”), weighing more than 300 pounds, about six feet tall, between 20 and 30 years old, with a short haircut, clean cut, and wearing baggy pants, would be arriving in Jacksonville, North Carolina, with marijuana and powdered cocaine in his possession on a bus coming from New York City, possibly the 5:30 p.m. bus. The informant also indicated that Markie “sometimes” came to Jacksonville on weekends before it got dark, that he “sometimes” took a taxi from the bus station, that he “sometimes” carried an overnight bag, and that he would be headed to North Topsail Beach (quotations are from the court’s opinion).

Later in the day, Officer A relayed this information by telephone to Officer C and told him to go to the bus station. At the suppression hearing, Officer C could not recall whether he had been given a description of the defendant’s clothing, nor could he recall whether he ever had been given the suspect’s nickname. Officer C also testified at the suppression hearing that he did not know what time the defendant would arrive in Jacksonville or on which bus, only that he was coming in that afternoon.

When Officer C and his partner, Officer D, reached the bus station, one bus from New York had already arrived, but a bus coming from Rocky Mount was scheduled to arrive around 5:30 p.m. Officer C testified at the suppression hearing that he knew that Rocky Mount was a transfer point between New York and Jacksonville. When the bus arrived, it pulled in with its door facing away from the officers, blocking their view of the arriving passengers so that they could not see whether the defendant stepped off the bus. Officer C testified, however, that the defendant was not in the parking lot before the bus arrived and that he had stepped from behind the bus after it arrived. The defendant matched the exact description Officer C had been given and was carrying an overnight bag.

The defendant immediately stepped into a taxi that went on Highway 17 South, toward an area called the Triangle, where Highway 17 splits in two directions—toward Wilmington and Topsail Beach or toward Richlands. A vehicle must pass through the Triangle before it can be determined in which direction the vehicle is going. However, the officers stopped the defendant’s taxi before it reached the Triangle. The officers discovered marijuana and cocaine in the defendant’s possession after they stopped the taxi.

The court ruled, distinguishing Alabama v. White, 496 U.S. 325 (1990), and relying on Florida v. J.L., 529 U.S. 266 (1999), that this information was insufficient to establish reasonable suspicion to stop the defendant in the taxi to investigate illegal drugs. The court upheld the trial judge’s findings of fact and ruling, which had granted the defendant’s suppression motion. The court stated that the information in the telephone call between the confidential informant and Officer B that was relayed to Officer A must be treated as anonymous information because there was no evidence to support Officer B’s statement that the informant was reliable. The court noted that Officer B did not testify at the suppression hearing and Officer A was not given any information by Officer B about the informant’s reliability. The court also rejected the State’s argument that the informant made a statement against penal interest under G.S. 14-225. The court determined that the anonymous information by itself was insufficient to support reasonable suspicion. The information did not contain the range of details required by White to sufficiently predict the defendant’s future action but was instead peppered with uncertainties and generalities. The court also determined that the officers’ corroboration of the information was insufficient to support reasonable suspicion. The court, relying on J.L., found that reasonable suspicion did not arise merely from the fact that the person met the description given to the officers. The court noted that the officers stopped the taxi before it could be determined in which direction it was going.

State v. Fletcher, 348 N.C. 292 (1998). The defendant sought to suppress statements that he made as a result of an investigative stop and arrest for breaking and entering a motor vehicle in front of a beauty salon. Officer A received information from Witness A that about the time a car was broken into, a tall black male with dark pants and a white T-shirt had been acting suspiciously nearby (walking back and forth in front of the salon). Officer A also received information from Witness B that a black male with a white T-shirt had picked up a cement block and walked toward the beauty salon and then, moments later, had run down an alley. Officer B received a transmission from Officer A to be on the lookout for such a person, giving him the description from Witnesses A and B and the location where the suspect had been seen. Moments later, Officer B saw a person fitting this description within two blocks of the location; he stopped him and put him in a patrol car. Fifteen minutes had elapsed since the reporting of the crime.

The court ruled that reasonable suspicion supported the investigative stop of the defendant for breaking and entering a motor vehicle, based on the proximity in time and location and the accuracy of the physical description of the race, gender, and clothing of the suspect. The court cited State v. Lovin, 339 N.C. 695 (1995), State v. Rinck, 303 N.C. 551 (1981), and State v. Buie, 297 N.C. 159 (1979). The court noted that the record showed that the defendant sat in the patrol car for a short period of time, “several minutes,” while the officers waited for Witness A to arrive to attempt to identify him. Witness A identified the defendant as the person she had seen in front of the beauty shop. The court ruled that her identification, in conjunction with Witness B’s description, gave the officers probable cause to arrest the defendant for breaking and entering the motor vehicle. The court cited State v. Wrenn, 316 N.C. 141 (1986), State v. Joyner, 301 N.C. 18 (1980), State v. Bright, 301 N.C. 243 (1980), and State v. Tippett, 270 N.C. 588 (1967). The court also ruled that the length of time during the investigative stop had been reasonable under the Fourth Amendment.

State v. Odum, 343 N.C. 116 (1996). The court, per curiam and without an opinion, reversed the decision of the court of appeals, 119 N.C. App. 676 (1995), that affirmed the defendant’s conviction. The court stated that the decision was reversed for the reasons stated in the dissenting opinion in the court of appeals decision.

Officers were working drug interdiction at the Raleigh train station. They had received information from a ticket agent that the defendant had purchased a train ticket with cash using small bills, had departed Raleigh for New York City on April 27, and was to return on the afternoon of April 29. The officers also learned that the defendant had previously been arrested for attempted robbery in New Jersey, although the charge had been dismissed. When the train arrived in Raleigh on April 29, the defendant left the train carrying a red nylon gym bag and appeared to be headed toward a car in the parking lot in which a female was sitting. The officers approached the defendant, showed him their badges, and asked him to answer a few questions. The defendant agreed to talk to them, and they moved over to the sidewalk. When asked to produce his train ticket, the defendant showed them his ticket stub bearing the name D. Odum (his name was David Odum). When asked for identification, the defendant became visibly nervous when he could not find his identification. When he looked into his gym bag for identification, one of the officers saw that the defendant was apparently trying to conceal the contents of the bag. The defendant finally told the officers that he could not find any identification. Although the defendant objected, the officers then seized his gym bag (to await a drug detection dog to sniff it). They told him he was free to leave and that if he left an address, they would have the bag delivered to him. During this conversation, the defendant informed the officers that the woman sitting in the car was his ride. One officer testified at the suppression hearing that the woman neither spoke nor made eye contact with the defendant during the entire questioning.

The dissenting opinion concluded that reasonable suspicion did not exist to support the seizure of the gym bag. The evidence as a whole could easily be associated with many travelers. Many travelers daily embark on trips similar to the defendant’s, and the fact that the defendant paid for his ticket in cash was not remarkable, considering the price was $107. The opinion noted that one officer testified that there was no evidence that the defendant had any prior involvement with drugs, and the prior robbery charge that was later dismissed was not a sufficient reflection of a person’s propensity to be involved in drug trafficking.

The opinion also noted that one of the officers testified that the defendant did not give him any false information during the interaction at the train station. The officers never inquired about the nature of the defendant’s trip, nor was there evidence of any questions that might have bolstered their suspicions. Although the defendant became visibly nervous when he could not find his identification, the opinion noted that it is not uncommon for a person to appear nervous when approached by a law enforcement officer. Also, the actions of the woman in the car and the defendant’s reluctance to let the officers see what was in his bag did not provide reasonable suspicion.

State v. Lovin, 339 N.C. 695 (1995). A murder victim’s body was discovered in the afternoon, and the victim’s Porsche was reported missing. At 4:00 p.m. the same day, a woman saw a Porsche that matched the description of the victim’s car being driven by a male with a lot of hair, a gold watch, and large-frame glasses. She followed it until it turned toward the airport and then reported this information to a law enforcement agency. Officers went to the airport and found that the hood of the Porsche was still warm. A ticket agent reported that the defendant was acting suspiciously at the ticket counter. She described him as having long brown hair and wearing a gold watch. The court ruled that this and other information in the officers’ possession provided reasonable suspicion to make an investigative stop of the defendant to investigate the murder.

State v. Watkins, 337 N.C. 437 (1994). An officer received a transmission on an official radio frequency stating that there was a “10-50” (suspicious vehicle) behind a well-drilling company; the information relayed by the police dispatcher was apparently based on a tip from a caller. (The record contained no evidence as to the police dispatcher’s or the caller’s identity, among other information.) The officer arrived there and got out of his car. He saw a car with its lights off moving out of the company parking lot. It was 3:00 a.m., the area was generally rural, and the location was a business that the officer knew was normally closed at that hour. The officer got in his car and stopped the other car on the highway. The court ruled, based on these facts and the comparable cases of State v. Fox, 58 N.C. App. 692 (1982), aff’d per curiam, 307 N.C. 460 (1983), and State v. Tillett, 50 N.C. App. 520 (1981); that the officer had a reasonable suspicion to stop the car. The court noted, citing Alabama v. White, 496 U.S. 325 (1990), that an anonymous tip may provide reasonable suspicion when corroborated by independent law enforcement work. [Author’s note: See the later case of State v. Watkins, 120 N.C. App. 804 (1995), discussed below.]

State v. Butler, 331 N.C. 227 (1992). The court upheld an officer’s stop and frisk of a drug suspect, citing these factors: (1) the officer saw the defendant in the midst of a group of people congregated on a corner known as a “drug hole”; (2) the officer had watched the corner daily for several months; (3) the officer knew the corner was a center of drug activity because he had made four to six drug-related arrests there in the past six months; (4) the officer was aware of other arrests there as well; (5) the defendant was a stranger to the officer; (6) when the defendant made eye contact with uniformed officers, he immediately left the corner and walked away, behavior that is evidence of flight; and (7) the officer’s experience was that people involved in drug traffic are often armed. The court stated that, in considering the legality of the frisk, the officer was entitled to formulate “common-sense conclusions” about “the modes or patterns of operation of certain kinds of lawbreakers” (citing United States v. Cortez, 449 U.S. 411 (1981)) in concluding that the defendant, reasonably suspected of drug trafficking, might be armed.

State v. Jones, 304 N.C. 323 (1981). Reasonable suspicion existed to stop the defendant, who was walking late at night with a brown paper bag in his hand from a closed convenience store toward an unoccupied car that was on the highway with its lights off and its motor running.

State v. Rinck, 303 N.C. 551 (1981). Reasonable suspicion existed to stop two men walking along a road late at night within 200 feet of a home where a homicide had occurred about thirty minutes earlier.

State v. Buie, 297 N.C. 159 (1979). Reasonable suspicion existed to stop the defendant, who generally fit the victim’s description of the person who burgled her motel suite, was near the crime scene shortly after the crime, and looked as if he had been running.

State v. Thompson, 296 N.C. 703 (1979). Officers had reasonable suspicion to stop and detain the occupants of a van parked near Fort Fisher in a public parking area at 12:30 a.m., because the officers were aware that break-ins by persons using a van had been reported recently in the area. The court’s finding of reasonable suspicion would have had more support if the facts had shown how recently the break-ins had occurred. The dissenting opinion noted that evidence did not link this particular van—or even one fitting its description—to the break-ins. The court noted that whether a seizure had occurred was problematic and assumed, for the purpose of deciding the case, that it had. [Author’s note: If the majority had analyzed whether a seizure had occurred, it probably would have concluded that the officer who approached the van and asked its occupants for identification did not seize those occupants. Therefore, the officer’s initial actions need not have been supported by reasonable suspicion or other justification.]

State v. McZorn, 288 N.C. 417 (1975). A reliable informant’s information was sufficient to support a stop of a green Chevrolet Vega to investigate whether the driver was involved in a murder and armed robbery. The informant had told the officer less than an hour before the vehicle stop that the defendant had been at a “beer joint,” was driving a 1974 green Chevrolet Vega, and had a .38 caliber revolver in his inside pocket that had been used to kill a person during a robbery that the defendant and another man had committed.

North Carolina Court of Appeals

State v. Holley, 267 N.C. App. 333 (2019). The court ruled that some of the evidence at a suppression hearing did not support the trial court’s findings of fact when the court denied the defendant’s suppression motion. The court of appeals ruled, relying on State v. White, 214 N.C. App. 471 (2011), and other cases, that the anonymous report of a drug deal on a specific street corner involving two black males, an officer’s later sighting of the defendant and another black male on that corner, and the fact that the defendant walked away from the officer when the officer parked and exited his patrol car did not provide reasonable suspicion to stop or probable cause to arrest for obstructing the officer.

State v. Horton, 264 N.C. App. 711 (2019). The court ruled that an officer’s investigative stop of a vehicle was not supported by reasonable suspicion to make the stop. An anonymous tip concerning a suspicious white male in a gold or silver vehicle in a certain parking lot did not report a crime and was only partially corroborated. Although there was a silver car in that parking lot, there was no white male in the lot or in the vehicle (the defendant was a black male). In addition, the tip merely described the individual as “suspicious” without any indication about why. No information existed about who the tipster was and what made the tipster reliable. As a result, there was nothing inherent in the tip itself to allow a court to consider it reliable or to provide reasonable suspicion. The officer’s observations independent of the tip also did not provide reasonable suspicion for the stop. The trial court’s findings of fact concerning the officer’s knowledge about criminal activity at the location referred to the area in general and were without particularized facts. The officer did not say how he was familiar with the area, how he knew that there had been break-ins, or how much vandalism or other crimes had occurred there. The trial court found that there was no specific time frame given for when the previous break-ins had occurred.

State v. Malachi, 264 N.C. App. 233 (2019). The court ruled that the trial court did not err by allowing into evidence a handgun an officer removed from the defendant’s waistband during a lawful frisk that occurred after a lawful stop. Police received an anonymous 911 call stating that an African-American male wearing a red shirt and black pants had just placed a handgun in the waistband of his pants while at a specified gas station. Officer Clark responded to the scene and saw six to eight people in the parking lot, including a person who matched the description in the 911 call, later identified as the defendant. As Clark got out of his car, the defendant looked directly at him, “bladed” away, and started to walk away. Clark and a second officer grabbed the defendant. After Clark placed the defendant in handcuffs and told him that he was not under arrest, the second officer frisked the defendant and found a revolver in his waistband. The court ruled that the trial court did not err by denying the motion to suppress. Although the anonymous tip was insufficient by itself to provide reasonable suspicion for the stop, there was additional evidence. As Clark left his car, the defendant turned his body in such a way as to prevent the officer from seeing a weapon. The officer testified that the type of turn the defendant executed was known as “blading,” which is “[w]hen you have a gun on your hip you tend to blade it away from an individual.” Id. at 238. In addition, the defendant began to move away. And, as the officers approached the defendant, the defendant did not inform them that he was lawfully armed. Under the totality of the circumstances, these facts support reasonable suspicion.

The court also ruled that the frisk was proper because there was reasonable suspicion to believe that the defendant was armed and dangerous.

State v. Augustin, 264 N.C. App. 81 (2019). While patrolling a high-crime area, an officer saw the defendant and Ariel Peterson walking on a sidewalk. Aware of multiple recent crimes in the area, the officer stopped his car and approached the men. The officer had prior interactions with the defendant and knew he lived some distance away. The officer asked the men for their names. Peterson initially gave a false name; the defendant did not. The officer asked them where they were coming from and where they were going. Both gave vague answers; they claimed to have been at Peterson’s girlfriend’s house and said they were walking back to the defendant’s home, but they were unable or unwilling to say where the girlfriend lived. When the defendant asked the officer for a ride to his house the officer agreed, and all three men walked to the patrol car. The officer informed the two that police procedure required him to search them before entering the car. As the officer began to frisk Peterson, Peterson ran away. The officer turned to the defendant, who had begun stepping away. Believing the defendant was about to run away, the officer grabbed the defendant’s shoulders, placed the defendant on the ground, and handcuffed him. As the officer helped the defendant up, he saw that a gun had fallen out of the defendant’s waistband.

The court rejected the defendant’s argument that he was unlawfully seized when the officer discovered the gun. Agreeing with the defendant that exercising a constitutional right to leave a consensual encounter should not be used against a defendant “to tip the scale towards reasonable suspicion,” the court noted that the manner in which a defendant exercises this right “could, in some cases, be used to tip the scale.” Id. at 84. However, the court found that it need not determine whether it was appropriate that the trial court consider in its reasonable-suspicion calculus that the defendant was backing away. Rather, the trial court’s findings regarding the men’s behavior before the defendant backed away from the officer were sufficient to support reasonable suspicion. The defendant was in an area where a “spree of crime” had occurred; Peterson lied about his name; both men gave the officer vague answers about where they were coming from; and Peterson ran away while being searched. This evidence supported the trial court’s conclusion that the officer had reasonable suspicion to seize the defendant.

State v. Baskins, 260 N.C. App. 589 (2018). In a case in which the court determined that the defendant received ineffective assistance of appellate counsel, the court considered whether there was reasonable suspicion for a stop of the defendant’s vehicle and found there was none. The trial court’s conclusion that the stopping officers had reasonable suspicion to stop the vehicle was based solely on the following facts: officers saw the defendant and a woman exit a China Bus carrying small bags at the “same bus stop that a lot of heroin is being transported from New York to the Greensboro area.” Id. at 606. While waiting for his ride at an adjacent gas station, the defendant briefly looked toward an officer’s unmarked vehicle and “shooed” that vehicle away, at which point the defendant’s ride pulled into the parking lot. These facts did not support a finding of reasonable suspicion, particularly when the defendant was entirely unknown to the officers.

State v. Sutton, 259 N.C. App. 891 (2018). In this drug-trafficking case, the court ruled that the fact that the defendant’s truck crossed over a double yellow line justified a stop. The stopping officer saw the defendant’s vehicle cross the center line of the road by about one inch. The court stated:

[T]here is a “bright line” rule in some traffic stop cases. Here, the bright line is a double yellow line down the center of the road. Where a vehicle actually crosses over the double yellow lines in the center of a road, even once, and even without endangering any other drivers, the driver has committed a traffic violation of N.C. Gen. Stat. § 20-146 (2017). This is a “readily observable” traffic violation and the officer may stop the driver without violating his constitutional rights. Id. at 893 (citations omitted).

State v. Walker, 255 N.C. App. 828 (2017). The court ruled that reasonable suspicion did not exist to support a stop. At approximately 5 p.m., dispatch notified a trooper on routine patrol that an informant-driver reported that another driver was driving while intoxicated. The informant reported that the driver was driving from the Hubert area towards Jacksonville, traveling about 80 to 100 m.p.h. while drinking a beer. He also claimed that the driver was driving “very erratically” and almost ran him off the road “a few times.” While the trooper was responding to the dispatch, the informant flagged him down and said that the vehicle in question had just passed through the intersection on U.S. 258, heading towards Richlands. The trooper headed in that direction and stopped the defendant’s vehicle within 1/10 of a mile of the intersection. The defendant was arrested and charged with DWI and careless and reckless driving. The defendant unsuccessfully moved to suppress evidence obtained by the stop in district court and appealed to superior court. After a hearing, the superior court granted the motion to suppress. The court of appeals found that the tip did not have sufficient indicia of reliability to provide reasonable suspicion for the stop. Although the informant was not anonymous, the informant was unable to specifically point out the defendant’s vehicle to the trooper because the vehicle was out of sight. The trooper did not observe the vehicle being driven in a suspicious or erratic fashion. Additionally, it is unknown whether the trooper had the vehicle’s license plate number before or after the stop and whether the trooper had any vehicle description besides a “gray Ford passenger vehicle.” The court distinguished prior case law involving tips that provided enough information so that there was no doubt as to the particular vehicle that was being reported. Here, the informant’s ambiguous description did not specify a particular vehicle. Additionally, no other circumstances enabled the trooper to further corroborate the tip; the trooper did not witness the vehicle behaving as described by the informant.

State v. Sauls, 255 N.C. App. 684 (2017). The court ruled that reasonable suspicion supported an officer’s traffic stop. At the time of the stop, it was very late at night, the defendant’s vehicle was idling in front of a closed business, the business and surrounding properties had experienced several break-ins, and the defendant pulled away when the officer approached the car. Considered together, these facts provided an objective justification for stopping the defendant.

State v. Evans, 251 N.C. App. 610 (2017). The court ruled that reasonable suspicion supported the stop at issue. An officer patrolling a “known drug corridor” at 4 a.m. observed the defendant’s car stopped in the lane of traffic. An unidentified pedestrian approached the defendant’s car and leaned in the window. The officer found these actions to be indicative of a drug transaction and thus conducted the stop.

State v. Watson, 250 N.C. App. 455 (2016). In this drug case, the court ruled that the trial court erred by denying the defendant’s motion to suppress drug evidence seized after a traffic stop where the stopping officer had no reasonable suspicion to stop the defendant’s vehicle. Officers received a tip from a confidential informant regarding “suspicious” packages that the defendant had received from a local UPS store. The informant was an employee of the UPS store trained to detect narcotics; the informant had successfully notified the police about packages later found to contain illegal drugs, and these tips were used to secure a number of felony drug convictions. With respect to the incident in question, the informant advised the police that a man, later identified as the defendant, had arrived at the UPS store in a truck and retrieved packages with a Utah return address when in fact the packages had been sent from Arizona. After receiving this tip, the police arrived at the store, observed the defendant driving away, and initiated a traffic stop. During the stop they conducted a canine sniff, which led to the discovery of drugs inside the packages. Holding that the motion to suppress should have been granted, the court noted that there is nothing illegal about receiving a package with a return address that differs from the actual shipping address; in fact, there are a number of innocent explanations for why this could have occurred. Although innocent factors, when considered together, may give rise to reasonable suspicion, the court noted that it was unable to find any case where reasonable suspicion was based solely on a suspicious return address. Here, the trial court made no finding that the informant or the police had any prior experience with the defendant; that the origination city was known as a drug-source locale; or that the packages were sealed suspiciously, had a suspicious weight based on their size, had handwritten labels, or had a suspicious odor.

State v. Sawyers, 247 N.C. App. 852 (2016). (1) The court ruled that an investigative stop of the defendant’s vehicle was justified by reasonable suspicion. While on patrol in the early morning, an officer saw the defendant walking down a street. Directly behind him was another male, who appeared to be dragging a drugged or intoxicated female. The defendant and the other male placed the female in the defendant’s vehicle, entered it, and drove away. The officer was unsure whether the female was being kidnapped or was in danger. Given these circumstances, the officer had reasonable suspicion that the defendant was involved in criminal activity. (2) The court alternatively upheld the stop based on the community-caretaking doctrine; see State v. Smathers, 232 N.C. App. 120 (2014). The officer was attempting to ensure the female’s safety, and the public need to seize the defendant by an investigative stop of the vehicle outweighed his privacy interest in being free from the intrusion.

State v. Crandell, 247 N.C. App. 771 (2016). The court ruled that reasonable suspicion supported the stop of the defendant’s vehicle. The vehicle was stopped after the defendant left premises known as “Blazing Saddles.” Based on his experience making almost two dozen arrests in connection with drug activity at Blazing Saddles and on other officers’ experiences there, an officer was aware of a steady pattern by people involved in drug transactions who would visit Blazing Saddles when the gate to the premises was down and stayed down for approximately two minutes. The defendant followed this exact pattern: he visited Blazing Saddles when the gate was down and stayed approximately two minutes. The court distinguished these facts from those when a defendant was simply observed in a high-drug area, noting that Blazing Saddles was a “notorious” location for selling drugs and dealing in stolen property. It was an abandoned, partially burned building with no electricity, and there was no apparent legal reason for anyone to go there at all, unlike neighborhoods in high-drug or -crime areas where people live and naturally would be present.

State v. Travis, 245 N.C. App. 120 (2016). The court ruled that an officer had reasonable suspicion to stop a vehicle to investigate for a drug offense. The officer was in an unmarked patrol vehicle in the parking lot of a local post office and saw the defendant pull into the lot. The officer knew the defendant because he had previously worked for the officer as an informant and had executed controlled buys. When the defendant pulled up to the passenger side of another vehicle, the passenger of the other vehicle rolled down his window. The officer saw the defendant and the passenger extend their arms to one another and touch hands. The vehicles then left the premises. The entire episode lasted less than a minute, with no one from either vehicle entering the post office. The area in question was not known to be a high-crime area. Based on his training and experience, the officer believed that he had witnessed a hand-to-hand drug transaction, and he stopped the defendant’s vehicle. Based on items found during the search of the vehicle, the defendant was charged with drug crimes. The trial court denied the defendant’s motion to suppress. Although it found the case to be a “close” one, the court found that reasonable suspicion supported the stop. Noting that it had previously ruled that reasonable suspicion supported a stop when officers witnessed acts that they believed to be drug transactions, the court acknowledged that the present facts differed from those earlier cases; specifically, that the transaction in question occurred in daylight in an area that was not known for drug activity. Also, because there was no indication that the defendant was aware of the officer’s presence, there was no evidence that he displayed signs of nervousness or took evasive action to avoid the officer. However, the court concluded that reasonable suspicion existed. It noted that the actions of the defendant and the occupant of the other car “may or may not have appeared suspicious to a layperson,” but they were sufficient to permit a reasonable inference by a trained officer that a drug transaction had occurred. The court thought it significant that the officer recognized the defendant and had past experience with him as an informant in connection with controlled drug transactions. Finally, the court noted that a determination that reasonable suspicion exists need not rule out the possibility of innocent conduct.

State v. Sutton, 232 N.C. App. 667 (2014). The court ruled that an officer had reasonable suspicion to stop and frisk the defendant when the defendant was in a high-crime area and made movements that the officer found suspicious. The defendant was in a public housing area patrolled by a Special Response Unit of the United States Marshals Service and the Drug Enforcement Administration concentrating on violent crimes and gun crimes. The officer in question had ten years of experience and was assigned to the Special Response Unit. Many people were banned from the public housing area—in fact, the banned list was nine pages long. On a prior occasion, the officer heard shots fired near the area. In the present case, the officer saw the defendant walking normally while swinging his arms. When the defendant turned and “used his right hand to grab his waistband to clinch an item” after looking directly at the officer, the officer believed that the defendant was trying to hide something on his body. Id. at 683. The officer then stopped the defendant to identify him, frisked him, and found a gun in the defendant’s waistband.

State v. Blankenship, 230 N.C. App. 113 (2013). The court ruled that officers did not have reasonable suspicion to stop the defendant based on an anonymous tip from a taxicab driver. The taxicab driver anonymously contacted 911 by cell phone and reported that a red Mustang convertible with a black soft top, license plate XXT-9756, was driving erratically, running over traffic cones, and continuing west on a specified road. Although the 911 operator did not ask for the caller’s name, the operator used the caller’s cell phone number to later identify the taxicab driver as John Hutchby. The 911 call resulted in a “be on the lookout” being issued; minutes later officers spotted a red Mustang matching the caller’s description, with “X” in the license plate, heading in the direction indicated by the caller. Although the officers did not observe the defendant violating any traffic laws or see evidence of improper driving that would suggest impairment, the officers stopped the defendant. The defendant was charged with DWI.

The court stated:

[T]he officers did not have the opportunity to judge Hutchby’s credibility firsthand or confirm whether the tip was reliable, because Hutchby had not been previously used and the officers did not meet him face-to-face. Since the officers did not have an opportunity to assess his credibility, Hutchby was an anonymous informant. Therefore, to justify a warrantless search and seizure, either the tip must have possessed sufficient indicia of reliability or the officers must have corroborated the tip. Id. at 116.

The court found that neither requirement was satisfied.

[Author’s note: The later ruling in Navarette v. California, 572 U.S. 393 (2014) (anonymous caller’s report provided reasonable suspicion for vehicle stop), summarized above, raises questions about the continuing validity of the Blankenship ruling.]

State v. Knudsen, 229 N.C. App. 271 (2013). The court ruled that the trial court did not err by concluding that the seizure of the defendant by officers blocking the sidewalk on which he was walking was unsupported by reasonable suspicion. The officers observed the defendant walking down the sidewalk with a clear plastic cup in his hands filled with a clear liquid. The defendant entered his vehicle, remained in it for a period of time, and then exited his vehicle and began walking down the sidewalk, where he was stopped. The officers stopped and questioned the defendant because he was walking on the sidewalk with the cup and the officers wanted to know what was in the cup.

State v. Harwood, 221 N.C. App. 451 (2012). The court ruled that reasonable suspicion did not support the seizure of the defendant made as a result of an anonymous tip. When evaluating an anonymous tip in this context, the court must determine whether the tip, taken as a whole, possessed sufficient indicia of reliability. If not, the court must assess whether the anonymous tip could be made sufficiently reliable by independent corroboration. The tip at issue reported that the defendant would be selling marijuana at a certain location on a certain day and would be driving a white vehicle. The court ruled that given the limited details contained in the tip and the officers’ failure to corroborate its allegations of illegal activity, the tip lacked sufficient indicia of reliability.

State v. Watkins, 220 N.C. App. 384 (2012). The court ruled that officers had reasonable suspicion to stop the defendant’s vehicle. Officers had received an anonymous tip that a vehicle containing “a large amount of pills and drugs” would be traveling from Georgia through Macon County and possibly Graham County; the vehicle was described as a small- or mid-sized passenger car, maroon or purple in color, with Georgia license plates. Officers set up surveillance along the most likely route. When a small purple car passed the officers, they pulled out behind it. The car then made an abrupt lane change without signaling and slowed down by approximately five to ten miles per hour. The officers ran the vehicle’s license plate and discovered that the vehicle was registered to a person known to have outstanding arrest warrants. Although the officers were fairly certain that the driver was not the wanted person, they were unable to identify the passenger. They also saw the driver repeatedly looking in his rearview mirror and glancing over his shoulder. They then pulled the vehicle over. The court concluded that the defendant’s lane change, the anonymous tip, and the defendant’s other activities were sufficient to give an experienced law enforcement officer reasonable suspicion that some illegal activity was taking place. Those other activities included the defendant’s slow speed in the passing lane, frequent glances in his rearview mirrors, repeated glances over his shoulder, and driving a car registered to another person. Moreover, noted the court, not only was the defendant not the owner of the vehicle, but the owner was known to have outstanding arrest warrants. It was reasonable to conclude that the unidentified passenger may have been the vehicle’s owner.

State v. Hemphill, 219 N.C. App. 50 (2012). The court ruled that an officer had reasonable suspicion that criminal activity was occurring to make an investigative stop of the defendant. At 10:10 p.m. the officer learned of a report of suspicious activity involving two men at a used-car lot called Auto America. When the officer arrived at the scene, he saw the defendant, who generally matched the description of one of the individuals reported, peering from behind a parked van. When the defendant spotted the officer, he ran, ignoring the officer’s instructions to stop. After a 1/8-mile chase, the officer found the defendant trying to hide behind a dumpster.

State v. Brown, 217 N.C. App. 566 (2011). The court of appeals ruled that the trial court erred by denying the defendant’s motion to suppress evidence of his alleged impairment when the evidence was the fruit of an illegal stop. An officer who was surveying an area in the hope of locating robbery suspects saw the defendant pull off to the side of a highway in a wooded area. The officer heard yelling and car doors slamming. Shortly thereafter, the defendant accelerated rapidly past the officer, but not to a speed warranting a stop for a traffic violation. Thinking that the defendant may have been picking up the robbery suspects, the officer followed the defendant for almost a mile. Although he observed no traffic violations, the officer pulled over the defendant’s vehicle. The officer did not have any information regarding the direction in which the suspects fled, nor did he have a description of the getaway vehicle. The officer’s reason for pulling over the defendant’s vehicle was insufficient evidence of reasonable suspicion to support an investigative stop.

State v. White, 214 N.C. App. 471 (2011). The court of appeals ruled that the trial court erred by denying the defendant’s motion to suppress evidence obtained from an unlawful stop. Officers responded to a complaint of loud music in a location they regarded as a high-crime area. The officers did not see the defendant engaged in any suspicious activity, nor did they observe any device capable of producing loud music. Rather, the defendant was merely standing outside at night, with two or three other men. These facts did not provide reasonable suspicion to justify an investigatory stop of the defendant. Thus, the officer’s encounter with the defendant was entirely consensual; the defendant was free to ignore the interaction by running away, which he did. Once the officer caught up with the defendant and handcuffed him for resisting arrest, a seizure occurred. However, because the defendant’s flight from the consensual encounter did not constitute resisting, the arrest was improper.

State v. Ellison, 213 N.C. App. 300 (2011), aff’d on other grounds, 366 N.C. 439 (2013). The court ruled that an officer had reasonable suspicion to stop the defendant’s vehicle. An informant told the officer that after having his prescriptions for hydrocodone and Xanax filled, a man named Shaw would immediately take the medications to defendant Treadway’s residence, where he would sell the medications to Treadway. Treadway then sold some or all of the medications to defendant Ellison. The officer later learned that Shaw had prescriptions for Lorcet and Xanax, observed Shaw fill the prescriptions, and followed Shaw from the pharmacy to Treadway’s residence. The officer watched Shaw enter and leave Treadway’s residence. Minutes later the officer observed Ellison arrive. In stopping Ellison’s vehicle, the officer also considered activities derived from surveillance at his place of work, which were consistent with drug-related activities. Although the officer had not had contact with the informant before this incident, one of his co-workers had worked with the informant and found the informant to be reliable—specifically, the informant had previously provided information that resulted in arrests.

State v. Brown, 213 N.C. App. 617 (2011). The court ruled that officers had reasonable suspicion to stop the defendant. When officers on a gang patrol noticed activity at a particular house, they parked their car to observe. The area was known for criminal activity. The defendant exited from the rear of the house and approached the officers’ car. One of the officers had previously made drug arrests in front of this house. As the defendant approached, one officer feared for his safety and got out of the car to have a better defensive position. When the defendant realized that the individuals were police officers, his “demeanor changed” and he appeared very nervous: he started to sweat, began stuttering, and would not speak loudly. Additionally, it was late and there was little light for the officers to see the defendant’s actions.

In re A.J. M-B, 212 N.C. App. 586 (2011). The court of appeals ruled that the trial court erred by denying the juvenile’s motion to dismiss a charge of resisting a public officer when reasonable suspicion did not support a stop of the juvenile for criminal activity. An anonymous caller reported to law enforcement that “two juveniles in Charlie district . . . [were] walking, supposedly with a shotgun or a rifle” in “an open field behind a residence.” Id. at 591. A dispatcher relayed the information to an officer, who went to an open field behind the residence. The officer saw two juveniles “pop their heads out of the wood line” and look at him. Id. at 592. Neither was carrying a firearm. When the officer called out for them to stop, they ran around the residence and down the road.

State v. Chlopek, 209 N.C. App. 358 (2011). The court ruled that an officer lacked reasonable suspicion to stop the defendant’s vehicle. Around midnight, officers were conducting a traffic stop at Olde Waverly Place, a partially developed subdivision. While doing so, an officer noticed the defendant’s construction vehicle enter the subdivision and proceed to an undeveloped section. Although officers had been put on notice of copper thefts from subdivisions under construction in the county, no such thefts had been reported in Olde Waverly Place. When the defendant exited the subdivision twenty to thirty minutes later, his vehicle was stopped. The officer did not articulate any specific facts about the vehicle or how it was driven that would justify the stop; the fact that there had been numerous copper thefts in the county did not support the stop.

State v. Huey, 204 N.C. App. 513 (2010). An officer was looking for two robbery suspects. The State stipulated at the suppression hearing that the officer knew the suspects were black males about 18 years old and that one suspect was wearing a light-colored hoodie and the other was wearing a darker hoodie. An officer stopped the defendant, who was wearing a light-colored hoodie. The defendant presented a North Carolina identification card, which revealed that he was 51 years old. The officer then ran a warrant check and arrested him on an outstanding arrest warrant. (Although the officer testified at the suppression hearing that he learned that the suspects were about 18 years old only after he discovered the defendant’s outstanding arrest warrant, the court ruled that the trial court was bound by the State’s stipulation.) Even if the officer could not have known the defendant’s age when he initially saw the defendant with his hoodie on, he should have been able to recognize that the defendant was much older than 18 years of age when face-to-face with him. In any event, the court stated that as soon as the defendant provided his identification card with his birth date, the officer knew that the defendant did not match the descriptions of the suspects, and at that point the investigative stop should have ended because reasonable suspicion did not exist.

State v. Johnson, 204 N.C. App. 259 (2010). An anonymous caller at 12:14 p.m. reported that a black male wearing a white T-shirt and blue shorts was selling illegal drugs and guns at the corner of Pitts and Birch streets in the Happy Hill Garden community. The caller said that the sales were occurring out of a blue Mitsubishi with a license plate of WT 3456. The caller refused to provide a name, and officers could not contact the caller. The officers did not know how the caller obtained his or her information. The caller telephoned again at 12:32 p.m. and stated that the suspect had just left the area but would return shortly. Officers were stationed at the only two entrance points to the community. They saw a blue Mitsubishi with a license plate of WT 3453 being driven by a black male wearing a white T-shirt. An officer entered the license plate information into his computer, which revealed that the vehicle was registered to a Kelvin Johnson, black male, date of birth August 5, 1964. It also showed that Johnson’s driver’s license was suspended. Officers stopped the vehicle, arrested the defendant for driving while license revoked, placed him in the back of a patrol car, and searched the defendant’s vehicle incident to his arrest.

(1) The court ruled, relying on State v. Hughes, 353 N.C. 200 (2000), and State v. Peele, 196 N.C. App. 668 (2009), that the anonymous information was insufficient evidence to support reasonable suspicion to stop the defendant’s vehicle. The court stated that when an anony­mous tip forms the basis for a traffic stop, the tip itself must exhibit sufficient indicia of reliability, or it must be buttressed by sufficient law enforcement corroboration. The court examined the facts and concluded that neither ground was satisfied. (2) The court ruled that even though the anonymous tip did not support the vehicle stop, the officers had reasonable suspicion to stop the vehicle based on their knowledge that the registered owner’s driver’s license was suspended. [Author’s note: Although not cited by the court, see State v. Hess, 185 N.C. App. 530 (2007) (when officer ran vehicle’s registration plate and then registered owner’s driver’s license, which was reported to be suspended, officer had reasonable suspicion to stop vehicle when there was no evidence that owner was not driving vehicle).]

State v. Crowell, 204 N.C. App. 362 (2010). A confidential informant phoned an officer and said that a black male with cocaine would arrive in a few minutes in a black Lexus SUV at a car wash on Highway 301 in Benson. The informant said that he had seen the cocaine. The officer had known the informant for thirteen years and knew his mother and other family members. A month before this phone call, the informant had provided the officer with reliable information about illegal drug activity that resulted in an arrest. Fifteen minutes after the phone call, a black Lexus SUV pulled into the car wash and parked. The informant was also at the car wash, and he called the officer to confirm that the black Lexus SUV was the correct one and the defendant was the driver. Officers stopped the vehicle after it left the car wash. The court ruled that the officers had reasonable suspicion to stop the vehicle based on the confidential informant’s information. The court noted that the informant’s basis of knowledge was not an essential factor under the totality of circumstances test for determining reasonable suspicion (or probable cause). The informant’s information correctly predicted the defendant’s future actions, including his mode of transportation, destination, and time of arrival. This information, corroborated by the officers, sufficiently demonstrated that the informant had inside knowledge about the defendant, giving the officers a basis for believing that the rest of his information concerning the defendant’s transportation of cocaine was also accurate.

State v. Mello, 200 N.C. App. 437 (2009), aff’d, 364 N.C. 421 (2010). The court ruled, relying on State v. Butler, 331 N.C. 227 (1992), that the following facts established reasonable suspicion to stop a vehicle to investigate an apparent drug transaction between the vehicle occupants and two pedestrians. An officer in a vehicle was patrolling a well-known drug location where he had previously made drug-related arrests. He saw two pedestrians approach a vehicle and put their hands into it. The officer did not know the vehicle driver but recognized the two pedestrians, although he did not know their names or whether he had previously arrested them. As the officer drove closer, the two pedestrians fled and the vehicle drove away in the opposite direction from the officer’s vehicle. The court stated that the officer could reasonably have construed the facts to indicate that a hand-to-hand drug transaction had occurred.

State v. Garcia, 197 N.C. App. 522 (2009). A detective received information in May 2007 and on July 7, 2007, from an anonymous confidential informant that marijuana was being kept in a storage shed at a house at 338 Barnes Road and that the defendant was the seller of the marijuana. After searching the defendant’s name on a law enforcement database, the detective found his picture and information that he lived at that address and had a lengthy history of police contact, including suspicion of drug and firearms offenses. Surveillance on July 26, 2007, at the house revealed two men who left and returned several times to the residence in a black BMW. The detective thought one of the men was the defendant. She also saw both men emerge from the area near the shed and enter the BMW. One of them had a black bag with large handles. Other officers who received this information from the detective followed the BMW to a place that was a known drug area. Two people (not the two who were in the BMW) fled when an officer told them he was an officer. Both men who arrived in the BMW, one of whom was the defendant, were placed in handcuffs. The court ruled, distinguishing State v. Hughes, 353 N.C. 200 (2000), that the officers had reasonable suspicion of the defendant’s selling marijuana to make an investigative stop, based on the information from the anonymous confidential informant and the officers’ corroboration of that information.

State v. Allen, 197 N.C. App. 208 (2009). An officer responded to an assault call from a motel at about 3:30 a.m. The victim told the officer that the suspect was a tall white male who left in a small dark car driven by a white female with blonde hair. The officer looked in the vicinity for about ten minutes and then saw a small, light-colored vehicle operated by a white female with blonde hair driving away from the motel. The officer saw the vehicle enter the center turn lane and make an abrupt left turn into a parking lot and drive hastily over rough pavement. The driver was outside the vehicle when the officer approached. The officer saw a person in the passenger seat but could not determine whether the passenger was male or female. The officer directed the driver to come to his vehicle so that he could ask her questions about the assault. She was eventually arrested for DWI. The court ruled, relying on State v. Allison, 148 N.C. App. 702 (2002), and distinguishing State v. Hughes, 353 N.C. 200 (2000), that the officer had reasonable suspicion to conduct an investigatory stop based on the information supplied by the assault victim and the officer’s observations. The court stated that although the record did not reveal the victim’s name or give details about the victim’s encounter with the officer, a face-to-face encounter with a crime victim affords a higher degree of reliability than an anonymous telephone call. In addition to the victim’s information, the officer saw the driver’s hurried actions, which indicated that the driver was trying to avoid him. In addition, the car was near the area in which the assault had occurred. The fact that the car was light colored and not dark colored as described by the victim did not detract from a finding of reasonable suspicion under all the circumstances.

State v. Williams, 195 N.C. App. 554 (2009). An officer heard a radio report of an armed robbery that had just occurred at a Hispanic store. Due to language barriers between the victims and law enforcement officers, there were two conflicting descriptions of the robber. The first described him as a white male wearing a hood and gloves and carrying a silver firearm. The second described him as an African-American male about six feet tall with a medium build, wearing a green hooded jacket and gloves and carrying a silver gun. Just minutes later, the officer saw the defendant—an African-American male approximately six feet tall with a medium build—a block or two from the robbery location, walking in the same direction that the robber was reportedly traveling, although he was walking down the middle of the street blocking traffic. The defendant was wearing a “blue-green” jacket made of a material that changed colors. He had his hands in his pockets, his hood was up, and he was wearing wraparound glasses. The officer approached the defendant and asked him to take his hands out of his pockets. The defendant stopped walking, kept his hands in his pockets, and did not say anything. After again being ordered to show his hands, the defendant took them out but also started to empty his pockets. As he was doing so, the officer saw the top of a plastic baggie in one of the pockets. When the officer frisked the defendant, he patted the defendant’s front pocket and felt something hard to the touch, round, and possibly a quarter of an inch thick. Based on its feel, the officer believed the object to be a crack cookie and removed it. The court ruled, distinguishing State v. Cooper, 186 N.C. App. 100 (2007), that the officer had reasonable suspicion to make an investigative stop of the defendant for armed robbery and to frisk him for weapons.

State v. Hudgins, 195 N.C. App. 430 (2009). An officer received a call from dispatch at approximately 2:55 a.m. informing him that a man (hereafter, the caller) was driving his car and being followed by another vehicle. The caller did not identify himself but stated that he was being followed by a man armed with a gun in the vicinity of a specified intersection in Greensboro. The caller described the vehicle by make, model, and color and provided updates on its location. The officer advised the dispatcher to direct the caller to Market Street so that he could intercept the vehicles. The officer arrived there and saw the two vehicles at a red light. The officer activated his lights and siren, which caused both vehicles to stop, and approached the vehicle that was following the caller. The caller did not identify himself but exited his vehicle and identified the driver of the other vehicle as the man who had been following him. The officer removed the defendant from his car. The court ruled, relying on State v. Maready, 362 N.C. 614 (2008), that the officer had reasonable suspicion of criminal activity to stop the defendant’s vehicle because (1) the caller telephoned police and remained on the telephone for about eight minutes; (2) the caller provided specific information about the vehicle following him and the location; (3) the caller carefully followed the instructions of the dispatcher, which allowed the officer to intercept the vehicles; (4) the defendant followed the caller over a peculiar and circuitous route that doubled back on itself, going in and out of residential areas between 2:00 a.m. and 3:00 a.m.; (5) the caller remained on the scene long enough to identify the defendant to the officer; and (6) by calling on a cell phone and remaining at the scene, the caller placed his anonymity at risk.

State v. Murray, 192 N.C. App. 684 (2008). An officer was performing a property check in an industrial park at 3:41 a.m. He saw a vehicle coming out of the area and decided to pull behind it and run its license plate to determine if it was a local vehicle. The officer conceded at the suppression hearing that the vehicle was not violating any traffic laws; was not trespassing, speeding, or making any erratic movements; and was on a public street. The license plate check showed that the vehicle was not stolen and was in fact a rental vehicle from a nearby city. Nevertheless, the officer stopped the vehicle. The court ruled that reasonable suspicion did not support the stop. Although the officer’s patrol of the area was part of increased policing due to past break-ins, he saw no indication that night of damage to vehicles or businesses in the park and stopped the vehicle because he wanted to make sure there wasn’t anything illegal taking place.

State v. Campbell, 188 N.C. App. 701 (2008). At approximately 3:40 a.m., Officer A responded to a report of a breaking and entering in progress at a residence. While driving to the residence (he arrived within three minutes of the report), the officer saw the defendant riding a bicycle on a road that was near the reported break-in (within about a quarter-mile). The officer did not see anyone else in the vicinity. The officer continued to the dwelling without making any contact with the bicyclist. He saw that a window had been opened with a small, flathead screwdriver or a pry tool and he notified other officers of that information. Officer B, aware of Officer A’s report about the bicyclist and the break-in, including the type of instrument that may have been used, eventually stopped the defendant, who had a backpack and was playing with something inside it. Officer C arrived and recognized the defendant as having an extensive history of breaking and entering as well as being a substance abuser. Officer B handcuffed the defendant and frisked him. A small flashlight and a Swiss Army–type knife were found in the defendant’s pockets. The defendant was then arrested. The court ruled that Officer B had reasonable suspicion to stop the defendant, noting the defendant’s proximity to the break-in, the time of day, and the absence of other people in the area.

State v. Hayes, 188 N.C. App. 313 (2008). An officer saw the defendant and his companion driving on a Sunday afternoon in an area where several prior drug-related arrests had been made. They got out of the car and walked back and forth along a nearby sidewalk. The officer looked in the car and saw a gun under the seat where the companion had been sitting. The officer did not know anything about the defendant or his companion and did not believe that either man lived in the neighborhood. The court ruled, relying on State v. Fleming, 106 N.C. App. 165 (1992), that the officer did not have reasonable suspicion to make an investigative stop of the defendant.

State v. Cooper, 186 N.C. App. 100 (2007). During the late afternoon, a law enforcement officer heard a radio report that an armed robbery had been committed at a convenience store. The robber was described as a black male. The officer also heard over the radio that another officer had seen a black male walking on Lake Ridge Drive shortly after the robbery. The officer turned onto Deanna Drive to begin a sweep of the area. The robber had reportedly left the rear of the store, heading in the general direction of the area the officer was searching. The officer knew that there was a path running from the store through woods to Lake Ridge Drive. The officer approached the intersection of Deanna Drive and Lake Ridge Drive approximately five minutes after the robbery. The officer saw a black male near the point where the path exited onto Lake Ridge Drive. From the time the officer turned off Capital Boulevard until this point, the officer had seen no one else. He drove closer to the black male (the defendant) and motioned him to approach his car. In response, the defendant walked over to the car. The officer conducted a stop and frisk of the defendant. The court ruled that the officer did not have reasonable suspicion to stop and frisk the defendant for the armed robbery. (See the court’s discussion of the case law on this issue.)

State v. Blackstock, 165 N.C. App. 50 (2004). The court ruled, citing State v. Fox, 58 N.C. App. 692 (1982), aff’d per curiam, 307 N.C. 460 (1983), State v. Tillett, 50 N.C. App. 520 (1981), and other cases, that officers had reasonable suspicion to make an investigative stop of a vehicle. The court noted that two people wearing dark clothing (one of whom was the defendant) were observed loitering at a closed shopping center shortly before midnight in an area targeted by law enforcement officers as a high-crime area. No other vehicles were in the shopping center parking lot. When a vehicle, which the two people may have recognized as a law enforcement vehicle, appeared, the men abruptly and hurriedly returned to their vehicle, which was parked out of general public view, and departed. Once in the vehicle, the passenger turned and looked behind as if trying to determine the identity of the officers following them. The court concluded that these cumulative factors, together with the other detailed findings by the trial judge, adequately supported the officers’ reasonable belief that the two people were involved in criminal activity.

State v. Edwards, 164 N.C. App. 130 (2004). Suspecting that the defendant had committed sexual assaults on females on December 23, 2000, and December 26, 2000, based on information gathered from the victims, officers placed him under surveillance. On January 9, 2001, evidence from surveillance at about 2:50 a.m. indicated that the defendant’s car had left his residence and was traveling toward a nearby town. About 4:00 a.m. officers heard an alert tone from that town’s police that a female had been sexually assaulted by a person with a handgun whose general description met the defendant’s. Officers saw no other vehicles on the road that night other than patrol cars (it was snowing). The defendant’s vehicle then passed an officer’s vehicle; it was coming from the other town and heading toward the defendant’s residence. The officers stopped the defendant’s vehicle. The defendant immediately put both of his hands underneath his seat and jumped out of the vehicle. Officers had to draw their weapons on the defendant because he failed to comply with their orders. After handcuffing the defendant, one of the officers searched under the front seat of the defendant’s vehicle for a weapon and found a handgun.

(1) The court ruled that the officers had reasonable suspicion to stop the defendant to investigate the recent sexual assault. The court noted that the officers also had authority to stop the vehicle because it had an expired Illinois registration plate. (2) The court ruled that the officer had the authority to make a protective search of the defendant’s vehicle for a weapon under Michigan v. Long, 463 U.S. 1032 (1983).

State v. McArn, 159 N.C. App. 209 (2003). An anonymous caller reported to a police department that a white Nissan vehicle at a specified location was involved in the sale of illegal drugs. Based on this information, and with no additional corroboration of the anonymous caller’s information, an officer stopped the vehicle. The court ruled, relying on State v. Hughes, 353 N.C. 200 (2000), and other cases, that the officer did not have reasonable suspicion to make an investigative stop of the vehicle.

State v. Martinez, 158 N.C. App. 105 (2003). The court ruled that reasonable suspicion supported an officer’s investigative stop of a vehicle for possible criminal activity. At 2:00 a.m., Officer A was on routine patrol in a marked vehicle when he saw and drove past a male pedestrian. The officer immediately turned around and pulled over on the side of the road behind the pedestrian. Upon seeing the officer, the pedestrian ran toward the woods in the direction of a mobile home park. About four minutes later, while the officer was driving through the mobile home park in an unsuccessful attempt to locate the pedestrian, Officer B contacted Officer A by radio and informed him that there was a motor vehicle parked on the right shoulder of the road near the mobile home park. Officer A then drove out of the mobile home park and saw a white vehicle leaving the right shoulder of the road near the mobile home park. This vehicle was located about 50 yards from the area where the officer had seen the pedestrian flee from him earlier. The officer then stopped the vehicle. The court stated that it was reasonable for the officer to infer that the person who had fled from him was in some way related to the stopped vehicle located a mere 50 yards from the fleeing pedestrian. The fact that the stop occurred around 2:00 a.m., when there was generally no foot traffic and there were no vehicles on the road except this vehicle and the patrol vehicles, contributed to the officer’s suspicion.

State v. Summey, 150 N.C. App. 662 (2002). Officers were conducting surveillance in a known drug area. An officer was watching a residence that had been the subject of a nuisance-abatement proceeding for drug-related activities. A group of men were standing in the residence’s front yard. The officer saw a pickup truck stop at the residence. One man in the yard approached the truck and appeared to converse with the driver. A few moments later, the man returned to the yard and the truck drove away. Believing that he had witnessed a drug transaction, the officer radioed to other officers, who stopped the vehicle. The defendant was seated in the passenger seat with her left hand hidden underneath fabric. An officer recognized her from prior investigative stops. Concerned about small weapons in her hand, the officer asked her to show her hands. She lifted her hands but kept her left hand closed in a fist. The officer noticed a rock-like substance, which he believed to be crack cocaine, wedged in a gap between the defendant’s fingers. She refused to open her left hand. The officer applied pressure to the back of her hand and forced it open. He recognized one piece of crack cocaine as it fell from her hand and another piece that remained stuck to her palm.

(1) The court ruled that reasonable suspicion existed to make an investigative stop of the vehicle for illegal drugs. (2) The court ruled that reasonable suspicion existed to search the defendant’s closed hand for weapons. The court noted that at the suppression hearing the officers testified that they had been trained that a small knife or razor blade could be concealed in a clenched fist. Also, the search of the defendant’s hand was justified by the officer’s having seen crack cocaine wedged in her fingers. (3) The court ruled that reasonable force was used to open the defendant’s closed hand to search for weapons and to prevent the destruction of evidence.

State v. Allison, 148 N.C. App. 702 (2002). An unidentified woman approached Officer A at a convenience store and told him that about five minutes earlier she had been in a nearby restaurant where she had observed four African-American males sitting in the bar area. She said that she had overheard them talking about robbing the restaurant and that she had seen the four men passing a black handgun among themselves. At the officer’s request, the woman repeated her observations to Officer B. Officer A then obtained the woman’s telephone number, which he wrote on the back of his hand. Officer A and other officers entered the restaurant and saw four African-American males sitting in the bar area. Officer A identified the defendant as having been involved in prior gun-related incidents. He then approached the men and asked them to step into the restaurant’s foyer. The defendant was “holding his pants up as though he had something dragging his pants down.” Id. at 703. The officer began conducting a pat-down frisk of the defendant and asked him whether he was carry­ing any weapons. After the defendant responded “no,” the officer continued to frisk him and seized a 9 millimeter handgun from his waistband. The defendant was arrested for carrying a concealed weapon. Later, Officer A called the telephone number that he had written on the back of his hand, but there was no answer. The court ruled, distinguishing Florida v. J.L., 529 U.S. 266 (2000), and State v. Hughes, 353 N.C. 200 (2000), that reasonable suspicion supported Officer A’s investigatory stop of the defendant. Unlike in J.L. and Hughes, the tip was supplied by a face-to-face encounter rather than by an anonymous phone call. Officer A had an opportunity to observe the demeanor of the tipster to assess the tip’s reliability. By engaging Officer A directly, the tipster significantly increased the likelihood that she would be held accountable if her tip proved to be false. Also, unlike the informants in J.L. and Hughes, the tipster offered a reasonable explanation of how she was aware that criminal activity was possibly going to take place. In addition, the officer’s knowledge that the defendant had been involved in gun-related incidents buttressed the tip. The court also ruled that the officer’s frisk was proper. The court rejected the defendant’s argument that once Officer A had begun to frisk him and found nothing, the defendant should have been permitted to leave once he informed the officer that he was not carrying a handgun.

State v. Young, 148 N.C. App. 462 (2002). A Western Union office was robbed twice in a two-week period. Each robbery was committed by a person who was described similarly. A week after the second robbery, a female caller to 911, who would not identify herself because she feared for herself and her child, said that she knew who had committed both robberies. She said he was currently in the vicinity of a Wendy’s restaurant near the Western Union and was driving a white 1998 Buick Century. Her description matched the prior descriptions. She also described the person’s clothing and said that he was very dangerous and armed with a pistol. An officer then went to Wendy’s and saw a vehicle and its driver that matched the anonymous caller’s identifications. The officer followed the defendant when he drove away from Wendy’s. He drove the wrong way down a one-way street. Eventually he pulled into a parking lot and was stopped after getting out of his car. The court ruled that the officer had probable cause to believe that the defendant violated G.S. 20-165.1 (willfully driving wrong way on one-way street) that justified the officer’s stop of the defendant. The court also ruled, relying on State v. Bone, 354 N.C. 1 (2001), that the anonymous information and corroboration by the officer established reasonable suspicion to stop the defendant for the armed robberies.

State v. Brown, 142 N.C. App. 332 (2001). A detective received a call from his agency’s 911 center stating that a “concerned citizen” had telephoned to complain that two black males were rolling marijuana cigarettes and selling crack cocaine on the porch of a vacant house under construction at a specified street corner. The citizen said that one of the black males was wearing a gray T-shirt and jeans and the other was wearing a black T-shirt and jeans. Two officers went to the house but did not see any black males on the porch. However, they saw three black males and a black female sitting on the porch of a house next door. Two of the males wore clothing fitting the description given by the caller. The defendant, the third male, was wearing a black pullover shirt and camouflage pants. The three men denied having any drugs. One officer frisked the defendant, and while being frisked, the defendant attempted to pull away from the officer. He was then arrested for resisting an officer, and cocaine was found incident to the arrest. The court, relying on J.L., 529 U.S. 266 (2000), ruled that the information from the anonymous phone call was insufficient to support the officer’s stop and frisk of the defendant. Because the cocaine was discovered as a fruit of the officer’s illegal stop and frisk, the evidence had to be suppressed. [Author’s note: Based on J.L., the information also was insufficient to support the stop and frisk of the two black males who matched the anonymous caller’s description.] See also In re A.J.M.-B., 212 N.C. App. 586 (2011) (anony­mous call that juveniles were walking with firearm in open field was insufficient to support investigative stop, based on J.L.); United States v. Jones, 242 F.3d 215 (4th Cir. 2001) (anonymous call that “several black males” were drinking beer and causing disturbance at intersection was insufficient to stop vehicle in area).

State v. Covington, 138 N.C. App. 688 (2000). At approximately 3:00 a.m. on December 23, 1996, two Asheboro police officers received a call reporting that two males had broken into an apartment building in Asheboro and were leaving the apartment building heading toward Morgan Avenue. The officers drove to an intersection about 300 yards from the reported break-in and separated. Officer A went to the apartment building, and Officer B remained at the intersection. Officer A ordered Officer B to stop any pedestrians or vehicles entering the area. Two vehicles entered the area, and Officer B stopped them both by waving his flashlight. Officer B asked the driver of the first vehicle for his license, spoke with the driver and passengers briefly, and allowed them to proceed. The defendant’s vehicle approached the intersection next, and Officer B again waved his flashlight. The defendant stopped and rolled down his window. Officer B explained that he was investigating a possible break-in in the area and was stopping all pedestrians and vehicles as part of the investigation. Without being asked to do so by Officer B, the defendant got out of his vehicle, staggering and talking about what he would do if someone had broken into his house. He was eventually arrested for DWI. The court ruled, citing State v. Tillett, 50 N.C. App. 520 (1981), and other cases, that Officer B had reasonable suspicion to stop the defendant’s vehicle, based on the facts in this case. The court stated that it was reasonable for Officer B to stop and detain the defendant briefly to ascertain his identity and his possible involvement in criminal activity or to warn him as a resident.

State v. Parker, 137 N.C. App. 590 (2000). The court reviewed the facts of a long investigation of drug trafficking at a particular apartment and ruled that the officers had a reasonable suspicion of drug activity to make an investigative stop of a vehicle leaving that apartment, based on the following facts: (1) the accumulation of information received by the officers throughout their investigation led them to believe a “stash house” for drugs was located at the apartment; (2) within minutes of setting up surveillance of that location, the officers saw two men and the defendant leave the apartment complex at 1:00 a.m. and walk hurriedly to a parked vehicle in the parking lot; and (3) the detectives noticed the men placing what appeared to be a rifle wrapped in a blanket and a black tote bag, possibly containing controlled substances, in the trunk of the automobile.

State v. Willis, 125 N.C. App. 537 (1997). Officers were conducting surveillance of a residence while a search warrant was being sought to search it for drugs. The defendant, whom the officers did not recognize, left the residence on foot. Concerned that he might be involved in drug activity occurring in the residence, they followed him. When the defendant realized that he was being followed, he took evasive action by cutting through a parking lot. A detective then asked a uniformed officer to stop the defendant and ask him for identification. That officer approached the defendant on foot, told him he was conducting an investigative stop, and asked him for identification and for consent to a pat down for drugs and weapons. The defendant consented to the pat down. The officer began to pat down the exterior and then the interior of the defendant’s leather jacket. Just as the officer began to check the jacket’s interior pocket, the defendant lunged into the jacket with his hand. The officer, believing that the defendant might be reaching for a weapon and fearing for his safety, immediately locked his hands around the defendant’s jacket, effectively locking the defendant’s hand inside the pocket. Another officer arrived and assisted the officer. When the two officers managed to get the defendant’s hand out of his pocket, they put the defendant’s hands behind him and reached into the defendant’s interior jacket pocket and emptied it, revealing several baggies of crack cocaine.

Relying on State v. Butler, 331 N.C. 227 (1992), the court ruled that the officer’s investigative stop was supported by reasonable suspicion. The court noted that the defendant left a suspected drug house just before the search warrant was to be executed, took evasive action when he knew that he was being followed, and exhibited nervous behavior.

State v. Watkins, 120 N.C. App. 804 (1995). An officer stopped a vehicle for impaired driving. A prior appeal of this case determined that anonymous information and the officer’s observations provided reasonable suspicion for the stop. See State v. Watkins, 337 N.C. 437 (1994), discussed above. In later proceedings, the defendant filed a supplemental suppression motion based on newly discovered evidence that the anonymous information had been supplied to the stopping officer by another officer and that the other officer had fabricated the information (there was no evidence that the stopping officer knew that the information was fabricated). The court ruled that reasonable suspicion that is based on information fabricated by a law enforcement officer and supplied to another law enforcement officer may not serve as a basis for a stop by the officer who received the fabricated information, even though that officer did not know that the information was fabricated.

State v. Clyburn, 120 N.C. App. 377 (1995). Officers were conducting surveillance at night at a place that had a reputation for drug activity and where officers had previously made drug arrests. Officers saw three males in front of a vacant duplex. As individuals approached one of the males, he would disappear behind the duplex with them. The other two males remained in front of the duplex as if acting as lookouts. Each time the defendant reappeared, the other two males conferred with him. Based on the officers’ training and experience with similar activity, they believed that drug transactions were being conducted. After one such activity, one of the males and a female got into a car and drove away. The car was stopped, and the male (the defendant) and female were frisked. An officer searched the passenger area of the car and found a .357 Magnum in the glove compartment. The male was arrested for carrying a concealed weapon. Following the arrest, the car was searched and crack cocaine was found in an ashtray.

The court ruled that (1) the officers had reasonable suspicion to stop the car to investigate drug activity; and (2) the search of the car for weapons was proper under Michigan v. Long, 463 U.S. 1032 (1983), because after the defendant had been frisked, he became belligerent, and the officers could reasonably believe that the defendant was potentially dangerous and might be armed because of his involvement in drug trafficking. The court also cited State v. Butler, 331 N.C. 227 (1992).

State v. Jordan, 120 N.C. App. 364 (1995). An officer received a call that two black males, one wearing dark clothing and the other wearing a green jacket, had just left a Pick-N-Pay shoe store after committing an armed robbery. The officer, who was less than a mile away from the shopping center in which the store was located when he received the call, went there. As he drove toward the shoe store, the officer saw a small blue car come from behind Revco Drugs in the shopping center. The area from which the car came was not used for public parking. The blue car contained three black males. The officer saw no other black people in the area. The officer followed the car and noticed that the backseat passenger kept looking back at the police vehicle. When he saw an arm reach out of the passenger window and drop two small card-like objects, he stopped the car. The court ruled that the officer had reasonable suspicion to stop the car to investigate the armed robbery.

State v. Watson, 119 N.C. App. 395 (1995). Three officers approached a convenience store at night. They observed the defendant standing in front of the store. Officer A had made fifty or more arrests for possession of cocaine in this area. Officer A knew that the defendant had previously been arrested for drug charges. The defendant, on seeing the officers, put items in his mouth and started to go back into the store. When Officer A grabbed the defendant’s jacket, the defendant attempted to drink a soft drink. The officer took the drink away, ordered the defendant to spit the objects out of his mouth, and applied pressure to the defendant’s throat so that he would spit out the items. The defendant spit out three baggies containing crack cocaine. Based on this and other evidence (for example, officers testified at the suppression hearing that drug dealers will attempt to conceal or swallow drugs when they see officers), the court ruled that the officers had reasonable suspicion to stop the defendant; the court cited State v. Butler, 331 N.C. 227 (1992). The court also ruled that exigent circumstances supported the reasonableness of the officer’s actions in applying pressure to the defendant’s throat so that he would not swallow the drugs he had placed in his mouth (the court considered the officers’ training and experience and their familiarity with the area, the defendant, and drug dealers’ practice of hiding drugs in their mouths to elude detection).

State v. Taylor, 117 N.C. App. 644 (1995). Officer A knew that the defendant had been previously arrested for drugs and had a reputation in the community as a drug dealer. Officer A and other officers saw the defendant with others in an area known for drug trafficking. As officers approached the area in their marked car, the defendant left. The officers saw him at a nearby intersection. The defendant stopped as the police car approached him. As Officer A got out of the car, the defendant walked toward him and dropped something on the ground. The officer approached the defendant and brought him over to the police car. He determined that the dropped item was marijuana and arrested the defendant. He then noticed that the defendant was talking “funny” and ordered him to spit out whatever was in his mouth. The defendant spit out individually wrapped pieces of crack cocaine.

The court ruled that (1) the defendant was not seized until after he dropped the item to the ground, because he had not yielded to a show of authority before then; see California v. Hodari D., 499 U.S. 621 (1991); (2) after the defendant dropped the item, Officer A had reasonable suspicion to detain the defendant, considering everything the officer knew; (3) Officer A had probable cause to arrest the defendant when he determined that the dropped item was marijuana; and (4) even if the defendant did not voluntarily spit out the cocaine, it was admissible as the result of a search incident to arrest.

State v. Wilson, 112 N.C. App. 777 (1993). A police department received an anonymous phone call that several people were selling drugs in the breezeway of Building 1304 in the Hunter Oaks Apartments. The caller did not provide any names or descriptions of the alleged drug dealers. Two officers familiar with the area knew that if a police car entered the parking lot at one end of the breezeway, the suspects would run out the other end. They devised a plan whereby a police car would enter the parking lot and other officers would position themselves so that they could stop anyone who ran out of the back of the breezeway. An officer stopped the defendant as he ran out of the back of the breezeway and conducted a frisk. During the frisk, the officer felt a lump in the left breast pocket of the defendant’s jacket and immediately believed that it was crack cocaine. The officer then asked the defendant if his coat had an inside pocket. The defendant did not respond verbally but instead opened his jacket so that the inside pocket was visible. The officer saw and removed a small plastic bag that contained crack cocaine.

(1) Distinguishing State v. Fleming, 106 N.C. App. 165 (1992), the court ruled that the officer had authority to stop and frisk the defendant based on the anonymous phone call, the flight of the defendant and others when the police car pulled into the parking lot, and the officer’s experience that weapons were frequently involved in drug transactions. (2) Distinguishing Minnesota v. Dickerson, 508 U.S. 366 (1993), the court noted that the officer in this case—unlike the officer in Dickerson—did not need to manipulate the item in the defendant’s pocket to determine that it was cocaine; he immediately believed it was crack cocaine. The court ruled that the requirement in Dickerson that it must be “immediately apparent” to the officer that the item is illegal means that the officer must have probable cause to believe that the item is illegal. The court also ruled that the officer’s tactile senses, based on his experience and the facts in this case, gave him probable cause to believe that the item was crack cocaine. Thus, the officer did not exceed the scope of a frisk under the Dickerson ruling.

State v. Pittman, 111 N.C. App. 808 (1993). Two officers were on patrol at a train station at 1:30 a.m. They saw the female defendant and a man speak and then part company when they saw the officers. Officer Gunn approached the defendant and Officer Ferrell approached the man. The defendant showed Gunn a train ticket and stated that she was traveling alone and did not know the man with whom she had been seen. Gunn noticed that the defendant was constantly looking over at the man, who was twenty feet away. The defendant consented to a search of her bag; nothing was found. Meanwhile, Ferrell spoke with the man, who said he was traveling alone and did not know the defendant. The man consented to a search of his bag; nothing was found. Later, a vehicle pulled up to the train station, and the man put his bag in the trunk. The man then motioned to the defendant to approach the car. He placed her bag in the trunk, and the two of them got in the car and left. The officers compared information that they had learned from their encounters with the man and the defendant and had the car stopped by a uniformed officer. The defendant refused to consent to a search and was taken to the police station and searched.

(1) The court, relying on Florida v. Bostick, 501 U.S. 429 (1991), ruled that Officer Gunn did not seize the defendant at the train station. He merely approached her and asked a few questions, and she voluntarily gave him her train ticket and consented to a search of her bag. (2) The court ruled that the officers had reasonable suspicion to stop the vehicle in which the defendant was a passenger, based on the facts discussed above. (3) The court ruled that the officers did not have probable cause to search the defendant for illegal drugs after the vehicle stop, based on the facts discussed above.

State v. Holmes, 109 N.C. App. 615 (1993). The court ruled that reasonable suspicion existed to stop a vehicle based on the following facts. A trained drug officer saw the defendant driving slowly into a neighborhood known for violence and illegal drugs. The defendant then engaged two different groups of people in conversation from a car and went inside a house personally known to the officer because he had made drug arrests there. The defendant returned to the car after a few minutes and lit a cigarette, which he shared with two passengers until it was gone and the car was filled with smoke. Based on his training, the officer believed that the cigarette was a marijuana cigarette. The defendant then placed a plastic bag in the trunk of the car and returned to the house alone for about thirty seconds. When the defendant returned to the car, he carefully concealed an object underneath the driver’s seat.

State v. Fleming, 106 N.C. App. 165 (1992). Officers at 12:10 a.m. were in a housing project area where illegal drug activity was common. An officer saw the defendant and a companion, strangers to the area, standing in an open area between two apartment buildings. The two men watched the officer for a few minutes and began walking on a sidewalk away from him. The officer drove around to where the men were walking, got out of his car, and commanded them to come to him. They hesitated a minute and then approached him. The defendant acted “real nervous.” As the officer was questioning the defendant about why he was in this area (to which the defendant responded that a friend had dropped him off and he was walking through), the officer frisked him and found crack cocaine. The court ruled, relying on Brown v. Texas, 443 U.S. 47 (1979), that the officer’s stop and frisk of the defendant was not supported by reasonable suspicion of criminal activity. See also United States v. Davis, 94 F.3d‌ 1465 (10th Cir. 1996) (defendant’s actions in exiting car, making and breaking eye contact with officers, and then walking away from officers did not support reasonable suspicion to stop defendant).

State v. Swift, 105 N.C. App. 550 (1992). Officers had reasonable suspicion to stop the defendant for illegal consumption of beer after he emerged from his vehicle and placed a beer can on the ground of a convenience store parking lot; the store had only an off-premises license. His later flight from the officers gave them probable cause to arrest.

State v. Cornelius, 104 N.C. App. 583 (1991). An officer received a call from a police radio dispatcher that a black male in a black BMW with a temporary license tag was selling controlled substances from his car on Meridan Street. The street was in a neighborhood with a reputation as a high-crime area for selling drugs (the court ruled that this reputation evidence is admissible in determining reasonable suspicion to stop). An officer arrived at that street within a minute and saw a black male driving a black BMW with a temporary license tag. The officer stopped the car, based on the radio dispatch and on the officer’s seeing a possibly illegal license tag. The court ruled that the officer, based on these facts, had reasonable suspicion to stop the car to investigate illegal drug activity. [Author’s note: This ruling is now questionable in light of the later case of Florida v. J.L., 529 U.S. 266 (1999).]

State v. Reid, 104 N.C. App. 334 (1991), rev’d on other grounds, 334 N.C. 551 (1993). The court upheld an investigatory stop of a vehicle based on officers’ reasonable suspicion of the defendant’s involvement in criminal activity. Officers responded at 2:25 a.m. to an alarm at a drugstore in a shopping center. While driving there, they noticed the defendant’s vehicle parked 100 yards away, and there were no other cars or people in the shopping center’s parking lot. After discovering that the meter box behind the store was missing, they noticed that the defendant’s vehicle was no longer there. Shortly thereafter they saw the vehicle on a highway without its headlights on and accelerating at a high rate of speed. They pursued and stopped the vehicle, which initially did not stop pursuant to the patrol car’s siren and blue light. The court noted that officers need not have had reasonable suspicion of a specific break-in to stop a vehicle but simply reasonable suspicion of some illegal conduct.

State v. Drewyore, 95 N.C. App. 283 (1989). Reasonable suspicion supported officers’ stop of the defendant’s vehicle. The defendant paid utilities for a beach cottage, and parked outside the cottage was a boat that officers believed to be a type used in drug smuggling. Three days before the stop, the defendant had driven a circuitous route with a vehicle for more than 130 miles, including many U-turns and stops. The officers believed that the driving pattern was a counter-surveillance technique used by drug traffickers. On the day the defendant was stopped she was driving an Oldsmobile, and later on that day the same car and another vehicle were traveling in tandem and using counter-surveillance techniques.

State v. Harrell, 67 N.C. App. 57 (1984). An officer had reasonable suspicion to stop the defendant, who was sitting in his car in a Cannon Mills parking lot located in a high-crime area, late at night between employee shifts, when a security guard saw him apparently engage in a drug transaction.

State v. Davis, 66 N.C. App. 98 (1984). The court applied the totality of circumstances analysis set out in Illinois v. Gates, 462 U.S. 213 (1983), to determine that two informants’ tips were reliable and supported reasonable suspicion to stop the defendant’s vehicle to investigate a robbery. The tips named the defendant as the robber and included his admission to the informants that he had been robbing people; his description; and the color, make, and location of his car—which the officers independently verified. The tips also gave accurate details of the robbery that had not been reported by newspapers.

State v. Fox, 58 N.C. App. 692 (1982), aff’d, 307 N.C. 460 (1983). An officer had reasonable suspicion to stop the driver of a car late at night in a business district where break-ins had occurred earlier that night. The defendant was driving slowly in a dead-end street where all businesses were closed. He was dressed shabbily but was driving a new car, and he appeared to avoid the officer’s gaze when he passed him.

State v. McNeill, 54 N.C. App. 454 (1981). Two officers saw the defendant and another man walking quickly late at night. The defendant was carrying an armful of clothing, and the other man was carrying a television set. When the officers shined their car’s headlights on the defendant, he dropped the clothing and ran. A third officer, who heard the defendant’s description on the radio, saw him (he matched the description) walking on the wrong side of the road, sweating profusely and breathing hard. The court ruled that the officer had reasonable suspicion to stop and detain the defendant. After being stopped, the defendant ran from the officer. The court ruled that the officer then had probable cause to arrest him under G.S. 14-223 because he was obstructing the officer in performing his duties.

State v. Douglas, 51 N.C. App. 594 (1981), aff’d, 304 N.C. 713 (1982). Reasonable suspicion existed to stop the defendant’s car, which appeared to have an appliance in the trunk and was in an area late at night where there had been several thefts of washers and dryers from a nearby mobile-home business.

State v. Tillett, 50 N.C. App. 520 (1981). An officer had reasonable suspicion to stop a car at night based on the following facts: (1) the car entered a dirt road in seasonally unoccupied Nags Head Woods; (2) there were reports of firelighting deer (a wildlife violation) in that area; and (3) the officer later saw the car coming out of the area. The court ruled that an experienced officer would have had reasonable suspicion of criminal activity—burglarizing homes or firelighting deer.

In re Horne, 50 N.C. App. 97 (1980). Officers heard a radio dispatch at 1:00 a.m. that two males had been seen pushing or pulling a wagon with a box or television set on it. When an officer arrived, one of the males fled. The box on the wagon contained various merchandise. The officer had reasonable suspicion of larceny to detain the juvenile who was beside the wagon.

State v. Trapper, 48 N.C. App. 481 (1980). An officer had reasonable suspicion to stop a truck to investigate marijuana smuggling when (1) the officer had kept certain premises under surveillance and had been fired on while doing so (the shooting had occurred some days or weeks before the stop); (2) he had seen a boat aground near the premises without a good explanation, although this occurred sometime before the night of the stop; and (3) about midnight he saw a truck leave the premises. The court stated that it took judicial notice that the county in which these events occurred is on the North Carolina coast in an area that is regularly used by marijuana smugglers.

State v. Greenwood, 47 N.C. App. 731 (1980), rev’d on other grounds, 301 N.C. 705 (1981). An officer had reasonable suspicion to stop the defendant (by ordering the defendant to roll down his car window) when the officer arrived at a church in response to a report that a suspicious person was on the premises and churchgoers directed him to the defendant, who was alone in a car parked in the corner of the church parking lot. [Author’s note: The court’s finding of reasonable suspicion would have had more support if specific facts had been given to confirm the churchgoers’ conclusion that the defendant was “suspicious.”]

In re Beddingfield, 42 N.C. App. 712 (1979). An officer’s seizure of the defendant was reasonable. The officer saw a 12-year-old in a car with an adult at night in a convenience store parking lot. When the adult went into the store to shop, the officer approached the car, identified herself as an officer, shined her flashlight on her badge, and said, “Please roll the window down.” [Author’s note: It is questionable whether this evidence supported the court’s conclusion that the seizure (the court apparently assumed a seizure had occurred) was “reasonable” under the Fourth Amendment, because the facts do not support a reasonable suspicion that a crime had been or was about to be committed or otherwise justify the officer’s conduct.]

Federal Appellate Courts

United States v. Curry, 965 F.3d 313 (4th Cir. 2020) (en banc). Four Richmond, Virginia, police officers were patrolling Creighton Court, a heavily populated neighborhood, as a part of a “focus mission team” in response to recent shootings and homicides in the area. The officers heard gunshots nearby and responded in less than a minute to the area where they believed the shots originated, an open area between apartment buildings. Five to eight people were walking away from the area in various directions in a field between buildings, and other people were standing closer to the buildings. Two dispatch calls relayed reports of gunshots in the area but did not provide any further information. The officers spread out and began approaching different people in the field, asking them to show their hands and waistbands and using a flashlight to check for weapons. The defendant and another man were separately walking in the field when an officer stopped them and asked them to raise their hands. The defendant complied and pointed the officer in the direction the shots had come from. When asked to raise his shirt, the defendant complied in a “lackadaisical manner” according to the officer, and eventually two officers patted him down, finding a gun. The defendant was charged with felon in possession of firearm and moved to suppress. The district court granted the motion, finding that officers lacked reasonable suspicion for the stop and that exigent circumstances did not apply. The government appealed, and a panel of the Fourth Circuit Court of Appeals reversed. On rehearing en banc, the Fourth Circuit reversed the three-judge panel decision and affirmed the trial court.

The government conceded on appeal that reasonable suspicion did not support the stop, but it maintained that the exigencies of the situation justified the stop and frisk. The majority disagreed. Exigent circumstances are an exception to the warrant requirement arising when an emergency justifies immediate action by the police. Mincey v. Arizona, 437 U.S. 385 (1987). The “narrow” exception has traditionally been applied to situations involving pursuit of a fleeing suspect, prevention of “imminent harm,” and prevention of destruction of evidence. The government argued that the recent nearby gunshots constituted a threat of imminent harm. The court disagreed.

Though the “emergency-as-exigency approach,” may sound broad in name, it is subject to important limitations and thus is quite narrow in application. For example, the requirement that the circumstances present a true “emergency” is strictly construed—that is, an emergency must be “enveloped by a sufficient level of urgency.” Curry, 965 F.3d at 322 (footnote, citations omitted).

Further, the exigent circumstances exception is typically applied to the search of private property, not to pedestrian stops, and the court declined to apply the doctrine to these facts. “[T]he few cases that have extended the exigent circumstances exception to such seizures all involve specific and clear limiting principles that were absent in Curry’s stop.” Id. at 324. The officers here did not have any specific information about the crime or the suspect. According to the court:

[T]he officers approached Curry in an open field, at one of several possible escape routes, in an area that they only suspected to be near the scene of an unknown crime. Likewise, the officers lacked a description of the suspect’s appearance or, more importantly, any indication that the suspect was in the vicinity . . . Id. at 325.

The officers also stopped only the men walking in the area and not other people who were standing around. This illustrated the “relatively unrestricted nature of the search.” Id. at 325. While the exigent circumstances exception may allow this type of search with a known crime or suspect or in a more-controlled geographic area, here it did not.

United States v. Christmas, 222 F.3d 141 (4th Cir. 2000). Officers A and B were investigating a homicide in a neighborhood. A resident approached Officer A and told him that “you need to come and deal with the drugs and the guns that these guys have on the porch two doors down from me.” Id. at 143. She said that the object of her complaint was two houses away from her home and located at 401 Canal Street. When the two officers arrived at that residence, they saw one woman and three men on the porch. Officer A advised them that he was investigating a report about narcotics and gun activity on the premises. He then stated that he was going to conduct a pat-down search for the safety of all concerned. His frisk of one of them (the defendant) resulted in the seizure of a handgun. The officer knew the defendant and found it odd that he would be present on Canal Street, given the tensions between gangs there and gangs from the defendant’s part of town.

Distinguishing Florida v. J.L., 529 U.S. 266 (2000), the court ruled that this informant (the neighborhood resident) supported the officer’s stop and frisk. Unlike the facts in J.L., Officer A’s conversation with the tipster gave him the opportunity to assess her credibility and demeanor. Two factors supported her credibility. One was the close proximity of the informant’s residence to the illegal activities—she would know if drugs were being sold from the porch there. The other was the informant’s proximity to 401 Canal Street when she spoke to Officer A—by informing the officer about her neighbors’ illegal activity, the informant exposed herself to the risk of reprisal. In addition, she could be held accountable for false statements to the officer—although she did not give her name, the officers knew that she lived at 309 Canal Street. The court also ruled that the frisk was justified based on this information and on the officer’s reasonable belief that the defendant’s presence on the porch created a potential for violence. See also United States v. Sims, 296 F.3d 284 (4th Cir. 2002) (anonymous call describing person who had just fired pistol and officer’s observation of defendant, who matched description and acted evasively when he saw the officer, supported reasonable suspicion to stop defendant).

United States v. Wilson, 205 F.3d 720 (4th Cir. 2000). An officer did not have reasonable suspicion to stop the defendant’s car simply because the car had a temporary paper license tag and the officer could not read the handwritten expiration date on the tag as he drove behind the car after dark. The officer had no suspicion that the defendant was driving without a license, operating an unregistered car, or otherwise violating the law, and nothing appeared illegal about the temporary tag.

United States v. Lender, 985 F.2d 151 (4th Cir. 1993). At approximately 12:50 a.m., officers were patrolling an area where they knew heavy drug trafficking occurred. They saw a group of four or five men, including the defendant, huddled on a street corner. The defendant had his hand stuck out with his palm up, and the other men were looking down toward his palm. Suspecting a drug transaction, officers approached the group. The group began to disperse, and the defendant walked away from the officers with his back to them. One officer called for the defendant to stop, but the defendant refused, telling the officer, “You don’t want me; you don’t want me.” As the defendant continued to walk away, he brought his hands to the front of his waist as though reaching for or fumbling with something there. The officer again called for the defendant to stop. The defendant stopped briefly, and a loaded semiautomatic pistol fell from his waist to the ground. The court ruled that the officers had reasonable suspicion to stop the defendant for drugs.

DWI Stops

North Carolina Supreme Court

State v. Carver, 373 N.C. 453 (2020). The supreme court, per curiam and without an opinion, affirmed the ruling of the court of appeals, 265 N.C. App. 501 (2019), that reasonable suspicion did not support a warrantless traffic stop based on an anonymous tip.

A sheriff’s deputy received a dispatch call, originating from an anonymous tipster, just before 11 p.m. The deputy was advised about a vehicle in a ditch on a specified road, possibly with a “drunk driver, someone intoxicated,” and that “a truck was attempting—getting ready to pull them out.” 265 N.C. App. at 502. The tip provided no description of the car, truck, or driver, nor was there information concerning the caller or when the call was received. When the deputy arrived at the scene about ten minutes later, he noticed a white Cadillac at an angle partially in someone’s driveway. The vehicle had mud on the driver’s side, and the deputy opined from gouges in the road that it was the vehicle that had run off the road. However, he continued driving and saw a truck traveling away from his location. He estimated that the truck was travelling approximately fifteen to twenty miles per hour below the posted 55 m.p.h. speed limit. He testified that the truck was the only one on the highway and that it was big enough to pull the car out. He did not see any chains, straps, or other devices that would indicate it had just pulled the vehicle out of the ditch. He initiated a traffic stop. His sole reason for doing so was “due to what was called out from communications.” Id. at 503. The truck was driven by Griekspoor, and the defendant was in the passenger seat.

After the deputy stopped the truck, he explained to the driver that there was a report of a truck attempting to pull a vehicle out of a ditch. The driver reported that he had pulled the defendant’s car out of the ditch and was giving him a ride home. The deputy’s supervisor arrived and talked with the defendant. The defendant was later given a Breathalyzer test and eventually charged with impaired driving. At trial he unsuccessfully moved to suppress evidence, was convicted, and appealed.

The court found that the stop was improper because it was not supported by reasonable suspicion. As the State conceded, the anonymous tip likely failed to provide sufficient reliability to support the stop. It provided no description of either the car or the truck or how many people were involved, and there was no indication when the call came in or when the anonymous tipster saw the car in the ditch with the truck attempting to pull it out. The State argued, however, that because nearly every aspect of the tip was corroborated by the officer, there was reasonable suspicion for the stop. The court disagreed. When the deputy passed the Cadillac and came up behind the truck, he saw no equipment to indicate that the truck had pulled, or was able to pull, a car out of the ditch and could not see how many people were in the truck. The deputy testified that it was not operating in violation of the law. “He believed it was a suspicious vehicle merely because of the fact it was on the highway.” Id. at 506. The details in the anonymous tip were insufficient to establish identifying characteristics, let alone allow the deputy to corroborate the details. The tipster merely indicated that a car was in a ditch, someone was present who may be intoxicated, and a truck was preparing to pull the vehicle out of the ditch. There was no description of the car, the truck, or any individuals who may have been involved. After the deputy passed the scene and the Cadillac, he noticed a truck driving under the posted speed limit. He provided no testimony to show that the truck was engaging in unsafe, reckless, or illegal driving. He was unable to ascertain if it contained a passenger. The court stated that at best there was a tip with no indicia of reliability, no corroboration, and conduct falling within the broad range of what can be described as normal driving behavior. Under the totality of the circumstances, the deputy lacked reasonable suspicion to conduct a warrantless stop of the truck.

State v. Verkerk, 367 N.C. 483 (2014), rev’g 229 N.C. App. 416 (2013). In a DWI case where the defendant was initially stopped by a firefighter, the court determined that the trial court properly denied the defendant’s motion to suppress that had challenged the firefighter’s authority to make the initial stop. After observing the defendant’s erratic driving and transmitting this information to the local police department, the firefighter stopped the defendant’s vehicle. After some conversation, the defendant drove away. When police officers arrived on the scene, the firefighter indicated where the vehicle had gone. The officers located the defendant, investigated her condition, and charged her with DWI. On appeal, the defendant argued that because the firefighter had no authority to stop her, evidence from the first stop was improperly obtained. However, the court determined that it need not consider the extent of the firefighter’s authority to conduct a traffic stop or even whether the defendant’s encounter with him constituted a “legal stop.” The court reasoned that the firefighter’s observations of the defendant’s driving, which were transmitted to the police before making the stop, established that the police officers had reasonable suspicion to stop the defendant. The court noted that this evidence was independent of any evidence derived from the firefighter’s stop.

State v. Kochuk, 366 N.C. 549 (2013). The court, per curiam and without an opinion, reversed the decision of the North Carolina Court of Appeals, 223 N.C. App. 301 (2012), for the reasons stated in the dissenting opinion. An officer was on duty and traveling eastbound on Interstate 40, where there were three travel lanes. The officer was one to two car lengths behind the defendant’s vehicle in the middle lane. The defendant momentarily crossed the right dotted line once while in the middle lane. He then made a legal lane change to the right lane and later drove on the fog line twice. The officer stopped the vehicle, and the defendant was later charged with DWI. The dissenting opinion stated that this case is controlled by State v. Otto, 366 N.C. 134 (2012), summarized immediately below. The defendant was weaving within his own lane, and the vehicle stop occurred at 1:10 a.m. These two facts coupled together, under Otto’s totality of circumstances analysis, constituted reasonable suspicion for the DWI stop.

State v. Otto, 366 N.C. 134 (2012), rev’g 217 N.C. App. 79 (2011). The court ruled that there was reasonable suspicion for a vehicle stop in this case. Around 11 p.m., an officer observed a vehicle drive past. The officer turned behind the vehicle and immediately noticed that it was weaving within its own lane. The vehicle never left its lane, but it was “constantly weaving from the center line to the fog line.” Id. at 135. The vehicle appeared to be traveling at the posted speed limit. After watching the vehicle weave in its own lane for about three-quarters of a mile, the officer stopped the vehicle. The defendant was issued a citation for impaired driving. The court of appeals determined that the traffic stop was unreasonable because it was supported solely by the defendant’s weaving within her own lane. The supreme court disagreed, concluding that under the totality of the circumstances, there was reasonable suspicion for the traffic stop. The court noted that unlike other cases in which weaving within a lane was held insufficient to support reasonable suspicion, the weaving here was “constant and continual” over three-quarters of a mile. Additionally, the defendant was stopped around 11 p.m. on a Friday night. Id. at 138.

State v. Barnard, 362 N.C. 244 (2008). An officer stopped his marked patrol vehicle behind the defendant’s vehicle, which was stopped at a red light. When the light turned green, the vehicle remained stopped for approximately thirty seconds before making a legal left turn; the vehicle had remained at the light without any reasonable explanation for doing so. The officer initiated a stop of the vehicle. The court ruled that reasonable suspicion supported the stop of the vehicle based on these facts and on the officer’s testimony, based on his training and experience, that the driver might be impaired. The officer said that impairment slows reaction time and that a red light turning green and the driver hesitating for thirty seconds would definitely be an indication of impairment. The court noted that it was irrelevant that part of the officer’s motivation to stop the vehicle may have been for a perceived, though apparently nonexistent, statutory violation of impeding traffic. The court stated that the constitutionality of a traffic stop depends on objective facts, not an officer’s subjective motivation; the court cited Whren v. United States, 517 U.S. 806 (1996), and State v. McClendon, 350 N.C. 630 (1999).

State v. Foreman, 351 N.C. 627 (2000). Officers set up a DWI checkpoint under G.S. 20-16.3A and posted notice of the checkpoint about one-tenth of a mile before the stop. At about 2:00 a.m., an officer saw a vehicle, immediately before the checkpoint’s sign, make a “quick left turn” onto a street. The officer followed the vehicle, lost sight of it, but eventually saw it parked in a residential driveway. The officer directed his bright lights onto the vehicle and turned on his take-down lights, thereby enabling the officer to see that people were bent or crouched down inside the car. The vehicle’s lights and ignition were off, and its doors were closed. Once backup arrived, the officer approached the vehicle and saw that the defendant was sitting in the driver’s seat with the key in the ignition. There were several open containers of alcohol in the vehicle, and the vehicle emitted a strong odor of alcohol. In addition, the officer noticed that the defendant had a strong to moderate odor of alcohol about her person after she exited the vehicle and was unsteady on her feet.

(1) The court noted that the officer did not seize the vehicle or the defendant “until at least” the officer approached the vehicle. Based on the incriminating circumstances that existed by then, the court ruled that the officer had reasonable suspicion to stop the driver. (2) Disavowing contrary statements in the court of appeals’ opinion in this case, the court stated: “[W]e hold that it is reasonable and permissible for an officer to monitor a checkpoint’s entrance for vehicles whose drivers may be attempting to avoid the checkpoint, and it necessarily follows that an officer, in conjunction with the totality of the circumstances or the checkpoint plan, may pursue and stop a vehicle which has turned away from a checkpoint within its perimeters for reasonable inquiry to determine why the vehicle turned away.” Id. at 632–33.

State v. White, 311 N.C. 238 (1984). An officer noticed a person in a parked car who appeared to be highly intoxicated. The officer watched the person as he drove away. The person failed to respond to the officer’s blue light. The officer had reasonable suspicion to stop the person’s car.

North Carolina Court of Appeals

State v. Neal, 267 N.C. App. 442 (2019). An anonymous person contacted law enforcement to report that a small green vehicle with license plate RCW-042 was in a specific area, had run several vehicles off the road, had struck a vehicle, and was attempting to leave the scene. Deputies went to the area and immediately stopped a vehicle matching the description given by the caller. The defendant was driving the vehicle. She was unsteady on her feet and appeared to be severely impaired. A trooper arrived and administered Standardized Field Sobriety Tests, which the trooper terminated because the defendant could not complete them safely. A subsequent blood test revealed multiple drugs in the defendant’s system. The defendant was convicted of impaired driving.

The defendant argued that the stop was not supported by reasonable suspicion because it was based on an anonymous tip that was not corroborated by any observation of bad driving. The court disagreed, noting some tension between prior North Carolina case law emphasizing the need to corroborate anonymous tips and Navarette v. California, 572 U.S. 393 (2014), which found reasonable suspicion of impaired driving based on an anonymous caller’s report that a vehicle had nearly run the caller off the road. The court stated that it “need not resolve the apparent tension between our previous case law and Navarette” because the tip in this case involved a very timely and specific report of multiple driving incidents and thus was sufficiently reliable to support reasonable suspicion. Neal, 267 N.C. App. at 455.

State v. Cabbagestalk, 266 N.C. App. 106 (2019). In this driving while impaired case, an officer observed the defendant sitting on a porch and drinking a tall beer at approximately 9:00 p.m. The defendant was known to the officer as someone he had previously stopped for driving while license revoked and an open container offense. Around 11:00 p.m., the officer encountered the defendant at a gas station, where she paid for another beer and returned to her car. The officer did not observe any signs of impairment while observing her at the store and did not speak to her. When the defendant drove away from the store, the officer followed her and saw her driving “normally”— she did not speed or drive too slow, she did not weave or swerve, she did not drink the beer, and she otherwise conformed to all rules of the road. After two or three blocks, the officer stopped the car. He testified that the stop was based on having seen her drinking beer earlier in the evening, purchasing more beer at the store later, and then driving away. The court noted that a traffic violation is not always necessary for reasonable suspicion to stop (collecting sample cases), but it observed that “when the basis for an officer’s suspicion connects only tenuously with the criminal behavior suspected, if at all, courts have not found the requisite reasonable suspicion.” Id. at 112. Here, the officer did not have information that the defendant was impaired and did not observe any traffic violations. The court also rejected the State’s argument that the defendant’s past criminal history for driving while license revoked and open container supplemented the officer’s suspicions: “Prior charges alone, however, do not provide the requisite reasonable suspicion and these particular priors are too attenuated from the facts of the current controversy to aid the State’s argument.” Id. at 114. The court ruled that the trial court’s finding of reasonable suspicion was erroneous.

State v. Mangum, 250 N.C. App. 714 (2016). The court ruled that a vehicle stop was supported by reasonable suspicion. An officer received an anonymous report that a drunk driver was operating a black, four-door Hyundai headed north on Highland Capital Boulevard. The officer located the vehicle as reported and observed that the defendant drove roughly fifteen miles per hour below the 35 m.p.h. speed limit; that the defendant stopped at an intersection without a stop sign or traffic signal for “longer than usual”; that the defendant stopped at a railroad crossing and remained motionless for fifteen to twenty seconds, although no train was coming and there was no signal to stop; and that after the officer activated his blue lights, the defendant continued driving for approximately two minutes, eventually stopping in the middle of the road and in a portion of the road with no bank or curb, having passed several safe places to pull over.

State v. Wainwright, 240 N.C. App. 77 (2015). The court ruled that an officer had reasonable suspicion to stop the defendant’s vehicle for DWI. The officer observed the defendant’s vehicle swerve right, cross the line marking the outside of his lane of travel, and almost strike the curb. The court found that this evidence, along with “the pedestrian traffic along the sidewalks and in the roadway, the unusual hour defendant was driving, and his proximity to bars and nightclubs, support[ed] the trial court’s conclusion that [the] Officer . . . had reasonable suspicion to believe defendant was driving while impaired.” Id. at 86.

State v. Weaver, 231 N.C. App. 473 (2013). The court ruled that the trial court, in granting the defendant’s motion to suppress in a DWI case, erred by concluding that a licensed security guard was a state actor when he stopped the defendant’s vehicle. In the alternative, the court ruled that even if the security guard was a state actor, reasonable suspicion supported the stop. The guard saw the defendant at 2:10 a.m. in rainy weather conditions, traveling approximately 25 m.p.h. in a 15 m.p.h. zone and crossing over the center street lines several times. The time, poor weather conditions, speed, and failure to maintain lane control provided the guard with reasonable suspicion to stop the defendant.

State v. Derbyshire, 228 N.C. App. 670 (2013). The court ruled in this DWI case that the officer lacked reasonable suspicion to stop the defendant’s vehicle. At 10:05 p.m. on a Wednesday night, an officer noticed that the defendant’s high beams were on. The officer also observed the defendant weave once within his lane of travel. When pressed about whether the defendant weaved out of his lane, the officer indicated that “just . . . the right side of his tires” crossed over into the right-hand lane of traffic going in the same direction. Id. at 675. The State presented no evidence that the stop occurred in an area of high alcohol consumption or that the officer considered such a fact as a part of her decision to stop the defendant. The court characterized the case as follows: “[W]e find that the totality of the circumstances . . . present one instance of weaving, in which the right side of Defendant’s tires crossed into the right-hand lane, as well as two conceivable ‘plus’ factors—the fact that Defendant was driving at 10:05 on a Wednesday evening and the fact that [the officer] believed Defendant’s bright lights were on before she initiated the stop.” Id. at 680 (footnotes omitted). The court first noted that the weaving in this case was not constant and continuous. It then concluded that driving at 10:05 p.m. on a Wednesday evening and the officer’s belief that the defendant’s bright lights were on “are not sufficiently uncommon to constitute valid ‘plus’ factors” to justify the stop under a “weaving plus” analysis. Id. at 681.

State v. Fields, 219 N.C. App. 385 (2012). The court ruled that an officer had reasonable suspicion to stop the defendant’s vehicle when the defendant’s weaving in his own lane was sufficiently frequent and erratic to prompt evasive maneuvers from other drivers. Distinguishing cases holding that weaving within a lane, standing alone, is insufficient to support a stop, the court noted that here “the trial court did not find only that defendant was weaving in his lane, but rather that defendant’s driving was ‘like a ball bouncing in a small room’ ” and that “[t]‌he driving was so erratic that the officer observed other drivers—in heavy traffic—taking evasive maneuvers to avoid defendant’s car.” Id. at 389. The court determined that none of the other cases involved the level of erratic driving and potential danger to other drivers that was involved in this case.

State v. Simmons, 205 N.C. App. 509 (2010). The court ruled, distinguishing State v. Fields, 195 N.C. App. 740 (2009), that an officer had reasonable suspicion to stop a vehicle for impaired driving. The defendant was not only weaving within his lane but also was weaving across and outside the lanes of travel and at one point ran off the road.

State v. Peele, 196 N.C. App. 668 (2009). At approximately 7:50 p.m. on April 7, 2007, an officer responded to a dispatch concerning “a possible careless and reckless, D.W.I., headed toward the Holiday Inn intersection.” Id. at 669. The vehicle was described as a burgundy Chevrolet pickup truck. The officer immediately arrived at the intersection and saw a burgundy Chevrolet pickup truck. After following the truck for about a tenth of a mile and seeing the truck weave within its lane once, the officer stopped the truck. The court ruled that the officer did not have reasonable suspicion to stop the truck. The court noted that there was no information identifying the caller, what the caller had seen, or where the caller was located. The officer’s observation of the truck’s weaving within a lane once did not corroborate the caller’s assertion of careless or reckless driving. [Author’s note: The later ruling in Navarette v. California, 572 U.S. 393 (2014) (anonymous caller’s report provided reasonable suspicion for vehicle stop), summarized above, raises questions about the continuing validity of the Peele ruling.]

State v. Fields, 195 N.C. App. 740 (2009). Around 4:00 p.m., an officer followed the defendant’s vehicle for about one and a half miles. On three separate occasions, the officer saw the defendant’s vehicle swerve to the white line on the right side of the traffic lane. The officer stopped the vehicle for impaired driving. The court ruled that the officer did not have reasonable suspicion to stop the vehicle. The vehicle’s weaving within its lane, standing alone, was insufficient to support reasonable suspicion. The court noted that the facts in this case were clearly distinguishable from the circumstances in State v. Jacobs, 162 N.C. App. 251 (2004) (reasonable suspicion of impaired driving existed when defendant’s vehicle was weaving within lane at 1:43 a.m. in area near bars), and State v. Watson, 122 N.C. App. 596 (1996) (reasonable suspicion of impaired driving existed when defendant’s vehicle was weaving within lane and driving on dividing line of highway at 2:30 a.m. near nightclub). In this case, the officer did not see the defendant violating any laws, such as driving above or significantly below the speed limit. Furthermore, the defendant’s vehicle was stopped at about 4:00 p.m., which is not an unusual hour, and there was no evidence that the defendant was near any places to purchase alcohol.

State v. Fuller, 193 N.C. App. 670 (2009). The court ruled that exigent circumstances supported officers’ warrantless entry into a mobile home to arrest the defendant pursuant to an outstanding arrest warrant when officers reasonably believed that the defendant was attempting to escape and also presented a danger to the officers and others in the home.

State v. Jones, 186 N.C. App. 405 (2007). The court ruled that an officer had reasonable suspicion for a DWI stop of a defendant operating a two-wheeled motorized vehicle, based on the following facts (quoted language is officer’s testimony as recounted by the court): The officer saw the defendant operating a motorized vehicle in a “wobbly” manner, and the defendant had to “put her foot down” on the road to negotiate a right-hand turn and “almost dropped the moped.” The officer equated her operation of the vehicle as she was turning to that of “a child learning to ride a bicycle” for the first time. After the defendant made the turn, the officer saw the defendant for “two to three” minutes and followed her for “two to three blocks.” During this time, he watched the defendant wobble on the moped and described her operation of it as “jerky.”

State v. Roberson, 163 N.C. App. 129 (2004). At approximately 4:30 a.m., an officer was traveling southbound on High Point Road in Greensboro when he stopped for a red light at an intersection. The defendant’s vehicle was also stopped at the red light on the opposite side of the intersection—northbound on High Point Road. There were no other vehicles in the area. When the light turned green, the officer proceeded through the intersection. As he passed the defendant’s vehicle, he saw the defendant and could see that she was looking straight ahead. He later was unable to recall whether he saw her hands. After the officer had traveled one city block, the defendant’s vehicle still had not moved. The officer made a U-turn and began to approach the defendant’s vehicle from the rear. The officer estimated that the defendant’s vehicle had delayed eight to ten seconds before proceeding through the intersection. Shortly thereafter, the officer stopped the vehicle. The officer testified that many bars and restaurants were located in the immediate area and that he believed they were required to stop serving alcohol at 2:00 a.m. The court ruled, relying on cases from other jurisdictions, that the officer did not have reasonable suspicion to stop the defendant’s vehicle for DWI. The court noted that a driver waiting at a traffic light can have her attention diverted for any number of reasons. Moreover, because there was not another vehicle behind the defendant to redirect her attention to the green light by honking a horn, a time lapse of eight to ten seconds did not appear so unusual as to establish reasonable suspicion for a vehicle stop. The court rejected in the consideration of reasonable suspicion in this case the State’s advocacy of general statistics concerning time, location, and special events (the furniture market’s presence in town) from which a law enforcement officer could draw inferences based on training and experience. The court also stated that it would not address the State’s argument based on a reference to a National Highway Traffic Safety Administration (NHTSA) publication on statistics concerning slow responses to traffic signals, because neither the publication nor testimony about it were introduced at the suppression hearing. [Author’s note: Concerning NHTSA publications and establishing reasonable suspicion, see State v. Bonds, 139 N.C. App. 627 (2000).]

State v. Jacobs, 162 N.C. App. 251 (2004). The defendant was convicted of several drug offenses. An officer stopped the defendant’s vehicle, detained him for about three to five minutes, received consent to search the vehicle, and discovered evidence in the car and on the defendant’s person.

(1) About 1:43 a.m. on November 8, 2001, a Burlington police officer saw a car continuously weaving back and forth in its lane over a distance of three-quarters of a mile. There were several bars in the area. The court ruled, relying on State v. Watson, 122 N.C. App. 596 (1996), that the officer had reasonable suspicion to stop the vehicle for DWI. [Author’s note: Although the officer also had information that a suspect in a Johnson City, Tennessee, murder was in Burlington; the car’s Tennessee license plate was registered to a Johnson City resident; and a substantial amount of drug trafficking occurred between Burlington and Johnson City; these facts had not also been used as the basis for the trial judge’s ruling that the officer had reasonable suspicion to stop the vehicle.] (2) The court ruled that the length of the defendant’s detention (about three to five minutes) during the investigatory stop was reasonable under the Fourth Amendment. During this time, the officer asked the defendant questions about his impairment, the murder suspect, and drug trafficking. The defendant’s responses did not fully resolve the officer’s suspicions, and the defendant was acting very nervous—the court noted State v. McClendon, 350 N.C. 630 (1999), concerning the issue of nervousness as a factor in determining reasonable suspicion.

State v. Thompson, 154 N.C. App. 194 (2002). Two officers estimated the speed of the defendant’s vehicle to be about fifteen to twenty miles per hour over the speed limit. They saw the vehicle weave within its lane and touch the left line separating the two eastbound lanes at least twice with both left tires. The court ruled, citing State v. Watson, 122 N.C. App. 596 (1996), that the officers had reasonable suspicion to make an investigative stop of the defendant’s vehicle for DWI.

State v. Bonds, 139 N.C. App. 627 (2000). On December 27, 1997, an officer saw the defendant’s vehicle stopped at an intersection. He noticed that the defendant’s driver’s side window was completely rolled down, even though it was 28 degrees outside. The officer saw that the defendant had “a blank look on his face” and never turned his head to make eye contact with the officer. After the light changed, the officer followed the defendant’s vehicle for about a half mile. The speed limit was 40 m.p.h., but the defendant’s vehicle never exceeded 30 m.p.h. The officer stopped the vehicle to investigate the driver for DWI.

The court ruled that these facts supported reasonable suspicion to stop the vehicle. The court noted that this officer had been specifically trained to look for certain indicators of intoxication, including some of the indicators in this case, and that he had ten years of experience and had made several arrests using these exact indicators. Citing State v. Thompson, 296 N.C. 703 (1979), the court stated that an officer’s training and experience must be considered in determining whether reasonable suspicion exists. The court noted that the National Highway Traffic Safety Administration (NHTSA), in its publication The Visual Detection of DWI Motorists, stated that driving ten miles per hour or more under the speed limit and staring ahead with fixed eyes indicated a 50 percent chance that the driver was legally intoxicated. (The court cited the publication’s website address, but it is no longer valid. However, the publication can be found on the NHTSA’s website, www.nhtsa.dot.gov, by typing “The Visual Detection of DWI Motorists” in the search box at the top of the page.) The court stated that this 50 percent statistic lent objective credibility to the officer’s suspicions, demonstrating that his suspicions were in fact reasonable—something more than just a “hunch.” The court rejected the defendant’s argument that weaving, or some other form of aberrant driving, is required to satisfy the reasonable suspicion standard.

State v. Rogers, 124 N.C. App. 364 (1996). An officer was directing traffic with hand signals when the defendant’s vehicle approached the intersection where the officer was located. Instead of turning left as the officer directed, the defendant stopped his vehicle in the intersection. The officer approached the vehicle and noticed a strong odor of alcohol on the defendant’s breath. The officer directed the defendant to drive to the shoulder of the road, and the defendant complied with that directive. The officer then administered an Alco-Sensor test, which revealed a reading of 0.13, and the officer arrested the defendant for impaired driving. The court upheld the trial judge’s ruling that the officer had reasonable suspicion, based on the strong odor of alcohol on the defendant’s breath, to stop the defendant’s vehicle.

State v. Watson, 122 N.C. App. 596 (1996). At about 2:30 a.m., an officer saw a vehicle driving on the dividing line on a two-lane highway near a nightclub. After turning to follow the vehicle, the officer watched the vehicle weave back and forth in its lane for about fifteen seconds. The officer then stopped the vehicle. The court ruled that this was sufficient evidence, based on the totality of the circumstances, to support an investigative stop of the vehicle for impaired driving.

State v. Battle, 109 N.C. App. 367 (1993). Officer Harmon responded to a disturbance call at a washerette and saw the defendant seated behind the steering wheel of a red Pontiac. The officer noticed the odor of alcohol on the defendant’s breath, and the defendant performed physical tests poorly. The officer told the defendant not to drive the vehicle because he believed the defendant was impaired by alcohol. The officer left the washerette, radioed Officer Beekin to be on the lookout for the Pontiac, and gave Beekin the vehicle’s license plate number. Officer Beekin later saw the Pontiac leave the washerette, followed it for four blocks (and did not see anything unusual about its operation), and then stopped it.

The court ruled that Officer Harmon, before he communicated his request to be on the lookout for the Pontiac, had reasonable suspicion that the defendant, impaired by alcohol, would leave the parking lot operating the vehicle. Although Officer Beekin did not personally have the information to establish reasonable suspicion and had not been told that information by Officer Harmon, Officer Beekin validly stopped the Pontiac based on Harmon’s request, which was based on reasonable suspicion.

State v. Aubin, 100 N.C. App. 628 (1990). An officer had reasonable suspicion of an impaired driving offense to stop a car that was going 45 m.p.h. and weaving within a lane on Interstate 95.

State v. Jones, 96 N.C. App. 389 (1989). Although the officer did not see the vehicle committing a traffic violation, his observations of the vehicle’s traveling twenty miles per hour under the speed limit (45 m.p.h. in a 65 m.p.h. zone) on an interstate highway and weaving within a lane were sufficient, based on the officer’s training and sixteen years’ experience, to support a reasonable suspicion to make an investigatory stop for DWI. The court noted that the officer’s failure to charge the defendant with a DWI offense was irrelevant in determining whether the officer initially had reasonable suspicion to stop the vehicle.

State v. Adkerson, 90 N.C. App. 333 (1988). An officer was traveling east on a highway at 2:00 a.m. and saw the defendant’s car as it was traveling west. The officer noticed that the headlights of the defendant’s car were darting back and forth as though the car was weaving. The officer turned around and followed the car for about a quarter of a mile. It weaved back and forth in its lane five or six times and ran off the right side of the road once. The court ruled that the officer had reasonable suspicion to make an investigatory stop for impaired driving.

Federal Appellate Courts

United States v. Wheat, 278 F.3d 722 (8th Cir. 2001). A motorist using a cell phone called 911 to report that a tan-and-cream-colored Nissan Stanza with a license plate beginning with the letters W-O-C was being driven erratically in the northward lane of Highway 169 near Fort Dodge, Iowa. The caller said that the car was passing on the wrong side of the road, cutting off other cars, and otherwise being driven as if by a “complete maniac.” The 911 operator did not ask the caller to identify himself. The caller’s information was relayed to patrolling officers. Shortly thereafter, an officer saw a tan Nissan Maxima with a license plate beginning with the letters W-O-C stopped in the northbound lane of Highway 169 at its intersection with Highway 20. The Nissan made a right turn, and the officer stopped it immediately, without having observed any incidents of erratic driving or other traffic violation. The defendant was driving the Nissan.

The court ruled, distinguishing Florida v. J.L., 529 U.S. 266 (2000), that the officer had reasonable suspicion to stop the vehicle. The court noted that an anonymous caller extensively described a vehicle that, based on the caller’s contemporaneous eyewitness observations, the caller believed was being operated dangerously. The caller cited specific examples of moving violations. When the officer caught up with the vehicle minutes later while it was stopped at an intersection, he corroborated all its innocent details, thus confirming that it was the vehicle identified by the caller. Within seconds after the vehicle resumed motion, the officer immediately stopped it before it could proceed and potentially endanger other vehicles.

Non-DWI Traffic Stops

United States Supreme Court

Kansas v. Glover, 589 U.S. ___, 140 S. Ct. 1183 (2020). A Kansas deputy sheriff ran a license-plate check on a pickup truck and learned that the truck belonged to defendant Glover and that Glover’s driver’s license had been revoked. The deputy pulled the truck over because he assumed that Glover was driving. Glover was in fact driving and was charged with driving as a habitual violator. The Court ruled that when the registered owner of a vehicle has a revoked driver’s license and an officer lacks information negating an inference that the owner is the driver of the vehicle, the stop is reasonable under the Fourth Amendment. The Court gave the following example of a negation of an inference: when an officer knows that the owner of a vehicle is in his mid-60s but sees that the driver is in her mid-20s.

Heien v. North Carolina, 574 U.S. 54 (2014). Affirming State v. Heien, 366 N.C. 271 (2012), the Court ruled that because an officer’s mistake of law was reasonable, it could support a vehicle stop. In Heien, an officer stopped a vehicle because one of its two brake lights was out, but a court later determined that a single working brake light was all the law required. The case presented the question of whether such a mistake of law can give rise to the reasonable suspicion necessary to uphold the seizure under the Fourth Amendment. The Court answered the question in the affirmative. It explained:

[W]e have repeatedly affirmed, “the ultimate touchstone of the Fourth Amendment is ‘reasonableness.’” . . . To be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them “fair leeway for enforcing the law in the community’s protection.” . . . We have recognized that searches and seizures based on mistakes of fact can be reasonable. The warrantless search of a home, for instance, is reasonable if undertaken with the consent of a resident, and remains lawful when officers obtain the consent of someone who reasonably appears to be but is not in fact a resident. . . . By the same token, if officers with probable cause to arrest a suspect mistakenly arrest an individual matching the suspect’s description, neither the seizure nor an accompanying search of the arrestee would be unlawful. . . . The limit is that “the mistakes must be those of reasonable men.”

But reasonable men make mistakes of law, too, and such mistakes are no less compatible with the concept of reasonable suspicion. Reasonable suspicion arises from the combination of an officer’s understanding of the facts and his understanding of the relevant law. The officer may be reasonably mistaken on either ground. Whether the facts turn out to be not what was thought, or the law turns out to be not what was thought, the result is the same: the facts are outside the scope of the law. There is no reason, under the text of the Fourth Amendment or our precedents, why this same result should be acceptable when reached by way of a reasonable mistake of fact, but not when reached by way of a similarly reasonable mistake of law. 574 U.S. at 60–61 (citations omitted).

The Court then found that the officer’s mistake of law was objectively reasonable, given the state statutes at issue:

Although the North Carolina statute at issue refers to “a stop lamp,” suggesting the need for only a single working brake light, it also provides that “[t]he stop lamp may be incorporated into a unit with one or more other rear lamps.” N.C. Gen. Stat. Ann. § 20-129(g) (emphasis added). The use of “other” suggests to the everyday reader of English that a “stop lamp” is a type of “rear lamp.” And another subsection of the same provision requires that vehicles “have all originally equipped rear lamps or the equivalent in good working order,” § 20–129(d), arguably indicating that if a vehicle has multiple “stop lamp[s],” all must be functional. Id. at 67–68.

North Carolina Supreme Court

State v. Johnson, 370 N.C. 32 (2017). The state supreme court reversed the ruling of the court of appeals, 246 N.C. App. 671 (2016), which had ruled that because a police officer lacked reasonable suspicion for a traffic stop in this DWI case, the trial court erred by denying the defendant’s motion to suppress evidence obtained as a result of the stop. The defendant was stopped at a red light on a snowy evening. When the light turned green, the officer saw the defendant’s truck abruptly accelerate, turn sharply left, and fishtail. The officer pulled the defendant over for driving at an unsafe speed given the road conditions. The supreme court ruled that the officer had reasonable suspicion to stop the defendant’s vehicle. It noted that G.S. 20-141(a) provides that “[n]o person shall drive a vehicle on a highway or in a public vehicular area at a speed greater than is reasonable and prudent under the conditions then existing.” The court concluded:

All of these facts show that it was reasonable for [the] Officer . . . to believe that defendant’s truck had fishtailed, and that defendant had lost control of his truck, because of defendant’s abrupt acceleration while turning in the snow. It is common knowledge that drivers must drive more slowly when it is snowing, because it is easier to lose control of a vehicle on snowy roads than on clear ones. And any time that a driver loses control of his vehicle, he is in danger of damaging that vehicle or other vehicles, and of injuring himself or others. So, under the totality of these circumstances, it was reasonable for [the] Officer . . . to believe that defendant had violated [G.S.] 20-141(a) by driving too quickly given the conditions of the road. 370 N.C. at 37.

The court further noted that no actual traffic violation need have occurred for a stop to be initiated. It stated that to meet the reasonable suspicion standard, it is enough for the officer to reasonably believe that a driver has violated the law.

State v. Griffin, 366 N.C. 473 (2013). The court ruled that the defendant’s act of stopping his vehicle in the middle of a roadway and turning away from a license checkpoint supported reasonable suspicion for a vehicle stop. The trial court denied the defendant’s motion to suppress, finding the stop constitutional. In an unpublished opinion, the court of appeals reversed on grounds that the checkpoint was unconstitutional. That court did not, however, comment on whether reasonable suspicion for the stop existed. The state supreme court allowed the State’s petition for discretionary review to determine whether there was reasonable suspicion to initiate a stop of the defendant’s vehicle and reversed. It reasoned:

Defendant approached a checkpoint marked with blue flashing lights. Once the patrol car lights became visible, defendant stopped in the middle of the road, even though he was not at an intersection, and appeared to attempt a three-point turn by beginning to turn left and continuing onto the shoulder. From the checkpoint [the officer] observed defendant’s actions and suspected defendant was attempting to evade the checkpoint. . . . It is clear that this Court and the Fourth Circuit have held that even a legal turn, when viewed in the totality of the circumstances, may give rise to reasonable suspicion. Given the place and manner of defendant’s turn in conjunction with his proximity to the checkpoint, we hold there was reasonable suspicion that defendant was violating the law; thus, the stop was constitutional. Therefore, because the [officer] had sufficient grounds to stop defendant’s vehicle based on reasonable suspicion, it is unnecessary for this Court to address the constitutionality of the driver’s license checkpoint. Id. at 477.

State v. Burke, 365 N.C. 415 (2012). In a per curiam ruling without a written opinion, the state supreme court affirmed the decision in State v. Burke, 212 N.C. App. 654 (2011), in which the court of appeals ruled that the trial judge erred by denying the defendant’s motion to suppress because reasonable suspicion did not support a stop of the defendant’s vehicle. The officer stopped the vehicle because the numbers on its thirty-day tag looked “low,” and the low number led him to “wonder[] about the possibility of the tag being fictitious.” The court of appeals noted that it had previously ruled that thirty-day tags that were unreadable, concealed, obstructed, or illegible justified stops of the vehicles involved. In this case, however, although the officer testified that the thirty-day tag was dirty and worn, he was able to read the tag without difficulty. The tag was not faded. The information was clearly visible and was accurate and proper.

State v. Maready, 362 N.C. 614 (2008). Two officers were on patrol and saw an apparently intoxicated man walking along a road. The man was staggering near the roadway, so the officers began driving toward him. As they did so, the officers saw in the opposite lane a minivan being driven at a slow speed with its hazard lights activated. Behind the minivan was a Honda Civic. The intoxicated man ran across the roadway and got into the Honda. After passing the minivan, which had stopped, the Honda continued down the road. The officers turned around, and as they pulled alongside the minivan, its driver signaled them to get their attention. The minivan driver appeared distraught and told the officers that they needed to check on the Honda’s driver because he had been driving erratically, running stop signs and stop lights. The officers conducted an investigatory stop of the Honda, which the defendant was found to be driving.

The court ruled that the officers had reasonable suspicion of criminal activity to make the stop. (1) The driver of the minivan was in a position to view the alleged traffic violations; a firsthand eyewitness report is an indicator of reliability. Her cautious driving and apparent distress were consistent with a driver having witnessed another motorist driving erratically. (2) The court gave significant weight to the minivan driver’s approaching the officers in person and providing information at a time and place near the scene of the alleged traffic violations. She had little time to fabricate her allegations. She was not a completely anonymous informant because she provided the tip through a face-to-face encounter with the officers. It is inconsequential that the officers did not pause to record her license plate number or other identifying information. Not knowing whether the officers would do so, the minivan driver willingly placed her anonymity at risk. Reviewing all the evidence, including the officers’ observations, the court concluded that there was reasonable suspicion to make an investigative stop of the defendant’s vehicle.

State v. Styles, 362 N.C. 412 (2008). The defendant, who was operating a vehicle moving in the same direction as and in front of an officer’s vehicle, changed lanes without signaling. The officer stopped the defendant for that violation.

(1) The court ruled, relying on the rulings of several federal courts of appeal, that reasonable suspicion is the standard for stops of vehicles for all traffic violations. The court disavowed statements in prior court opinions and in cases of the North Carolina Court of Appeals that probable cause is the standard for the stop of a vehicle for a readily observed traffic violation. These cases include State v. Ivey, 360 N.C. 562 (2006); State v. McClendon, 350 N.C. 630 (1999); State v. Young, 148 N.C. App. 462 (2002); and State v. Wilson, 155 N.C. App. 89 (2003). (2) The court ruled that the officer had reasonable suspicion to stop the vehicle for changing lanes without signaling under G.S. 20-154(a). The defendant’s failure to signal violated the statute because changing lanes immediately in front of another vehicle may affect the operation of the trailing vehicle (in this case, the officer’s vehicle).

State v. Ivey, 360 N.C. 562 (2006). A law enforcement officer stopped a vehicle driven by the defendant after observing that the defendant completely stopped at a stop sign at an intersection and then made a right turn without using a turn signal. The court ruled, relying on the standard of probable cause set out in Whren v. United States, 517 U.S. 806 (1996), that the officer did not have probable cause to stop the vehicle for a perceived traffic violation, specifically, an alleged violation of G.S. 20-154(a). The evidence did not indicate that any vehicle or pedestrian was, or might have been, affected by the turn—including the officer’s vehicle, which was some distance behind the defendant’s vehicle. [Author’s note: Since the Ivey ruling, the North Carolina Supreme Court in State v. Styles, 362 N.C. 412 (2008), ruled that reasonable suspicion, not probable cause, is the standard for all traffic stops.]

State v. Steen, 352 N.C. 227 (2000). Officers responded to a call that a man was on a bicycle that was weaving on a specific street. Officers discovered the defendant on a bicycle on that street—weaving back and forth through heavy traffic—and stopped him. The court ruled that the officers had reasonable suspicion to stop the defendant; the defendant’s dangerous operation of the bicycle constituted a motor vehicle offense (presumably, reckless driving under G.S. 20-140, which applies to bicycles).

State v. McClendon, 350 N.C. 630 (1999). Officer A saw the defendant driving a station wagon on I-85 at a speed of about 72 m.p.h. in a 65 m.p.h. zone and following closely behind a minivan that was going the same speed. The officer believed that the two vehicles were traveling together. With the assistance of Officer B, both vehicles were stopped. Officer A questioned the driver of the minivan and then issued a warning ticket for speeding. Officer B questioned the defendant. The defendant appeared nervous, did not make eye contact, and was breathing heavily. He produced a driver’s license and title to the vehicle but no registration. The defendant told the officer that the station wagon belonged to his girlfriend; however, he could not give the officer her name, even though the addresses on the defendant’s driver’s license and the vehicle’s title were the same. As the defendant continued to answer questions, his nervousness increased. He fidgeted, answered evasively, and appeared very uncomfortable. The officer again asked the defendant for his girlfriend’s name and for the name on the vehicle’s registration. The defendant appeared to say “Anna.” Although that name did not appear on the title, a radio check did not reveal any problems with the registration or the defendant’s driver’s license. The name on the title was Jema Ramirez. After communicating with Officer A, Officer B issued a warning ticket to the defendant for speeding and following too closely. When asked to consent to a search of his vehicle, the defendant—sighing deeply, chuckling nervously, and looking down—muttered “no.” Officer A arrived. The defendant was sweating and breathing rapidly and again refused to consent to a search of his vehicle. Approximately fifteen to twenty minutes elapsed after the issuance of the warning ticket before a drug dog arrived and alerted to the vehicle, resulting in a search and the discovery of drugs.

The court adopted, in considering search and seizure issues under the North Carolina Constitution, the ruling in Whren v. United States, 517 U.S. 806 (1996), that stopping a vehicle for a traffic violation, when there is probable cause to believe that the traffic violation was committed, is constitutional regardless of the officer’s motivation for doing so (for example, stopping a vehicle for a traffic violation when the officer’s motivation for the stop is to investigate illegal drugs). The court ruled that the officer in this case had probable cause to stop the defendant’s vehicle for speeding and following too closely and therefore was justified in stopping it, regardless of the officer’s motivation for doing so.

The court also ruled that the continued detention of the defendant from the time of the issuance of the warning ticket to the arrival of the drug dog was supported by reasonable suspicion of criminal activity. The court cited several factors that supported reasonable suspicion under the totality of the circumstances. First, when the officer questioned the defendant about who owned the car, the defendant said his girlfriend owned it but initially would not give a name. Then he gave the name Anna, but that name was not listed on the title. Second, although the defendant appeared unsure of who owned the car, the address of the owner listed on the title and the address on the defendant’s driver’s license were the same, which indicated that they both lived in the same residence. Third, the defendant was extremely nervous, sweating, breathing rapidly, sighing heavily, and chuckling nervously in response to questions. He also refused to make eye contact when answering questions. The court cited State v. Butler, 331 N.C. 227 (1992), and noted that nervousness was a factor in determining reasonable suspicion in that case.

The court distinguished its ruling from the ruling in State v. Pearson, 348 N.C. 272 (1998) (no reasonable suspicion to frisk defendant). The court stated that it would “revisit Pearson now in order to clarify its meaning . . . .” McClendon, 350 N.C. at 637. The court noted that it said in Pearson that “[t]he nervousness of the defendant is not significant. Many people become nervous when stopped by a state trooper.” Id. at 638. The court stated:

Although the quoted language from Pearson is couched in rather absolute terms, we did not mean to imply there that nervousness can never be significant in determining whether an officer could form a reasonable suspicion that criminal activity is afoot. Nervousness, like all other facts, must be taken in light of the totality of circumstances. It is true that many people do become nervous when stopped by an officer of the law. Nevertheless, nervousness is an appropriate factor to consider when determining whether a basis for reasonable suspicion exists.

In Pearson, the nervousness of the defendant was not remarkable. Even when taken together with the inconsistencies in the statements of the defendant and his girlfriend, it did not support a reasonable suspicion. In the case before us, however, defendant exhibited more than ordinary nervousness; defendant was fidgety and breathing rapidly, sweat had formed on his forehead, he would sigh deeply, and he would not make eye contact with the officer. This, taken in the context of the totality of circumstances found to exist by the trial court, gave rise to a reasonable suspicion that criminal activity was afoot. Id. 638–39 (citations omitted).

The court ruled that the duration of the detention—fifteen to twenty minutes from the warning ticket to the arrival of the drug dog—was reasonable. The officers acted quickly and diligently to obtain the drug dog, and they promptly put the drug dog to work on its arrival.

North Carolina Court of Appeals

State v. Dalton, 274 N.C. App. 48 (2020). An officer stopped the defendant for texting while driving (G.S. 20-137.4A(a)). The officer testified that the defendant was using and handling the phone in a manner more consistent with texting or reading text messages than with using a mapping system. The court ruled that under the specific facts of this case, which included additional indicia of criminal activity beyond mere phone use (the officer saw a glow from the vehicle, with the defendant holding the phone up in the air, and the defendant was the only vehicle occupant), the trial court did not err by finding that the officer had reasonable suspicion to believe that the defendant was texting while driving. The court emphasized that its ruling should not be viewed as establishing a test for meeting the reasonable suspicion requirement in other texting-while-driving cases.

State v. Wiles, 270 N.C. App. 592 (2020). The court ruled that an officer had reasonable suspicion to conduct a traffic stop due to his reasonable but mistaken belief that a passenger was not wearing a seatbelt. The officer’s mistake—failing to see a gray seatbelt atop a gray shirt—was one a reasonable officer could make.

State v. Jones, 258 N.C. App. 643 (2018). An officer’s observation of a single instance of a vehicle crossing the center double-yellow line of a highway in violation of state motor vehicle law provided reasonable suspicion to support the traffic stop. While traveling southbound on Highway 32, N.C. Highway Patrol Trooper Myers was notified by dispatch that a caller had reported a black Chevrolet truck traveling northbound on Highway 32 at a careless, reckless, and high speed. Myers then saw a black Chevrolet truck traveling northbound cross the center double-yellow line. Myers initiated a traffic stop, which resulted in impaired-driving charges. The defendant argued that the stop was not supported by reasonable suspicion because Myers did not corroborate the caller’s information. The court rejected this argument, noting that Myers’s own observation of the vehicle driving left of center provided reasonable suspicion for the stop. Under G.S. 20-150(d), crossing a center double-yellow line constitutes a traffic violation. Citing prior case law, the court stated that an officer’s observation of such a violation is sufficient to constitute reasonable suspicion for a traffic stop.

State v. Eldridge, 249 N.C. App. 493 (2016). The court ruled that the trial court erred by denying the defendant’s motion to suppress evidence obtained as a result of a stop where the stop was based on an officer’s mistake of law that was not objectively reasonable. An officer stopped a vehicle registered in Tennessee for driving without an exterior mirror on the driver’s side of the vehicle. The officer was not aware that the relevant statute—G.S. 20-126(b)—does not apply to vehicles registered out of state. A subsequent consent search led to the discovery of controlled substances and drug charges. On appeal, the State conceded, and the court concluded, following Heien v. North Carolina, 574 U.S. 54 (2014), that the officer’s mistake of law was not reasonable. Looking for guidance in other jurisdictions that have interpreted Heien, the court noted that cases from other jurisdictions “establish that in order for an officer’s mistake of law while enforcing a statute to be objectively reasonable, the statute at issue must be ambiguous.” “Moreover,” some courts applying Heien have further required that there be an absence of settled case law interpreting the statute at issue in order for the officer’s mistake of law to be deemed objectively reasonable.” Eldridge, 249 N.C. App. at 499 (citations omitted). The court concluded that the statute at issue was clear and unambiguous; as a result, “a reasonable officer reading this statute would understand the requirement that a vehicle be equipped with a driver’s side exterior mirror does not apply to vehicles that—like Defendant’s vehicle—are registered in another state.” Id. at 500.

State v. Coleman, 228 N.C. App. 76 (2013). The court ruled that an officer lacked reasonable suspicion to stop the defendant’s vehicle. A “be on the lookout” call was issued after a citizen caller reported that there was a cup of beer in a gold Toyota sedan with license number VST-8773 parked at the Kangaroo gas station at the corner of Wake Forest Road and Ronald Drive. Although the complainant wished to remain anonymous, the communications center obtained the caller’s name as Kim Creech. An officer responded and observed a vehicle fitting the caller’s description. The officer followed the driver as he pulled out of the lot and onto Wake Forest Road and then pulled him over. The officer did not observe any traffic violations. After a test indicated impairment, the defendant was charged with DWI. Noting that the officer’s sole reason for the stop was Creech’s tip, the court found that the tip was not reliable in its assertion of illegality because possessing an open container of alcohol in a parking lot is not illegal; the law applies only to highways, not public vehicular areas. It concluded: “Accordingly, Ms. Creech’s tip contained no actual allegation of criminal activity.” Id. at 79. The court further found that the officer’s mistaken belief that the tip included an actual allegation of illegal activity was not objectively reasonable. Finally, the court concluded that even if the officer’s mistaken belief was reasonable, it still would find the tip insufficiently reliable. Considering anonymous tip cases, the court ruled that although Creech’s tip provided the license plate number and location of the car, “she did not identify or describe defendant, did not provide any way for [the] Officer . . . to assess her credibility, failed to explain her basis of knowledge, and did not include any information concerning defendant’s future actions.” Id. at 82.

State v. Hernandez, 229 N.C. App. 601 (2013). The court ruled, relying on State v. Hess, 185 N.C. App. 530 (2007), that an investigative stop of the defendant’s vehicle was lawful. Officers stopped the defendant’s vehicle because it was registered in her name, her license was suspended, and they were unable to determine the driver’s identity.

State v. Royster, 224 N.C. App. 374 (2012). (1) The court ruled that an officer had reasonable suspicion to stop the defendant’s vehicle for speeding. The court rejected the defendant’s argument that because the officer only observed the vehicle for three to five seconds, the officer did not have a reasonable opportunity to judge the vehicle’s speed. The court noted that after his initial observation of the vehicle, the officer made a U-turn and began pursuing it. He testified that during his pursuit, the defendant “maintained his speed.” Although the officer did not testify to a specific distance that he observed the defendant travel, “some distance was implied” by his testimony concerning his pursuit of the defendant. Also, although it is not necessary for an officer to have had specialized training to be able to visually estimate a vehicle’s speed, the officer in this case had specialized training in visual speed estimation. (2) The court rejected the defendant’s argument that the officer lacked reasonable suspicion to stop his vehicle for speeding because there was insufficient evidence identifying the defendant as the driver. Specifically, the defendant noted that the officer lost sight of the vehicle for a short period of time. The officer only lost sight of the defendant for approximately thirty seconds, and when he saw the vehicle again, he recognized both the car and the driver. [Author’s note: On this point the opinion discussed the court’s earlier opinion in State v. Lindsey, 219 N.C. App. 249 (2012), which was later reversed by the North Carolina Supreme Court (see 366 N.C. 325 (2012)) four days before Royster was decided but not in time to be included in Royster. However, because the court distinguished Lindsey, its discussion of the reversed decision does not appear to undermine the ultimate ruling.]

State v. Canty, 224 N.C. App. 514 (2012). The court ruled that reasonable suspicion did not support a traffic stop. The State had argued that reasonable suspicion existed based on a driver’s alleged crossing of the fog line on Interstate 40, the driver’s and passenger’s alleged nervousness and failure to make eye contact with officers as they drove by and alongside the patrol car, and the vehicle’s slowed speed. The court found that the evidence failed to show that the vehicle crossed the fog line and, in the absence of a traffic violation, the officers’ beliefs about the conduct of the driver and passenger were nothing more than an “unparticularized suspicion or hunch.” It noted that nervousness, slowing down, and not making eye contact are not unusual reactions when passing law enforcement officers. The court also found it “hard to believe” that the officers could tell that the driver and passenger were nervous as they passed the officers on the highway and as the officers momentarily rode alongside the vehicle. The court also found the reduction in speed—from 65 m.p.h. to 59 m.p.h.—insignificant.

State v. Osterhoudt, 222 N.C. App. 620 (2012). The court ruled that an officer had reasonable suspicion to stop the defendant’s vehicle based on observed traffic violations despite the officer’s mistaken belief that the defendant also had violated G.S. 20-146(a) (drive on right side of highway). The officer’s testimony that he initiated the stop after observing the defendant drive over the double-yellow line on the street on which he was driving was sufficient to establish a violation of G.S. 20-146(d)(1) (drive within single lane); (d)(3) (failure to obey direction of official traffic-control device regarding designated lanes); (d)(4) (failure to obey direction of official traffic-control device regarding changing lanes); and 20-153(a) (proper right turns at intersections). Therefore, regardless of his subjective belief that the defendant also violated G.S. 20-146(a), the officer’s testimony established objective criteria justifying the stop. The stop was reasonable, and the superior court erred in holding otherwise. The court noted that because the officer’s reason for the stop was not based solely on his mistaken belief that the defendant violated G.S. 20-146(a) but, rather, was also because the defendant crossed the double-yellow line, the case was distinguishable from others that had ruled that an officer’s mistaken belief that a defendant had committed a traffic violation is not an objectively reasonable basis for a stop. [Author’s note: Concerning an officer’s reasonable mistake of law, see Heien v. North Carolina, 574 U.S. 54 (2014), discussed above.]

State v. Williams, 209 N.C. App. 255 (2011). The court ruled that officers had reasonable suspicion to stop a vehicle in which the defendant was a passenger, based on the officers’ good-faith belief that the driver had a revoked license and on information about the defendant’s drug sales provided by three informants. Two of the informants were confidential informants who had provided good information in the past. The third was a patron of the hotel where the drug sales allegedly occurred who had met with an officer face-to-face. Additionally, officers corroborated the informants’ information. As such, the informants’ information provided sufficient indicia of reliability. The officer’s mistake about who was driving the vehicle was reasonable under the circumstances.

State v. Ford, 208 N.C. App. 699 (2010). The court ruled that the trial court properly denied the defendant’s motion to suppress when officers had reasonable suspicion to believe that the defendant committed a traffic violation supporting a traffic stop of his vehicle. The stop was premised on the defendant’s alleged violation of G.S. 20-129(d), which requires that a motor vehicle’s rear plate be lit so that under normal atmospheric conditions it can be read from a distance of 50 feet. The trial court found that normal conditions existed when officers pulled behind the vehicle; officers were unable to read the license plate with the patrol car’s lights on; when the patrol car’s lights were turned off, the plate was not visible within the statutory requirement; and officers cited the defendant for the violation. The defendant’s evidence that the vehicle, a rental car, was “fine” when rented did not controvert the officer’s testimony that the tag was not sufficiently illuminated on the night of the stop.

State v. Hudson, 206 N.C. App. 482 (2010). The court ruled that an officer had reasonable suspicion to stop the defendant’s vehicle for a violation of G.S. 20-146(a) (requiring vehicles to be driven on the right half of a highway) after the officer observed the vehicle twice cross the center line of the northbound lanes of I-95 and weave back over the fog line.

State v. McRae, 203 N.C. App. 319 (2010). The court ruled that Officer A had reasonable suspicion to stop a vehicle for two independent reasons. First, Officer A had the authority to stop the vehicle because the officer had reasonable suspicion that the defendant had committed a violation of G.S. 20-154(a) by failing to use his turn signal when he pulled off the highway into a gas station parking lot. There was medium traffic and the defendant’s vehicle was a short distance in front of the officer. The court relied on State v. Styles, 362 N.C. 412 (2008), and distinguished State v. Ivey, 360 N.C. 562 (2006). Second, the officer also had the authority to stop the vehicle based on a confidential informant’s tip to another officer (Officer B) that had been broadcast to Officer A and other officers before the stop telling them to be on the lookout for a black male driving a green Grand Am within the Pembroke city limits. The informant had worked with Officer B on several occasions and had provided reliable information in the past that led to the arrest of drug offenders. The informant identified the driver by name—a name that Officer B recognized as someone associated with the drug trade. The informant also described the specific car (a green Grand Am) and advised the officer that the defendant would be driving the car within the city limits of Pembroke with 60 grams of cocaine in his possession.

State v. Smith, 192 N.C. App. 690 (2008). An officer stopped a Ford pickup truck for failing to display a proper registration tag. The court noted the recent ruling in State v. Styles, 362 N.C. 412 (2008) (reasonable suspicion is standard for all vehicle stops), and ruled that the officer had reasonable suspicion to stop the defendant’s vehicle for a violation of G.S. 20-79.1(e). The officer’s testimony showed that it was dark when the officer saw the vehicle’s license tag, the tag was just a piece of paper with “February 07” written on it, and the tag was not like the piece of cardboard that North Carolina auto dealers provide with a car purchase. [Author’s note: The tag was issued by the state of Georgia. The court cited a federal case that had ruled that a traffic stop based on an officer’s incorrect but reasonable assessment of facts does not violate the Fourth Amendment.]

State v. Johnson, 186 N.C. App. 673 (2007). An officer ran the tags on a Ford vehicle and discovered that they were registered to a Chevrolet. The court ruled that the officer had reasonable suspicion to stop the vehicle for improper tags.

State v. McLamb, 186 N.C. App. 124 (2007). An officer stopped a vehicle going 30 m.p.h. The officer believed that the speed limit was 20 m.p.h., but the legal limit was actually 55 m.p.h. The court ruled, relying on State v. Ivey, 360 N.C. 562 (2006), and cases from other jurisdictions, that the officer did not have probable cause to stop the vehicle for speeding. An officer’s mistake of law may not support probable cause to stop a vehicle. [Author’s note: This ruling may need to be reconsidered in light of the standard for a reasonable mistake of law set out in Heien v. North Carolina, 574 U.S. 530 (2014), discussed above.]

State v. Hess, 185 N.C. App. 530 (2007). An officer on patrol at night ran a vehicle’s registration plate and then the registered owner’s driver’s license, which was reported to be suspended. The officer could not determine the sex or race of the driver. The officer stopped the vehicle. The court ruled, relying on cases from other jurisdictions, that the officer had reasonable suspicion to stop the vehicle. The court stated that it was reasonable for the officer to infer under these circumstances that the owner was driving the vehicle. See also State v. Hernandez, 227 N.C. App. 601 (2013), discussed above.

State v. Parker, 183 N.C. App. 1 (2007). A narcotics detective was conducting surveillance of the defendant in response to a citizen’s complaint that the defendant was trafficking in methamphetamine. He stopped a vehicle that the defendant was driving because it was going approximately 60 m.p.h. in a 45 m.p.h. zone and then passed another vehicle at approximately 80 m.p.h. in a 55 m.p.h. zone. The court ruled that the narcotics detective had probable cause to stop the defendant’s vehicle for the speeding violations. The court noted prior case law (Whren v. United States, 517 U.S. 806 (1996); State v. McClendon, 350 N.C. 630 (1999)) that an officer’s subjective motivation is irrelevant when a stop is supported by probable cause. Also, the fact that an officer conducting a traffic stop did not later issue a traffic citation is irrelevant to the validity of the stop under State v. Baublitz, 172 N.C. App. 801 (2005). [Author’s note: Since the Parker ruling, the North Carolina Supreme Court in State v. Styles, 362 N.C. 412 (2008), ruled that reasonable suspicion, not probable cause, is the standard for all traffic stops.]

State v. Baublitz, 172 N.C. App. 801 (2005). An officer was conducting drug surveillance at a residence. The defendant and another person got into a vehicle and drove away. The officer followed the vehicle and saw it twice cross the center line of the highway. The officer stopped the vehicle, conducted a consent search, discovered cocaine in the vehicle, and arrested the defendant for possession of cocaine. He did not charge the defendant with the traffic violation. The court ruled that the officer had probable cause to stop the vehicle for the readily observed traffic violation under G.S. 20-146(a) (vehicle must be driven on right side of highway). The court noted that under State v. McClendon, 350 N.C. 630 (1999), the ulterior motive of the officer is irrelevant when there are objective circumstances justifying the officer’s action. The court also ruled that the officer’s failure to charge the defendant with the traffic violation was irrelevant to the validity of the stop. [Author’s note: Since the Baublitz ruling, the North Carolina Supreme Court in State v. Styles, 362 N.C. 412 (2008), ruled that reasonable suspicion, not probable cause, is the standard for all traffic stops.]

State v. Hernandez, 170 N.C. App. 299 (2005). An officer stopped a vehicle driven by the defendant for a seat belt violation. While in the patrol car with the defendant, the officer ran a license and registration check, questioned the defendant about his travel plans, and issued him a citation. The defendant then gave consent to search the vehicle, and cocaine was found in the vehicle. The consent to search was given within six minutes of the defendant’s detention in the vehicle. The court ruled that (1) the officer had probable cause to stop the vehicle for the seat belt violation (the officer saw the defendant remove the seat belt while still driving), a readily observed traffic violation, and (2) the officer had reasonable suspicion to detain the defendant after issuing the citation, based on the defendant’s extreme nervousness, conflicting statements about his travel plans, and air fresheners in the defendant’s vehicle emitting a strong odor. [Author’s note: Since the Hernandez ruling, the North Carolina Supreme Court in State v. Styles, 362 N.C. 412 (2008), ruled that reasonable suspicion, not probable cause, is the standard for all traffic stops.]

State v. Barnhill, 166 N.C. App. 228 (2004). The court ruled that the officer had probable cause to stop the defendant’s vehicle for speeding. The court rejected, as contrary to the rules of evidence, the trial judge’s ruling that an officer must articulate objective criteria to corroborate his or her opinion of the vehicle’s speed. The court stated that an officer’s opinion may be based on personal observation. Also, the court stated that an officer need not have specialized training to be able to visually estimate a vehicle’s speed. The court then examined the facts in this case and upheld the officer’s stop of the vehicle for speeding: the officer had an unobstructed view of the vehicle as it traveled on a street, and his personal observation of its speed, coupled with the sound of the engine racing and the bouncing of the car as it passed through an intersection, established probable cause to believe that the defendant was exceeding a speed that was reasonable and prudent under the existing conditions in violation of G.S. 20-141(a). [Author’s note: Since the Barnhill ruling, the North Carolina Supreme Court in State v. Styles, 362 N.C. 412 (2008), ruled that reasonable suspicion, not probable cause, is the standard for all traffic stops.]

State v. Villeda, 165 N.C. App. 431 (2004). The court ruled that the officer did not have probable cause to stop the defendant’s vehicle for a seat belt violation. Evidence showed that the officer could not see inside vehicles driving in front of him at night on the stretch of road on which the defendant was stopped; thus, the evidence supported the trial judge’s finding that the allegation that the defendant was not wearing a seat belt was incredible. [Author’s note: Since the Villeda ruling, the North Carolina Supreme Court in State v. Styles, 362 N.C. 412 (2008), ruled that reasonable suspicion, not probable cause, is the standard for all traffic stops.]

State v. Wilson, 155 N.C. App. 89 (2002). A trooper saw a vehicle being driven less than one car length behind another vehicle while traveling at 69 m.p.h. The trooper stopped the car and issued a warning ticket for a violation of G.S. 20-152 (following too closely). Later, the defendant consented to a search of the vehicle, and cocaine was found in the vehicle’s battery. The court ruled that the trooper had probable cause to stop the vehicle for this violation. [Author’s note: Since the Wilson ruling, the North Carolina Supreme Court in State v. Styles, 362 N.C. 412 (2008), ruled that reasonable suspicion, not probable cause, is the standard for all traffic stops.]

State v. Kincaid, 147 N.C. App. 94 (2001). An officer saw the defendant driving a vehicle and attempting to conceal his face from the officer. The officer stopped the vehicle because he knew that the defendant’s license had been revoked for two to three years. During the time the officer had known the defendant, he had seen him travel either as a passenger in a car or as the driver of a moped but never as the driver of a car. The court ruled that the officer had reasonable suspicion to stop the vehicle based on his information about the defendant and his driver’s license, despite the fact that, after the stop, the officer’s information turned out to be incorrect.

State v. Schiffer, 132 N.C. App. 22 (1999). An officer saw a vehicle with windows and a windshield that he believed were tinted darker than permitted by North Carolina law. Specifically, the officer saw that the windshield tinting extended approximately ten inches from the top of the windshield, about four to five inches in excess of what is permitted under G.S. 20-127(b). Once he pulled behind the vehicle, the officer saw that it had Florida tags. He then pulled alongside the vehicle to see if the window displayed a sticker indicating that the tinting complied with Florida law. Seeing no such sticker, he stopped the vehicle. After the driver rolled down his window, the scent of unburned marijuana emanated from the vehicle. The officer asked for the defendant’s consent to search the vehicle. The defendant said he did not know if he could consent to its search because he did not own the vehicle. The officer explained that the defendant could consent because he was in control of the vehicle. He further explained that he could search the vehicle even without the defendant’s consent because he smelled marijuana and that he could obtain a search warrant. The defendant then consented to a search of the vehicle.

The court reviewed North Carolina law at the time of this vehicle stop and concluded that the officer was acting under a good faith but mistaken belief that G.S. 20-127 required vehicles with tinted windows or windshields to display a label in each tinted window or windshield indicating that its tinting complied with North Carolina law. Such labels had been but were no longer required. In addition, a recently enacted statutory change had exempted North Carolina’s window-tinting restrictions for out-of-state vehicles that were in compliance with their state’s tinting laws. However, the windshield-tinting restrictions in G.S. 20-127 applied to out-of-state vehicles, and the officer therefore had reasonable suspicion to stop the vehicle based on his observation that the windshield tinting was excessive, and that was one of the reasons the officer stopped the vehicle.

State v. Hudson, 103 N.C. App. 708 (1991). An officer had reasonable suspicion to stop a vehicle when he saw that its thirty-day temporary license tag was illegible because both the expiration date and the numbers were faded.

State v. Gray, 55 N.C. App. 568 (1982). An officer who received a report from another officer that the defendant was driving a vehicle with expired temporary license tags had reasonable suspicion to stop the vehicle.

Airport Investigative Stops

UNITED STATES SUPREME COURT

United States v. Sokolow, 490 U.S. 1 (1989). The Court ruled that reasonable suspicion supported federal agents’ stop of the defendant at the Honolulu airport after he had flown from Honolulu to Miami and back to Honolulu. When they stopped him, they knew that (1) the defendant had paid $2,100 for two airplane tickets (he had a woman companion) from a roll of $20 bills; (2) he had traveled using a name that did not match the name under which his telephone number was listed; (3) his original destination was Miami, a source city for drugs; (4) he stayed in Miami for only forty-eight hours, even though the round-trip flight from Honolulu to Miami takes twenty hours; (5) he appeared nervous during the trip; and (6) he did not check any of his luggage.

The Court stated that its analysis of whether reasonable suspicion existed was not adversely affected by the agents’ belief, when they stopped the defendant, that his behavior was consistent with the profile of a drug courier. A reviewing court must require an officer to articulate factors leading to a conclusion that reasonable suspicion existed, but the fact that these factors may be set forth in a profile does not detract from their evidentiary significance as understood by a trained officer.

The Court stated that, for an investigative stop to be reasonable, officers are not required to use the least-intrusive-means available to verify or to dispel their suspicions—for example, approaching a defendant without using force rather than deciding to use force initially. Such a rule would unduly hamper an officer’s ability to make swift, on-the-spot decisions. The least-intrusive-means rule applies only to the length of the investigative stop, not to whether officers had a less-intrusive means to verify their suspicions before stopping someone.

Florida v. Rodriguez, 469 U.S. 1 (1984). This case involved an airport encounter between officers and people in an airport who possessed drugs. The Court ruled that even assuming that officers had seized the defendant and two other drug suspects, they had reasonable suspicion to do so because (1) experienced drug officers saw the three suspects at the Miami airport; (2) when the three suspects saw the officers, they spoke furtively to each other; (3) one suspect said to another, “Get out of here”; (4) the defendant tried to evade the officers; and (5) the suspects made contradictory statements about their identities.

Florida v. Royer, 460 U.S. 491 (1983). This case involved an airport encounter between officers and a deplaning passenger who possessed drugs. Eight justices (in four opinions) concluded that reasonable suspicion supported the stop of the passenger. His appearance, mannerisms, luggage, and actions fit certain characteristics of a drug courier profile, and the officers discovered that he was traveling under an assumed name. But five justices (in two opinions) concluded that sometime after the initial stop, the officers’ actions exceeded the permissible bounds of a stop when they took the passenger (without his consent and without a security or safety justification) to a small airport room, removed his suitcase from the baggage area, and attempted to obtain his consent to search his suitcase while they retained his airline ticket and driver’s license. The defendant was as a practical matter under arrest, so probable cause was necessary to justify any further detention of him. [Author’s note: In the later case of United States v. Sharpe, 470 U.S. 675 (1985), the Court indicated that an important factor in Royer when determining that the detention exceeded the scope of an investigative stop and had become an arrest was the confinement of the defendant without his consent in a small room for questioning after his luggage had been seized.]

Reid v. Georgia, 448 U.S. 438 (1980). This case involved an airport encounter between officers and a deplaning passenger who possessed drugs. The Court ruled that the following evidence was insufficient to support reasonable suspicion to stop the defendant outside the airport terminal to investigate drug activity: (1) the defendant and his companion arrived from a city that was a source of drugs, (2) they had no luggage other than their shoulder bags, and (3) they appeared to be trying to conceal the fact that they were traveling together as they walked through the airport terminal. [Author’s note: Because the Court did not have before it the issue of whether a seizure had occurred when the drug agent approached the passenger outside the terminal, the Court’s opinion assumed that a seizure had occurred. It was unclear whether a Court majority would have decided that the officer’s actions constituted a seizure.]

United States v. Mendenhall, 446 U.S. 544 (1980). This case involved an airport encounter with a deplaning passenger who possessed drugs. Two justices concluded that the officers’ actions in approaching and questioning a passenger were not a seizure requiring justification; a person is seized under the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he or she was not free to leave. [Author’s note: A majority of the Court adopted this definition of a seizure in later cases, but note that this definition was modified in California v. Hodari D., 499 U.S. 621 (1991), and Florida v. Bostick, 501 U.S. 429 (1991).] Three justices assumed that the officers’ actions were a seizure and concluded that reasonable suspicion supported stopping the passenger for questioning, based on the trained drug officers’ observations of the passenger and the fact that drug couriers frequented this airport.

NORTH CAROLINA COURT OF APPEALS

State v. Pope, 120 N.C. App. 462 (1995). An officer approached the defendant in an airport and identified himself. After the defendant agreed to talk with the officer, the defendant produced his airline ticket and identification on the officer’s request. The officer returned the ticket and identification to the defendant and asked him to accompany the officer to a more private area. The defendant agreed and accompanied the officer to a private room. There the defendant consented to a search of his bag and person. The court ruled, relying on Florida v. Royer, 460 U.S. 491 (1983); State v. Casey, 59 N.C. App. 99 (1982); and State v. Grimmett, 54 N.C. App. 494 (1981); that the entire encounter between the officer and the defendant was consensual and therefore the defendant’s Fourth Amendment rights were not violated.

State v. McDaniels, 103 N.C. App. 175 (1991), aff’d, 331 N.C. 112 (1992). Officers had reasonable suspicion to stop a vehicle as it was driving away from the Raleigh-Durham airport (RDU) when they had reliable information that (1) two men who were the driver and passenger of the stopped vehicle, using fictitious names, had chartered a plane to fly late at night to the New York City area, a source of about 90 percent of the illegal drugs brought into central North Carolina; (2) the men had made an identical trip the weekend before from RDU; (3) they paid $1,270 in cash for their flight; (4) they were dressed in “shiny,” “silky,” “flashy,” business suits; (5) they gave the charter service two telephone numbers that could not be verified; (6) the car’s license plate number was listed in a woman’s name but was assigned to a different car, and the car’s vehicle identification number was registered to an owner whose name was neither of the names given to the charter service; (7) one of the men had carried a briefcase on the flight to the New York City area late Saturday night, which suggested a business transaction but seemed to the officers an unusual time to conduct business when combined with other suspicious factors in the case; and (8) after their arrival at the RDU airport, the two men in the car, which had heavily tinted glass, circled the parking area, which the officers believed meant that the occupants were watching out for law enforcement. The court noted that the facts known to the officers at the time of the stop must be viewed through the eyes of a reasonable officer on the scene, guided by the officer’s experience and training. For another airport stop case, see State v. Hendrickson, 124 N.C. App. 150 (1996) (reasonable suspicion existed to stop defendant and seize bag at airport).

State v. Allen, 90 N.C. App. 15 (1988). Even assuming that the officer’s statement to the defendant in an airport, “Halt, police,” was a seizure [Author’s note: Such a statement would not by itself constitute a seizure under the later case of California v. Hodari D., 499 U.S. 621 (1991).], the officer had reasonable suspicion to stop the defendant based on the officer’s information from an informant about the defendant’s prior drug activity; the officer’s prior experience with drug-related arrests; and the defendant’s actions after deplaning, which included pushing people out of his way and running down an escalator. Later, the officer approached the defendant in the airport parking lot, identified himself, and asked the defendant for an airline ticket or other identification. These actions also were not a seizure.

State v. Russell, 84 N.C. App. 383 (1987). Reasonable suspicion existed to stop and detain an airplane and its occupants to investigate possession of illegal drugs. The airplane had landed late at night at a rural airport, and there were other suspicious circumstances, discussed in the court’s opinion.

State v. Thomas, 81 N.C. App. 200 (1986). A deplaning passenger was not seized when officers asked for and returned his plane ticket and driver’s license and he accompanied them without comment when they requested that he come to an office down the concourse. The court ruled that the defendant voluntarily consented to come to the office.

State v. Porter, 65 N.C. App. 13 (1983). The court ruled that the officers’ initial encounter with the defendant at an airport was not a seizure; the defendant went to an office voluntarily and consented to a search of her pocketbook. It alternatively ruled that the officers had reasonable suspicion to stop based on an informant’s information and the officers’ corroboration of that information.

State v. Sugg, 61 N.C. App. 106 (1983). Reasonable suspicion supported an airport stop of the defendant, who met many characteristics of a drug courier profile and whose actions were suspicious to an officer with extensive experience in drug investigations.

State v. Casey, 59 N.C. App. 99 (1982). No seizure occurred during an officer’s encounter with a deplaning passenger at an airport or when the passenger accompanied the officer to a basement office. See also State v. Grimmett, 54 N.C. App. 494 (1981); State v. Perkerol, 77 N.C. App. 292 (1985); State v. Poindexter, 104 N.C. App. 260 (1991).

School Search and Seizure Cases

UNITED STATES SUPREME COURT

Safford Unified School District v. Redding, 557 U.S. 364 (2009). After learning that a middle school student might have prescription-strength and over-the-counter pain-relief pills, school officials searched her backpack but did not find any pills. A school nurse then had her remove her outer clothing, pull out her bra and shake it, and then pull out the elastic on her underpants. The student’s breasts and pelvic area were exposed to some degree by her compliance with these directives. No pills were found. The Court ruled that school officials had reasonable suspicion to search the student’s backpack and outer clothing; however, because the facts did not indicate that the drugs presented a danger to students or were concealed in her bra or underpants, school officials did not have sufficient justification under the Fourth Amendment to make the student pull out her bra and underpants. The Court also ruled that school officials were protected from civil liability by qualified immunity because clearly established law when the search was conducted did not show that the search violated the Fourth Amendment.

New Jersey v. T.L.O., 469 U.S. 325 (1985). The Fourth Amendment requires that searches conducted by public school officials on students must be reasonable, but it does not require that the searches be supported by a search warrant or be based on probable cause. A teacher’s report that a student had been observed smoking in a bathroom in violation of school rules provided reasonable suspicion to justify a school official’s decision to open the student’s purse to look for cigarettes. The official’s observation of cigarette rolling papers in the purse provided reasonable suspicion that the student was carrying marijuana and justified a further search of the purse for contraband.

NORTH CAROLINA SUPREME COURT

In re T.A.S., 366 N.C. 269 (2012). The state supreme court vacated and remanded the decision below, 213 N.C. App. 273 (2011) (holding that a search of a juvenile student’s bra conducted by school officials and observed by a male law enforcement officer was constitutionally unreasonable), ordering further findings of fact. The court ordered the trial court to

make additional findings of fact, including but not necessarily limited to: the names, occupations, genders, and involvement of all the individuals physically present at the “bra lift” search of T.A.S.; whether T.A.S. was advised before the search of the Academy’s “no penalty” policy; and whether the “bra lift” search of T.A.S. qualified as a “more intrusive” search under the Academy’s Safe School Plan. 366 N.C. at 269.

The court further provided that “[i]f, after entry of an amended judgment or order by the trial court, either party enters notice of appeal, counsel are instructed to ensure that a copy of the Safe School Plan, discussed at the suppression hearing and apparently introduced into evidence, is included in the record on appeal.” Id. at 269.

NORTH CAROLINA COURT OF APPEALs

In re D.L.D., 203 N.C. App. 434 (2010). An officer was assigned to a high school as a resource officer and had made many arrests for controlled substances at one of the school’s bathrooms. The officer and an assistant principal (hereafter, principal) noticed on monitoring cameras that two male juveniles were entering the bathroom and one was standing outside. The principal told the officer that the situation “looked kind of fishy” and suggested that they check it out. As they approached the bathroom, they saw one male student outside the men’s bathroom and another male student outside the women’s bathroom, and both students stared at the officer and principal. They then saw the juvenile (here and below referred to as such, and not as “defendant,” because of the individual’s age) and two other male students leave the bathroom. When the juvenile saw the officer and the principal, he ran back into the bathroom, and they followed him. When the officer said that he saw the juvenile put something in his pants, the principal replied, “We need to check it.” The officer frisked the juvenile and found a container used to hold BB gun pellets. Inside the container were three individually wrapped bags of marijuana worth $20 each. The officer handcuffed the juvenile and took him to a school office. The principal told the officer that they needed to check the juvenile to make sure that he did not have anything else. The officer searched the juvenile and discovered $59 in his pocket. The juvenile immediately stated that “the money was not from selling drugs” but was his mother’s rent money. The court ruled that the Fourth Amendment reasonableness standard for school searches applied to the searches by the officer, citing New Jersey v. T.L.O., 469 U.S. 325 (1985); In re D.D., 146 N.C. App. 309 (2001); and other cases, and that the searches at the bathroom and school office were constitutional.

In re J.L.B.M., 176 N.C. App. 613 (2006). The court ruled, relying on State v. Fleming, 106 N.C. App. 165 (1992), that the following evidence was insufficient to support reasonable suspicion to make an investigative stop of the juvenile. The stopping officer relied solely on a dispatch that there was a suspicious person at a gas station, the juvenile matched the “Hispanic male” description of the suspicious person, the juvenile was wearing baggy clothes, and the juvenile chose to walk away from the patrol car. The officer was not aware of any graffiti or property damage before the officer stopped the juvenile, and the officer noticed a bulge in the juvenile’s pocket only after the stop.

In re S.W., 171 N.C. App. 335 (2005). The juvenile, a high school student, walked by a deputy sheriff who was assigned as a full-time school resource officer at the juvenile’s high school. The deputy noticed a strong odor of marijuana emanating from the juvenile. The deputy located two school administrators and, in their presence, asked the juvenile if he could search him. The juvenile agreed to the search, and the search revealed ten small plastic bags of marijuana. The court noted that the deputy was exclusively a school resource officer, assisted school officials with school discipline, was present in school hallways during school hours, and was advancing the school’s educational goals when he stopped the juvenile. The deputy was not conducting an investigation at the behest of an outside law enforcement officer who was investigating a non-school-related crime. The court ruled, relying on In re J.F.M., 168 N.C. App. 143 (2005), that the deputy lawfully searched the juvenile under New Jersey v. T.L.O., 469 U.S. 325 (1985) (applying reasonable grounds to suspect as the standard for searches by school officials), and thus did not violate the United States or North Carolina constitutions. The court noted that the deputy did not need the juvenile’s consent to conduct the search under the T.L.O. standard

In re J.F.M., 168 N.C. App. 143 (2005). A deputy sheriff, who was also a school resource officer, investigated an affray involving T.B., a juvenile, and another student. The affray occurred about 2:00 p.m., and although he did not see the affray, the officer observed a group of students gathered outside on the school campus. He saw T.B. leaving the grounds and gave her three commands to stop, which she ignored. Continuing his investigation, the officer spoke with a school administrator who told him that T.B. had been in the affray and was leaving the school campus. At approximately 3:00 p.m., the officer approached T.B. at a bus stop on the school campus and told her that she needed to come back to the school to talk to the school administrator about the affray. She refused to go with the officer, who responded by grabbing her arm and telling her that she needed to come with him. J.F.M., also a juvenile, then pushed the officer and told T.B. to run. T.B. later returned and struck the officer with an umbrella. The court ruled, relying on Wofford v. Evans, 390 F.3d 318 (4th Cir. 2004) (extending reasonableness standard of New Jersey v. T.L.O., 469 U.S. 325 (1985), to detentions of students), and In re D.D., 146 N.C. App. 309 (2001) (extending T.L.O. to searches by resource officers working in conjunction with school officials), that the reasonableness standard of T.L.O. applied to a resource officer’s detention of a student when acting in conjunction with a school official. The court examined the facts in this case and found that the resource officer was acting in conjunction with the school administration and that his detention of the student was reasonable under T.L.O.

In re D.D., 146 N.C. App. 309 (2001). A high school teacher told her school’s principal about overhearing some students saying that a group of girls was coming to the school’s campus to fight at the end of the school day—the students named one student who would be involved in the fight. The principal gathered three law enforcement officers, one of whom was the school resource officer. The other two were off-duty officers, one of whom was assigned to the school as a security officer. In the school’s parking lot, the principal confronted a student of his school and three girls who were from another school in the city. There were additional encounters with these students, which included the finding of a box cutter in the purse of one of the students. The principal and the officers then took all four students to the principal’s office. The principal ordered the girls to empty their pockets. The defendant, a juvenile, had a knife in her pocket. After reviewing case law in other jurisdictions, the court ruled that the Fourth Amendment’s reasonableness standard in New Jersey v. T.L.O., 469 U.S. 325 (1985), applied in this case when the officers acted in conjunction with the school principal to maintain a safe and educational environment and to report truants from other schools. The court also ruled that the search of the juvenile was reasonable under the T.L.O. standard.

In re Murray, 136 N.C. App. 648 (2000). A student told assistant principal Smith that Jason Murray had something in his book bag that he should not have at school. Smith found Murray alone in a room. Murray denied having a book bag, but Smith saw a book bag less than an arm’s reach away from Murray and asked if it was his. When Murray responded affirmatively, Smith walked Murray to her office with Murray carrying his book bag. Smith then asked Murray if there was anything in the book bag that should not be there. He said no. Smith then advised him that she needed to search the bag. Murray responded that he did not want her to search it and asked that his father be called. Smith called in the school’s dean of students and a resource officer, a deputy sheriff. They explained to Murray that they needed to search the book bag for safety reasons. When Smith attempted to take possession of the bag from Murray, he held on to it. The deputy grabbed Murray, struggled with him, and handcuffed him so that no one would get hurt. Smith then opened the bag and found a pellet gun. The court ruled, relying on cases from other jurisdictions, that this search was conducted by a school official, with only the assistance of the deputy, and thus the reasonable suspicion standard of New Jersey v. T.L.O., 469 U.S. 325 (1985), applied. The court also ruled that the student’s tip and Murray’s lie about ownership of the bag were sufficient to establish reasonable suspicion. Finally, the court ruled that the search was conducted in a reasonable manner. Smith’s search, which was confined to the book bag, was reasonable in scope. The use of handcuffs ensured that Smith could safely search the bag without interference and allowed the deputy to prevent harm to those present. See also DesRoches ex rel. DesRoches v. Caprio, 156 F.3d 571 (4th Cir. 1998) (reasonable suspicion existed to search student’s backpack in investigation of missing shoes).

Special Aspects of Stopping Authority

Length of Time Allowed for an Investigative Stop

(This topic is discussed in the chapter text under “Length of Time Allowed for an Investigative Stop.”)

UNITED STATES SUPREME COURT

Rodriguez v. United States, 575 U.S. 348 (2015). The Court ruled that a dog sniff that prolongs the time reasonably required for a traffic stop violates the Fourth Amendment. After an officer completed a traffic stop, including issuing the driver a warning ticket and returning all documents, the officer asked for permission to walk his police dog around the vehicle. The driver said no. Nevertheless, the officer instructed the driver to turn off his car, exit the vehicle, and wait for a second officer. When the second officer arrived, the first officer retrieved his dog and led it around the car, during which time the dog alerted to the presence of drugs. A search of the vehicle revealed a large bag of methamphetamine. About seven or eight minutes elapsed from the time the officer issued the written warning until the dog’s alert.

The Court reasoned that an officer may conduct certain unrelated checks during an otherwise lawful traffic stop, but “he may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual.” Id. at 355 (citations omitted). The Court noted that during a traffic stop, “[b]eyond determining whether to issue a traffic ticket, an officer’s mission includes ‘ordinary inquiries incident to [the traffic] stop,’ ” such as checking the driver’s license, determining whether the driver has outstanding warrants, and inspecting the automobile’s registration and proof of insurance. Id. at 355 (citations omitted). It explained: “These checks serve the same objective as enforcement of the traffic code: ensuring that vehicles on the road are operated safely and responsibly. A dog sniff, by contrast, “is a measure aimed at ‘detect[ing] evidence of ordinary criminal wrongdoing.’ ” Id. at 355 (citations omitted). The Court continued: “Lacking the same close connection to roadway safety as the ordinary inquiries, a dog sniff is not fairly characterized as part of the officer’s traffic mission.” Id. at 356.

The Court rejected the government’s argument that an officer may “incremental[ly]” prolong a stop to conduct a dog sniff as long as the officer is reasonably diligent in pursuing the traffic-related purpose of the stop and provided that the overall duration of the stop remains reasonable in relation to the duration of other traffic stops involving similar circumstances. The Court dismissed the notion that “by completing all traffic-related tasks expeditiously, an officer can earn bonus time to pursue an unrelated criminal investigation.” Id. at 357 (citations omitted). It continued:

If an officer can complete traffic-based inquiries expeditiously, then that is the amount of “time reasonably required to complete [the stop’s] mission.” As we said in [Illinois v.] Caballes[, 543 U.S. 405 (2005)] and reiterate today, a traffic stop “prolonged beyond” that point is “unlawful.” The critical question, then, is not whether the dog sniff occurs before or after the officer issues a ticket . . . but whether conducting the sniff “prolongs”—i.e., adds time to—“the stop.”
Rodriguez, 575 U.S. at 357 (citations omitted).

In this case, the trial court ruled that the defendant’s detention for the dog sniff was not independently supported by individualized suspicion. Because the federal appellate court did not review that determination, the Court remanded for a determination by that court as to whether reasonable suspicion of criminal activity justified detaining the defendant beyond completion of the traffic infraction investigation.

[Author’s note: This case effectively overruled State v. Brimmer, 187 N.C. App. 451 (2007) (the court ruled that the brief additional time the defendant was detained (one and one-half minutes for a dog sniff) did not prolong the detention beyond that reasonably necessary for the traffic stop).]

Illinois v. Caballes, 543 U.S. 405 (2005). The defendant was lawfully stopped for speeding. While the stopping officer was writing a warning ticket, another officer arrived and walked a drug-detection dog around the defendant’s vehicle. The dog alerted to the trunk and a search discovered marijuana. The entire incident lasted less than ten minutes. The Court stated that the issue in this case was a narrow one: whether the Fourth Amendment requires reasonable, articulable suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop. The Court noted that a seizure justified solely by the interest in issuing a warning ticket can become unlawful if it is prolonged beyond the time reasonably required to complete that mission. The Court stated that the state court had reviewed the stopping officer’s conversations with the defendant and the precise timing of his radio transmissions to the dispatcher to determine whether the officer had improperly extended the duration of the stop to enable the dog sniff to occur. The Court accepted the state court’s conclusion that the duration of the stop in this case was entirely justified by the traffic offense and the ordinary inquiries incident to such a stop. The Court noted that the state appellate court had ruled, however, that the use of the drug-detection dog converted the encounter from a lawful traffic stop into a drug investigation, and because the shift in purpose was not supported by reasonable suspicion that the defendant possessed illegal drugs, it violated the Fourth Amendment. The Court rejected this analysis and ruling. It stated that conducting a dog sniff would not change the character of a traffic stop that is lawful at its inception and otherwise conducted in a reasonable manner, unless the dog sniff itself violated the defendant’s Fourth Amendment right to privacy. The Court ruled that the dog sniff did not do so, relying on United States v. Jacobsen, 466 U.S. 109 (1984); United States v. Place, 462 U.S. 696 (1983); and City of Indianapolis v. Edmond, 531 U.S. 32 (2000); and distinguishing Kyllo v. United States, 533 U.S. 27 (2001). The Court stated that a dog sniff conducted during a lawful traffic stop that reveals no information other than the location of a substance that a person had no right to possess does not violate the Fourth Amendment.

United States v. Sharpe, 470 U.S. 675 (1985). The Court stated in this case that there is no rigid time limitation for an investigative stop. While time is an important factor in determining whether a stop is reasonable under the Fourth Amendment, reviewing courts must consider the law enforcement purposes to be served by the stop as well as the time reasonably needed to effectuate those purposes. A court must examine whether officers diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly during the time they detained the suspect. But a reviewing court also must consider whether the officers were involved in a swiftly developing situation, and it normally should not second-guess what they did. The fact that less-intrusive alternative investigative means may have been available does not, by itself, make the stop unreasonable. A stop is unreasonable only when officers act unreasonably in not recognizing or pursuing alternatives.

The Court ruled that the twenty-minute detention of the defendant in this case was reasonable under the Fourth Amendment. A drug agent attempted to stop two vehicles that he reasonably suspected were involved in drug trafficking. He stopped one vehicle, but the second vehicle took evasive action after being signaled to stop; another officer stopped the second vehicle (the defendant’s) some distance down the road. About fifteen minutes after investigating the first vehicle, the drug agent arrived at the defendant’s vehicle and investigated. The defendant was detained a total of about twenty minutes from the time he was stopped until the time that probable cause developed from the odor of marijuana emanating from his vehicle. The Court ruled that the twenty-minute detention was reasonable, because the case did not involve any delay that was unnecessary to accomplish the officers’ legitimate investigative stop. The delay was attributable almost entirely to the defendant’s evasive actions.

NORTH CAROLINA SUPREME COURT

State v. Reed, 373 N.C. 498 (2020). The court ruled, distinguishing its prior ruling in State v. Bullock, 370 N.C. 256 (2017), discussed below, that a state trooper (Lamm) who stopped a rental car that was speeding prolonged the stop without having the defendant’s voluntary consent or reasonable suspicion of criminal activity. There were two people in the car, the male defendant-driver and a female passenger who had rented the vehicle. Lamm had the defendant sit in his patrol car while he checked on the status of the rental car and asked some questions about his travel plans. After about twenty minutes and upon confirming that the rental car matter was in order, Lamm returned all paperwork to the defendant and told the defendant that the stop had ended but then said, “I’m going to ask you a few more questions if it is okay with you.” Id. at 501. Lamm asked the defendant for consent to search the vehicle, to which the defendant replied, “you could break the car down” but then further explained that the trooper should seek consent from the female passenger because she had rented the car. Lamm told the defendant to “sit tight” in the patrol car as he went to confer with her in the rental car. Id. at 502. A backup trooper (Ellerbe), who had arrived since the stop had occurred, stationed himself outside the door of Lamm’s patrol car while the defendant remained in the passenger seat with the door closed. Lamm obtained consent to search from the female passenger, and cocaine was discovered in the rental car. The court found that trooper Lamm’s conduct was authorized by Bullock up to his unequivocal statement to the defendant that the traffic stop had been concluded. However, the traffic stop after this point became unlawful under Rodriguez v. United States, 575 U.S. 348 (2015), because the trooper “prolonged it beyond the time reasonably required to complete its mission.” Reed, 373 N.C. at 511. And the defendant was unconstitutionally detained beyond the announced end of the traffic stop because reasonable suspicion did not exist to justify the defendant’s further detention (see the court’s discussion of the facts involving the reasonable suspicion issue). The court also rejected the State’s argument that the defendant consented to prolonging the traffic stop, relying in significant part on Trooper Lamm’s telling the defendant to “sit tight” in the trooper’s vehicle and Trooper Ellerbe’s standing by the door where the defendant was seated.

State v. Downey, 370 N.C. 507 (2018). The state supreme court, per curiam and without an opinion, affirmed a ruling of the court of appeals, 251 N.C. App. 829 (2017), upholding an order denying the defendant’s motion to suppress evidence obtained from a traffic stop. The court of appeals held that reasonable suspicion supported an extension of the stop. After an officer stopped the defendant for a traffic violation, he approached the defendant’s vehicle and asked to see his driver’s license and registration. As the defendant complied, the officer noticed that his hands were shaking, his breathing was rapid, and he failed to make eye contact. He also noticed a prepaid cell phone inside the vehicle and a Black Ice air freshener. The officer had learned during drug interdiction training that Black Ice freshener is frequently used by drug traffickers because of its strong scent and that prepaid cell phones are commonly used in drug trafficking. The officer determined that the car was not registered to the defendant, and he knew from his training that third-party vehicles are often used by drug traffickers. In response to questioning about why he was in the area, the defendant provided vague answers. When the officer asked the defendant about his criminal history, the defendant responded that he had served time for breaking and entering and that he had a cocaine-related drug conviction. After issuing the defendant a warning ticket for the traffic violation and returning his documentation, the officer continued to question the defendant and asked for consent to search the vehicle. The defendant declined. He also declined consent to a canine sniff. The officer then called for a canine unit, which arrived fourteen minutes after the initial stop ended. An alert led to a search of the vehicle and the discovery of contraband. The court of appeals rejected the defendant’s argument that the officer lacked reasonable suspicion to extend the traffic stop, noting that before and during the time in which the officer prepared the warning citation, he observed the defendant’s nervous behavior, he noted use of a particular brand of powerful air freshener favored by drug traffickers, he noticed the defendant’s prepaid cell phone, he learned that the defendant’s car was registered to someone else and that the defendant had a prior conviction for a drug offense, and the defendant provided only vague and suspicious answers to the officer’s questions about why he was in the area. These circumstances, the court of appeals held, constituted reasonable suspicion to extend the duration of the stop.

State v. Bullock, 370 N.C. 256 (2017). On an appeal from a divided panel of the court of appeals, 247 N.C. App. 412 (2016), the court reversed, concluding that the stop at issue, which was initiated based on traffic violations and where heroin ultimately was discovered, was not unduly prolonged under Rodriguez v. United States, 575 U.S. 348 (2015). The trial court denied the defendant’s motion to suppress evidence obtained as a result of the stop and the court of appeals reversed, concluding that the stop had been unduly prolonged. During the stop, the defendant’s hand trembled as he provided his license to the stopping officer. Although the car was a rental vehicle, the defendant was not listed as a driver on the rental agreement. The officer noticed that the defendant had two cell phones, a fact he associated, based on experience, with transporting drugs. The defendant was stopped on I-85, a major drug-trafficking thoroughfare. When the officer asked the defendant where he was going, the defendant said he was going to his girlfriend’s house on Century Oaks Drive and that he had missed his exit. The officer knew, however, that the defendant was well past the exit for that location, having passed three exits that would have taken him there. The defendant said he had recently moved to North Carolina. The officer asked the defendant to step out of the vehicle and sit in the officer’s patrol car, telling him that he would receive a warning, not a ticket. At this point the officer frisked the defendant, finding $372 in cash. The defendant sat in the patrol car while the officer ran the defendant’s information through law enforcement databases, and the two continued to talk. The defendant gave contradictory statements about his girlfriend. Although the defendant made eye contact with the officer when answering certain questions, he looked away when asked about his girlfriend and where he was traveling. The database checks revealed that the defendant was issued a driver’s license in 2000 and that he had a criminal history in North Carolina starting in 2001, facts contradicting his earlier claim to have just moved to the state. The officer asked the defendant for permission to search the vehicle. The defendant agreed to let the officer search the vehicle but declined to allow a search of a bag and two hoodies. When the officer found the bag and hoodies in the trunk, the defendant quickly objected that the bag was not his, contradicting an earlier statement, and said he did not want it searched. The officer put the bag on the ground and a police dog alerted to it. Officers opened the bag and found a large amount of heroin. The defendant did not challenge the validity of the initial stop. The court began by noting that during a lawful stop, an officer can ask the driver to exit the vehicle. Next, it held that the frisk was lawful for two reasons. First, frisking the defendant before putting him in the patrol car enhanced officer safety. And second, where, as here, the frisk lasted only eight to nine seconds, it did not measurably prolong the stop so as to require reasonable suspicion. The court went on to find that asking the defendant to sit in the patrol car did not unlawfully extend the stop. The officer was required to check three databases before the stop could be finished, and it was not prolonged by having the defendant in the patrol car while this was done. This action took a few minutes to complete and while it was being done, the officer was free to talk with the defendant “at least up until the moment that all three database checks had been completed.” Bullock, 370 N.C. at 263. The court went on to conclude that the conversation the two had while the database checks were running provided reasonable suspicion to prolong the stop. It noted that I-85 is a major drug-trafficking corridor, the defendant was nervous and had two cell phones, the rental car was in someone else’s name, the defendant gave an illogical account of where he was going, and cash was discovered during the frisk. All of these facts provided reasonable suspicion of drug activity that justified prolonging the stop shortly after the defendant entered the patrol car. There, as he continued his conversation with the officer, he gave inconsistent statements about his girlfriend and the database check revealed that he had not been truthful about a recent move to North Carolina. This, combined with the defendant’s broken eye contact, allowed the officer to extend the stop for purposes of the dog sniff.

State v. Warren, 368 N.C. 756 (2016), aff’g per curiam 242 N.C. App. (2015). The state supreme court affirmed per curiam and without an opinion the decision of the North Carolina Court of Appeals that had ruled that an officer had reasonable suspicion to extend a traffic stop to allow a dog sniff of a vehicle. The defendant did not contest the validity of the traffic stop. Instead, the defendant contended that the trial court erred in ruling that the officer had reasonable suspicion to extend the scope and length of time of a routine traffic stop to allow a dog sniff outside the defendant’s vehicle. Before discussing whether reasonable suspicion existed, the court recognized that Rodriquez v. United States, 575 U.S. 348 (2015), overturned prior rulings of lower appellate courts, including North Carolina’s (see State v. Brimmer, 187 N.C. 451 (2007), and State v. Sellars, 222 N.C. App. 245 (2012)), to the extent that they permitted a de minimus time period to prolong a traffic stop for activities unrelated to a traffic stop, such as a dog sniff.

The court noted that it was unclear whether the officer’s call for backup or waiting for backup to arrive prolonged the stop beyond what was necessary to complete the traffic stop. However, the court did not need to decide that issue because it found that reasonable suspicion justified an extension of the traffic stop to execute a dog sniff based on the trial court’s findings that (1) the defendant was observed and stopped in an area that the officer knew to be a high-crime and -drug area; (2) while writing a warning citation, the officer saw that the defendant appeared to have something in his mouth that he was not chewing and that affected his speech; (3) the officer had specific training in drug detection and during his six years of experience had made many drug stops and seen suspects attempt to hide drugs in their mouths and swallow them to destroy evidence; and (4) during the officer’s conversation with the defendant, he denied being involved in drug activity “any longer.” The court stated that the facts in this case were similar to the facts in In re I.R.T., 184 N.C. App. 579 (2007), which also upheld a finding of reasonable suspicion.

State v. Heien, 367 N.C. 163, aff’g per curiam 226 N.C. App. 280 (2013). [Author’s note: The United States Supreme Court in Heien v. North Carolina, 574 U.S. 54 (2014), decided a different issue in this prosecution (reasonable mistake of law when making an investigative stop) than the ruling discussed in the text.] The state supreme court affirmed per curiam the decision of the North Carolina Court of Appeals that had ruled that a valid traffic stop was not unduly prolonged and that, as a result, the defendant’s consent to search his vehicle was valid. The stop was initiated at 7:55 a.m. and the defendant, a passenger who owned the vehicle, gave consent to search at 8:08 a.m. During this time, the two officers present discussed a malfunctioning vehicle brake light with the driver, discovered that the driver and the defendant claimed to be going to different destinations, and observed the defendant behaving unusually (he was lying down on the backseat under a blanket and remained in that position even when approached by one of the officers requesting his driver’s license). After each person’s name was checked for warrants, their licenses were returned. One officer then requested consent to search the vehicle. The officer’s tone and manner were conversational and nonconfrontational. No one was restrained, no guns were drawn, and neither person was searched before the request to search the vehicle was made. The supreme court ruled that the trial judge properly concluded that the defendant was aware that the purpose of the initial stop had been concluded and that further conversation between the officer and the defendant was consensual. The court also ruled that the defendant’s consent to search the vehicle was valid even though the officer did not inform the defendant that he was searching for narcotics. [Author’s note: Because the defendant’s consent was given immediately after the traffic stop had been completed, it appears that the ruling in this case is not in conflict with Rodriguez, discussed above.]

State v. McClendon, 350 N.C. 630 (1999). The court ruled that the duration of the defendant’s detention—fifteen to twenty minutes from the issuance of a warning ticket to him to the arrival of a drug dog—was reasonable. The officers acted quickly and diligently to obtain the drug dog, and they promptly put the drug dog to work on its arrival.

NORTH CAROLINA COURT OF APPEALS

State v. Jones, 264 N.C. App. 225 (2019). The court ruled that the trial court did not err by denying the defendant’s motion to suppress that alleged that officers improperly extended a traffic stop. Officers initiated a traffic stop of a vehicle for a passenger seatbelt violation. The defendant was in the passenger seat. That seat was leaned very far back while the defendant was leaning forward with his head near his knees in an awkward position. The defendant’s hands were around his waist, not visible to the officer. The officer believed that based on the defendant’s position he was possibly hiding a gun. When the officer introduced himself, the defendant glanced up, looked around the front area of the vehicle, but did not change position. The officer testified that the defendant’s behavior was not typical. The defendant was unable to produce an identity document, but he stated that he was not going to lie about his identity. The officer testified that this statement was a sign of deception. The officer asked the defendant to exit the vehicle. When the defendant exited, he turned and pressed against the vehicle while keeping both hands around his waist. The defendant denied having any weapons and consented to a search of his person. A large wad of paper towels later fell from the defendant’s pants. More than 56 grams of cocaine was in the paper towels and additional contraband was found inside the vehicle. On appeal, the defendant argued that the officer lacked reasonable suspicion to extend the traffic stop. The court disagreed, holding that the officer’s conduct did not prolong the stop beyond the time reasonably required to complete its mission. When the defendant was unable to provide identification, the officer “attempted to more efficiently conduct the requisite database checks” and complete the mission of the stop by asking the defendant to exit the vehicle. Id. at 231. Because the officer’s conduct did not extend the traffic stop, no additional showing of reasonable suspicion was required.

State v. Cole, 262 N.C. App. 466 (2018). The court ruled that the trial court in a DWI case properly denied the defendant’s motion to suppress evidence discovered after a roadside breath test. Specifically, the defendant asserted that the results of roadside sobriety tests and an Intoxilyzer test should be suppressed as fruit of the poisonous tree of an illegal search and seizure caused by an unlawfully compelled roadside breath test. An officer observed the defendant leave a bar after midnight and swerve several times within his driving lane. After the initial traffic stop for an observed G.S. Chapter 20 violation—the legality of which the defendant did not challenge—the officer smelled a strong odor of alcohol, the defendant presented his debit card when asked for his driver’s license, and the defendant initially denied but later admitted drinking alcohol. These facts were sufficient to establish reasonable suspicion to justify prolonging the initial stop to investigate the defendant’s potential impairment, including administering the roadside sobriety tests. These findings, in conjunction with findings concerning the defendant’s performance on the roadside sobriety tests, supported a conclusion that the officer had probable cause to arrest the defendant for DWI, justifying the later Intoxilyzer test. Therefore, the trial court had properly refused to suppress the results of the roadside sobriety tests and the Intoxilyzer test.

State v. Sutton, 259 N.C. App. 891 (2018). The court ruled that after a proper traffic stop, an officer had reasonable suspicion to extend the stop for six or seven minutes for a dog sniff. The officer was patrolling a road because of complaints about drug activity and had been advised by the State Bureau of Investigation to be on the lookout for the defendant based upon reports that he was bringing large quantities of methamphetamine to a supplier who lived off of the road. After the officer stopped the defendant’s vehicle for an observed traffic violation, he identified the defendant as the person noted in the lookout warning. The defendant was confused, spoke so quickly that he was hard to understand, and began to stutter and mumble. The defendant did not make eye contact with the officer and his nervousness was “much more extreme” than a typical stopped driver. His eyes were bloodshot and glassy and the skin under his eyes was ashy. Based on his training and experience, the officer believed that the defendant’s behavior and appearance were consistent with methamphetamine use. The defendant told the officer that he was going to “Rabbit’s” house. The officer knew that “Rabbit” was involved with methamphetamine and lived nearby. When the defendant exited his car, he put his hand on the car for stability. These facts alone could have given the officer reasonable suspicion. But additionally, a woman the officer knew who had previously given drug information to law enforcement approached and told the officer that she had talked to Rabbit and that the defendant had “dope in the vehicle.” These facts were more than sufficient to give the officer a reasonable suspicion that the defendant had drugs in his vehicle and justify an extension of the stop for a dog sniff.

State v. Cox, 259 N.C. App. 650 (2018). The court ruled that the traffic stop at issue was not unduly extended. The defendant, a passenger in the stopped vehicle, argued that officers extended, without reasonable suspicion, the traffic stop after issuing the driver a warning citation. The stopping officer had extensive training in drug interdiction, including the detection of behaviors by individuals tending to indicate the use, transportation, and other activity associated with controlled substances, and had investigated more than 100 drug cases. The officer observed a sufficient number of “red flags” before issuing the warning citation to support a reasonable suspicion of criminal activity and therefore justify extending the stop. When the officer first encountered the vehicle, he observed body language by both the driver and the defendant that he considered evasive; the driver exhibited extreme and continued nervousness throughout the stop and was unable to produce any form of personal identification; the driver and the defendant gave conflicting accounts of their travel plans and their relationship to each other; the officer observed an open sore on the defendant’s face that appeared, based on the officer’s training and experience, related to the use of methamphetamine; and background checks revealed that the driver had an expired license.

State v. Campola, 258 N.C. App. 292 (2018). The court ruled that an officer had reasonable suspicion to prolong a traffic stop. An officer with six years on the force who had received training in the identification of drugs pulled into the parking lot of a Motel 6 in a high-crime area. When he entered the lot, he saw two men sitting in a car. After the officer passed, the vehicle exited the lot at high speed. The officer stopped the car after observing a traffic violation. The vehicle displayed a temporary license tag. When the officer approached for the driver’s information, the driver was “more nervous than usual.” The officer asked why the two men were at the motel, and the driver stated that they did not enter a room there. The passenger—the defendant—did not have any identifying documents but gave the officer his name. The officer went to his patrol car to enter the information in his computer and called for backup, as required by department regulations when more than one person is in a stopped vehicle. While waiting for backup to arrive, he entered the vehicle’s VIN number in a fifty-state database, not having a state registration to enter. He determined that the vehicle was not stolen. Although neither the driver nor the passenger had outstanding warrants, both had multiple prior drug arrests. Shortly after, and twelve minutes after the stop began, the backup officer arrived. The two officers approached the vehicle some fourteen minutes after the stop was initiated. The stopping officer asked the driver to step out of and to the rear of the vehicle so that he and the backup officer could see the intersection where the traffic violation occurred. The stopping officer gave the driver a warning, returned his documents, and asked to search the vehicle. The driver declined. While the stopping officer was speaking with the driver, the backup officer approached the defendant and saw a syringe in the driver’s seat. He asked the defendant to step out of the car and the defendant complied, at which point the officer saw a second syringe in the passenger seat. Four minutes into these conversations, the backup officer informed the stopping officer of the syringes. The stopping officer asked the driver if he was a diabetic, and the driver said that he was not. The stopping officer then searched the vehicle, finding the contraband at issue. On appeal, the court held that the stop was not improperly extended. It noted that the stopping officer was engaged in “conduct within the scope of his mission” until the backup officer arrived after twelve minutes. Id. at 300. Database searches of driver’s licenses, warrants, vehicle registrations, and proof of insurance all fall within the mission of a traffic stop. Additionally, the officer’s research into the men’s criminal histories was permitted as a precaution related to the traffic stop, as was the stopping officer’s request for backup. Because officer safety stems from the mission of the traffic stop itself, time devoted to officer safety is time reasonably required to complete the mission of the stop. Even if a call for backup were not an appropriate safety precaution, here the backup call did not actually extend the stop because the stopping officer was still doing the required searches when the backup officer arrived. By the time the backup officer arrived, the stopping officer had developed a reasonable suspicion of criminal activity sufficient to extend the stop. The stopping officer was a trained officer who had participated in 100 drug arrests, he saw the driver and passenger in a high-crime area, after he drove by them they took off at a high speed and made an illegal turn, the driver informed the officer that the two were at the motel but did not go into a motel room, the driver was unusually nervous, and both men had multiple prior drug arrests. These facts provided reasonable suspicion to extend the stop. Even if these facts were insufficient, other facts supported a conclusion that reasonable suspicion existed, including the men’s surprise at seeing the officer in the motel lot, the titling of the vehicle to someone other than the driver or passenger, the driver’s statement that he met a friend at the motel but did not know the friend’s name, and the officer’s recognition of the defendant as someone who had been involved in illegal drug activity. Finally, drawing on some of the same facts, the court rejected the defendant’s argument that any reasonable suspicion supporting extension of the stop was not particularized to him. The court also noted that an officer may stop and detain a vehicle and its occupants if the officer has reasonable suspicion that criminal activity is afoot.

State v. Bullock, 258 N.C. App. 72 (2018). On remand from the North Carolina Supreme Court, 370 N.C. 256 (2017), the court rejected the defendant’s argument that his consent to search his rental vehicle was involuntary because it was given at a time when a traffic stop had been unduly prolonged. Specifically, the defendant argued that the stop was prolonged because of questioning by one officer and the time he was detained while waiting for a second officer to arrive to assist with the search. The case was before the court on remand from the state supreme court. That court had held that the initial traffic stop was valid, the officer lawfully frisked the defendant without prolonging the stop, the officer’s database checks on the defendant’s license did not unduly prolong the stop, and the conversation that occurred was sufficient to form reasonable suspicion authorizing the dog sniff of the vehicle and bag. Because all parts of the stop were lawfully extended, the trial court did not err in determining that the defendant’s consent to search his vehicle was voluntary.

State v. Parker, 256 N.C. App. 319 (2017). Because the trial court’s findings of fact did not support its conclusion that the defendant was legally seized at the time he consented to a search of his person, the court reversed the trial court’s order denying the defendant’s motion to suppress contraband found on his person. Officers were conducting surveillance on a known drug house. They noticed the defendant leave the residence in a truck and return twenty minutes later. He parked his truck in the driveway and walked toward a woman in the driveway of a nearby residence. The two began yelling at each other. Thinking the confrontation would escalate, the officers got out of their vehicle and separated the two. One officer asked the defendant for his identification. The officer checked the defendant’s record, verifying that the defendant had no pending charges. Without returning the defendant’s identification the officer then asked the defendant if he had any narcotics on him, and the defendant replied that he did not. At the officer’s request, the defendant consented to a search of his person and vehicle. Drugs were found in his pants pocket. On appeal, the defendant argued that when the officer failed to return his identification after finding no outstanding warrants and after the initial reason for the detention was satisfied, the seizure became unlawful and the defendant’s consent was not voluntary. The court agreed. It noted that the officer failed to return the defendant’s identification before pursuing an inquiry into possession of drugs. It found that the trial court’s order failed to provide findings of fact which would give rise to a reasonable suspicion that the defendant was otherwise subject to detention. Absent a reasonable suspicion to justify further delay, retaining the defendant’s driver’s license beyond the point of satisfying the initial purpose of the detention—de-escalating the conflict, checking the defendant’s identification, and verifying that he had no outstanding warrants—was unreasonable. Thus, the defendant’s consent to search his person, given during the period of unreasonable detention, was not voluntary.

State v. Bedient, 247 N.C. App. 31 (2016). (1) Analyzing this case in light of Rodriguez v. United States, 575 U.S. 348 (2015), summarized above, the court ruled that because reasonable suspicion did not exist to prolong the defendant’s detention once the purpose of a traffic stop had concluded, the trial court erred by denying the defendant’s motion to suppress evidence obtained as a result of a consent search of her vehicle during the unlawful detention. The court found that the evidence showed only two circumstances that could possibly provide reasonable suspicion for extending the duration of the stop: the defendant was engaging in nervous behavior and she had associated with a known drug dealer. It found the circumstances insufficient to provide reasonable suspicion.

The officer had a legitimate basis for the initial traffic stop: addressing the defendant’s failure to dim her high-beam lights. Once the officer provided the defendant with a warning about using the high beams, the original mission of the stop was concluded. Although some of the officer’s later follow-up questions about the address on her license were supported by reasonable suspicion (whether she was in violation of state law requiring a change of address on a driver’s license), this “new mission for the stop” concluded when the officer decided not to issue her a ticket in connection with her license. At this point, additional reasonable suspicion was required to prolong the detention.

The court agreed with the defendant that her nervousness and association with a drug dealer did not support a finding of reasonable suspicion to prolong the stop. Among other things, the court noted that nervousness, although a relevant factor, is insufficient by itself to establish reasonable suspicion. It also concluded that “a person’s mere association with or proximity to a suspected criminal does not support a conclusion of particularized reasonable suspicion that the person is involved in criminal activity without more competent evidence.” Bedient, 247 N.C. App. at 323. These two circumstances, the court ruled, “simply give rise to a hunch rather than reasonable, particularized suspicion.” Id. at 325. (2) Concerning another issue, the court ruled that the defendant’s consent to search the vehicle was not obtained during a consensual encounter because the officer had not returned the defendant’s driver’s license when she consented.

State v. Castillo, 247 N.C. App. 327 (2016). (1) Analyzing this case in light of Rodriguez v. United States, 575 U.S. 348 (2015), summarized above, the court ruled that reasonable suspicion supported the officer’s extension of an investigative stop’s duration based on the following: the officer smelled marijuana on the defendant’s person, the officer learned from the defendant that he had an impaired-driving conviction based on marijuana usage, the defendant provided a “bizarre” story regarding the nature of his travel, the defendant was extremely nervous, and the officer detected “masking odors.” (2) Concerning another issue, the court ruled that the defendant’s consent to search his car, given during the lawful extension of the stop, was clear and unequivocal.

State v. Velazquez-Perez, 233 N.C. App. 585 (2014). In a drug-trafficking case, the court ruled that the trial court did not err by denying the defendant’s motion to suppress drugs seized from a truck during a vehicle stop. The defendant argued that once the officer handed the driver a warning citation, the purpose of the stop was over and, accordingly, anything that occurred thereafter unconstitutionally prolonged the stop. The court noted that officers routinely check relevant documentation while conducting traffic stops. Here, although the officer had finished writing the warning citation, he had not completed his checks concerning the licenses, registration, insurance, travel logs, and invoices of the commercial vehicle. Thus, “[t]he purpose of the stop was not completed until [the officer] finished a proper document check and returned the documents to [the driver and the passenger, who owned the truck].” Id. at 595. The court noted that because the defendant did not argue the issue, it would not address which documents may be properly investigated during a routine commercial vehicle stop.

State v. Lopez, 219 N.C. App. 139 (2012). The court ruled that reasonable suspicion supported the length of the traffic stop in this case. Also, the officer’s initial questions concerning the defendant’s license, route of travel, and occupation were within the scope of the stop. Any further detention was appropriate based on the following facts. The defendant did not have a valid driver’s license. Although the defendant said he had just gotten off work at a construction job, he was well kept with clean hands and clothing. The defendant “became visibly nervous by breathing rapidly[;] . . . his heart appeared to be beating rapidly[;] he exchanged glances with his passenger and both individuals looked at an open plastic bag in the back seat of the vehicle.” Id. at 146. An officer saw dryer sheets protruding from an open bag containing a box of clear plastic wrap, which, due to his training and experience, the officer knew were used to package and conceal drugs. The defendant told the officer that the car he was driving belonged to a friend but that he was not sure of the friend’s name.

State v. Jacobs, 162 N.C. App. 251 (2004). An officer stopped the defendant’s vehicle, detained him for about three to five minutes, received consent to search the vehicle, and discovered evidence in the car and on the defendant’s person.

(1) About 1:43 a.m. on November 8, 2001, a Burlington police officer saw a car continuously weaving back and forth in its lane over a distance of three-quarters of a mile. There were several bars in the area. The court ruled, relying on State v. Watson, 122 N.C. App. 596 (1996), that the officer had reasonable suspicion to stop the vehicle for DWI. [Author’s note: Although the officer also had information that a suspect in a Johnson City, Tennessee, murder was in Burlington; that the car’s Tennessee license plate was registered to a Johnson City resident; and that a substantial amount of drug trafficking occurred between Burlington and Johnson City; these facts had not been used as the basis for the trial judge’s ruling that the officer had reasonable suspicion to stop the vehicle.] (2) The court ruled that the length of the defendant’s detention (about three to five minutes) during the investigatory stop was reasonable under the Fourth Amendment. During this time, the officer asked the defendant questions about his impairment, the murder suspect, and drug trafficking. The defendant’s responses did not fully resolve the officer’s suspicions, and the defendant was acting very nervous. The court noted State v. McClendon, 350 N.C. 630 (1999), concerning the issue of nervousness as a factor in determining reasonable suspicion.

State v. Crenshaw, 144 N.C. App. 574 (2001). The defendant’s vehicle was stopped for an inoperable taillight and illegal parking in an area known for drug activity. One of the officers involved with the stop of the vehicle knew that the defendant had previously been convicted of possession of a firearm by a felon. They checked his license and registration, which were valid. The officers then ordered the defendant out of his vehicle and frisked him. The court ruled, relying on State v. Butler, 331 N.C. 227 (1992), that the duration of the vehicle stop beyond the initial stop was reasonable based on the officers’ familiarity with the defendant, the defendant’s presence in an area known for drug activity, and the defendant’s having been illegally parked. The officers testified at the suppression hearing that the defendant verbally consented by answering “okay” when one of the officers stated that he wanted to search the defendant’s vehicle. The defendant did not offer any evidence to refute the voluntariness of his consent. The court ruled that evidence supported the trial judge’s ruling that the consent to search was voluntary.

State v. Munoz, 141 N.C. App. 675 (2001). The defendant was driving a tractor trailer truck with a car carrier on I-85 and was transporting a Ford Aerostar and a Nissan Sentra. A trooper stopped him for traffic violations, and later another trooper arrived. The defendant handed one of the troopers his license, registration, a notebook containing his log book, and a clipboard holding shipping documents and bills of lading. The troopers found inconsistencies in the defendant’s log book and in the shipping documentation. The clipboard contained documents entitled “bill of lading” for the Aerostar and for other vehicles that were no longer on the carrier. There was no bill of lading for the Sentra. The defendant produced a fax that listed the Sentra’s destination as Junior City, New Jersey, a contract number, and Miguel Angel as the contact person; there was no other documentation concerning the Sentra. The defendant told the troopers that he did not know Angel. The troopers also noted that the defendant smelled strongly of grease or fuel. The defendant told the troopers that he was receiving $200 per vehicle to transport (from Texas) the Aerostar to Delaware and the Sentra to New Jersey. One trooper sent the defendant back to his truck while he checked the tags of the cars on the carrier and the other cars listed on the clipboard. After the checks were completed and the trooper received notice that the license and registration were valid, the trooper issued the defendant a warning citation for two motor vehicle violations and returned all the documentation to the defendant. About forty-five minutes elapsed from the time the defendant was stopped until he was issued the citation. The defendant then consented to a search of the vehicles, one of which contained cocaine.

Relying on State v. McClendon, 350 N.C. 630 (1999), the court ruled that the forty-five-minute detention of the defendant was supported by reasonable suspicion of criminal activity because (1) the log book was not properly filled out and contained discrepancies, (2) the defendant did not have a bill of lading or an inspection for the Sentra but did have proper documentation for the Aerostar and other cars he had previously transported, (3) the defendant smelled like grease, and (4) the economics of traveling from Texas to Delaware and New Jersey for $200 per car appeared suspicious. See also State v. Castellon, 151 N.C. App. 675 (2002) (delay of twenty-five minutes to check motorist’s driver’s license was reasonable).

State v. Ray, 137 N.C. App. 326 (2000). Officers stopped a vehicle because one of its headlights was not working. Before the officers could give the driver a warning ticket, other officers arrived who had reasonable suspicion that the vehicle’s occupants had been involved in an armed robbery. The officers then received consent to search the vehicle. They ordered all three occupants out of the vehicle and required them to sit on the curb, cross their feet, and put their hands on their knees. The court ruled that the officers’ seizure was justified, pointing out that it was no longer than necessary, that the occupants were not handcuffed, and that the officers did not draw their weapons even though they were armed. The elapsed time from the traffic stop until the occupants were arrested and transported to police headquarters was at most twenty to twenty-five minutes. Based on these facts, the seizure was not converted into an arrest requiring probable cause.

Rousselo v. Starling, 128 N.C. App. 439 (1998). The plaintiff sued an officer for a violation of his Fourth Amendment rights. An officer stopped a vehicle for speeding at 2:10 p.m. The officer noted a discrepancy between the vehicle’s license tag number (TG0355) listed in the vehicle’s rental agreement and the vehicle’s actual license tag number (ZLN697). The officer placed the plaintiff in his vehicle. During the next twenty minutes, the trooper questioned the plaintiff about his background, where he was going, and so forth. The officer believed that the plaintiff was evasive and nervous. The officer called for backup at 2:34 p.m. While waiting for backup, the officer requested several record checks from his agency dispatcher. The officer continued to question the plaintiff and also asked for consent to search the car, which was denied. He received verification of the plaintiff’s driver’s license and, at 2:42 p.m., a drug intelligence center advised the officer that it had no information about the plaintiff. The backup officers arrived at 2:50 p.m. At 3:02 p.m., the officers asked for a canine unit. At 3:04 p.m., the dispatcher called the car rental company to determine if the plaintiff had rented the vehicle. At 3:15 p.m., the car rental company informed the dispatcher that the plaintiff had rented the vehicle. The drug dog arrived at about that time and alerted to the presence of drugs, but a search of the vehicle that lasted until 3:47 p.m. did not discover any drugs. At that time, the officer was informed of the information from the rental company. Shortly thereafter, the plaintiff was allowed to leave.

The plaintiff argued on appeal that the officer did not have reasonable suspicion to detain him before the dog sniff. The court concluded that, based on the facts in this case, the discrepancy between the rental agreement and the vehicle’s license tag furnished reasonable suspicion to detain the vehicle. In addition, the court stated that there was not a sufficient indication of the officer’s lack of diligence to support the argument that the detention was too long.

State v. McDaniels, 103 N.C. App. 175 (1991), aff’d, 331 N.C. 112 (1992). The length of time, a maximum of thirty minutes, of an investigative stop for drug trafficking of a vehicle leaving an airport was reasonable.

State v. Morocco, 99 N.C. App. 421 (1990). An officer properly stopped the defendant’s vehicle for a seat belt violation. The court ruled that the defendant was properly detained for three minutes while the officer wrote a ticket for the violation and requested the defendant’s consent to search his car for illegal weapons, alcohol, and contraband.

State v. Darack, 66 N.C. App. 608 (1984). The detention of the defendant for forty-seven minutes and of his airplane for three hours was properly based on reasonable suspicion that the airplane had been stolen and controlled substances were on board.

FEDERAL APPELLATE COURTS

United States v. Jordan, 952 F.3d 160 (4th Cir. 2020). This drug-trafficking case arose from a prosecution in federal district court. Federal authorities apprehended a suspect involved in drugs, and that person became an informant, providing law enforcement with the defendant’s name as a supplier. The informant agreed to call the defendant and set up a purchase. The phone call was recorded, and the two men discussed drug transactions using coded language. Based on that conversation, officers obtained search warrants for the defendant’s phone and to authorize placement of a tracking device on the defendant’s vehicle. Agents observed him make several quick visits to different locations, at times bringing one package into a location and leaving with a different package. The agents asked local police to conduct a traffic stop of the defendant based on these observations. The defendant ran a red light and was stopped by a Charlotte police officer. The defendant was on the phone and was “unwilling to engage” the officer. Multiple other cell phones were in view within the vehicle. The defendant was frisked, and a rubber glove was found in the defendant’s pockets (an item the officer knew to be associated with drug trafficking). The defendant’s brother appeared on the scene of the stop and tried to involve himself in the encounter. The officer waited eleven minutes for backup and then allowed a drug dog to check the vehicle. The dog alerted, and the defendant admitted to possessing cocaine. A search subsequently revealed cocaine, more than $25,000 in cash, six phones, and a gun. The defendant waived his Miranda rights and admitted his involvement in trafficking. Other drug stashes, guns, and large amounts of currency were found in the other places visited by the defendant on the day of the stop and at residences associated with him. The defendant moved to suppress evidence obtained as a result of the traffic stop, arguing that the stop was unreasonably extended in violation of United States v. Rodriguez, 575 U.S. 348 (2015).

The federal district court denied the motion, and the defendant was convicted at trial. A stop based on a traffic offense may not be extended beyond the time necessary to complete the mission of the stop absent reasonable suspicion of an offense or consent pursuant to Rodriguez. Here, the stopping officer was aware that the defendant was under investigation for trafficking drugs. Further, under the collective knowledge doctrine, all the information possessed by federal agents was imputed to the stopping officer. Based on the information from the informant, the search warrants that had been issued, and the defendant’s movements earlier in the day, law enforcement had reasonable suspicion of drug trafficking at the time of the stop. The suspicion of drug trafficking, coupled with the presence of the defendant’s brother on the scene, justified the eleven-minute extension to wait for backup to arrive as a matter of officer safety. The stop was therefore not unconstitutionally extended, and the district court’s denial of the motion to suppress was affirmed.

United States v. White, 836 F.3d 437 (4th Cir. 2016). A local West Virginia law enforcement officer stopped a car that had veered out of its lane. In addition to the driver, there was a front-seat passenger, the defendant, and one back-seat passenger, Bone. When approaching the driver’s window, the officer smelled an odor of burned marijuana emanating from the car. The driver, whom the officer concluded was not impaired, denied knowledge of the marijuana. The officer requested that the defendant exit the car. When he did so, the officer asked him about the marijuana odor, but he denied that anything illegal was in the car. While talking with Bone, the officer saw a firearm in a piece of plastic molding on the front side of the passenger seat where the defendant had been sitting. The defendant was arrested and later convicted in federal district court of possession of a firearm by a felon.

The defendant conceded that the stop of the vehicle was supported by reasonable suspicion of a traffic violation under West Virginia law, but he contended that the officer unconstitutionally prolonged the stop. The Fourth Circuit Court of Appeals noted that its case law provides that the odor of marijuana alone can provide probable cause to believe marijuana is present in a particular place. Thus, the officer had reasonable suspicion to extend the traffic stop to investigate the marijuana odor, and during that investigation the officer found the firearm. The court ruled that therefore the officer did not unconstitutionally prolong the traffic stop.

Scope of an Investigative Stop

(This topic is discussed in the chapter text under “Scope of Investigative Stop: Investigative Techniques.”)

United States Supreme Court

Arizona v. Johnson, 555 U.S. 323 (2009). Three officers, members of a gang task force, were on patrol near a neighborhood associated with the Crips gang. They stopped a vehicle after a license plate check revealed that the vehicle’s registration had been suspended for an insurance-related violation, which under Arizona state law was a civil infraction warranting a citation. There were three occupants in the vehicle: the driver, a front-seat passenger, and the defendant (a back-seat passenger). When making the stop, the officers had no reason to suspect anyone of criminal activity. Each officer dealt with one of the occupants. The officer involved with the defendant had noticed on the officers’ approach to the vehicle that the defendant had looked back and kept his eyes on the officers. She observed that the defendant was wearing clothing that was consistent with Crips membership. She also noticed a scanner in the defendant’s back pocket, which she believed that most people would not carry in that manner unless they were involved in criminal activity or trying to evade law enforcement. The defendant answered the officer’s questions (he provided his name and date of birth but had no identification; he said that he had served time in prison for burglary) and volunteered that he was from an Arizona town that the officer knew was home to a Crips gang. The defendant complied with the officer’s request to get out of the car. Based on her observations and the defendant’s answers to her questions, the officer suspected that he might have a weapon and frisked him and discovered a gun.

(1) The Court reviewed its case law on stop and frisk beginning with Terry v. Ohio, 392 U.S. 1 (1968), particularly noting Pennsylvania v. Mimms, 434 U.S. 106 (1977) (officer may automatically order driver out of lawfully stopped vehicle); Maryland v. Wilson, 519 U.S. 408 (1997) (applying Mimms to passengers); and Brendlin v. California, 551 U.S. 249 (2007) (when vehicle is stopped, passengers as well as driver are seized). The Court stated that the combined thrust of these three cases is that an officer who conducts a routine traffic stop may frisk the driver and any passenger the officer reasonably suspects to be armed and dangerous. The officer need not additionally have cause to believe that any vehicle occupant is involved in criminal activity. (2) An Arizona state appellate court had ruled that while the defendant initially was lawfully seized, before the frisk occurred the detention had evolved into a consensual conversation about his gang affiliation because the officer’s questioning was unrelated to the traffic stop. The Arizona court concluded that the officer did not have the right to frisk the defendant—even if she had reasonable suspicion that he was armed and dangerous—absent reasonable suspicion that the defendant had engaged in, or was about to engage in, criminal activity. The United States Supreme Court rejected that view and concluded that the seizure of the defendant during this traffic stop was continuous and reasonable from the time the vehicle was stopped to the time the frisk occurred. A traffic stop of a vehicle communicates to a reasonable passenger that he or she is not free to terminate the encounter with law enforcement and move about at will. Nothing occurred in this case that would have conveyed to the defendant that the traffic stop had ended before the frisk or that he was otherwise free to depart without the officer’s permission. The officer was not constitutionally required to give the defendant an opportunity to depart the scene after he exited the vehicle without first ensuring that, in so doing, she was not permitting a dangerous person to get behind her. Citing Muehler v. Mena, 544 U.S. 93 (2005) (questioning of the plaintiff about her immigration status did not violate the Fourth Amendment because the plaintiff’s detention during the execution of the search warrant was not prolonged by the questioning), the Court stated that an officer’s questions about matters unrelated to the justification for a traffic stop do not convert the encounter into an unlawful seizure as long as the questions do not measurably extend the duration of the stop. [Author’s note: The Court’s statement means, for example, that an officer’s questioning of a vehicle occupant during a traffic stop as to whether there are drugs or guns in the vehicle is not an unreasonable seizure as long as the questioning does not measurably extend the duration of the stop. See also United States v. Olivera-Mendez, 484 F.3d 505 (8th Cir. 2007); United States v. Stewart, 473 F.3d 1265 (10th Cir. 2007); United States v. Everett, 601 F.3d 484 (6th Cir. 2010). To the extent that State v. Parker, 183 N.C. App. 1 (2007), implied that reasonable suspicion was required when an officer asked for a consent search of a lawfully detained defendant when the request was unrelated to the traffic violation for which the defendant was detained, it now appears inconsistent with Johnson as well as Muehler (mere questioning by law enforcement officers is not a seizure under the Fourth Amendment).]

Muehler v. Mena, 544 U.S. 93 (2005). Officers obtained a search warrant for a house and premises to search for deadly weapons and evidence of gang membership related to an investigation of a gang-related drive-by shooting. A SWAT team and other officers (a total of eighteen officers altogether) executed the warrant. Aware that the gang was composed primarily of illegal immigrants, a U.S. Immigration and Naturalization Service (INS; now U.S. Citizenship and Immigration Services) officer accompanied the officers. One or two officers guarded four occupants detained at the scene, who were handcuffed for about two to three hours while the warrant was executed. In addition, the INS officer questioned the occupants about their immigration status while the warrant was executed. One of the occupants (the plaintiff in this case) sued the officers for allegedly violating her Fourth Amendment rights during the execution of the search warrant. The Court ruled that the detention of the plaintiff in handcuffs was reasonable under the Fourth Amendment. The two- to three-hour detention in handcuffs in this case did not outweigh the officers’ continuing safety interests. The Court also ruled that the questioning of the plaintiff about her immigration status did not violate the Fourth Amendment because the plaintiff’s detention during the execution of the search warrant was not prolonged by the questioning. Mere questioning by law enforcement does not constitute a seizure. [Author’s note: Although this case did not involve the scope of an investigative stop, the ruling that mere questioning does not necessarily violate the Fourth Amendment has had an impact on case law involving investigative stops. See Arizona v. Johnson, 555 U.S. 323 (2009), discussed above.]

Illinois v. Caballes, 543 U.S. 405 (2005). The defendant was lawfully stopped for speeding. While the stopping officer was writing a warning ticket, another officer arrived and walked a drug-detection dog around the defendant’s vehicle. The dog alerted to the trunk and a search discovered marijuana. The entire incident lasted less than ten minutes. The Court stated that the issue in this case was a narrow one: whether the Fourth Amendment requires reasonable, articulable suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop. The Court noted that a seizure justified solely by the interest in issuing a warning ticket can become unlawful if it is prolonged beyond the time reasonably required to complete that mission. The Court pointed out that the state court had reviewed the stopping officer’s conversations with the defendant and the precise timing of the officer’s radio transmissions to the police dispatcher to determine whether the officer had improperly extended the duration of the stop to enable the dog sniff to occur. The Court accepted the state court’s conclusion that the duration of the stop in this case was entirely justified by the traffic offense and the ordinary inquiries incident to such a stop. The Court noted that the state appellate court had ruled, however, that the use of the drug-detection dog converted the encounter from a lawful traffic stop into a drug investigation, and because the shift in purpose was not supported by reasonable suspicion that the defendant possessed illegal drugs, it violated the Fourth Amendment. The Court rejected this analysis and ruling. It stated that conducting a dog sniff would not change the character of a traffic stop that is lawful at its inception and otherwise conducted in a reasonable manner, unless the dog sniff itself violated the defendant’s Fourth Amendment right to privacy. The Court ruled that the dog sniff here did not do so, relying on United States v. Jacobsen, 466 U.S. 109 (1984), United States v. Place, 462 U.S. 696 (1983), and City of Indianapolis v. Edmond, 531 U.S. 32 (2000), and distinguishing Kyllo v. United States, 533 U.S. 27 (2001). The Court stated that a dog sniff conducted during a lawful traffic stop that reveals no information other than the location of a substance that a person had no right to possess does not violate the Fourth Amendment.

Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004). A caller to a sheriff’s department reported seeing a man assault a woman in a truck on a certain road. When an officer arrived there, he found the truck parked on the side of the road, the defendant standing by the truck, and a young woman sitting inside. The defendant was stopped by the law enforcement officer based on reasonable suspicion that the defendant had committed the assault. The officer asked the defendant for identification, explaining that he wanted to determine who the man was and what he was doing there. The defendant refused to provide identification. The defendant was convicted of willfully obstructing and delaying the officer in attempting to discharge a legal duty—based on a Nevada statute that requires a person subject to an investigative stop to disclose his name.

(1) The Court ruled that the officer’s request for the defendant’s name was reasonably related in scope to the circumstances that justified the stop and did not violate the Fourth Amendment. (2) The Court ruled that the defendant’s conviction did not violate the defendant’s Fifth Amendment privilege against compelled self-incrimination because in this case the defendant’s refusal to disclose his name was not based on any articulated real and appreciable fear that his name would be used to incriminate him or that it would furnish a link in the chain of evidence needed to prosecute him. The Court noted that a case may arise when there is a substantial allegation that furnishing identity at the time of an investigative stop would have given an officer a link in the chain of evidence needed to convict the defendant of a separate offense. In that case, a court can then consider whether the Fifth Amendment privilege applies and, if the privilege has been violated, what remedy must follow. But those questions need not have been resolved in the case before the Court.

[Author’s note: The ruling in this case that the Nevada law is constitutional does not resolve the issue of whether it is a violation of North Carolina law when a person refuses to give his or her name during an investigative stop. That is a matter for North Carolina state courts to decide. Unlike Nevada law, there is no North Carolina statute that requires a person who is the subject of an investigative stop based on reasonable suspicion to disclose his or her name. (There is a limited provision in G.S. 20-29 stating that it is a Class 2 misdemeanor for a person operating a motor vehicle, when requested by a uniformed officer, to refuse to write his or her name for identification or give his or her name.) Without such a statute, it does not appear that a person’s mere refusal to disclose his or her name is sufficient evidence by itself to arrest or convict the person of violating G.S. 14-223 (resisting, delaying, or obstructing a public officer in discharging or attempting to discharge a duty of office) absent a showing as to how the mere refusal to disclose resisted, delayed, or obstructed the officer in that particular investigative stop. Although a mere refusal may be insufficient to arrest a person for violating G.S. 14-223, the refusal under certain circumstances may allow an officer additional time to detain the person to determine whether a crime was committed.]

Ohio v. Robinette, 519 U.S. 33 (1996). An officer stopped the defendant for speeding. The defendant gave his driver’s license to the officer, who ran a computer check that revealed that the defendant had no prior violations. The officer asked the defendant to step out of his car, issued a verbal warning to the defendant, and returned his license. The officer then asked the defendant if he had any illegal contraband in his car. The defendant said no. When the officer then asked the defendant if he could search his car, the defendant consented. The Court rejected a lower court ruling that an officer must advise a lawfully seized defendant that the defendant is free to go before a consent to search will be recognized as voluntary. The Court noted that a consent to search must be voluntary and that voluntariness is a question of fact that must be determined from all the circumstances. An officer’s warning before obtaining consent to search is not required by the Fourth Amendment for the search to be valid.

North Carolina Supreme Court

State v. Williams, 366 N.C. 110 (2012), aff’g 215 N.C. App. 1 (2011) (reasonable articulable suspicion justified extending traffic stop). An officer stopped the vehicle in which the defendant was a passenger for having illegally tinted windows and issued a citation. The officer then asked for and was denied consent to search the vehicle. Thereafter, he called for a canine trained in drug detection. When the dog arrived, it alerted on the car and drugs were found. Several factors supported the trial court’s determination that reasonable suspicion supported extending the stop. First, the driver told the officer that she and the defendant passenger were coming from Houston, Texas, which was illogical given their direction of travel. Second, the defendant’s inconsistent statement that they were coming from Kentucky and were traveling to Myrtle Beach “raise[d] a suspicion as to the truthfulness of the statements.” 366 N.C. at 117. Third, the driver’s inability to tell the officer where she and the passenger were going, along with her illogical answer about driving from Houston, permitted an inference that she “was being deliberately evasive, that she had been hired as a driver and intentionally kept uninformed, or that she had been coached as to her response if stopped.” Id. Fourth, the fact that the defendant initially suggested that she and the driver were cousins but then admitted that they just called each other cousins based on their long-term relationship “could raise a suspicion that the alleged familial relationship was a prearranged fabrication.” Id. Finally, the vehicle, which had illegally tinted windows, was owned by a third person. The state supreme court concluded:

Viewed individually and in isolation, any of these facts might not support a reasonable suspicion of criminal activity. But viewed as a whole by a trained law enforcement officer who is familiar with drug trafficking and illegal activity on interstate highways, the responses were sufficient to provoke a reasonable articulable suspicion that criminal activity was afoot and to justify extending the detention until a canine unit arrived. Id.

State v. McClendon, 350 N.C. 630 (1999). The court ruled that the continued detention of the defendant from the issuance of a warning ticket to the arrival of the drug dog was supported by reasonable suspicion of criminal activity. The court cited several factors that supported reasonable suspicion under the totality of the circumstances. First, the officer questioned the defendant about who owned the car he was driving. The defendant said that his girlfriend owned the car but initially would not give a name. Then he gave the name “Anna,” but that name was not listed on the title. Second, although the defendant appeared unsure of who owned the car, the address of the owner listed on the title and the address on the defendant’s driver’s license were the same, which indicated that they both lived in the same residence. Third, the defendant was extremely nervous, sweating, breathing rapidly, sighing heavily, and chuckling nervously in response to questions. He also refused to make eye contact when answering questions.

The court cited State v. Butler, 331 N.C. 227 (1992), and noted that nervousness was a factor in determining reasonable suspicion in that case. The court distinguished its ruling in this case with the ruling in State v. Pearson, 348 N.C. 272 (1998) (no reasonable suspicion to frisk defendant). The court stated that it would “revisit Pearson now in order to clarify its meaning. . . .” McClendon, 350 N.C. at 637. The court noted that it said in Pearson that “[t]‌he nervousness of the defendant is not significant. Many people become nervous when stopped by a state trooper.” Id. at 638 (quoting Pearson). The court stated:

Although the quoted language from Pearson is couched in rather absolute terms, we did not mean to imply there that nervousness can never be significant in determining whether an officer could form a reasonable suspicion that criminal activity is afoot. Nervousness, like all other facts, must be taken in light of the totality of circumstances. It is true that many people do become nervous when stopped by an officer of the law. Nevertheless, nervousness is an appropriate factor to consider when determining whether a basis for reasonable suspicion exists.

In Pearson, the nervousness of the defendant was not remarkable. Even when taken together with the inconsistencies in the statements of the defendant and his girlfriend, it did not support a reasonable suspicion. In the case before us, however, defendant exhibited more than ordinary nervousness; defendant was fidgety and breathing rapidly, sweat had formed on his forehead, he would sigh deeply, and he would not make eye contact with the officer. This, taken in the context of the totality of circumstances found to exist by the trial court, gave rise to a reasonable suspicion that criminal activity was afoot. Id. at 638–39 (citations omitted).

North Carolina Court of Appeals

State v. Johnson, 246 N.C. App. 677 (2016). In this drug-trafficking case, the court ruled that an officer had reasonable suspicion to extend a traffic stop. After Officer Ward initiated a traffic stop and asked the driver for his license and registration, the driver produced his license but was unable to produce a registration. The driver’s license listed his address as Raleigh, but he could not give a clear answer as to whether he resided in Brunswick County or Raleigh. Throughout the conversation, the driver changed his story about where he resided. The driver was speaking into one cell phone and had two other cell phones on the center console of his vehicle. The officer saw a vehicle power control (VPC) module on the floor of the vehicle, an unusual item that might be associated with criminal activity. When Ward attempted to question the defendant, who was a passenger in the vehicle, the defendant mumbled answers and appeared very nervous. Ward then determined that the driver’s license was inactive, issued the driver a citation, and told him that he was free to go. However, Ward asked the driver if he would mind exiting the vehicle to answer a few questions. Ward also asked the driver if he could pat him down, and the driver agreed. Meanwhile, Deputy Arnold, who was assisting, observed a rectangular shaped bulge underneath the defendant’s shorts, in his crotch area. When he asked the defendant to identify the item, the defendant responded that it was his male anatomy. Arnold asked the defendant to step out of the vehicle so that he could do a pat down; before this could be completed, a ziplock bag containing heroin fell from the defendant’s shorts. The extension of the traffic stop was justified: the driver could not answer basic questions, such as where he was coming from and where he lived; the driver changed his story; the driver could not explain why he did not have his registration; the presence of the VPC was unusual; and the defendant was extremely nervous and gave vague answers to the officer’s questions.

State v. Fisher, 219 N.C. App. 498 (2012). The court of appeals ruled that the trial court erred by concluding that an officer lacked reasonable suspicion to detain the defendant beyond the scope of a routine traffic stop. The officer lawfully stopped the vehicle being driven by the defendant for a seat belt violation but then extended the detention in order to wait for the arrival of a canine unit. The State argued that numerous factors established reasonable suspicion that the defendant was transporting contraband: there was an overwhelming odor of air freshener in the car; the defendant claimed to have made a five-hour round-trip to go shopping but had not purchased anything; the defendant was nervous; the defendant had pending drug charges and was known as a distributor of marijuana and cocaine; the defendant was driving in a pack of cars; the car was registered to someone else; the defendant never asked why he had been stopped; the defendant was “eating on the go”; and a handprint indicated that something recently had been placed in the trunk. Although the officer did not know about the pending charges until after the canine unit was called, the court found this to be a relevant factor. It reasoned: “The extended detention of defendant is ongoing from the time of the traffic citation until the canine unit arrives and additional factors that present themselves during that time are relevant to why the detention continued until the canine unit arrived.” Id. at 503. Even discounting several of these factors that might be indicative of innocent behavior, the court found that other factors—nervousness, the smell of air freshener, inconsistency concerning travel plans, driving a car not registered to the defendant, and the pending charges—supported a finding that reasonable suspicion existed.

State v. Hernandez, 208 N.C. App. 591 (2010). The court ruled that the trial court properly denied a motion to suppress asserting that a vehicle stop was improperly prolonged. An officer stopped a truck after observing it following too closely and making erratic lane changes. The occupants were detained until a Spanish-language consent-to-search form could be brought to the location. The defendant challenged as unconstitutional this detention that lasted approximately one hour and ten minutes. The court distinguished two cases cited by the defendant, explaining that in both, vehicle occupants were detained after the original purpose of the initial investigative detention had been addressed, and the officer in each case attempted to justify an additional period of detention based solely on the driver’s nervousness or uncertainty about travel details, which does not provide reasonable suspicion that criminal activity is afoot. Here, however, because none of the occupants had a driver’s license or other identification, the officer could not issue a citation and resolve the initial stop. Because the challenged delay occurred when the officer was attempting to address issues arising from the initial stop, the court determined that it need not address whether the officer had a reasonable suspicion of criminal activity sufficient to justify a prolonged detention. Nevertheless, the court went on to conclude that even if the officer was required to have such a suspicion to justify the detention, the facts supported the existence of such a suspicion. Specifically, (1) the driver did not have a license or registration, (2) a man was in the truck bed covered by a blanket, (3) the defendant handed the driver a license belonging to the defendant’s brother, (4) the occupants gave inconsistent stories about their travel that were confusing given the truck’s location and direction of travel, (5) no occupant produced identification or a driver’s license, (6) the men had no luggage despite the fact that they were traveling from North Carolina to New York, and (7) the driver had tattoos associated with criminal gang activity.

State v. Jackson, 199 N.C. App. 236 (2009). An officer stopped a vehicle and, with other officers, checked the driver’s license and registration of the driver and determined that they were valid and that there were no outstanding warrants for the driver or two passengers, one of whom was the defendant. After the traffic stop had ended but before the driver’s license and registration had been returned, an officer asked questions about illegal drugs and weapons in the vehicle and then asked for consent to search the vehicle, which was granted. Cocaine was found in the vehicle, the three occupants were arrested, and cocaine was found in the defendant’s sock at the jail. The court ruled, relying on Brendlin v. California, 551 U.S. 249 (2007), that the defendant was seized during the stop of the vehicle and could challenge the duration of the seizure as violating the Fourth Amendment. The court also ruled that once the traffic stop had ended and the driver’s license and registration had not been returned, the officer’s questioning about illegal drugs and weapons in the vehicle was an extension of the seizure beyond the scope of the original traffic stop, and reasonable suspicion did not exist to justify the extension of the seizure. The court rejected the argument that the encounter had become consensual after the traffic stop had ended, because a reasonable person under the circumstances would not believe he was free to leave without his driver’s license and registration. The vehicle search was tainted by the illegality of the extended detention. Because the defendant was arrested based on the discovery of cocaine and a weapon in the vehicle, the cocaine found in the defendant’s sock at the jail was the direct result of the officer’s illegal search of the vehicle. Thus, the exclusionary rule prohibited the admission of the evidence found in the vehicle and in the defendant’s sock.

State v. Hodges, 195 N.C. App. 390 (2009). Vice detectives were conducting drug surveillance at a residence and had information from confidential informants about specific drug sellers and drug sales there. They believed that a vehicle leaving the residence contained a buyer of drugs, and they followed the vehicle to Interstate 40. The detectives saw the vehicle apparently speeding and asked an officer on routine patrol on the interstate to make his own observations about the vehicle’s speed or other possible traffic violations and to make a vehicle stop if a violation occurred. The officer followed the vehicle, saw it speeding, and turned on his lights to stop the vehicle. One of the detectives in the detectives’ vehicle saw the passenger look back at the officer’s vehicle, and the passenger appeared to conceal something underneath the passenger’s seat. The detective radioed the officer that he believed the passenger was hiding either drugs or a weapon under the seat and warned him to be careful. After stopping the vehicle, the officer spoke with the driver (the defendant) and the passenger. The defendant stated that the passenger was his neighbor and identified his first name, which was inconsistent with the passenger’s driver’s license. The officer issued a verbal warning to the defendant for speeding. The officer further detained both the defendant and passenger, and eventually the passenger consented to a search of the vehicle. The court ruled that based on these and other facts set out in its opinion, the officer had reasonable suspicion of criminal activity (specifically, drugs or other contraband in the vehicle) to detain the occupants after the traffic stop had concluded. The court also ruled that the five-minute detention after the traffic stop had concluded was reasonable under the Fourth Amendment.

State v. Myles, 188 N.C. App. 42, aff’d, 362 N.C. 344 (2008). The court ruled that reasonable suspicion did not support an officer’s continued detention of vehicle occupants (the defendant was a passenger) after the completion of a traffic stop. The officer stopped a vehicle for weaving on Interstate 40 and running slightly off the highway. The officer did not detect an odor of alcohol on the driver, learned that the car was being operated under a rental agreement executed by the defendant-passenger that was one day overdue, told the driver to be more careful, and asked him to come to the officer’s car so that the officer could write a warning ticket. The officer noted that the driver was sweating profusely despite the fact that it was a cool day. The officer talked with the driver about his travel plans. The officer then went back to the driver’s car and spoke to the defendant-passenger about the rental agreement and whether it had been extended. The defendant said that it had been extended. The officer noticed the defendant’s heart beating through his shirt. The officer eventually obtained consent to search the car from the driver and the defendant. The court ruled that both the driver and the defendant-passenger were seized under the Fourth Amendment after the completion of the traffic stop and the issuance of the warning ticket and that the totality of circumstances did not support reasonable suspicion for the continued detention of the two—the nervous behavior of the driver was insufficient. The court distinguished the ruling in State v. McClendon, 350 N.C. 630 (1999). The nervousness of the defendant could not be considered in establishing reasonable suspicion because the officer observed that behavior after the traffic stop had been completed.

State v. Euceda-Valle, 182 N.C. App. 268 (2007). An officer stopped the defendant’s vehicle for speeding and issued him a warning ticket. There was a passenger in the vehicle. After writing and delivering the warning ticket to the defendant, the officer ordered the defendant to remain so that a drug dog could conduct a sniff of the exterior of the vehicle. The court ruled, relying on State v. McClendon, 350 N.C. 630 (1999), and State v. Hernandez, 170 N.C. App. 299 (2005), that the officer had reasonable suspicion to detain the defendant. The defendant was extremely nervous and refused to make eye contact with the officer. The smell of air freshener was coming from the vehicle, and the vehicle was not registered to the occupants. Also, the defendant and the passenger disagreed about their itinerary.

State v. Hernandez, 170 N.C. App. 299 (2005). The defendant was convicted of trafficking in cocaine. An officer stopped a vehicle driven by the defendant for a seat belt violation. While in the patrol car with the defendant, the officer ran a license and registration check, questioned the defendant about his travel plans, and issued him a citation. The defendant then gave consent to search the vehicle, and cocaine was found in the vehicle. The consent to search was given within six minutes of the defendant’s detention in the vehicle. The court ruled that (1) the officer had probable cause to stop the vehicle for the seat belt violation (the officer saw the defendant remove the seat belt while still driving), a readily observed traffic violation, and (2) the officer had reasonable suspicion to detain the defendant after issuing the citation, based on the defendant’s extreme nervousness, conflicting statements about his travel plans, and air fresheners in the defendant’s vehicle emitting a strong odor. [Author’s note: Since the Hernandez ruling, the North Carolina Supreme Court in State v. Styles, 362 N.C. 412 (2008), ruled that reasonable suspicion, not probable cause, is the standard for all traffic stops.]

State v. Bell, 156 N.C. App. 350 (2003). Trooper A stopped a vehicle, driven by the defendant’s brother, for speeding; the defendant was a passenger in the front seat. The back seat was filled with many personal belongings, including stereo equipment. After the stop, Trooper B arrived and assisted Trooper A. When the driver offered a New York learner’s permit and a rental agreement for the vehicle, Trooper A asked him to come back to the patrol car so that he could check the permit and tag, and he questioned him there. Trooper B questioned the defendant while he was in the vehicle. The driver and the defendant told different stories to the troopers about their itinerary. Trooper B also noticed that the defendant’s eyes wandered while he talked, resisting eye contact with the trooper. Upon considering that the back seat was filled with personal belongings, indicating that the trunk was full, and that the men told inconsistent stories, Trooper A became suspicious about illegal drugs based on his experience and training in drug interdiction. After issuing a citation to the driver for speeding in a work zone and returning his learner’s permit, Trooper A asked Trooper B to request the defendant’s consent to search the vehicle because his name appeared on the rental agreement. The court ruled that even if, as the defendant asserted, the traffic stop had concluded when the trooper asked for consent to search the vehicle, reasonable suspicion of criminal activity supported the detention. The court relied on State v. McClendon, 350 N.C. 630 (1999).

State v. Wilson, 155 N.C. App. 89 (2002). A trooper stopped a car and issued a warning ticket for a violation of G.S. 20-152 (following too closely). Later, the defendant consented to a search of the vehicle and cocaine was found in the vehicle’s battery.

The court ruled that reasonable suspicion supported the detention of the defendant after the trooper issued the warning ticket. The court stated that the evidence established that (1) the vehicle had a strong odor of air freshener, (2) an atlas was in the back seat and screws were missing from the dashboard, (3) the vehicle was registered in Florida but the defendant was from Ohio, (4) there were discrepancies in the descriptions by the defendant and an accomplice of a vehicle left in Florida, and (5) the defendant was very nervous—tapping his hands and feet while in the trooper’s car. In addition, the trooper had special knowledge of illegal drugs and knew that the defendant’s actions were consistent with those of a drug trafficker.

State v. Kincaid, 147 N.C. App. 94 (2001). An officer saw the defendant driving a vehicle, attempting to conceal his face from the officer. The officer stopped the vehicle because he knew that the defendant’s license had been revoked for two to three years. During the time the officer had known the defendant, he had seen him travel either as a passenger in a car or as the driver of a moped but never as the driver of a car. The defendant gave his license and registration to the officer. The officer allowed the defendant to enter a convenience store while he ran a license check. The license was valid, and the officer returned it and the registration to the defendant when he returned. The officer then asked the defendant if he could answer some questions concerning another matter and the defendant consented. After being asked if he had anything in the car that the officer needed to be concerned about, the defendant admitted that he had marijuana under the front seat.

The court ruled that the officer had reasonable suspicion to stop the vehicle based on the officer’s information about the defendant and his driver’s license, despite the fact that the officer’s information turned out to be incorrect after the stop. The court noted that the ground for the detention of the defendant ended when the officer learned that the defendant’s license was valid. However, the defendant consented to questions after the officer had returned the driver’s license and registration to the defendant. The court ruled that a reasonable person would have felt free to leave when the documents were returned. The court noted that the officer was neither prohibited from simply asking if the defendant would consent to additional questioning nor from questioning the defendant after receiving his consent. Based on the totality of circumstances, the court ruled that the defendant was not seized under the Fourth Amendment after the officer had returned the documents to him.

State v. Falana, 129 N.C. App. 813 (1998). A trooper stopped the defendant’s vehicle because it weaved within its own lane twice and touched the lane-divider line once. The defendant presented his driver’s license and vehicle registration to the trooper, who asked the defendant whether he was fatigued or had been drinking. The defendant responded that he had been driving all night and was tired. The trooper did not detect that the defendant was under the influence of any impairing substance. The trooper saw that the defendant was breathing rapidly and would periodically pause in his speech and swallow. The trooper believed that the defendant was nervous. The trooper also checked the identification of a passenger in the vehicle, which was proper. The trooper then radioed for backup. He received no hits on warrants checks of the defendant and the passenger. The trooper then issued a warning ticket to the defendant and returned his license and registration. The defendant, in response to the trooper’s inquiry, denied having anything illegal in his vehicle. The trooper became suspicious because the defendant continued to breathe rapidly and appeared to be nervous, and also because the passenger had given the trooper a different statement than the defendant about when she and the driver had been in New Jersey. The trooper then asked the defendant if he could search the vehicle. The defendant refused. The trooper asked again for permission to search the vehicle. After the defendant asked the trooper whether he had a search warrant and received a negative response from the trooper, the defendant again refused to consent to a search of his vehicle. The trooper then told the defendant that he was going to have a drug dog walk around his vehicle. The dog alerted, and the defendant’s vehicle was searched.

The court, assuming without deciding that the stop of the vehicle was proper, ruled that the continued detention of the defendant after the issuance of the warning ticket was not supported by reasonable suspicion and therefore violated the Fourth Amendment. Relying on the reasoning of State v. Pearson, 348 N.C. 272 (1998), the court ruled that the defendant’s nervousness and the differing statements of the defendant and passenger about when they had been in New Jersey did not constitute reasonable suspicion to detain the defendant after the issuance of the warning ticket. See also State v. Fisher, 141 N.C. App. 448 (2000) (reasonable suspicion did not justify detention beyond initial traffic stop and thus dog sniff occurring during illegal detention was unconstitutional).

Burton v. City of Durham, 118 N.C. App. 676 (1995). The court ruled that an officer may conduct a registration check when the officer has properly stopped a defendant for committing an infraction (in this case, exceeding a safe speed).

State v. Aubin, 100 N.C. App. 628 (1990). The court ruled that an officer had reasonable suspicion of an impaired-driving offense to stop a car that was going 45 m.p.h. and weaving within a lane on an interstate highway. The officer asked the defendant to come to his patrol car so that he could determine whether the defendant had the odor of alcohol about him. The officer asked the defendant about his plans for returning the rental car he was driving, whether he still lived in Quebec, and what he did for a living. The officer then attempted to obtain the defendant’s consent to search his car. The court ruled that this conversation did not exceed permissible behavior of an officer conducting a stop of a vehicle for impaired driving.

State v. Hunter, 107 N.C. App. 402 (1992). A trooper stopped the defendant for illegal parking and questioned the defendant about the other two occupants of the car the defendant was driving. The defendant initially misidentified them. Also, the car’s rental agreement was in the name of a person who was not in the vehicle. The court found that the trooper’s questions about the other occupants were legitimately aimed at confirming the defendant’s identity, particularly as the rental contract was in the name of another person. The trooper then issued a warning ticket to the defendant and asked him if he would sign a consent-to-search form allowing a search of the car and all luggage within it. The court ruled that the trooper’s initial investigation was reasonably related to the purpose of issuing a warning ticket for illegal parking and that asking for permission to search the defendant’s vehicle did not exceed the permissible scope of the trooper’s investigation.

State v. Jones, 96 N.C. App. 389 (1989). An officer properly stopped a vehicle based on reasonable suspicion that the driver was committing an impaired-driving offense. The scope of the investigatory stop was reasonably related to the impaired-driving offense because the defendant gave the officer two different names. The officer continued to investigate the defendant’s identity and the vehicle’s lease agreement because an officer has the authority to determine a defendant’s identity. The fact that the officer later obtained the defendant’s consent to search the car did not make the scope of the stop impermissible.

Ordering People Out of a Vehicle after a Lawful Stop

(This topic is discussed This topic is discussed in the chapter text under “Scope of Investigative Stop: Investigative Techniques,” “Ordering driver and passengers out of vehicle.”)

UNITED STATES SUPREME COURT

Arizona v. Johnson, 555 U.S. 323 (2009). Three officers, members of a gang task force, were on patrol near a neighborhood associated with the Crips gang. They stopped a vehicle after a license plate check revealed that the vehicle’s registration had been suspended for an insurance-related violation, which under Arizona state law was a civil infraction warranting a citation. There were three occupants in the vehicle: the driver, a front-seat passenger, and the defendant (a back-seat passenger). When making the stop, the officers had no reason to suspect anyone of criminal activity. Each officer dealt with one of the occupants. The officer involved with the defendant noticed upon the officers’ approach to the vehicle that the defendant had looked back and kept his eyes on the officers. She observed that the defendant was wearing clothing that was consistent with Crips membership. She also noticed a scanner in the defendant’s back pocket, which she believed most people would not carry in that manner unless they were involved with criminal activity or trying to evade law enforcement. The defendant answered the officer’s questions (he provided his name and date of birth but had no identification; he said that he had served time in prison for burglary) and volunteered that he was from an Arizona town that the officer knew was home to a Crips gang. The defendant complied with the officer’s request to get out of the car. Based on her observations and the defendant’s answers to her questions, the officer suspected he might have a weapon and frisked him and discovered a gun.

(1) The Court reviewed its case law on stop and frisk, beginning with Terry v. Ohio, 392 U.S. 1 (1968), particularly noting Pennsylvania v. Mimms, 434 U.S. 106 (1977) (officer may automatically order driver out of lawfully stopped vehicle), Maryland v. Wilson, 519 U.S. 408 (1997) (applying Mimms to passengers), and Brendlin v. California, 551 U.S. 249 (2007) (when vehicle is stopped, passengers as well as driver are seized). The Court stated that the combined thrust of these three cases is that an officer who conducts a routine traffic stop may frisk the driver and any passenger whom the officer reasonably suspects to be armed and dangerous. The officer need not additionally have cause to believe that any vehicle occupant is involved in criminal activity. (2) An Arizona state appellate court had ruled that while the defendant initially was lawfully seized, before the frisk occurred the detention had evolved into a consensual conversation about his gang affiliation because the officer’s questioning was unrelated to the traffic stop. The Arizona court concluded that the officer did not have the right to frisk the defendant—even if she had reasonable suspicion that he was armed and dangerous—absent reasonable suspicion that the defendant had engaged, or was about to engage, in criminal activity. The United States Supreme Court rejected that view and concluded that the seizure of the defendant during this traffic stop was continuous and reasonable from the time the vehicle was stopped to the time the frisk occurred. A traffic stop of a vehicle communicates to a reasonable passenger that he or she is not free to terminate the encounter with law enforcement and move about at will. Nothing occurred in this case that would have conveyed to the defendant that the traffic stop had ended before the frisk or that he was otherwise free to depart without the officer’s permission. The officer was not constitutionally required to give the defendant an opportunity to depart the scene after he exited the vehicle without first ensuring that, in so doing, she was not permitting a dangerous person to get behind her. Citing Muehler v. Mena, 544 U.S. 93 (2005) (questioning of the plaintiff about her immigration status did not violate the Fourth Amendment because the plaintiff’s detention during the execution of a search warrant was not prolonged by the questioning), the Court stated that an officer’s questions about matters unrelated to the justification for a traffic stop do not convert the encounter into an unlawful seizure as long as the questions do not measurably extend the duration of the stop.

Maryland v. Wilson, 519 U.S. 408 (1997). The Court ruled that an officer who has lawfully stopped a vehicle may order the passengers out of the vehicle without showing any reason to do so under the Fourth Amendment.

Pennsylvania v. Mimms, 434 U.S. 106 (1977). The Court ruled that when an officer properly stopped a car to issue a traffic summons because it was being operated with an expired license plate, he had the right, for his own safety, to order the driver out of the car, even though he had no grounds to suspect that the driver was a threat to him.

NORTH CAROLINA SUPREME COURT

State v. Bullock, 370 N.C. 256 (2017). The court reiterated that an officer may, as a matter of course, order a driver of a lawfully stopped vehicle to exit the vehicle.

NORTH CAROLINA COURT OF APPEALS

State v. Brewington, 170 N.C. App. 264 (2005). The defendant was convicted of the felony of assault on a governmental officer with a deadly weapon, reckless driving, and being a habitual felon. An officer stopped a vehicle for a seat belt violation by the driver; the defendant was a passenger. While talking to the driver, the officer made several observations of the defendant’s suspicious conduct (see the facts set out in the court’s opinion) and instructed him to remain in the vehicle. The driver was ordered out of the vehicle, and the officer conducted a consensual frisk and found cocaine on his person. While the officer was arresting the driver, the defendant moved behind the steering wheel and started to drive away. The officer attempted to stop the car by reaching for the key and was dragged by the moving vehicle. The defendant fled the scene and later was arrested in Ohio. The court ruled that the officer had reasonable suspicion to require the defendant to remain at the scene based on the facts set out in the court’s opinion (the court ruled, alternatively, that the car could be detained based on the discovery of cocaine on the driver, which provided probable cause to search the vehicle).

State v. Pulliam, 139 N.C. App. 437 (2000). Officers were conducting a driver’s-license checkpoint. The driver gave consent to a search of his vehicle. When the officer asked who his passenger was, the driver asserted that he did not know the defendant’s name. The officer ordered the defendant-passenger, whom the officer knew to be a convicted drug trafficker, to get out of the vehicle. The defendant became belligerent, saying that the officer had no right to make him get out. The defendant smelled of alcohol, was loud and argumentative, and used profanity. When the defendant finally got out of the vehicle, he was unsteady on his feet and appeared to be intoxicated. The officer saw a large bulge, one inch wide and six or seven inches long, in the defendant’s front pants pocket. He patted that place and discovered a utility razor knife.

(1) The court ruled, relying on Maryland v. Wilson, 519 U.S. 408 (1997), and other cases, that the driver’s consent to search his vehicle allowed the officer to order the passenger out of the vehicle without the necessity of reasonable suspicion of criminal activity. (2) Based on the facts set out above, the court ruled that the officer had reasonable suspicion that the defendant was armed and dangerous to justify the frisk.

FEDERAL APPELLATE COURTS

United States v. Williams, 419 F.3d 1029 (9th Cir. 2005). The court ruled that an officer may order a passenger in a lawfully stopped car who has voluntarily gotten out of the car to get back into the car.

Rogala v. District of Columbia, 161 F.3d 44 (D.C. Cir. 1998). The court ruled that an officer has the authority to order a passenger to stay in a vehicle during a traffic stop, particularly when, as in this case, the officer is alone and feels threatened.

United States v. Moorefield, 111 F.3d 10 (3d Cir. 1997). Following Maryland v. Wilson, 519 U.S. 408 (1997), discussed above, the court ruled that an officer may require a vehicle’s driver and passengers to remain in the vehicle with their hands up in the air during a traffic stop.

United States v. Stanfield, 109 F.3d 976 (4th Cir. 1997). Officers conducting a traffic stop of a vehicle with windows so heavily tinted that the officers are unable to view the interior may open the door of the vehicle and visually inspect its interior.

Taking a Person to a Law Enforcement Facility

(This topic is discussed in the chapter text under “Custody without Probable Cause.”)

UNITED STATES SUPREME COURT

Kaupp v. Texas, 538 U.S. 626 (2003). The defendant, 17 years old, was a murder suspect. Three officers entered his bedroom at 3:00 a.m. and awakened him with a flashlight, and one officer said, “We need to go and talk.” The defendant said, “Okay.” He was handcuffed and taken—shoeless and dressed only in boxer shorts and a T-shirt—to the crime scene and then to a law enforcement facility. He was given Miranda warnings, waived his rights, and then admitted to his involvement in the murder. The Court ruled, citing Hayes v. Florida, 470 U.S. 811 (1985), and other cases, that the officers’ conduct in removing the defendant from his home and taking him to the law enforcement facility under these circumstances was a seizure requiring probable cause (which the State conceded did not exist). The Court rejected the State’s argument that the defendant had validly consented to being taken to the law enforcement facility; his answer of “okay” was a mere submission to a claim of lawful authority. The Court also ruled, based on the factors set out in Brown v. Illinois, 422 U.S. 590 (1975), that unless the State on remand could point to testimony undisclosed in the record, the confession had to be suppressed as a direct fruit of the arrest made without probable cause.

Hayes v. Florida, 470 U.S. 811 (1985). Officers took the defendant without his consent from his home to the police station and took his fingerprints without probable cause to arrest or judicial authorization to take his fingerprints. The Court ruled that the officers’ action was an illegal seizure under the Fourth Amendment, but it noted that the Fourth Amendment may permit a judicial official to authorize a seizure of a person with less evidence than probable cause and to bring the person to a police station for fingerprinting. The Court also noted that the Fourth Amendment may permit officers to briefly detain a person for fingerprinting at the place where they stopped the person, when they reasonably suspect that the person committed a crime and reasonably believe that fingerprinting will establish or negate the person’s connection with the crime.

Dunaway v. New York, 442 U.S. 200 (1979). When officers took the defendant involuntarily from a neighbor’s home to the police station and interrogated him, their action required probable cause to arrest; reasonable suspicion that the defendant committed a crime could not justify this kind of detention. See also Taylor v. Alabama, 457 U.S. 687 (1982); Brown v. Illinois, 422 U.S. 590 (1975); State v. Freeman, 307 N.C. 357 (1983).

Davis v. Mississippi, 394 U.S. 721 (1969). Officers took the defendant without his consent to police headquarters and took his fingerprints. They had neither probable cause to arrest him nor judicial authorization to take his fingerprints. The Court ruled that the transportation and detention for fingerprinting was an illegal seizure under the Fourth Amendment and that the fingerprint evidence should not have been admitted at trial. The Court noted that it need not determine whether the Fourth Amendment would permit, under narrowly circumscribed procedures, fingerprinting of a person when probable cause to arrest does not exist.

NORTH CAROLINA SUPREME COURT

State v. Simpson, 303 N.C. 439 (1981). The defendant was not arrested or otherwise seized under the Fourth Amendment when he voluntarily accompanied officers to a law enforcement building at their request and then was taken to an unlocked interrogation room and interviewed throughout the day; he was never arrested, handcuffed, or restrained or otherwise treated as if he were in custody until an arrest warrant was served in the evening. An officer’s statement at a court hearing that the defendant was in his custody during the day was not dispositive when the evidence showed that the restraint on the defendant’s freedom was not sufficient to constitute a seizure under the Fourth Amendment. See also State v. Bromfield, 332 N.C. 24 (1992); State v. Phipps, 331 N.C. 427 (1992); State v. Johnson, 317 N.C. 343 (1986); State v. Jackson, 308 N.C. 549 (1983), later appeal, 317 N.C. 1 (1986); State v. Davis, 305 N.C. 400 (1982); State v. Morgan, 299 N.C. 191 (1980); State v. Reynolds, 298 N.C. 380 (1979); State v. Cass, 55 N.C. App. 291 (1982); State v. Smith, 61 N.C. App. 52 (1983).

Using Weapons or Handcuffs

(This topic is discussed in the chapter text under “Moving or handcuffing a suspect for safety or security reasons.”)

UNITED STATES SUPREME COURT

United States v. Hensley, 469 U.S. 221 (1985). The Court stated that an officer’s use of a drawn weapon to protect himself during a stop was proper because the suspects were reported to be armed and dangerous.

NORTH CAROLINA COURT OF APPEALS

State v. Carrouthers, 213 N.C. App. 384 (2011). The court ruled that an officer’s act of handcuffing the defendant during a Terry stop was reasonable and did not transform the stop into an arrest. The officer observed what he believed to be a hand-to-hand drug transaction between the defendant and another individual; the defendant was sitting in the back seat of a car, with two other people up front. While frisking the defendant, the officer felt an item consistent with narcotics, corroborating his suspicion of drug activity. The officer then handcuffed the defendant and recovered crack cocaine from his pocket. The circumstances presented a possible threat of physical violence, given the connection between drugs and violence and the fact that the officer was outnumbered by the people in the car. See also State v. Thorpe, 232 N.C. App. 468 (2014) (handcuffing defendant was permissible during investigative stop when single officer was also dealing with another suspect).

State v. Sanchez, 147 N.C. App. 619 (2001). The defendant was convicted of cocaine-trafficking offenses. Based on information from an informant that supplied reasonable suspicion and revealed that the defendant might be heavily armed, officers conducted an investigatory stop of a vehicle in which they drew their guns and handcuffed the defendant and other passengers. The handcuffing occurred for no more than five minutes. The court ruled, citing United States v. Hensley, 469 U.S. 491 (1985), that the use of weapons and handcuffs was permissible during the stop.

Burton v. City of Durham, 118 N.C. App. 676 (1995). The court ruled that the officers’ use of handcuffs to subdue an arrestee after he resisted arrest was reasonable.

FEDERAL APPELLATE COURTS

United States v. Crittendon, 883 F.2d 326 (4th Cir. 1989). An officer’s use of handcuffs on the defendant, who was stopped for a burglary, was proper because the officer reasonably anticipated that he might be needed to assist in capturing the defendant’s accomplice, who had fled from officers. The court stated that brief, even if complete, deprivations of a suspect’s freedom do not convert a stop and frisk into an arrest as long as the methods of restraint are reasonable under the circumstances. See also United States v. Jordan, 232 F.3d 447 (5th Cir. 2000) (handcuffing defendant after investigative stop because he was physically evasive was reasonable and did not convert stop into arrest requiring probable cause); United States v. Corrales, 183 F.3d 1116 (9th Cir. 1999) (officers’ detaining defendant with handcuffs for fifteen to thirty minutes was reasonable and did not convert stop into arrest requiring probable cause when weapons had been found, more weapons were potentially present, fleeing people were at large, and uncooperative people were inside a residence).

United States v. Taylor, 857 F.2d 210 (4th Cir. 1988). Using six law enforcement vehicles to block a drug dealer’s car and drawing weapons on the car to order the occupants out were permissible actions during an investigative stop, based on the officers’ knowledge of the defendant’s propensity for violence. See also United States v. Lane, 909 F.2d 895 (6th Cir. 1990) (display of weapon proper during drug-trafficking stop).

United States v. Robertson, 833 F.2d 777 (9th Cir. 1987). The detention of the defendant by seven to ten officers—one of whom aimed his gun at her nose, told her to freeze, and detained her for five to fifteen minutes—exceeded the scope of an investigative stop (and thus was an arrest requiring probable cause) when the display of force was unnecessary to ensure compliance with the request to stop and there was no evidence that she was armed or dangerous.

United States v. Harley, 682 F.2d 398 (2d Cir. 1982). An officer’s use of a weapon during a stop for safety reasons does not necessarily transform the stop into an arrest. But see State v. Wrenn, 316 N.C. 141 (1986) (State conceded that officer’s use of a weapon transformed stop into an arrest when officer stopped the defendant’s car, opened the door, ordered the defendant out of the car at gunpoint, and advised the defendant to keep his hands where the officer could see them).

When an Officer’s Interaction with a Person Is a Seizure under the Fourth Amendment

(This topic is dicussed in the chapter text under “Legal Standards,” “Introduction.”)

United States Supreme Court

Torres v. Madrid, 592 U.S. 306 (2021). Law enforcement officers were attempting to serve an arrest warrant early in the morning at an apartment complex in New Mexico. They noticed the plaintiff in the parking lot and realized she was not the subject of the warrant but wished to speak with her. As they approached, the plaintiff entered her car. According to the plaintiff, she did not immediately notice the officers approaching (and was admittedly under the influence of methamphetamine). When an officer tried to open her car door to speak with her, she noticed armed men surrounding her car and drove off, fearing a carjacking. Although not in the path of the vehicle, the officers fired thirteen rounds at the car as it drove away. The plaintiff was struck twice in her back but escaped, only to be apprehended the next day. She sued under 42 U.S.C. § 1983 for excessive force, alleging that the shooting was an unreasonable Fourth Amendment seizure. The district court granted summary judgment to the officers and the Tenth Circuit affirmed. Circuit precedent had ruled that no seizure occurs when an officer’s use of force fails to obtain control of the suspect. The Supreme Court granted certiorari and reversed.

Under the Fourth Amendment, a seizure of a person occurs when law enforcement applies physical force or when a person submits to an officer’s show of authority. In Hodari D. v. California, 499 U.S. 621 (1991), the Court noted that the application of any physical force to a suspect constituted an arrest (and therefore a seizure) under the common law, even if the use of force was unsuccessful in gaining control of the suspect. The Court in the present case stated: “[A]n officer’s application of physical force to the body of a person ‘for the purpose of arresting him’ was itself an arrest—not an attempted arrest—even if the person did not yield.” Torres, 592 U.S. at ___, 141 S. Ct. at 995 (citations to Hodari D. omitted). This is distinct from a seizure by show of authority under Hodari D., when the seizure is not complete until the suspect submits to the authority. The rule that physical force completes an arrest as a constructive detention is widely acknowledged in the common law.

The fact that the use of force by law enforcement here involved the application of force from a distance (by way of the bullets) did not meaningfully alter the analysis. The Court observed: “The required ‘corporal sei[z]ing or touching the defendant’s body’ can be as readily accomplished by a bullet as by the end of a finger.” Id. at ___, 141 S. Ct. at 998 (citation omitted). But not all applications of force or touches will constitute a seizure. For Fourth Amendment purposes, only when an officer applies force with an “intent to restrain” the suspect does the use of force rise to the level of a seizure. An accidental or incidental touching would not qualify, nor would the use of force for a purpose other than with the intent to restrain. Intent to restrain is analyzed under an objective standard. The question is not what the officer intended (or what the suspect perceived) but, rather, whether the circumstances objectively indicate an intent by officers to restrain the suspect. The level of force used by officers remains relevant in that inquiry. A seizure by application of force lasts no longer than the application of force, and the length of the seizure may be relevant to the question of damages or suppression of evidence. Taking the facts in the light most favorable to the plaintiff, the officers here seized the plaintiff by using force with an intent to restrain her.

The defendant-officers sought a rule that no seizure would occur until there is “intentional acquisition of control” by officers of a suspect. They contended that the common law rule from Hodari D. was meant to apply only to arrests for civil debt matters, not criminal cases. The majority rejected this argument, finding no distinction at common law between civil or criminal arrests. The common law tort of false imprisonment provides support for the seizure principle at issue—even a moment of wrongful confinement creates liability for false imprisonment, just as a mere touching accomplishes an arrest. The approach proposed by the defendants would eliminate the distinction between arrest by show of authority and arrest by use of force. This would create confusion about when a suspect is considered to be under an officer’s control and how long a suspect would need to be under the officer’s control.

The dissent faulted the majority’s definition of seizure as “schizophrenic” and inconsistent with the law of property seizures and the Fourth Amendment. The majority responded:

[O]ur cases demonstrate the unremarkable proposition that the nature of a seizure can depend on the nature of the object being seized. It is not surprising that the concept of constructive detention or the mere-touch rule developed in the context of seizures of a person—capable of fleeing and with an interest in doing so—rather than seizures of “houses, papers, and effects.” Id. at ___, 141 S. Ct. at 1002.

The majority also rejected accusations by the dissent that its decision was result-oriented or designed to appear so. The Court noted its holding was narrow. The decision does not determine the reasonableness of the seizure, the question of potential damages, or the issue of qualified immunity for the officers. In the words of the Court:

[A] seizure is just the first step in the analysis. The Fourth Amendment does not forbid all or even most seizures—only unreasonable ones. All we decide today is that the officers seized Torres by shooting her with intent to restrain her movement. Id. at ___, 141 S. Ct. at 1003.

Brendlin v. California, 551 U.S. 249 (2007). Officers stopped a car in which the defendant was a passenger. The defendant remained in the vehicle and was eventually arrested. The Court ruled, reviewing its prior cases defining the seizure of a person under the Fourth Amendment, that the defendant was seized and therefore could contest the validity of the stop of the vehicle. The Court stated that any reasonable passenger in the defendant’s position would have understood the officers to be exercising control to the extent that no one in the car was free to depart without the officers’ permission.

United States v. Drayton, 536 U.S. 194 (2002). Three law enforcement officers—dressed in plain clothes, carrying concealed weapons, and displaying visible badges—boarded a bus while it was stopped at a bus terminal. One officer knelt at the driver’s seat (the bus driver was not in the bus) without blocking the aisle or obstructing the bus exit, while two officers went to the rear of the bus. One officer stayed there while the other worked his way toward the front, speaking to passengers as he went. To avoid blocking the aisle, the officer stood next to or just behind each passenger with whom he spoke. He explained that the officers were conducting a bus interdiction to deter drugs and illegal weapons from being transported on the bus. He did not inform passengers of their right to refuse to cooperate. Defendants Drayton and Brown were seated together. Brown consented to a search of a bag in the overhead luggage rack, which revealed no contraband. The officer noted that both defendants were wearing heavy jackets and baggy pants despite the warm weather. Due to his experience, the officer knew that drug traffickers often use baggy clothing to conceal weapons or narcotics. The officer received consent from Brown to search his person after asking, “Do you mind if I check your person?” He found hard objects similar to drug packages that he had detected on other occasions and arrested Brown. The officer then received consent from Drayton after asking, “Mind if I check you?” He discovered the same hard objects and arrested Drayton.

The Court ruled that (1) the officers did not seize the defendants during this bus-boarding procedure—a reasonable person would have felt free to terminate the encounter with the officer; (2) the Fourth Amendment does not require officers to advise bus passengers of their right not to cooperate and to refuse to consent to searches; and (3) the defendants voluntarily consented to the search of their luggage and their bodies.

County of Sacramento v. Lewis, 523 U.S. 833 (1998). The Court, relying on California v. Hodari D., 499 U.S. 621 (1991), and Brower v. County of Inyo, 489 U.S. 593 (1989), ruled that a law enforcement officer did not seize a person under the Fourth Amendment when, during a high-speed chase, the person fell off a motorcycle being pursued by the officer and the officer’s vehicle accidentally struck the person. There was no governmental termination of the person’s movement “through means intentionally applied.” The Court also ruled, relying on Hodari D., that the Fourth Amendment does not encompass failed attempts to make a seizure.

Florida v. Bostick, 501 U.S. 429 (1991). Two officers boarded a bus bound from Miami to Atlanta during a stopover in Fort Lauderdale. They asked a passenger (for whom they did not have reasonable suspicion of criminal activity) for permission to inspect his ticket and identification. He consented to the inspection. The ticket, from Miami to Atlanta, matched the passenger’s identification and was returned to him. The officers explained that they were narcotics agents looking for illegal drugs, and they requested the passenger’s consent to search his luggage. He consented.

The Court noted two facts: (1) the officers specifically advised the passenger that he had a right to refuse to consent (although this fact may be relevant to the seizure issue in this case, such a warning is not required when obtaining consent to search, Schneckloth v. Bustamonte, 412 U.S. 218 (1973)); and (2) although one officer carried a zipper pouch containing a pistol, the pistol was never removed from the pouch, pointed at the passenger, or otherwise used in a threatening manner. The Court rejected a per se rule adopted by the Florida Supreme Court that bus passengers are seized when officers board a bus because the passengers do not feel free to leave the bus to avoid the officers’ questioning. The Court also rejected the definition of a seizure from a prior case, Michigan v. Chesternut, 486 U.S. 567 (1988), discussed below, which provided that a seizure occurs when a reasonable person would reasonably believe that he or she is not “free to leave.” Because the defendant in this case was a passenger on a bus that was scheduled to depart, he would not have felt free to leave the bus even if the officers had not been present. His movements essentially were confined as the natural result of his decision to take the bus—which is not related to the issue of whether the officers’ conduct was coercive.

The Court ruled that the appropriate inquiry is whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter. It also stated that this inquiry applies equally to all encounters that occur on streets, on trains, at airports, and so forth. The Court also rejected the defendant’s argument that he must have been seized because a reasonable person would not freely consent to a search of luggage that the person knows contains drugs: the Court ruled that the proper “reasonable person” test presupposes an innocent person.

The Court remanded the case to the Florida Supreme Court to determine if a seizure occurred. For bus-boarding cases decided before Bostick in which findings that seizures did not occur during bus boardings are consistent with Bostick’s analysis, see State v. Christie, 96 N.C. App. 178 (1989), and State v. Johnson, 98 N.C. App. 290 (1990).

California v. Hodari D., 499 U.S. 621 (1991). A group of youths, including the defendant, fled at the approach of an unmarked police car with two officers inside. One of the officers, who was dressed in street clothes but was wearing a jacket with the word “Police” embossed on both front and back, left the car and chased them. Eventually, the officer and the defendant were face-to-face running toward each other. The defendant tossed away what appeared to be a small rock (which later was determined to be rock cocaine), and then the officer tackled him. The State of California conceded that the officer did not have reasonable suspicion to make an investigative stop until after the defendant tossed the rock cocaine (the Court, in footnote 1, appeared to disagree with the State’s concession).

The Court ruled that the officer did not seize the defendant under the Fourth Amendment until he tackled him and that a seizure of a person occurs only when (1) an officer has applied actual physical force to the person (for example, touching or tackling), or (2) absent physical force, the defendant submits to an officer’s “show of authority.” While the Court’s definition of seizure in prior cases had been that a person is seized if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he or she was not free to leave, in Hodari D. it clarified that definition by stating that facts satisfying the definition do not establish that a seizure occurs when a person simply interacts with an officer’s show of authority. For example, the Court noted that a seizure does not occur when an officer shouts, “Stop, in the name of the law,” and the person continues to flee. To constitute a seizure, there must be, in addition, a submission to the officer’s show of authority—for example, the person stops as a result of the officer’s command. The Court concluded in this case that the defendant had not been seized when he tossed the rock cocaine, because the officer did not apply physical force until he tackled the defendant, and the defendant did not submit to a show of authority until he was tackled (the Court assumed, without deciding, that an officer chasing a suspect is a show of authority).

[Author’s note: see the discussion of Hodari D. in Torres v. Madrid, 592 U.S. ___, 141 S. Ct. 989 (2021), summarized above.]

Brower v. County of Inyo, 489 U.S. 593 (1989). The decedent (his heirs were suing the county and officers for damages) was killed when he drove a stolen car (in which he was speeding to elude the police) into a police roadblock. The roadblock consisted of an eighteen-wheel tractor trailer truck, which was set up behind a curve and completely blocked the road, and a police car with its headlights directed toward the decedent’s car to blind him. The Court ruled that a government’s termination of a person’s movement through intentionally applied means is a seizure under the Fourth Amendment. Because the civil complaint alleged that the decedent was stopped by an instrumentality, the roadblock, that was set in motion or placed to stop him, it stated a sufficient claim that he was seized. However, the Court stated that a law enforcement pursuit in which a suspect unexpectedly loses control of his car and crashes is not a seizure; an intentional acquisition of physical control is required to constitute a seizure.

Michigan v. Chesternut, 486 U.S. 567 (1988). Officers in a patrol car saw a car pull over to the curb and a man get out of the car and approach the defendant, who was standing alone on a corner. When the defendant saw the patrol car near that corner, he turned and began to run. The patrol car followed the defendant around the corner so that the officers could see where the defendant was going. The patrol car caught up with the defendant and drove alongside him for a short distance. The defendant then threw a number of packets of drugs to the ground. Rejecting a bright-line test for determining whether an officer’s pursuit is a seizure under the Fourth Amendment, the Court ruled—based on these facts—that the officers did not seize the defendant while pursuing him. The police conduct here—a brief acceleration to catch up with the defendant followed by a short drive alongside him—was not so intimidating that a reasonable person in the defendant’s position could reasonably have believed that he was not free to disregard the police presence and go about his business (note the later modification of the definition of seizure in California v. Hodari D., 499 U.S. 621 (1991), and Florida v. Bostick, 501 U.S. 429 (1991), both discussed above). The officers’ subjective uncommunicated intentions in pursuing the defendant were irrelevant in assessing whether a seizure occurred.

Immigration & Naturalization Service v. Delgado, 466 U.S. 210 (1984). Immigration and Naturalization Service agents did not seize an entire factory workforce when they stationed themselves near the factory’s exits and questioned workers inside.

North Carolina Supreme Court

State v. Wilson, 370 N.C. 389 (2017). The state supreme court affirmed, per curiam and without an opinion, the ruling of the court of appeals, 250 N.C. App. 781 (2016), that the trial court properly denied the defendant’s motion to suppress evidence obtained from his interaction with a police officer because no seizure occurred. The officer went to a residence to find a man who had outstanding warrants for his arrest. While walking toward the residence, the officer observed a pickup truck leaving. The officer waved his hands to tell the driver—the defendant—to stop. The officer intended to ask the defendant if he knew anything about the man with the outstanding warrants; the officer had no suspicion that the defendant was the man he was looking for or was engaged in criminal activity. The officer was in uniform but had no weapon drawn, his police vehicle was not blocking the road, and neither his vehicle’s blue lights nor sirens were activated. When the defendant stopped the vehicle, the officer almost immediately smelled an odor of alcohol from inside the vehicle. After the defendant admitted that he had been drinking, the officer arrested him for impaired driving. Because a reasonable person would have felt free to decline the officer’s request to stop, no seizure occurred; rather, the encounter was consensual.

State v. Icard, 363 N.C. 303 (2009). At approximately 12:30 a.m., an officer noticed a vehicle parked in the parking lot of a food store in a high-crime area known for prostitution and drug-related activity. The officer saw a person behind the steering wheel. The officer parked directly behind the vehicle in which the defendant was a passenger, with his blue lights flashing. The officer, who was in uniform and armed, told the driver in the defendant’s presence that the two were being checked out because the area was known for drugs and prostitution. The officer requested from the driver his driver’s license and registration and asked for and received the driver’s explanation of why he and the defendant were there. After the officer requested law enforcement assistance, another officer arrived in a marked police car and used his take-down lights to illuminate the defendant’s side of the vehicle. Both officers then approached the defendant. When the defendant twice failed to respond to one of the officer’s attempts to initiate a conversation, the officer opened the defendant’s door and made contact with her. The officer requested that the defendant produce her identification and then asked the defendant to come, bringing her purse, to the rear of the vehicle, where he and the other officer continued to ask questions. When one officer left the defendant to deal with the driver, he did not return her purse but instead handed it to the other officer. The court ruled that the encounter with the defendant constituted a seizure under the Fourth Amendment. The court stated, citing Florida v. Bostick, 501 U.S. 429 (1991), that a reasonable person in the defendant’s position would have believed that she was not free to leave or otherwise terminate the encounter.

State v. Campbell, 359 N.C. 644 (2005). An Aiken, South Carolina, law enforcement officer arrived at a Kmart parking lot in Aiken in response to an employee’s report of a suspicious person (the defendant) whose car had been parked in the lot for three to four hours with the person inside the entire time. The employee pointed toward the car as it left the parking lot. The officer followed the car until it stopped at a convenience store. The defendant got out of the vehicle and started walking toward the store. The officer pulled behind the defendant’s vehicle and stopped without activating a siren or blue lights. She asked the defendant if she could speak with him. He walked toward her and a conversation ensued. The defendant told the officer that he had been sleeping in the Kmart parking lot. He said that he had stopped in Aiken to take a nap and was driving home to North Carolina after finishing a job in Columbia, South Carolina. (Aiken is forty-five miles west of Columbia.) Responding to the officer’s request for his driver’s license and car registration, the defendant said he did not have any identification, but he told her his name and date of birth. He said the car belonged to a friend, but he could not recall the friend’s name. As a result of this conversation, the officer asked the defendant to “hold up and [said] she would be back up with him.” Id. at 660. He was later arrested for driving without a license.

(1) The court ruled, relying on Florida v. Bostick, 501 U.S. 429 (1991), and other cases, that the defendant was not seized under the Fourth Amendment when the officer approached him and conversed with him about his presence in the Kmart parking lot and about his driver’s license and car registration. (2) The court ruled, assuming arguendo that the defendant had been seized under the Fourth Amendment when the officer asked him to “hold up and [said] she would be back up with him,” that reasonable suspicion of criminal activity supported the seizure based on the following: the defendant’s activity in the Kmart parking lot; the defendant’s statement about going to North Carolina but stopping in Aiken, which is not on the route to North Carolina; and the defendant’s not having a driver’s license and not knowing the name of his friend to whom the car belonged.

State v. Brooks, 337 N.C. 132 (1994). A State Bureau of Investigation agent accompanied other law enforcement officers in executing a search warrant for a nightclub to search for illegal drugs. On arriving at the nightclub, the agent saw the defendant sitting in the driver’s seat of a vehicle parked in the parking lot. The agent walked over to the driver’s side of the vehicle and shined his flashlight into the car’s interior. He saw on the passenger side of the bucket seats an empty unsnapped holster within the defendant’s reach. The agent asked the defendant, “Where is your gun?” The defendant replied, “I’m sitting on it.” The agent was unable to see the gun although he shined his light all about the vehicle. He requested the defendant to get out of the vehicle; the defendant reached under his right thigh and handed the gun to the agent. The agent did not place the defendant under arrest for carrying a concealed weapon, but he eventually obtained permission to search the vehicle and found cocaine in a nylon pouch there. The court ruled, relying on Florida v. Bostick, 501 U.S. 429 (1991), that the agent’s initial encounter with the defendant was not a seizure under the Fourth Amendment and therefore did not require justification, such as reasonable suspicion. There was no evidence tending to show that the agent made a physical application of force or that the defendant submitted to any show of force. Further, there was no indication that a reasonable person in the defendant’s position would have believed he or she was not free to leave or otherwise terminate the encounter.

State v. Farmer, 333 N.C. 172 (1993). Based on facts in this case, the court ruled that the officers’ encounter and conversation with the defendant on a roadside was not a seizure under the Fourth Amendment or the North Carolina Constitution. The defendant had no objective reason to believe that he was not free to end his encounter with the officers and to proceed on his way.

North Carolina Court of Appeals

State v. Steele, 277 N.C. App. 124 (2021). An officer was responding to a traffic accident call at 2:50 a.m. He noticed a vehicle on the road and followed it, suspecting it had been involved in the accident. The officer testified that the vehicle did not have its rear lights on. There were no other cars on the road. The vehicle, being driven by the defendant, pulled into a parking lot and circled around to exit. The officer entered the parking lot and pulled alongside the defendant’s car as it was leaving the lot. The officer gestured with his hand (by waving it up and down) for the other vehicle to stop but did not activate his blue lights or siren and did not obstruct the defendant’s path. The defendant’s vehicle stopped, and the officer engaged the driver in conversation. He quickly suspected the driver was impaired and ultimately arrested the defendant for impaired driving. The defendant moved to suppress, arguing that the stop of his vehicle was an unlawful seizure and detention. The trial court denied the motion, finding that the defendant was not seized and that the encounter was voluntary. The court of appeals reversed, citing among other cases California v. Hodari D., 499 U.S. 621 (1991) (noting that when there is an assertion of authority by an officer, no actual physical touching is essential for the encounter to be a seizure).

The court noted that this case was unusual, as most seizure cases involve pedestrian stops. The trial court erred by relying on pedestrian-stop cases to find that no seizure occurred. Unlike when an officer approaches a person or a parked car on foot, this case involved the officer following the defendant with each party in moving vehicles and the officer gesturing for the defendant to stop.

Given the criminal penalties for failure to follow traffic-control commands and resisting a public officer, the court noted that a reasonable driver would likely feel obligated to stop when an officer gestured for the driver to stop. Further, the trial court failed to properly weigh the time and location of the encounter. Given the late hour and deserted parking lot, the environment was more intimidating than a public, daytime encounter, and a reasonable person would be more susceptible to police pressure in these circumstances. Finally, the trial court also failed to properly weigh the effect of the officer’s hand gestures (waving his hand up and down). The authoritative gestures by the uniformed officer in a marked patrol car supported the defendant’s argument that he was seized. Had the officer not been in a marked police vehicle, it was unlikely that a reasonable person would have voluntarily stopped under these circumstances. The court therefore ruled that the defendant was seized and reversed the denial of the suppression motion. The matter was remanded for the trial court to determine whether the seizure was supported by reasonable suspicion.

State v. Turnage, 259 N.C. App. 719 (2018). Citing California v. Hodari D., 499 U.S. 621 (1991), the court noted that a show of authority by law enforcement does not constitute a seizure unless the suspect submits to that authority or is physically restrained. Here, for unknown reasons the defendant-driver of a van stopped the vehicle in the middle of the road before any show of authority from law enforcement. A detective’s later activation of blue lights did not constitute a seizure because the defendant did not yield to the show of authority. The defendant was not seized until the vehicle was stopped during a subsequent chase. Criminal activity observed by the detective during the chase and his observation of two minor children in the van justified the defendant’s arrest for fleeing to elude, resisting an officer, and child abuse.

State v. Burwell, 256 N.C. App. 722 (2017). The court ruled that an arrest occurs when, under G.S. 122C-303, an officer takes a publicly intoxicated person to jail to assist that person and the action is taken against the person’s will.

State v. Mangum, 250 N.C. App. 714 (2016). In this impaired-driving case, the court ruled that the defendant was not seized within the meaning of the Fourth Amendment until he submitted to an officer’s authority by stopping his vehicle. The court rejected the defendant’s argument that the seizure occurred when the officer activated his blue lights. Because the defendant continued driving after the blue lights were activated, there was no submission to the officer’s authority and no seizure until the defendant stopped his vehicle. As a result, the reasonable suspicion inquiry can consider circumstances that arose after the officer’s activation of his blue lights but before the defendant’s submission to authority. The Mangum ruling was cited in State v. Mahatha, 267 N.C. App. 355 (2019), which concerned the defendant’s conduct in not stopping after the officer’s blue lights were activated and where the court concluded that, based on that conduct, the defendant’s subsequent reckless and excessive speed provided the officer with reasonable suspicion to stop him.

State v. Price, 233 N.C. App. 386 (2014). The court ruled that the trial court erred by granting the defendant’s motion to suppress. A wildlife officer on patrol in a pine forest approached the defendant, who was dressed in full camouflage and carrying a hunting rifle, and asked to see his hunting license. After the defendant showed his license, the officer asked how he got to the location. He replied that his wife transported him there. The officer then asked him whether he was a convicted felon, and the defendant admitted that he was. The officer seized the weapon, and the defendant was later charged with being a felon in possession of a firearm. The court ruled that the defendant was neither seized under the Fourth Amendment nor in custody under Miranda when the officer asked about his criminal history, and therefore the trial court erred by granting the motion to suppress.

State v. Knudsen, 229 N.C. App. 271 (2013). The court ruled that the trial court did not err by determining that the defendant was seized by two officers while walking on a sidewalk. Although the officers did not use physical force to restrain the defendant, both were in uniform and had weapons. One officer blocked the sidewalk with his vehicle and another used his bicycle to block the defendant’s pedestrian travel on the sidewalk.

State v. Harwood, 221 N.C. App. 451 (2012). The court ruled that the defendant was seized under the Fourth Amendment when officers parked directly behind his stopped vehicle, drew their firearms, and ordered him and his passenger to exit the vehicle. After the defendant got out of his vehicle, an officer put him on the ground and handcuffed him.

State v. Eaton, 210 N.C. App. 142 (2011). The court ruled, citing California v. Hodari D., 499 U.S. 621 (1991), that the defendant was not seized when he dropped a plastic baggie containing controlled substances. An officer was patrolling at night in an area where illegal drugs were often sold, used, and maintained. When the officer saw five people standing in the middle of an intersection, he turned on his blue lights, and they dispersed in different directions. When the officer asked them to come back, all but the defendant complied. When the officer repeated his request to the defendant, the defendant stopped, turned, and discarded the baggie before complying with the officer’s show of authority by submitting to the officer’s request.

State v. Williams, 201 N.C. App. 566 (2009). An officer saw the defendant driving a vehicle displaying a thirty-day tag he suspected was expired because it was dirty and torn. Before a computer inquiry about the tag came back, the defendant pulled into a driveway. The officer did not activate his blue lights or siren, nor did he give any other indication for the defendant to stop. The officer stopped his vehicle on the other side of the street and approached the defendant’s vehicle. The officer asked the defendant about the status of the thirty-day tag, and the defendant said that it was expired. The officer then asked the defendant for his license, and the defendant handed him an expired registration and admitted that he did not have a driver’s license. The officer asked the defendant to step out of his vehicle to speak with him. After a brief conversation, the defendant consented to a search of his person, which resulted in a seizure of cocaine. The court ruled, relying on State v. Isenhour, 194 N.C. App. 539 (2008), that the officer did not seize the defendant under the Fourth Amendment during the encounter.

State v. Mewborn, 200 N.C. App. 731 (2009). Officers patrolling a high-crime area in a marked car saw the defendant and another person walking in the middle of the street. The officers pulled alongside the two and asked if they would wait a minute because the officers needed to speak with them for a few minutes. As the officers were getting out of their car, the defendant turned and started to run away. A chase ensued, and the officers eventually took physical control of the defendant. During the chase, the defendant appeared to throw a gun from his pocket. Based on this evidence, he was convicted of possession of a firearm by a felon. After he was stopped, he threw a bag of cocaine under the police car. Based on this evidence, he was convicted of possession of cocaine. The defendant moved to suppress all the evidence, arguing that the officers unconstitutionally stopped him without reasonable suspicion. The court noted that the dispositive issue is a determination whether the defendant was seized under the Fourth Amendment before or after he ran from the officers. The court ruled, relying on California v. Hodari D., 499 U.S. 621 (1991), that the defendant did not submit to the officers’ authority before fleeing from them and was not seized until the officers took physical control of him. Thus, the flight from the officers could properly be considered in determining whether the officers had reasonable suspicion to stop the defendant, and the court ruled that the officers did have reasonable suspicion.

State v. Jackson, 199 N.C. App. 236 (2009). An officer stopped a vehicle and, with other officers, checked the driver’s license and registration of the driver and determined that they were valid and that there were no outstanding warrants for the driver or for either of the vehicle’s two passengers, one of whom was the defendant. After the traffic stop had ended but before the driver’s license and registration had been returned, an officer asked questions about illegal drugs and weapons in the vehicle and then asked for consent to search the vehicle, which was granted. Cocaine was found in the vehicle, the three occupants were arrested, and cocaine was found in the defendant’s sock at the jail. The court ruled, relying on Brendlin v. California, 551 U.S. 249 (2007), that the defendant was seized during the stop of the vehicle and could challenge the duration of the seizure as violating the Fourth Amendment. The court also ruled that once the traffic stop had ended and the driver’s license and registration had not been returned, the officer’s questioning about illegal drugs and weapons in the vehicle was an extension of the seizure beyond the scope of the original traffic stop, and reasonable suspicion did not exist to justify the extension. The court rejected the argument that the encounter had become consensual after the traffic stop had ended, because a reasonable person under the circumstances would not believe he or she was free to leave without his or her driver’s license and registration. The vehicle search was tainted by the illegality of the extended detention. Because the defendant was arrested based on the discovery of cocaine and a weapon in the vehicle, the cocaine found in the defendant’s sock at the jail was the direct result of the officer’s illegal search of the vehicle. Thus, the exclusionary rule prohibited the admission of the evidence found in the vehicle and in the defendant’s sock.

State v. Isenhour, 194 N.C. App. 539 (2008). The defendant and a passenger were sitting in a car in the back corner of a fast-food restaurant parking lot. Officers were patrolling the area near the parking lot and saw that neither the defendant nor the passenger had left the car for ten minutes. They then pulled up to the defendant’s car in their marked patrol car. They parked approximately eight feet from the defendant’s car and approached on foot while in full uniform and armed. The court ruled that the officers’ actions were not a seizure under the Fourth Amendment. The court agreed with the trial court’s conclusion that the defendant’s vehicle was not blocked by the officers’ vehicle and that the defendant was free to drive away at any time.

State v. Leach, 166 N.C. App. 711 (2004). An informant advised law enforcement officers that he was going to make a drug purchase from the defendant at a specific location. When the defendant arrived there in his vehicle, the officers surrounded it. The defendant immediately backed away and led the officers on a high-speed chase for nearly thirty miles. The court ruled, relying on California v. Hodari D., 499 U.S. 621 (1991) (a person is not seized under the Fourth Amendment until he or she submits to an officer’s show of authority or physical force is applied by an officer), that the defendant was not seized under the Fourth Amendment until the officers physically restrained him after the chase. Thus, the defendant’s abandonment of cocaine during the chase was not the fruit of a seizure.

State v. Cuevas, 121 N.C. App. 553 (1996). Officers who were conducting drug surveillance followed the defendant and an acquaintance as they took a cab from a bus station. The cab stopped at a restaurant. The officers drove up in their car. An officer approached the cab, opened its rear passenger door, identified himself as a police officer, and asked the defendant and the acquaintance for consent to search them and their luggage. Drugs were discovered and the defendant was arrested. The defendant argued that he had been illegally seized without reasonable suspicion before he consented to the search. The court ruled, relying on State v. West, 119 N.C. App. 562 (1995), discussed immediately below, that the defendant had not been seized before the consent search. The court noted that law enforcement conduct does not constitute a seizure unless “a reasonable person would not feel free to decline the officer’s request or otherwise terminate the encounter.” Cuevas, 121 N.C. App. at 563 (citations to West omitted). See also Florida v. Bostick, 501 U.S. 429 (1991). In other words, the court said, a seizure does not occur until there is a physical application of force or submission to a show of authority. See California v. Hodari D., 499 U.S. 621 (1991). The court stated that the officer did not order the cab to stop, turn on the law enforcement car’s siren, or order the defendant to stay in place. Rather, the officer opened the cab’s rear door and asked the defendant and his acquaintance for consent to search them and their luggage. Nothing during this encounter suggested that the defendant was not free to leave.

State v. West, 119 N.C. App. 562 (1995). Two officers, dressed in civilian clothes, were at an airport with a drug-interdiction unit. The officers noticed two suspicious males, one of whom was the defendant, at the terminal and followed them to the parking lot. The officers approached the defendant and his acquaintance as they stood on each side of a parked car. Officer Black presented his credentials, identified himself as a police officer, and requested to speak to the defendant. The defendant provided to the officer, at the officer’s request, his airline ticket and identification. The defendant was extremely nervous and his hands were shaking. Black told the defendant that he was investigating drugs and asked the defendant for his consent to search his luggage. The defendant agreed and handed it to Black. As the defendant gave his luggage to Black, Black noticed the defendant’s hands trembling and jerking back briefly. This jerking motion startled Black. Concerned for his safety, Black asked the defendant for permission to frisk him before checking his luggage. Without responding to Black, the defendant ran, throwing down a bag containing crack cocaine.

The court ruled that the defendant was not seized under the Fourth Amendment. Applying the ruling of California v. Hodari D., 499 U.S. 621 (1991), that a seizure does not occur until there is a physical application of force or the submission to a show of authority, the court ruled that neither had occurred at the time the defendant ran from the officers. The court noted that while there was testimony that Black may have reached for the defendant, there was no evidence indicating that Black physically applied force or that the defendant submitted to any show of force. At the time Black asked for permission to frisk the defendant, the encounter was consensual and did not require reasonable suspicion. The court also rejected the defendant’s argument that the ruling in Hodari D. should not be accepted in interpreting provisions of the North Carolina Constitution.

State v. James, 118 N.C. App. 221 (1995). An officer saw the defendant nervously pacing until he reboarded a bus. The defendant moved toward the rear of the bus and picked up a duffel-type bag from a seat and put it in the overhead luggage bin. Officers went through the typical bus-boarding procedures designed to find illegal drugs. The defendant agreed to allow an officer to look in his bag. The officer removed a portable radio from the bag and noticed that screws on the radio had been unscrewed several times. The officer asked the defendant if he would get off the bus so they could talk privately. The defendant did not respond verbally but left the bus with the officer. They went to a private area of the bus terminal, where the officer again obtained a consent to search. The officer discovered cocaine in the radio.

(1) Relying on State v. McDowell, 329 N.C. 363 (1991), and other cases, the court reviewed the facts of the bus boarding and ruled that the defendant’s consent to search was voluntarily given, although he had an IQ of 70. (2) Relying on State v. Christie, 96 N.C. App. 178 (1989), and State v. Bromfield, 332 N.C. 24 (1992), the court ruled that the defendant was not seized when he was on the bus or when he left the bus with the officers.

State v. Taylor, 117 N.C. App. 644 (1995). Officer A knew that the defendant had been previously arrested for drugs and had a reputation in the community as a drug dealer. Officer A and other officers saw the defendant with others in an area known for drug trafficking. As the officers approached the area in their marked car, the defendant left. The officers then saw him at a nearby intersection. The defendant stopped as the police car approached him. As Officer A got out of the car, the defendant walked toward him and dropped something on the ground. The officer approached the defendant and brought him over to the police car. He determined that the dropped item was marijuana and arrested the defendant. He then noticed that the defendant was talking “funny” and ordered him to spit out whatever was in his mouth. The defendant spit out individually wrapped pieces of crack cocaine.

The court ruled that (1) the defendant was not seized until after he dropped the item to the ground, because he had not yielded to a show of authority before then; see California v. Hodari D., 499 U.S. 621 (1991); (2) after the defendant dropped the item, Officer A had reasonable suspicion to detain the defendant, considering everything the officer knew; (3) Officer A had probable cause to arrest the defendant when he determined the item was marijuana; and (4) even if the defendant did not voluntarily spit out the cocaine, it was admissible as a search incident to arrest.

State v. Johnston, 115 N.C. App. 711 (1994). An officer was conducting a license check at an intersection. He saw the defendant’s car approach the checkpoint, turn off into an apartment complex parking lot about 200 yards before the intersection, and remain seated there for about five minutes. The officer drove over to the defendant’s car. As the officer got out of his car, the defendant got out of his car. The officer noticed that the defendant was unsteady on his feet. The officer approached the defendant and asked him why he turned off the road before the license check. The defendant responded that he lived at the complex. The officer noticed a strong odor of alcohol about the defendant’s breath. When the officer asked the defendant for his driver’s license, the defendant was unable to produce one. The officer then asked him to step back to his vehicle; the officer eventually arrested the defendant for impaired driving.

Citing Florida v. Bostick, 501 U.S. 429 (1991), the court ruled that the officer did not seize the defendant when he approached him and asked him for his driver’s license, noting that a seizure does not occur simply when an officer approaches a person and asks a few questions. Once the defendant admitted that he did not have a license, the officer had probable cause to arrest him. While the officer could have arrested him, he chose to ask the defendant to step back to his vehicle so he could investigate further. He then arrested the defendant after he failed field sobriety tests. The court concluded that the officer’s actions were consistent with the Fourth Amendment.

State v. Pittman, 111 N.C. App. 808 (1993). Two officers were on patrol at a train station at 1:30 a.m. They saw the female defendant and a man speak and then part company when they saw the officers. Officer Gunn approached the defendant, and Officer Ferrell approached the man. The defendant showed Gunn a train ticket and stated that she was traveling alone and did not know the man with whom she had been seen. Gunn noticed that the defendant was constantly looking over at the man, who was twenty feet away. The defendant consented to a search of her bag; nothing was found. Meanwhile, Ferrell spoke with the man, who said he was traveling alone and did not know the defendant. The man consented to a search of his bag; nothing was found. Later, a vehicle pulled up to the train station, and the man put his bag in the trunk. The man then motioned to the defendant to approach the car. He placed her bag in the trunk, and the two got in the car and left. The officers compared information they had learned from their encounters with the man and the defendant and had the car stopped by a uniformed officer. After the defendant refused to consent to a search, she was taken to the police station and searched. Relying on Florida v. Bostick, 501 U.S. 429 (1991), the court ruled that Officer Gunn did not seize the defendant at the train station. He merely approached her and asked a few questions, and she voluntarily gave him her train ticket and consented to a search of her bag.

Federal Appellate Courts

United States v. Sullivan, 138 F.3d 126 (4th Cir. 1998). Following a traffic stop, and after its purpose—checking a driver’s license and a registration and returning them to the defendant—had been served, an officer, prompted by a lingering suspicion that something was amiss, asked the defendant whether he had anything illegal in the car. When the defendant would not directly answer the question, the officer repeated it several times. During the course of the dialogue, which lasted less than a minute, the officer advised the defendant that it would be better “to tell me now” and that he “would be cool” with the defendant. The questions culminated with the defendant’s admission that he had a gun under the front seat. The court ruled that the defendant was not seized during the officer’s dialogue with the defendant; that is, the encounter was consensual and the defendant was not in custody under Miranda. The court stated that the mere fact that the officer did not affirmatively advise the defendant that he could refuse to answer the officer’s questions or that he was free to leave did not transform the encounter into a seizure or custodial interrogation.

The Officer’s Personal Knowledge of Facts Constituting “Reasonable Suspicion”

(This topic is discussed in the chapter text under “Appellate Court Cases on Probable Cause”; also, see similar topic in the case summaries under “Collective Knowledge of All Officers.”)

UNITED STATES SUPREME COURT

United States v. Hensley, 469 U.S. 221 (1985). An officer properly stopped a defendant for a felony based on a “wanted for investigation” flyer issued from another law enforcement agency. Even though the officer making the stop did not know the facts constituting reasonable suspicion, his action was proper because the agency issuing the flyer had facts to support reasonable suspicion to stop. [Author’s note: This ruling also would allow a stop for a misdemeanor under similar circumstances.]

NORTH CAROLINA COURT OF APPEALS

State v. Battle, 109 N.C. App. 367 (1993). Officer Harmon responded to a disturbance call at a washerette and saw the defendant seated behind the steering wheel of a red Pontiac. The officer noticed the odor of alcohol on the defendant’s breath, and the defendant performed physical tests poorly. The officer told the defendant not to drive the vehicle because he believed the defendant was impaired by alcohol. The officer left the washerette, radioed Officer Beekin to be on the lookout for the Pontiac, and gave Beekin the vehicle’s license plate number. Officer Beekin later saw the Pontiac leave the washerette, followed it for four blocks (and did not see anything unusual about its operation), then stopped it.

The court ruled that Officer Harmon, before he communicated his request to be on the lookout for the Pontiac, had reasonable suspicion that the defendant, impaired by alcohol, would leave the parking lot operating the vehicle. Although Officer Beekin did not personally have the information to establish reasonable suspicion and had not been told that information by Officer Harmon, Officer Beekin validly stopped the Pontiac based on Harmon’s request, which was based on reasonable suspicion.

The Authority to Make an Investigative Stop or Take Other Action without Reasonable Suspicion

Detaining People Present When a Search Warrant Is Executed or Is Being Sought

(This topic is discussed in Chapter 4, under “Public Place” and “Nonpublic Place.”)

UNITED STATES SUPREME COURT

Bailey v. United States, 568 U.S. 186(2013). The Court held that the ruling in Michigan v. Summers, 452 U.S. 692 (1981) (officers executing a search warrant may detain occupants on the premises while the search is conducted), does not justify the detention of occupants beyond the immediate vicinity of the premises covered by a search warrant. In this case, the defendant left the premises before the search began, and officers waited to detain him until he had driven about one mile away. The Court reasoned that none of the rationales supporting the Summers decision—officer safety, facilitating the completion of the search, and preventing flight—apply with the same or similar force to the detention of recent occupants beyond the immediate vicinity of the premises. It further concluded that “[a]ny of the individual interests is also insufficient, on its own, to justify an expansion of the rule in Summers to permit the detention of a former occupant, wherever he may be found away from the scene of the search. . . . The categorical authority to detain incident to the execution of a search warrant must be limited to the immediate vicinity of the premises to be searched.” Bailey, 568 U.S. at 199. The Court continued, noting that Summers also relied on the limited intrusion on personal liberty involved with detaining occupants incident to the execution of a search warrant, and concluded that when officers arrest an individual away from his or her home, there is an additional level of intrusiveness. The Court declined to precisely define the term “immediate vicinity,” leaving it to the lower courts to make this determination based on “the lawful limits of the premises, whether the occupant was within the line of sight of his dwelling, the ease of reentry from the occupant’s location, and other relevant factors.” Id. at 201.

Illinois v. McArthur, 531 U.S. 326 (2001). Officers accompanied the defendant’s wife to a trailer, where she lived with the defendant, so that she could peacefully remove her belongings. After collecting her belongings and leaving the trailer, she told the officers that she had seen the defendant slide some marijuana under the couch. An officer knocked on the door, told the defendant what his wife had said, and asked for consent to search the trailer. The defendant refused. The officer then told another officer to get a search warrant and told the defendant that he could not reenter the trailer without an officer accompanying him. A search warrant was obtained within two hours.

The Court ruled that the officers’ action in preventing the defendant from reentering the trailer was reasonable under the Fourth Amendment. First, the officers had probable cause to believe that the trailer contained illegal drugs. Second, they had good reason to fear that the defendant, unless restrained, would destroy the drugs before they could return with a search warrant. Third, the officers imposed a significantly less-restrictive restraint than arresting the defendant or searching the trailer without a warrant. Fourth, they imposed the restraint for a limited period of time—two hours.

Michigan v. Summers, 452 U.S. 692 (1981). As officers arrived at a house to execute a search warrant for drugs, they saw the defendant go out the front door of the house and walk across the porch and down the steps. They asked him to let them in, and they detained him while they searched the house. The officers then arrested the defendant when they found drugs in the house and determined that he owned the house.

The Court ruled that a search warrant for contraband implicitly authorizes executing officers to detain occupants of premises while a search is conducted. See also State v. Guy, 54 N.C. App. 208 (1981); G.S. 15A-256 (which authorizes the detention of all persons present, not just occupants, during a search of premises not generally open to the public or of a vehicle other than a common carrier).

NORTH CAROLINA SUPREME COURT

State v. Wilson, 371 N.C. 920 (2018). A SWAT team was sweeping a house so that the police could execute a search warrant. Several officers were positioned around the house to create a perimeter securing the scene. The defendant penetrated the SWAT perimeter, stating that he was going to get his moped. In so doing, he passed Officer Christian, who was stationed at the perimeter near the street. The defendant then kept going, moving up the driveway and toward the house to be searched. Officer Ayers, who was stationed near the house, confronted the defendant. After a brief interaction, Officer Ayers searched the defendant based on his suspicion that the defendant was armed. Officer Ayers found a firearm in the defendant’s pocket. The defendant, who had previously been convicted of a felony, was arrested and charged with being a felon in possession of a firearm. He unsuccessfully moved to suppress evidence of the firearm at trial and was convicted.

The state supreme court ruled “that the rule in Michigan v. Summers [452 U.S. 692 (1981)] justifie[d] the seizure here because [the] defendant, who passed one officer, stated he was going to get his moped, and continued toward the premises being searched, posed a real threat to the safe and efficient completion of the search.” Wilson, 371 N.C. at 921 (citations omitted). The court interpreted the Summers rule to mean that a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain occupants who are within the immediate vicinity of the premises to be searched and who are present during the execution of the search warrant. Applying this rule, the court determined that “a person is an occupant for the purposes of the Summers rule if he ‘poses a real threat to the safe and efficient execution of a search warrant.’ ” Id. at 925 (citations omitted). Here, the defendant posed such a threat. The court reasoned: “He approached the house being swept, announced his intent to retrieve his moped from the premises, and appeared to be armed. It was obvious that [the] defendant posed a threat to the safe completion of the search.” Id. at 925.

Because the Summers rule only justifies detentions incident to the execution of search warrants, the court then considered whether the search of the defendant’s person was justified. On this issue the court ruled that “both the search and seizure of the defendant were supported by individualized suspicion and thus did not violate the Fourth Amendment.” Id. at 921 (citations omitted).

Ordering People Out of a Vehicle after a Lawful Stop

(This topic is discussed in the chapter text under “Scope of Investigative Stop: Investigative Techniques,” “Ordering driver and passengers out of vehicle.”)

Conducting Impaired-Driving and Driver’s
License Checkpoints

(This topic is discussed in the chapter text under “Motor Vehicle Checkpoints, Including Driver’s License and DWI Checkpoints.”)

United States Supreme Court

City of Indianapolis v. Edmond, 531 U.S. 32 (2000). Officers set up a vehicle checkpoint with the primary purpose of interdicting illegal drugs. An officer would approach a vehicle that was stopped at the checkpoint, advise the driver that he or she was being stopped briefly at a drug checkpoint, and ask the driver to produce a license and registration. The officer would also look for signs of impairment and conduct an open-view examination of the vehicle from the outside. A drug dog would walk around the outside of the vehicle.

The Court ruled that this checkpoint violated the Fourth Amendment because its primary purpose was to interdict illegal drugs. The Court noted that it had directly or indirectly in prior cases approved of suspicionless seizures of vehicles at checkpoints to intercept illegal aliens, United States v. Martinez-Fuerte, 428 U.S. 543 (1976); to remove impaired drivers from highways, Michigan Dep’t of State Police v. Sitz, 496 U.S. 444 (1990); and to check driver’s licenses and vehicle registrations, Delaware v. Prouse, 440 U.S. 648 (1979) (dicta). The rationale in Martinez-Fuerte was based on the need to police the United States border, and the rationales in both Sitz and Prouse were based on highway safety. The Court declined to approve a checkpoint whose primary purpose was to detect evidence of ordinary criminal wrongdoing, such as possession of illegal drugs. The Court noted that a checkpoint set up to deal with an emergency—such as thwarting an imminent terrorist attack or catching a dangerous fleeing criminal—would not likely violate the Fourth Amendment.

The Court rejected the argument that its ruling in Whren v. United States, 517 U.S. 806 (1996) (an officer’s motivation in stopping a vehicle is irrelevant when probable cause exists for a traffic violation), bars inquiry into the primary purpose of a checkpoint. The Court noted that the Whren ruling does not apply to suspicionless inventory and administrative searches, and the Court stated that it also does not apply to an inquiry into the primary purpose of a checkpoint. However, the Court stated that the inquiry about primary purpose is limited to “the programmatic level and is not an invitation to probe the minds of individual officers at the scene.” Edmond, 531 U.S. at 33. [Author’s note: Federal appellate cases have applied the Whren ruling to seizures based on reasonable suspicion—see, for example, United States v. Dumas, 94 F.3d 286 (7th Cir. 1996)—but the Court did not address that issue in this case. The Court did strongly indicate in United States v. Knights, 534 U.S. 112 (2001), that the Whren ruling applies to Fourth Amendment actions supported by reasonable suspicion.]

The Court stated in footnote 2 of its opinion that it need not have decided in this case whether a state may establish a checkpoint program with the primary purpose of checking licenses or checking for evidence of impaired driving and a secondary purpose of interdicting illegal drugs. See United States v. Davis, 270 F.3d 977 (D.C. Cir. 2001) (court states that checkpoint with primary purpose of checking licenses and registrations and secondary purpose of drug enforcement would be constitutional; court remands to district court for additional findings).

Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990). An impaired-driving highway checkpoint conducted under guidelines that require officers to stop every vehicle and briefly examine the driver for signs of intoxication is constitutional. Officers do not need reasonable suspicion to make the initial, brief stop of a vehicle at the checkpoint. The court noted that additional detention of drivers for more-extensive field sobriety testing may require reasonable suspicion.

North Carolina Supreme Court

State v. Griffin, 366 N.C. 473 (2013). The court ruled that the defendant’s act of stopping his vehicle in the middle of a roadway and turning away from a license checkpoint supported reasonable suspicion for a vehicle stop. The trial court denied the defendant’s motion to suppress, finding the stop constitutional. In an unpublished opinion, the court of appeals reversed on grounds that the checkpoint was unconstitutional. That court did not, however, comment on whether reasonable suspicion for the stop existed. The state supreme court allowed the State’s petition for discretionary review to determine whether there was reasonable suspicion to initiate a stop of the defendant’s vehicle and reversed. It reasoned:

Defendant approached a checkpoint marked with blue flashing lights. Once the patrol car lights became visible, defendant stopped in the middle of the road, even though he was not at an intersection, and appeared to attempt a three-point turn by beginning to turn left and continuing onto the shoulder. From the checkpoint [the officer] observed defendant’s actions and suspected defendant was attempting to evade the checkpoint. . . . It is clear that this Court and the Fourth Circuit have held that even a legal turn, when viewed in the totality of the circumstances, may give rise to reasonable suspicion. Given the place and manner of defendant’s turn in conjunction with his proximity to the checkpoint, we hold there was reasonable suspicion that defendant was violating the law; thus, the stop was constitutional. Therefore, because the [officer] had sufficient grounds to stop defendant’s vehicle based on reasonable suspicion, it is unnecessary for this Court to address the constitutionality of the driver’s license checkpoint. Id. at 477.

State v. Mitchell, 358 N.C. 63 (2004). A Belmont Police Department officer decided to conduct a driver’s license checkpoint on U.S. 29/74 to check westbound traffic for valid licenses and registrations. The officer spoke with his shift sergeant before conducting the checkpoint to ensure that there were enough personnel to conduct it. The officer had standing permission from a department captain to conduct these checkpoints as long as the captain’s oral guidelines were followed: at least three officers had to be present at the checkpoint; officers had to conduct the checkpoint in a safe area and wear traffic vests, hold flashlights to direct vehicles to stop, and stop every vehicle. These guidelines were not set out in writing. At 4:15 a.m., the defendant’s vehicle approached the checkpoint where there were patrol cars with activated blue lights. An officer shined his flashlight on his left hand, directing the defendant to stop. The defendant did not stop; in fact, he speeded up and forced the officer to quickly move out of the path of the defendant’s vehicle to avoid being struck. The officer got into his vehicle and pursued the defendant’s vehicle, and the defendant eventually stopped 1.5 miles beyond the checkpoint. As a result of this and other evidence, the defendant was charged with DWI.

(1) The court ruled that written guidelines are not required under either the United States or North Carolina constitutions to conduct driver’s license checkpoints. Adequate oral guidelines were followed in conducting the checkpoint in this case. (2) The court ruled that the officer received supervisory approval to conduct the checkpoint. The court noted the officer’s having spoken with the staff sergeant about adequate personnel to conduct the checkpoint and the officer’s standing permission from the captain to conduct driver’s license checkpoints as long as he followed the captain’s guidelines. These were sufficient restraints to keep the officer from abusing his discretion. (3) The court ruled that the driver’s license checkpoint did not violate the Fourth Amendment based on its rulings in (1) and (2) and on the stopping of all oncoming traffic at the checkpoint. (4) The court ruled that the officer’s stop of the defendant’s vehicle was justified by reasonable suspicion of criminal activity irrespective of the constitutionality of the checkpoint: assault on a law enforcement officer, attempting to elude a law enforcement officer, and reckless driving.

State v. Foreman, 351 N.C. 627 (2000). Officers set up a DWI checkpoint under G.S. 20-16.3A. Notice of the checkpoint was posted about one-tenth of a mile before the stop. At about 2:00 a.m., an officer saw a vehicle, immediately before the checkpoint’s sign, make a “quick left turn” onto a street. The officer followed the vehicle, lost sight of it, but eventually saw it parked in a residential driveway. The officer directed his bright lights onto the vehicle and also turned on his take-down lights, thereby enabling him to see that people were bent or crouched down inside the car. The vehicle’s lights and ignition were off, and its doors were closed. Once backup arrived, the officer approached the vehicle and saw that the defendant was sitting in the driver’s seat with the key in the ignition. There were several open containers of alcohol in the vehicle, and the vehicle emitted a strong odor of alcohol. In addition, the officer noticed that the defendant had a strong to moderate odor of alcohol about her person after she exited the vehicle and was unsteady on her feet. (1) The court noted that the officer had never seized the vehicle at any point and that the defendant was not seized under the Fourth Amendment “until at least” the officer approached the vehicle. Based on the incriminating circumstances that existed by then, the court ruled that the officer had reasonable suspicion to stop the driver of the vehicle. (2) Disavowing contrary statements in the court of appeals’ opinion in this case, the court stated: “[We] hold that it is reasonable and permissible for an officer to monitor a checkpoint’s entrance for vehicles whose drivers may be attempting to avoid the checkpoint, and it necessarily follows that an officer, in conjunction with the totality of the circumstances or the checkpoint plan, may pursue and stop a vehicle which has turned away from a checkpoint within its perimeters for reasonable inquiry to determine why the vehicle turned away.” Id. at 632–33.

North Carolina Court of Appeals

State v. Macke, 276 N.C. App. 242 (2021). In this DWI case, the court ruled that a traffic checkpoint had a valid programmatic purpose and that G.S. 20‑16.3A is constitutional. Troopers testified that the primary purpose of the checkpoint, which was conducted with a supervisor’s prior approval, with an established plan, and without narcotics officers or drug dogs, was to check for driver’s licenses and evidence of impairment. The defendant’s primary challenge to the programmatic purpose of the checkpoint was that its location changed throughout the evening. Given that the changing of the location was planned before the checkpoint was established and was authorized by the supervisor, the court ruled that the trial court properly determined that the checkpoint had a valid programmatic purpose. The court also ruled that G.S. 20-16.3A was constitutional, specifically finding that the statute does not violate the right to free travel and does not impermissibly foreclose equal protection challenges arising from the placement of checkpoints.

State v. Ashworth, 248 N.C. App. 649 (2016). In this impaired-driving case, the court ruled that the trial court erred by denying the defendant’s motion to suppress evidence obtained from a checkpoint stop, which had asserted that the stop violated his constitutional rights. In a constitutional challenge to a checkpoint, a two-part inquiry applies. First, the court must determine the primary programmatic purpose of the checkpoint. If a legitimate primary programmatic purpose is found, then, second, the court must judge its reasonableness. The defendant did not raise an issue about whether the checkpoint had a proper purpose. When determining reasonableness, a court must weigh the public’s interest in the checkpoint against the individual’s Fourth Amendment privacy interest, applying the Brown v. Texas, 443 U.S. 47 (1979), three-part test (gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty) to this balancing inquiry. The court held that the trial court’s findings of fact were insufficient to permit the trial court to meaningfully weigh the considerations required under the second and third prongs of the Brown test. This constituted plain error. The court vacated the trial court’s order denying the defendant’s motion and remanded the case for further findings of fact and conclusions of law regarding the reasonableness of the checkpoint stop.

State v. McDonald, 239 N.C. App. 559 (2015). Although the court determined that the trial court properly found that the checkpoint at issue had a legitimate purpose of checking for driver’s license and vehicle registration violations, it concluded that the trial court failed to adequately determine the checkpoint’s reasonableness. The court ruled that the trial court’s “bare conclusion” on reasonableness was insufficient and vacated and remanded for appropriate findings as to reasonableness.

State v. White, 232 N.C. App. 296 (2014). The court ruled that the trial court did not err by granting the defendant’s motion to suppress evidence obtained as a result of a vehicle checkpoint. Specifically, the trial court did not err by concluding that a lack of a written policy in full force and effect at the time of the defendant’s stop at the checkpoint constituted a substantial violation of G.S. 20-16.3A (requiring a written policy providing guidelines for checkpoints). The court also rejected the State’s argument that a substantial violation of G.S. 20-16.3A could not support suppression; the State had argued that evidence can be suppressed only if there is a constitutional violation or a substantial violation of G.S. Chapter 15A.

State v. Nolan, 211 N.C. App. 109 (2011). The court ruled that the trial court did not err by concluding that the vehicle checkpoint at issue did not violate the Fourth Amendment. The trial court properly concluded (1) that the primary programmatic purpose of the checkpoint was “the detection of drivers operating a motor vehicle while impaired and that the ‘procedure was not merely to further general crime control,’ ” Id. at 119 (citation omitted), and (2) that this primary programmatic purpose was constitutionally permissible. Applying the three-pronged test of Brown v. Texas, 443 U.S. 47 (1979), the trial court properly determined that the checkpoint was reasonable.

State v. Jarrett, 203 N.C. App. 675 (2010). The defendant, accompanied by a passenger, approached a stationary driver’s-license checkpoint at approximately 11:16 p.m. An officer noticed an aluminum can located between the driver’s and passenger’s seats. The can was open, and a light liquid residue was on the top of the can. The passenger leaned toward the defendant, apparently trying to conceal the can from view. The defendant provided the officer with his license, which revealed that the defendant was 18 years old, and the vehicle’s registration. Before returning these items, the officer asked, “What is in the can?” Neither the defendant nor the passenger responded. When questioned again, the passenger raised the can, revealing that it was a Busch Ice beer. The officer directed the defendant to a nearby parking lot, where he was eventually arrested for DWI.

(1) The court ruled that the driver’s-license checkpoint was valid under the Fourth Amendment. It was conducted under a written department policy. Six officers with flashlights—two in each lane of traffic—stopped every car coming through the checkpoint to determine if drivers possessed a valid driver’s license and vehicle registration. A supervisory officer was at the checkpoint. All officers wore uniforms and traffic vests. Their vehicles had activated blue lights. The court discussed the trial court’s findings concerning the checkpoint’s primary programmatic purpose and the reasonableness of the checkpoint. (2) The court ruled that the officer had reasonable suspicion to detain the defendant for further investigation based on the officer’s observation of the beer can and the occupants’ behavior involving the beer can.

State v. Veazey, 201 N.C. App. 398 (2009). The court upheld the trial court’s ruling that the license checkpoint at issue was constitutional. The trial court found that (1) the primary programmatic purpose of the checkpoint was valid (enforcement of the state’s motor vehicle laws) and (2) the checkpoint was reasonable: the state has a strong interest in enforcing motor vehicle laws, the checkpoint was tailored to meet this purpose, and the checkpoint constituted a minimal intrusion on drivers’ liberty. [Author’s note: This case was previously before the court in State v. Veazey, 191 N.C. App. 181 (2008), discussed below, and the court had remanded the case to the trial court for additional findings of fact and conclusions of law concerning the constitutionality of a checkpoint.]

State v. Gabriel, 192 N.C. App. 517 (2008). Members of the State Highway Patrol (SHP) established a driver’s-license checkpoint. Several armed robberies had occurred near the checkpoint location in the preceding week, and suspects in the most recent robbery were seen driving a stolen sports utility vehicle in the vicinity of the checkpoint’s location. The court reviewed two cases involving checkpoints: State v. Rose, 170 N.C. App. 284 (2005), and State v. Veazey, 191 N.C. App. 181 (2008), and noted that when there is no evidence to contradict the state’s proffered purpose for a checkpoint, the trial judge may rely on the officer’s assertion of a legitimate primary purpose. However, when there is evidence that could support a finding of either a lawful or unlawful purpose, the trial judge cannot rely solely on an officer’s bare assertion of the checkpoint’s purpose. Here, an SHP officer was the only witness to testify at the suppression hearing (the defendant, who was stopped at the checkpoint and cited for driving while impaired and driving with a revoked license, was seeking to have the evidence obtained at the checkpoint suppressed on constitutional grounds). He said that the reason for the checkpoint was that several armed robberies had been committed in the area and that the purpose of the checkpoint was to issue citations for “anything that came through.” The officer also testified about using the checkpoint to check driver’s licenses. The court concluded that because the officer’s testimony varied concerning the primary programmatic purpose of the checkpoint, the trial judge could not simply accept the state’s invocation of a proper purpose but instead was required to make independent findings of fact and conclusions of law concerning the primary purpose. Because the trial judge had not done so, the court remanded the case to the trial court to make those findings and conclusions. The court, citing Rose, stated that if the trial judge finds that the checkpoint had a proper primary programmatic purpose, the judge must also enter findings of fact and conclusions of law concerning its reasonableness.

State v. Veazey, 191 N.C. App. 181 (2008). Two law enforcement officers established a checkpoint on a highway. The defendant was stopped and charged with DWI. The defendant made a motion to suppress, arguing that the checkpoint violated the Fourth Amendment. The trial judge ruled that the checkpoint was constitutional. The defendant pled no contest to DWI and preserved his right to appeal the trial judge’s ruling on his suppression motion.

(1) The court remanded to the trial court for additional findings and conclusions of law on the constitutionality of the checkpoint. First, the court concluded that, given the conflicting evidence, the trial judge failed to make sufficient findings and conclusions of law concerning the officers’ primary purpose in conducting the checkpoint. Second, relying on Brown v. Texas, 443 U.S. 47 (1979), and State v. Rose, 170 N.C. App. 284 (2005), the court concluded that the trial judge failed to properly apply the three-prong inquiry set out in Brown to determine whether the checkpoint itself was reasonable under the Fourth Amendment. (2) The court ruled, assuming without deciding that the checkpoint was constitutional, that an officer had reasonable suspicion of criminal activity at the checkpoint to detain the driver for additional investigation. When the defendant presented his driver’s license during the initial checkpoint detention, the officer detected a strong odor of alcohol in the vehicle and saw that the defendant’s eyes were red and glassy. [Author’s note: See the later case of State v. Veazey, 201 N.C. App. 398 (2009), discussed above.]

State v. Burroughs, 185 N.C. App. 496 (2007). The trial judge ruled that a checkpoint (at which the defendant was arrested for DWI) violated the Fourth Amendment based on the ruling in State v. Rose, 170 N.C. App. 284 (2005). The State appealed. The court noted that the trial judge’s ruling was based on the absence of evidence to support the primary programmatic purpose of the checkpoint. The court stated that the ruling misconstrued the principles of Rose and City of Indianapolis v. Edmond, 531 U.S. 32 (2000), on which Rose heavily relied. The court stated that the Rose ruling provided that when contradictory evidence exists about a checkpoint’s primary purpose, the trial judge must examine the available evidence to determine the actual purpose, because bare assertions of a constitutional purpose cannot be allowed to mask unconstitutional purposes. Neither Rose nor Edmond mandated that trial judges extensively inquire about the purpose of every checkpoint. The court in Rose required additional findings of the checkpoint’s purpose because substantial evidence indicated that the checkpoint’s purpose was to impermissibly check for illegal drugs. The court here concluded that from the available evidence in the case before it, the actual purpose of the checkpoint clearly was the same as its stated purpose: to check for impaired drivers. Because such a purpose has been expressly ruled constitutional and the trial judge misconstrued the Rose ruling, the court reversed the trial judge’s ruling. However, the court ruled that the trial court was still required to determine on remand whether the individual circumstances surrounding the stop of the defendant at this checkpoint were constitutional; the court cited and quoted from State v. Mitchell, 358 N.C. 63 (2004).

State v. Bowden, 177 N.C. App. 718 (2006). Law enforcement officers established a driver’s license checkpoint late at night at the bottom of a hill. It was not visible to motorists until they crested the hill about 250 feet away. One officer was assigned to identify drivers who might try to avoid the checkpoint. He saw a pickup truck driven by the defendant crest the hill and descend rapidly toward the checkpoint. The truck braked hard, causing the front headlights to dip low. The truck then made an abrupt turn into the parking lot of the nearest apartment complex. As the officer approached in his patrol car without blue lights on, he saw the truck pull out of a parking space into which it had apparently backed, travel toward the parking lot’s exit, but then drive headfirst into a new parking space as the patrol car drew near. The officer pulled his patrol car behind the truck and activated his blue lights. The court ruled, assuming without deciding that the officer had seized the defendant under the Fourth Amendment when pulling his patrol car behind the truck and activating his blue lights, that the officer’s seizure was supported by reasonable suspicion based on the ruling in State v. Foreman, 351 N.C. 627 (2000). The totality of circumstances justified the officer’s pursuing and stopping the defendant’s vehicle to inquire as to why he turned before the checkpoint.

State v. Rose, 170 N.C. App. 284 (2005). The defendant was convicted of various offenses resulting from evidence seized from a vehicle at a license checkpoint. Four of the five law enforcement officers running the checkpoint were narcotics officers (see the court’s opinion for details on how the checkpoint was planned and conducted). The trial judge denied the defendant’s motion to suppress evidence based on the asserted unconstitutionality of the checkpoint. The court ruled that the case must be remanded to the trial court to determine the primary purpose of the checkpoint under City of Indianapolis v. Edmond, 531 U.S. 32 (2000), and the reasonableness of the checkpoint under Illinois v. Lidster, 540 U.S. 419 (2004), examining factors such as a plan, time frame, supervision, and directions on how to conduct a checkpoint. [Author’s note: The court’s remand to the trial court based on Edmond was clearly supported by the facts involving this checkpoint, especially the manner in which the checkpoint was conducted by the narcotics officers. However, the court’s additional remand to the trial court for a multifactor analysis based on Lidster was questionable. The United States Supreme Court in Lidster had to decide whether an information-seeking checkpoint was reasonable under the Fourth Amendment. It is highly unlikely that the Court intended to engraft its Lidster analysis into the detailed multifactor test required by Rose of the reasonableness of all driver’s-license checkpoints.]

State v. Colbert, 146 N.C. App. 506 (2001). Law enforcement agencies collaborated in establishing a DWI checkpoint under G.S. 20-16.3A. [Author’s note: the statute was substantially revised in 2006.] An officer stopped the defendant’s vehicle at the checkpoint. Pursuant to the checkpoint plan, the officer (1) requested the defendant to produce his driver’s license, (2) observed the defendant’s eyes for signs of impairment, (3) conversed with the defendant to determine if he had the odor of alcohol on his breath and if his speech pattern indicated impairment, and (4) observed the defendant’s clothing. The checkpoint plan provided that an Alco-Sensor test would be used only when an officer had reasonable suspicion that the driver had committed an implied-consent offense. After these observations, the officer instructed another officer to conduct an Alco-Sensor test on the defendant. Based on the test results, the officer arrested the defendant for DWI. The court ruled that the checkpoint did not violate G.S. 20-16.3A(2) in failing to designate in advance a pattern for requesting drivers to submit to alcohol screening tests. The court stated that the fact that an officer must make a judgment as to whether there is reasonable suspicion does not vitiate the plan’s validity nor offend the requirement that individual officers not exercise unbridled discretion under G.S. 20-16.3A(2). The court noted that the term “alcohol screening test” in G.S. 20-16.3A(2) is not limited to the administration of the Alco-Sensor test but also includes the four procedures in the plan, discussed above, that were administered to every driver who passed through the checkpoint. The court found that the checkpoint plan was constitutionally reasonable under Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990).

State v. Tarlton, 146 N.C. App. 417 (2001). Two State Highway Patrol (SHP) officers were on preventive patrol and decided to establish a driver’s-license checkpoint. One officer called his supervisor and received permission to establish the checkpoint. The officers were aware that SHP policy required the checkpoint to be conducted by at least two officers, by a nonrandom method, and with a blue light on. During the checkpoint, they checked every vehicle in both directions except when they were writing citations. Blue lights were operating on both vehicles. The court ruled that the checkpoint was constitutionally valid. The court stated that (1) supervisory approval of a driver’s license checkpoint is not constitutionally required and (2) a written guideline setting out a driver’s license checkpoint is also not constitutionally required.

State v. Barnes, 123 N.C. App. 144 (1996). A Highway Patrol sergeant, who was acting shift supervisor, decided to organize a roadblock to check licenses and vehicle registrations. He considered the likelihood of detecting people who were violating motor vehicle laws, the traffic conditions, the traffic volume that would pass through the roadblock, and the convenience of the public. Patrol officers intended to stop all vehicles that approached the roadblock from either direction to detect driver’s license and registration violations as well as other motor vehicle violations, including impaired driving. A roadblock was established on a road at about 12:45 a.m., taking into account that there is a higher incidence of impaired driving during weekend early-morning hours. The sergeant’s unmarked patrol car was parked in the paved median dividing the lanes of the road, and another unmarked patrol car was parked on the road’s shoulder. At least one of the patrol cars had its blue lights on. The defendant’s car was stopped, and the defendant was asked to show his license and registration; his conduct led to his arrest and conviction for impaired driving. The court noted the provisions of G.S. 20-16.3A [Author’s note: The statute was substantially revised in 2006.] and State Highway Patrol Directive No. 63, which requires that “[a]ll roadblocks shall be marked by signs, activated emergency lights, marked Patrol vehicles parked in conspicuous locations, or other ways to assure motorists are aware that an authorized roadblock is being conducted. A blue light on at least one Patrol vehicle shall be operated at all times.” Reviewing the facts set out above, the court ruled that the roadblock substantially complied with G.S. 20-16.3A and Directive 63 (the court noted its ruling in State v. Sanders, 112 N.C. App. 477 (1993), discussed below) and that the stopping of the defendant’s car did not violate the Fourth Amendment.

State v. Sanders, 112 N.C. App. 477 (1993). Two State Highway Patrol officers set up a driver’s-license check at a ramp off a highway. They did not post signs warning the public that a license check was being conducted. The officers checked every car that approached the checkpoint unless they were busy writing citations. The defendant entered the ramp, and as he approached the checkpoint, he stopped his car 150 feet from one of the troopers. The defendant then drove up to the checkpoint, stopped the car, and rolled down his window. In response to the trooper’s request for his driver’s license and registration, the defendant said that he did not have the registration or any identification and that he was not the owner of the car. The passenger in the car also failed to produce any identification. The trooper asked the defendant to get out of the car. As he stepped out of the car, the trooper saw a bulge about the size of two fists in the right pocket of the defendant’s jacket. The trooper then told the defendant to face the car and place his hands on the car so he could pat him down for weapons. As the defendant was doing so, the trooper saw plastic protruding from the right pocket. While frisking the defendant, the trooper touched the bulge and noted that it felt like “hard flour dough.” The trooper removed the plastic bag from the defendant’s pocket. It contained three smaller bags with cocaine inside.

Distinguishing Delaware v. Prouse, 440 U.S. 648 (1979), the court ruled that the stop of the defendant’s vehicle for the license check was constitutional. The court noted that the troopers followed guidelines of their agency in selecting the location and time for the license check and detained every car that passed through, except for those that came through while they were issuing citations.

Conducting Information-Seeking Checkpoints

UNITED STATES SUPREME COURT

Illinois v. Lidster, 540 U.S. 419 (2004). Just after midnight, on Saturday, August 23, 1997, an unknown motorist struck and killed a bicyclist in an Illinois community. About one week later, at about the same time of night and at about the same place, law enforcement officers established a highway checkpoint designed to obtain from motorists more information about the unsolved hit-and-run. The checkpoint involved stopping each vehicle for ten to fifteen seconds, asking the occupants whether they had seen anything happen the prior weekend, and handing each driver a flyer describing the case and asking for assistance in identifying the vehicle and driver. When the defendant stopped his vehicle at the checkpoint, an officer smelled alcohol on his breath that eventually led to his conviction for driving under the influence of alcohol. The defendant argued that the checkpoint violated the Fourth Amendment. Distinguishing City of Indianapolis v. Edmond, 531 U.S. 32 (2000) (checkpoint whose primary purpose was to detect illegal drugs violated Fourth Amendment), the Court ruled that the brief, information-seeking vehicle checkpoint did not violate the Fourth Amendment. The Court noted that, unlike in Edmond, the primary purpose of the checkpoint in this case was not to determine whether a vehicle’s occupants were committing a crime but to ask them, as members of the public, for their help in providing information about a crime in all likelihood committed by others. The checkpoint was neither presumptively constitutional or unconstitutional. Instead, its reasonableness is to be judged by the individual circumstances in this case, using the Fourth Amendment standard of examining the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty. The Court then examined these circumstances and ruled that the checkpoint did not violate the Fourth Amendment. The relevant public concern was grave—a fatal hit-and-run. The checkpoint’s objective was to find the perpetrator of this specific crime, not the perpetrators of unknown crimes. The checkpoint significantly advanced this grave public concern. The Court approvingly noted the checkpoint’s similar time and place with the commission of the crime and that the officers used the checkpoint to obtain information from drivers, some of whom might well have been in the vicinity of the crime when it occurred. Most importantly, the checkpoint interfered only minimally with Fourth Amendment privacy rights; it involved only a few minutes waiting in line at the checkpoint, contact with officers for a few seconds, and the officers’ simple request for information and distribution of a flyer. All vehicles were stopped systematically, and there was no allegation that the officers acted in a discriminatory or otherwise unlawful manner.

Stopping Vehicle under Community-Caretaking Doctrine

NORTH CAROLINA COURT OF APPEALS

State v. Sawyers, 247 N.C. App. 852 (2016). (1) The court ruled that an investigative stop of the defendant’s vehicle was justified by reasonable suspicion. While on patrol in the early morning, an officer saw the defendant walking down a street. Directly behind him was another male, who appeared to be dragging a drugged or intoxicated female. The defendant and the other male placed the female in the defendant’s vehicle, entered it, and drove away. The officer was unsure as to whether the female was being kidnapped or was in danger. Given these circumstances, the officer had reasonable suspicion that the defendant was involved in criminal activity. (2) The court alternatively upheld the stop based on the community caretaking doctrine; see State v. Smathers, 232 N.C. App. 120 (2014), summarized below. The officer was attempting to ensure the female’s safety, and the public need to seize the defendant by an investigative stop of the vehicle outweighed his privacy interest in being free from the intrusion.

State v. Smathers, 232 N.C. App. 120 (2014). In a case where the State conceded that the officer had neither probable cause nor reasonable suspicion to seize the defendant, the court decided an issue of first impression and ruled that the officer’s seizure of the defendant by stopping her vehicle was justified by the community caretaking doctrine. The officer stopped the defendant to see if she and her vehicle were okay after he saw her hit an animal on a roadway. Her driving did not give rise to any suspicion of impairment. During the stop the officer determined that the defendant was impaired and arrested her for DWI. The court noted that in adopting the community caretaking exception, “we must apply a test that strikes a proper balance between the public’s interest in having officers help citizens when needed and the individual’s interest in being free from unreasonable governmental intrusion.” Id. at 126. It went on to adopt the following test for application of the doctrine:

[T]he State has the burden of proving that: (1) a search or seizure within the meaning of the Fourth Amendment has occurred; (2) if so, that under the totality of the circumstances an objectively reasonable basis for a community caretaking function is shown; and (3) if so, that the public need or interest outweighs the intrusion upon the privacy of the individual. Id. at 128–29.

The court applied the test and found that the stop at issue fell within the community-caretaking doctrine.

Stopping Vehicle for Safety Reason

NORTH CAROLINA COURT OF APPEALS

State v. Wade, 198 N.C. App. 257 (2009). A police department issued a “be on the lookout” alert for the owner of a green Saturn bearing a specific license plate number and registered to a named 26-year-old white male whose photo had been distributed to the department’s officers. He had been reported missing by his parents, who did not know where he was and believed that he was in danger. An officer saw a green Saturn with that license plate number. He saw a black male driving it, a white female in the front passenger seat, and a white male in a rear passenger seat. Another officer pulled behind the car and stopped it. Later events resulted in the driver, the defendant, being charged with a drug offense. The court ruled that the stop of the vehicle did not violate the Fourth Amendment. The court stated that having received the missing-person report, it was perfectly appropriate for the officers to temporarily prevent the Saturn from being driven off, detain the occupants, and make sure that the missing person was not in any danger of harm. The mere fact that the officers did not observe that the missing person had sustained personal harm or that he was under direct physical restraint when he exited the vehicle did not make further investigative activities inappropriate, given the parents’ concern that he might have been at risk of harm or consorting with people involved with illegal drugs.

Wildlife Law Enforcement Stopping Authority

NORTH CAROLINA COURT OF APPEALS

State v. Pike, 139 N.C. App. 96 (2000). Wildlife law enforcement officers were patrolling a lake at night and were stopping every vessel for a safety inspection. They saw a pontoon boat, operated by the defendant, and signaled the operator to stop, which he did immediately. The officers activated their take-down lights, announced their presence, and informed the defendant that they were going to conduct a safety check of the vessel. They did so without boarding the vessel. After the safety inspection, the defendant was arrested for operating a motor vessel while impaired in violation of G.S. 75A-10(b1)(2).

Relying on Schenekl v. State, 996 S.W.2d 305 (Tex. Ct. App. 1999), the court ruled that the officers did not violate the Fourth Amendment by stopping the vessel, even though they did not have reasonable suspicion to conduct the stop. The court found that the government’s interest in maintaining safety on its lakes and rivers substantially outweighed this defendant’s reasonable expectation of privacy in his vessel. [Author’s note: The court did not decide whether the officers could have boarded the motor vessel without reasonable suspicion or probable cause; see Klutz v. Beam, 374 F. Supp. 1129 (W.D.N.C. 1973) (warrantless boarding for inspection in landlocked lake of private boat used as home and without consent or without basis for believing there was law violation was unconstitutional).]

Pretextual Stop or Arrest

(This topic is discussed in the chapter text under “Pretextual Arrest, Investigative Stop, or Search.”)

UNITED STATES SUPREME COURT

Arkansas v. Sullivan, 532 U.S. 769 (2001). The Court made clear that its ruling in Whren v. United States, 517 U.S. 806 (1996), discussed below, applies to custodial arrests as well as traffic stops.

City of Indianapolis v. Edmond, 531 U.S. 32 (2000). Officers set up a vehicle checkpoint with the primary purpose of interdicting illegal drugs. An officer would approach a vehicle that was stopped at the checkpoint, advise the driver that he or she was being stopped briefly at a drug checkpoint, and ask the driver to produce a license and registration. The officer also would look for signs of impairment and conduct an open-view examination of the vehicle from the outside. A drug dog would walk around the outside of the vehicle.

The Court ruled that this checkpoint violated the Fourth Amendment because its primary purpose was to interdict illegal drugs. The Court noted that it had directly or indirectly in prior cases approved of suspicionless seizures of vehicles at checkpoints to intercept illegal aliens, United States v. Martinez-Fuerte, 428 U.S. 543 (1976); to remove impaired drivers from highways, Michigan Dep’t of State Police v. Sitz, 496 U.S. 444 (1990); and to check driver’s licenses and vehicle registrations, Delaware v. Prouse, 440 U.S. 648 (1979) (dicta). The rationale in Martinez-Fuerte was based on the need to police the United States border, and the rationales in both Sitz and Prouse were based on highway safety. The Court declined to approve a checkpoint whose primary purpose was to detect evidence of ordinary criminal wrongdoing, such as possession of illegal drugs. The Court noted that a checkpoint set up to deal with an emergency—such as thwarting an imminent terrorist attack or catching a dangerous fleeing criminal—would not likely violate the Fourth Amendment.

The Court rejected the argument that its ruling in Whren v. United States, 517 U.S. 806 (1996) (officer’s motivation in stopping vehicle is irrelevant when probable cause exists for traffic violation), bars inquiry into the primary purpose of a checkpoint. The Court noted that the Whren ruling does not apply to suspicionless inventory and administrative searches and stated that it also does not apply to an inquiry into the primary purpose of a checkpoint. However, the Court stated that the inquiry about primary purpose is limited to “the programmatic level and is not an invitation to probe the minds of individual officers at the scene.” Edmond, 531 U.S. at 33. [Author’s note: Federal appellate cases have applied the Whren ruling to seizures based on reasonable suspicion—see, for example, United States v. Dumas, 94 F.3d 286 (7th Cir. 1996)—but the Court did not address that issue in this case. The Court did strongly indicate in United States v. Knights, 534 U.S. 112 (2001), that the Whren ruling applies to Fourth Amendment actions supported by reasonable suspicion.]

The Court stated in footnote 2 of its opinion that it need not decide in this case whether a state may establish a checkpoint program with the primary purpose of checking licenses or impaired driving and a secondary purpose of interdicting illegal drugs. See United States v. Davis, 270 F.3d 977 (D.C. Cir. 2001) (court states that checkpoint with primary purpose of checking licenses and registrations and secondary purpose of drug enforcement would be constitutional; court remands to district court for additional findings).

Whren v. United States, 517 U.S. 806 (1996). Drug officers stopped a vehicle for traffic violations. The Court ruled that stopping a vehicle for a traffic violation when there is probable cause to believe the traffic violation was committed does not violate the Fourth Amendment regardless of the officer’s motivation for stopping the vehicle. The Court also stated that stopping a vehicle for an improper racial purpose must be considered under the Equal Protection Clause of the Fourteenth Amendment, not the Fourth Amendment. [Author’s note: (1) This ruling effectively overruled State v. Morocco, 99 N.C. App. 421 (1990), which had ruled that the test for determining whether a stop is pretextual is what a reasonable officer would do rather than what an officer legally could do. The North Carolina Court of Appeals in State v. Hamilton, 125 N.C. App. 396 (1997), recognized that Whren effectively overruled Morocco. (2) The Court did not discuss whether its ruling also would apply when an officer has only reasonable suspicion to stop a vehicle for a traffic violation, although it likely would so rule; see, e.g., Ashcroft v. al-Kidd, 563 U.S. 731 (2011) (Court made clear that motive is irrelevant in application of reasonable suspicion standard, although that was not the issue decided in the case); United States v. Dumas, 94 F.3d 286 (7th Cir. 1996) (Whren applies to a stop based on reasonable suspicion). (3) The Court’s ruling did not change Fourth Amendment law that an officer may make an investigative stop of a vehicle based on reasonable suspicion. See State v. Styles, 362 N.C. 412 (2008).]

NORTH CAROLINA SUPREME COURT

State v. McClendon, 350 N.C. 630 (1999). Officer A saw the defendant driving a station wagon on I-85 at a speed of about 72 m.p.h. in a 65 m.p.h. zone, and the defendant was following closely behind a minivan that was going the same speed. The officer believed that the two vehicles were traveling together. With the assistance of Officer B, both vehicles were stopped. Officer A questioned the driver of the minivan and then issued a warning ticket for speeding. Officer B questioned the defendant. The defendant appeared nervous, did not make eye contact, and was breathing heavily. He produced a driver’s license and title to the vehicle but no registration. The defendant told the officer that the station wagon belonged to his girlfriend; however, he could not give the officer her name even though the addresses on the defendant’s driver’s license and the vehicle’s title were the same. As the defendant continued to answer questions, his nervousness increased. He fidgeted, answered evasively, and appeared very uncomfortable. The officer again asked the defendant for his girlfriend’s name and for the name on the vehicle’s registration. The defendant appeared to say “Anna.” Although that name did not appear on the title, a radio check did not reveal any problems with the registration or the defendant’s driver’s license. The name on the title was Jema Ramirez. After communicating with Officer A, Officer B issued a warning ticket to the defendant for speeding and following too closely. When asked to consent to a search of his vehicle, the defendant—sighing deeply, chuckling nervously, and looking down—muttered “no.” Officer A arrived. The defendant was sweating and breathing rapidly and again refused to consent to a search of his vehicle. Approximately fifteen to twenty minutes elapsed after the issuance of the warning ticket before a drug dog arrived and alerted to the vehicle, resulting in a search and the discovery of drugs.

The court adopted under the North Carolina Constitution the ruling in Whren v. United States, 517 U.S. 806 (1996), that stopping a vehicle for a traffic violation when there is probable cause to believe that the traffic violation was committed is constitutional regardless of the officer’s motivation for doing so. The court ruled that the officer in this case had probable cause for stopping the defendant’s vehicle for speeding and following too closely and therefore was justified in stopping it, regardless of the officer’s motivation for doing so (that is, even if the officer’s motive was to stop the vehicle for a drug investigation, it was properly stopped for the traffic violation).

State v. Smith, 346 N.C. 794 (1997). Officers received information that illegal drugs were located in a suitcase in a bedroom in the defendant’s house. The source of the information, the defendant’s girlfriend, who shared a bedroom with the defendant, told the officers that she would consent to a search. Officers decided to seek consent to search the house because they believed that they lacked probable cause to obtain a search warrant. [Author’s note: The procedure of approaching a house to ask consent to search is commonly known as “knock and talk.”] Officers arrived at the house with a drug dog. One of the residents—a person who lived there but who was not the girlfriend or the defendant—let them into the house. The girlfriend allowed the officers’ entry into and search of the bedroom she shared with the defendant. The drug dog alerted, and the officers seized illegal drugs there. The court, relying on Schneckloth v. Bustamonte, 412 U.S. 218 (1973), ruled that officers who approach a residence with the intent to obtain consent to conduct a warrantless search do not violate the Fourth Amendment by simply using such a procedure. [Author’s note: This ruling would apply whether or not the officers had probable cause to obtain a search warrant; see the court’s excerpt from Schneckloth included in its opinion.] The court also noted that the officers’ subjective state of mind in using such a procedure is irrelevant, citing Whren v. United States, 517 U.S. 806 (1996).

NORTH CAROLINA COURT OF APPEALS

State v. Parker, 183 N.C. App. 1 (2007). A narcotics detective was conducting surveillance of the defendant in response to a citizen’s complaint that the defendant was trafficking in methamphetamine. He stopped a vehicle that the defendant was driving because it was going approximately 60 m.p.h. in a 45 m.p.h. zone and then passed another vehicle at approximately 80 m.p.h. in a 55 m.p.h. zone. The court ruled that the narcotics detective had probable cause to stop the defendant’s vehicle for the speeding violations. The court noted prior case law (Whren v. United States, 517 U.S. 806 (1996); State v. McClendon, 350 N.C. 630 (1999)) that an officer’s subjective motivation is irrelevant when a stop is supported by probable cause. Also, the fact that an officer conducting a traffic stop did not later issue a traffic citation is irrelevant to the validity of the stop under State v. Baublitz, 172 N.C. App. 801 (2005). [Author’s note: Since the Parker ruling, the North Carolina Supreme Court in State v. Styles, 362 N.C. 412 (2008), ruled that reasonable suspicion, not probable cause, is the standard for all traffic stops.]

State v. Baublitz, 172 N.C. App. 801 (2005). An officer was conducting drug surveillance at a residence. The defendant and another person got into a vehicle and drove away. The officer followed the vehicle and saw it twice cross the center line of the highway. The officer stopped the vehicle, conducted a consent search, discovered cocaine in the vehicle, and arrested the defendant for possession of cocaine. The officer did not charge the defendant with the traffic violation. The court ruled that the officer had probable cause to stop the vehicle for the readily observed traffic violation under G.S. 20-146(a) (vehicle must be driven on right side of highway). The court noted that under State v. McClendon, 350 N.C. 630 (1999), the ulterior motive of the officer is irrelevant when there are objective circumstances justifying the officer’s action. The court also ruled that the officer’s failure to charge the defendant with the traffic violation was irrelevant to the validity of the stop. [Author’s note: Since the Baublitz ruling, the North Carolina Supreme Court in State v. Styles, 362 N.C. 412 (2008), ruled that reasonable suspicion, not probable cause, is the standard for all traffic stops.]

State v. Hamilton, 125 N.C. App. 396 (1997). An officer involved in drug surveillance stopped a vehicle because the driver and front seat passenger were not wearing seat belts as required by law. The court ruled, based on Whren v. United States, 517 U.S. 806 (1996), that because the officer had probable cause to believe that the seat belt law had been violated, the stop was consistent with the Fourth Amendment even though a reasonable officer might not have made the stop. The court recognized that the Whren ruling had effectively overruled State v. Morocco, 99 N.C. App. 421 (1990), ruling that the test for determining whether a stop is pretextual is what a reasonable officer would do, rather than what an officer legally could do.

FEDERAL APPELLATE COURTS

United States v. Scheetz, 293 F.3d 175 (4th Cir. 2002). Officers set up a checkpoint with two signs about 100 feet apart, both of which read “K-9 Check Point Ahead.” Officers stationed at the checkpoint checked driver’s licenses and looked for impaired drivers. There was no K-9 officer at the checkpoint. Narcotics officers in unmarked vehicles watched for motorists who threw items out of their vehicles or who made U-turns or took other evasive actions when they saw the signs. A vehicle executed an illegal U-turn after passing the first checkpoint sign but before reaching the checkpoint itself. The narcotics officers stopped the vehicle. The court ruled, distinguishing City of Indianapolis v. Edmond, 531 U.S. 32 (2000), and relying on Whren v. United States, 517 U.S. 806 (1996), that the commission of the illegal U-turn supported the stop of the vehicle.

United States v. Clayton, 210 F.3d 841 (8th Cir. 2000). An officer received an anonymous call that the defendant possessed methamphetamine and a sawed-off shotgun in his home. The officer then learned that there was an outstanding arrest warrant for the defendant for failure to appear on a speeding citation. The officer, along with several federal drug agents, executed the arrest warrant by arresting the defendant in his home and, with the defendant’s consent to search, seized methamphetamine and a sawed-off shotgun. The court ruled, relying on Whren v. United States, that the execution of the arrest was valid. The officer’s motive in executing the arrest warrant was irrelevant.

The Authority to Arrest: Probable Cause

Determination of Probable Cause

(This topic is discussed in the chapter text under “Determination of Probable Cause with or without an Arrest Warrant.”)

United States Supreme Court

Nieves v. Bartlett, 587 U.S. ___, 139 S. Ct. 1715 (2019). The Court ruled that because officers had probable cause to arrest plaintiff Bartlett, his First Amendment retaliatory arrest claim failed as a matter of law. Bartlett had sued the officers, alleging that they violated his First Amendment speech rights by arresting him for disorderly conduct and resisting arrest. Probable cause to make an arrest defeats a claim that the arrest was in retaliation for speech protected by the First Amendment.

District of Columbia v. Wesby, 583 U.S. 48 (2018). In this civil suit against the District of Columbia and five of its police officers brought by individuals arrested for holding a raucous late-night party in a house they did not have permission to enter, the Court held that the officers had probable cause to arrest the partygoers and were entitled to qualified immunity. As to probable cause, the Court concluded that “[c]onsidering the totality of the circumstances, the officers made an ‘entirely reasonable inference’ that the partygoers were knowingly taking advantage of a vacant house as a venue for their late-night party.” Id. at 57. In this respect, the Court noted the condition of the house, including, among other things, that multiple neighbors told the officers that the house had been vacant for several months and that the house had virtually no furniture and few signs of inhabitance. The Court also noted the partygoers’ conduct, including, among other things, that the party was still going strong when the officers arrived after 1:00 a.m., with music so loud that it could be heard from outside; upon entering, multiple officers smelled marijuana; partygoers had left beer bottles and cups of liquor on the floor; the living room had been converted into a makeshift strip club; and the officers found upstairs a group of men with a single, naked woman on a bare mattress—the only bed in the house—along with multiple open condom wrappers and a used condom. The Court further noted the partygoers’ reaction to the officers, including scattering and hiding at the sight of the uniformed officers. Finally, the Court noted the partygoers’ vague and implausible answers to the officers’ questions about who had given them permission to be at the house. The Court went on to hold that the officers were entitled to qualified immunity.

Maryland v. Pringle, 540 U.S. 366 (2003). After a vehicle was stopped for speeding by a law enforcement officer, a consent search revealed $763 of rolled-up cash in the glove compartment and five baggies of cocaine between the backseat armrest and backseat. All three vehicle occupants—the driver; the defendant, who was a front-seat passenger; and a back-seat passenger—denied ownership of the cocaine and the money. The Court ruled that the officer had probable cause to arrest the defendant as well as the other occupants. The Court stated that it was a reasonable inference from the facts that any or all three vehicle occupants knew and exercised dominion and control over the cocaine. A reasonable officer could conclude that there was probable cause to believe that the defendant committed the crime of possession of cocaine, either solely or jointly. The quantity of drugs and cash in the car indicated the likelihood of drug dealing, an enterprise to which a dealer would be unlikely to admit an innocent person with the potential to furnish evidence against him. Distinguishing United States v. Di Re, 332 U.S. 581 (1948), the court noted that no one in the car was singled out as the owner of the cocaine and cash in this case.

Ornelas v. United States, 517 U.S. 690 (1996). The Court ruled that an appellate court must exercise de novo review of a trial court’s determination of whether reasonable suspicion or probable cause existed. However, the Court noted, an appellate court should review findings of historical fact (that is, the facts underlying the issue of the existence of reasonable suspicion or probable cause) only for clear error and should give due weight to inferences drawn from those facts by trial courts and law enforcement officers.

Illinois v. Gates, 462 U.S. 213 (1983). The Supreme Court rejected the two-prong test of Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410 (1969), that had been used to analyze an informant’s information to support probable cause to issue a search warrant. The Court substituted a totality of circumstances test, in which an issuing magistrate considers the informant’s information along with other facts in determining probable cause. This test also is used in determining probable cause to arrest, including warrantless arrests. See, e.g., United States v. Miller, 925 F.2d 695 (4th Cir. 1991) (court found probable cause to make warrantless arrest; officer was not required to corroborate information from first-time informant when informant’s tip was substantially corroborated by officer’s observations and officer had previously arrested defendant for drug charges).

Hill v. California, 401 U.S. 797 (1971). When officers mistake a person for someone else they seek to validly arrest, the arrest is constitutionally reasonable under the Fourth Amendment if the arresting officers have probable cause to arrest the person sought and reasonably believe that the person arrested is the person sought. See also State v. Lynch, 94 N.C. App. 330 (1989).

Peters v. New York, 392 U.S. 40 (1968). An officer had probable cause to arrest the defendant for attempted burglary, based on his own observations and defendant’s furtive actions, including fleeing down an apartment hallway. Justice Harlan’s more-persuasive concurring opinion stated that the officer did not have probable cause to arrest, although the officer did have reasonable suspicion to stop the defendant forcibly and frisk him.

Sibron v. New York, 392 U.S. 40 (1968). An officer did not have probable cause to arrest when he observed the defendant talking with known narcotics addicts. He did not overhear the conversations and did not see anything pass between the defendant and any of the addicts.

Beck v. Ohio, 379 U.S. 89 (1964). An officer did not have probable cause to arrest when (1) his information showed only that the defendant had a prior gambling record and (2) his hearsay information was not related specifically to criminal activity.

Henry v. United States, 361 U.S. 98 (1959). An officer did not have probable cause to arrest when his information vaguely referred to involvement of the defendant’s accomplice in a crime and there was no other incriminating evidence. Probable cause to arrest may not be established with incriminating evidence that is seized after an arrest is made.

Draper v. United States, 358 U.S. 307 (1959). Probable cause to arrest existed when a reliable informant gave an officer detailed information and the officer’s observations of the defendant when he arrived at the local train station corroborated that information. See also State v. Ketchie, 286 N.C. 387 (1975).

North Carolina Supreme Court

State v. Parisi, 372 N.C. 639 (2019). The court ruled that the trial court erred by granting the defendant’s motion to suppress evidence obtained as a result of his arrest by an officer in this impaired-driving case. The court considered whether the trial court findings, which are conclusive on appeal if supported by competent evidence, supported its ultimate conclusion of law that an officer lacked probable cause to arrest the defendant for impaired driving. The trial court had made findings that the defendant admitted to consuming three beers, his eyes were red and glassy, a moderate odor of alcohol emanated from him, and he exhibited multiple indicia of impairment while performing various sobriety tests. The supreme court stated that it had “no hesitation” in concluding that these facts sufficed, as a matter of law, to establish probable cause for the officer’s arrest of the defendant.

State v. Daniel, 372 N.C. 202 (2019). The supreme court, per curiam and without an opinion, affirmed the court of appeals ruling, 259 N.C. App. 334 (2018), that because an officer had probable cause to arrest the defendant for impaired driving, the trial court erred by granting the defendant’s motion to suppress evidence obtained as a result of that arrest. Here, the trooper “clocked” the defendant traveling at 80 m.p.h. in a 65 m.p.h. zone. As the trooper approached the defendant’s vehicle, the defendant abruptly moved from the left lane of the highway into the right lane, nearly striking another vehicle before stopping on the shoulder. During the stop, the trooper noticed a moderate odor of alcohol emanating from the defendant and observed an open 24-ounce container of beer in the cup-holder next to the driver’s seat. The defendant told the trooper that he had just purchased the beer and was drinking it while driving down the highway. The defendant admitted that he had been drinking heavily several hours before the encounter with the trooper. The trooper did not have the defendant perform any field sobriety tests but did ask the defendant to submit to two Alco-sensor tests, both of which yielded positive results for alcohol. The court noted that while swerving alone does not give rise to probable cause, additional factors creating dangerous circumstances may, as was the case here.

State v. Biber, 365 N.C. 162 (2011). The court ruled that officers had probable cause to arrest the defendant for possession of a controlled substance found in a motel room. Officers responded to a motel based on a call from the motel manager that illegal activities, including drug use, were taking place in a room there. The officers’ conversation with the manager when they arrived confirmed the possibility of these activities. When the motel room door was opened, officers saw a woman sitting on a bed with a crack pipe and drug paraphernalia next to her. (The male defendant and another woman also were in the room.) Upon seeing the officers, the woman fled into the bathroom and flushed the toilet. A search of the bathroom revealed a bag containing what appeared to be cocaine or methamphetamine. The male defendant ignored instructions to remain still and instead moved about the room. When asked, the defendant asserted that he had rented the room and that a bag containing clothing was his. The court noted that the officers were confronted by the male defendant, who appeared to have brought two women and his own personal belongings into a room where drug use appeared to be taking place.

State v. Bone, 354 N.C. 1 (2001). An elderly woman was murdered in her apartment. A State Bureau of Investigation agent applied dye to the apartment floor and it raised shoe print impressions left in blood. A manager of a sporting goods store, along with a detective, examined a photograph of the impressions and determined that a Converse “Chuck Taylor” athletic shoe made the impressions. Within two months of the murder, an anonymous person called about this homicide and told police that Tony Bone (the defendant), a black male in his late 20s, climbed in an open window, punched an elderly female in the face so hard that her ears bled, and stole five dollars. The caller said that Bone worked for a moving company in Greensboro, lived in Trinity, North Carolina, was married, and was recently released from prison.

The court noted that a detective verified almost all of the anonymous caller’s information before he approached the defendant. For example, he learned that the defendant was married and worked at a moving company in Greensboro. A criminal history check revealed that the defendant had been released from prison about one year before the murder. A cut screen at the murder scene indicated access through an apartment window. The victim was found with blood on her face, and the primary cause of death was a broken neck. The only incorrect information was that the defendant lived in Trinity, North Carolina, although both Liberty and Trinity are small communities in northern Randolph County. The detective approached the defendant at the moving company and asked him if he would come downtown to speak about an undisclosed matter; the defendant agreed to do so. The detective noticed that the defendant was wearing “Chuck Taylor” athletic shoes.

The court ruled, relying on Illinois v. Gates, 462 U.S. 213 (1983), that the officer had probable cause to arrest the defendant. The information given by the anonymous caller was substantially corroborated by the known facts. In addition, the detective saw the defendant wearing “Chuck Taylor” shoes.

Best v. Duke University, 337 N.C. 742 (1994). The plaintiff sued defendant Duke University for malicious prosecution and other torts based on his arrest and prosecution for trespass and larceny. An officer saw the plaintiff’s vehicle enter the Duke Faculty Club driveway at 5:00 a.m., turn its lights off, and continue down the driveway. Ten or fifteen minutes later, the officer saw the plaintiff’s vehicle exit the driveway and go toward the rear of the Washington-Duke Hotel. The officer knew that the hotel was having problems with thefts. He decided to stop the vehicle by blocking it. However, the plaintiff drove his vehicle around the officer and sped away. The plaintiff did not stop even when the officer pulled beside him, rolled down his window, and flashed his badge. Eventually, the plaintiff stopped, and the officer saw wrought iron furniture inside the vehicle. The plaintiff said to another officer there (Russell) that he was taking the furniture to a friend’s house. A check of the Faculty Club then indicated that it was missing no furniture. The plaintiff was allowed to leave. The next day, Russell learned that furniture similar in description to the plaintiff’s furniture had in fact been stolen from the Faculty Club the previous night. Arrest warrants for larceny and trespass were obtained, and the plaintiff was arrested. At the criminal trial, the State, at the close of the State’s evidence, took a voluntary dismissal of the trespass charge without an explanation, and the judge found the defendant not guilty of the larceny charge.

The court examined the evidence and ruled that probable cause existed as a matter of law for the plaintiff’s arrest for trespass and larceny and his later prosecution for larceny; thus, defendant Duke University’s motion for a directed verdict on the malicious prosecution claim should have been granted at trial. The court rejected the plaintiff’s argument that the State’s voluntary dismissal of a criminal charge without an explanation is a prima facie showing of absence of probable cause in a malicious prosecution claim. The court distinguished its ruling in Pitts v. Village Inn Pizza, Inc., 296 N.C. 81 (1978) (disputed issue of whether probable cause existed in malicious prosecution claim when evidence showed prosecutor had voluntarily dismissed criminal charge before trial), because in Pitts the only evidence presented was the issuance of an arrest warrant charging a criminal offense and the prosecutor’s dismissal of that charge. In this case, uncontroverted evidence established probable cause as a matter of law; thus, the prosecutor’s voluntary dismissal was not sufficient evidence of a lack of probable cause to establish a question of fact for the jury. The court stated that it disapproved Pitts to the extent that it may be read to suggest otherwise. The court also noted that, unlike the prosecutor in Pitts, the prosecutor in this case had prosecuted the plaintiff on a second charge, larceny.

State v. Medlin, 333 N.C. 280 (1993). Atlantic Beach officers arrested the defendant in a breezeway outside a motel room in Atlantic Beach for a murder and robbery committed in Wake County, based on a mistaken belief that an arrest warrant had been issued in Wake County for these offenses. The court determined, however, that Atlantic Beach officers had sufficient information (see the court’s opinion) to establish probable cause to arrest based on the facts in this case. Therefore, the warrantless arrest was proper.

State v. Smith, 328 N.C. 99 (1991). The suspect in an armed robbery and murder committed around 5:30 a.m. in a rural area was described as a black male wearing blue jeans and a blue shirt. At 8:15 a.m., a uniformed officer in his patrol vehicle saw a person meeting that description walking on the side of a road two miles from the murder scene. The person stopped when he noticed the officer and then ran from the officer toward a farmhouse. At 9:30 a.m., officers saw a black male wearing blue jeans and a blue shirt running near the same farmhouse. They chased and apprehended him. When asked his name, the suspect responded, “I haven’t shot anybody.” The court ruled that probable cause existed to arrest the suspect, considering all the circumstances, including the suspect’s flight from the officer.

State v. Primes, 314 N.C. 202 (1985). The court ruled that the detention of a prisoner within prison confines for a recently committed murder was reasonable under the Fourth Amendment based on the facts in this case. The detention did not have to be supported with facts constituting probable cause.

State v. Thompson, 313 N.C. 157 (1985). A missing child was last seen with the defendant. There was probable cause to arrest the defendant for kidnapping when officers saw him without the child fourteen hours later and knew about the defendant’s prior history of sexual assaults.

State v. Freeman, 307 N.C. 357 (1983). An officer arrested the defendant without probable cause when he went to the defendant’s house, told the defendant that he was there to “pick him up,” and then took him without his consent to the sheriff’s department for questioning; the resulting confession was inadmissible. Compare with State v. Simpson, 303 N.C. 439 (1981) (defendant voluntarily went to police station).

State v. Zuniga, 312 N.C. 251 (1982). A 7-year-old was raped and murdered in a sparsely populated rural area near Taylorsville. The victim’s grandfather, who previously had employed the defendant as a farm worker, had seen the defendant earlier that day traveling in a taxicab to the grandfather’s home. (The victim’s body was found near the grandfather’s home.) Later that day, the defendant took a taxicab from Taylorsville to Statesville, where he boarded a bus destined for Arkansas.

The court ruled that the following facts established probable cause to arrest the defendant for murder when Tennessee officers took him into custody in a Tennessee bus station: the defendant’s unexplained presence at the grandfather’s home in a sparsely populated area, the discovery of the victim’s body near the home that day, and the defendant’s flight from the area by bus. Although a defendant’s location near the crime scene and other evidence in this case might support a reasonable suspicion to make an investigative stop of the defendant, the court’s finding of probable cause was questionable.

State v. Bright, 301 N.C. 243 (1980). Probable cause existed to arrest when the defendant matched a child sexual assault victim’s description of her assailant and his car matched the child’s description of the car in which she was abducted. Also, the defendant worked at the bowling alley where the child was abducted.

State v. Reynolds, 298 N.C. 380 (1979). The defendant called the sheriff’s department to report that he had found an elderly neighbor unconscious or dead in her house. Officers had probable cause to arrest him for murder after their investigation revealed that (1) he was not wearing shoes and bare footprints were found in and around the house; (2) he was shirtless and a blood-stained T-shirt was found in the house; (3) he was scratched about his face and torso and there was evidence of a vigorous struggle, and (4) the only unsecured entrance to the house was the window that the defendant said he had used to break into the house to check on the woman.

State v. Mathis, 295 N.C. 623 (1978). A robbery suspect escaped into a wooded area. An officer saw the defendant, who roughly matched the description of one of the robbery suspects, come onto a street off a hill that led into the wooded area. The defendant looked as though he had been in the woods; he was covered with grass and lice. The court ruled that probable cause existed to arrest him.

State v. Small, 293 N.C. 646 (1980). There was probable cause to arrest the defendant when (1) an officer observed him before dawn at a school and his clothing was bloody, (2) a homicide victim was found shortly thereafter in the same area, and (3) the officer went to the defendant’s home hours later and saw the bloody clothing again.

State v. Harris, 279 N.C. 307 (1971). There was probable cause to arrest the defendant when, within hours of a breaking and entering and larceny, he went directly to the place in the woods where the stolen items had been concealed.

State v. Roberts, 276 N.C. 98 (1970). A reliable informant’s information that was corroborated by officers’ observations gave them probable cause to arrest the defendant for possessing LSD, even though they had not seen drugs in his possession before the arrest. See also State v. Harrington, 283 N.C. 527 (1973); State v. Alexander, 26 N.C. App. 21 (1975); State v. Wooten, 34 N.C. App. 85 (1977); State v. Willis, 61 N.C. App. 23 (1983), modified and aff’d, 309 N.C. 451 (1983); State v. Hart, 64 N.C. App. 699 (1983).

State v. Tippett, 270 N.C. 588 (1967). There was probable cause to arrest the defendant for burglary when he was seen in the neighborhood in which the burglary occurred a few hours after it occurred and his description and clothing matched that of the suspected burglar.

North Carolina Court of Appeals

State v. Fields, 268 N.C. App. 561 (2019). The court ruled that the trial court did not err in finding that an officer did not have probable cause to arrest the defendant for impaired driving. The court rejected the State’s argument that certain findings of fact by the trial court were not supported by the evidence. In regard to the green pickup truck that the defendant was allegedly driving, the trial court found that the arresting officer testified that he did not see the truck park or see anyone get in or out of the truck. The State asserted that the officer testified that he observed a video at the mini mart where the truck was parked showing the defendant getting out of the truck. The court found that the officer testified that the video was lost because he left the flash drive containing the video in his patrol car when he took the car to a mechanic. The court ruled that the trial court determines the credibility of witnesses, the weight to be given to testimony, and reasonable inferences and that “[t]he trial court was free to give no weight to [the officer’s] testimony regarding viewing the Mini-mart video.” Id. at 568. The court rejected the State’s argument that probable cause existed to arrest the defendant for impaired driving. The court found that the trial judge’s findings supported his conclusion that the State failed to show that the defendant was driving and, although the truck was registered to the defendant, failed to establish a connection between the driver of the truck and the defendant.

State v. Clapp, 259 N.C. App. 839 (2018). The court ruled that probable cause supported the defendant’s second arrest for impaired driving. After the defendant’s first arrest for DWI, he signed a written promise to appear and was released. Thirty minutes later, Officer Hall saw the defendant in the driver’s seat of his vehicle at a gas station, with the engine running. The defendant had an odor of alcohol; slurred speech; red, glassy eyes; and was unsteady on his feet. The defendant told the officer that he was driving his vehicle to his son’s residence. The officer did not perform field sobriety tests because the defendant was unable to safely stand on his feet. Based on the defendant’s prior blood-alcohol reading—done less than two hours before the second incident—and the officer’s training about the rate of alcohol elimination from the body, the officer formed the opinion that the defendant still had alcohol in his system. The defendant was arrested a second time for DWI and, because of his first arrest, also for driving while license revoked. The trial court granted the defendant’s motion to suppress evidence obtained in connection with his second arrest. The State appealed, and the court of appeals reversed. The court began by determining that certain findings made by the trial court were not supported by competent evidence. The court then held that probable cause supported the defendant’s second arrest. The defendant admitted that he drove his vehicle between his two encounters with the police. During the second encounter, Officer Hall observed that the defendant had red, glassy eyes; an odor of alcohol; slurred speech; and was unsteady on his feet to the extent that it was unsafe to conduct field sobriety tests. While Hall did not observe the defendant’s driving behavior, he had personal knowledge that the defendant had a blood-alcohol concentration of 0.16 one hour and forty minutes prior to the second encounter. And Hall testified that based on standard elimination rates of alcohol for an average individual, the defendant probably still would have been impaired.

State v. Wilkes, 256 N.C. App. 385 (2017). The court ruled that officers had probable cause to arrest the defendant and that, thus, the trial court did not err by denying the defendant’s motion to suppress incriminating statements he made after his arrest. After law enforcement officers discovered a woman’s body inside an abandoned, burned car, they arrested the defendant. During questioning after arrest, the defendant implicated himself in the woman’s murder. He unsuccessfully moved to suppress those incriminating statements and challenged the trial court’s denial of his suppression motion on appeal. At the time the officers arrested the defendant, they had already visited the victim’s home and found a knife on a chair near a window with the screen cut. When they questioned the victim’s boyfriend, he admitted that he was with the defendant at the victim’s home on the night of the murder and that, after the victim locked the two men out of her house, the boyfriend cut the screen, entered the house through the window, unlocked the door from the inside, and let the defendant in. These facts and circumstances constituted sufficient information that would lead a reasonable officer to believe that the defendant had committed a breaking and entering. Thus, regardless of whether the officers had probable cause to arrest the defendant for murder, they had probable cause to arrest the defendant for that lesser crime.

State v. Messer, 255 N.C. App. 812 (2017). In this armed robbery and murder case, the court ruled that the trial court did not err by concluding that law enforcement officers had probable cause to arrest the defendant. Among other things, the defendant placed a telephone call using the victim’s cell phone about twenty minutes before the victim’s death was reported to law enforcement, the defendant spent the previous night at the victim’s residence, the victim’s son had last seen his father with the defendant, the victim’s Smith and Wesson revolver was missing and a Smith and Wesson revolver was found near the victim’s body, and the defendant was seen on the day of the victim’s death driving an automobile matching the description of one missing from the victim’s used car lot.

State v. Lindsey, 249 N.C. App. 516 (2016). An officer had probable cause to arrest the defendant for DWI. After the officer stopped the defendant’s vehicle, he smelled a moderate odor of alcohol coming from the defendant and noticed that the defendant’s eyes were red and glassy. Upon administration of an HGN test (which tests for the involuntary jerking of a subject’s eyes that is impacted by alcohol consumption), the officer observed five of six indicators of impairment. The defendant was unable to provide a breath sample for an Alco-Sensor, which the officer viewed as a willful refusal. The defendant admitted that he had consumed three beers, though he said that his last consumption was nine hours prior. The officer arrested the defendant for DWI. The court stated: “Without even considering defendant’s multiple failed attempts to provide an adequate breath sample on an [A]lco-sensor device, we hold the trial court’s findings support its conclusion that there was probable cause to arrest defendant for DWI.” Id. at 523.

State v. Williams, 248 N.C. App. 112 (2016). An officer had probable cause to arrest the defendant for DWI. The officer responded to a call involving the operation of a golf cart and serious injury to an individual. The defendant admitted to the officer that he was the driver of the golf cart. The defendant had “very red and glassy” eyes and “a strong odor of alcohol coming from his breath.” Id. at 119. The defendant’s clothes were bloody, and he was very talkative, repeating himself several times. The defendant’s mannerisms were “fairly slow,” and he placed a hand on the officer’s patrol car to maintain his balance. The defendant stated that he had “6 beers since noon” and submitted to an Alco-Sensor test, which was positive for alcohol.

State v. Overocker, 236 N.C. App. 423 (2014). The court ruled that the trial court properly granted the defendant’s motion to suppress when probable cause did not support the defendant’s arrest for impaired driving and unsafe movement. The defendant was arrested after he left a bar, got in his SUV, and backed into a motorcycle that was illegally parked behind him. The officer relied on the following facts to support probable cause: the accident, the fact that the defendant had been at a bar and admitted to having three drinks (in fact he had four), the defendant’s performance tests, and the odor of alcohol on the defendant. However, the officer testified that the alcohol odor was “light.” Additionally, none of the officers on the scene observed the defendant staggering or stumbling, and his speech was not slurred. Also, the only error the defendant committed in the field sobriety tests was to ask the officer halfway through each test what to do next. When instructed to finish the tests, the defendant did so. The court concluded:

[W]hile defendant had had four drinks in a bar over a four-hour time frame, the traffic accident . . . was due to illegal parking by another person and was not the result of unsafe movement by defendant. Further, defendant’s performance on the field sobriety tests and his behavior at the accident scene did not suggest impairment. A light odor of alcohol, drinks at a bar, and an accident that was not defendant’s fault were not sufficient circumstances, without more, to provide probable cause to believe defendant was driving while impaired. Id. at 435.

The court also rejected the State’s argument that the fact that the officer knew the defendant’s numerical reading from a portable breath test supported the arrest, noting that under G.S. 20-16.3(d), the alcohol-concentration result from an alcohol screening test may not be used by an officer in determining if there are reasonable grounds to believe that the driver committed an implied consent offense, such as driving while impaired.

State v. Townsend, 236 N.C. App. 456 (2014). The court ruled that probable cause supported the defendant’s arrest for DWI. When the officer stopped the defendant at a checkpoint, the defendant had bloodshot eyes and a moderate odor of alcohol. The defendant admitted to “drinking a couple of beers earlier” and that he “stopped drinking about an hour” before being stopped. Id. at  465. Two Alco-Sensor tests yielded positive results, and the defendant exhibited clues indicating impairment on three field sobriety tests. The court rejected the defendant’s argument that because he did not exhibit signs of intoxication such as slurred speech, glassy eyes, or physical instability, there was insufficient probable cause, stating that “as this Court has held, the odor of alcohol on a defendant’s breath, coupled with a positive alco-sensor result, is sufficient for probable cause to arrest a defendant for driving while impaired.” Id.

State v. Williams, 225 N.C. App. 636 (2013). The court ruled that probable cause supported the defendant’s arrest for DWI. Officers responded to a one-car accident at 4:00 a.m. The defendant was lying on the ground behind the car and appeared very intoxicated. His shirt was pulled over his head, and his head was in the sleeve hole of the shirt. He appeared unconscious. When an officer tried to arouse the defendant, he woke up and started chanting. He had a strong odor of alcohol. He stood up and fell back. The key was in the ignition, and the car was not running. No other person was present.

State v. Banner, 207 N.C. App. 729 (2010). The court ruled that if the underlying charges that form the basis for an order for arrest (OFA) for a failure to appear in court remain unresolved at the time the OFA is executed, the OFA is not invalid and an arrest made pursuant to it is not unconstitutional merely because a clerk or judicial official failed to recall the OFA after learning that it was issued erroneously. On February 22, 2007, the defendant was cited to appear in Wilkes County Court for various motor vehicle offenses (Wilkes County charges). On June 7, 2007, he was convicted in Caldwell County of unrelated charges and sent to prison. When a court date was set on the Wilkes County charges, the defendant failed to appear because he was still in prison on the unrelated charges, and no writ was issued to secure his presence. The court issued an OFA for the failure to appear. When the defendant was scheduled to be released from prison on the unrelated charges, Department of Correction employees asked the Wilkes County clerk’s office to recall the OFA, explaining that the defendant had been incarcerated when it was issued. However, the OFA was not recalled, and on October 1, 2007, the defendant was arrested pursuant to that order, having previously been released from prison. When he was searched incident to arrest, officers found marijuana and cocaine on his person. The court rejected the defendant’s argument that the OFA was invalid because the Wilkes County clerk failed to recall it as requested, concluding that because the underlying charges had not been resolved at the time of arrest, no automatic recall occurred. The court further noted that even if good cause to recall existed, recall was not mandatory, and therefore a failure to recall did not nullify the OFA. Thus, the officers were entitled to rely on it, and no independent probable cause was required to arrest the defendant. The court declined to resolve the issue of whether there is a good-faith exception to Article I, Section 20, of the North Carolina Constitution.

Steinkrause v. Tatum, 201 N.C. App. 289 (2009), aff’d, 364 N.C. 419 (2010). Officers arrived at a scene of an accident and found the driver’s vehicle upside down in a ditch next to an exit ramp, where it had come to rest after having rolled several times. One officer smelled an odor of alcohol about the driver’s person. The court ruled that the nature of the accident and the odor of alcohol provided probable cause to arrest the driver for DWI. The court also ruled that hearsay information (one officer told the arresting officer that the driver had the odor of alcohol about her person) was admissible to establish that the arresting officer had probable cause to arrest the driver for DWI.

State v. Brown, 199 N.C. App. 253 (2009). The court ruled that an officer had probable cause to arrest the defendant for murder based on information given by an anonymous caller who later revealed his identity to the officer before the arrest. The informant stated the name of the defendant, how he committed the murder, why he committed the murder, and exactly where he lived. The officer corroborated that information with facts gathered throughout the investigation.

State v. Hocutt, 177 N.C. App. 341 (2006). The defendant was convicted of first-degree murder. When officers left the murder scene around 11:30 p.m., they saw the defendant walking barefoot along a road. He had scratches all over his body, was very dirty, and was staggering. The officers recognized the defendant and saw that he was very intoxicated. They placed him in handcuffs and took him to jail for “detox purposes,” “to sober up.” The court ruled, distinguishing Davis v. Town of Southern Pines, 116 N.C. App. 663 (1994), that the officers lawfully seized the defendant under the public intoxication statute, G.S. 122C-303. The court concluded that the defendant met the statutory criteria because he was “apparently in need of and apparently unable to provide for himself” clothing and possibly shelter. The court rejected the defendant’s argument that the officers only had the authority to take the defendant to his home, not to jail.

State v. Stanley, 175 N.C. App. 171 (2005). A law enforcement officer received a call from a confidential informant concerning a person selling drugs outside a local convenience store. The officer had worked with the informant for fourteen years, and the informant’s information had proven to be reliable, leading to at least 100 arrests and convictions. The person was described by the informant as a black male wearing a blue ski hat, a dark jacket, and blue jeans and standing beside a Citgo gas station on Sugar Creek Road. The informant said that the person possessed crack cocaine and was selling it. Approximately thirty to forty-five minutes later, the officer and another officer met with the informant a short distance from the Citgo. The informant told the officers that the person was still there and selling crack cocaine. The officers went to the Citgo and saw a person (along with two or three others in the parking lot who did not match the informant’s description), later identified as the defendant, matching the description given by the informant. The court ruled that this information provided the officers with probable cause to arrest the defendant.

State v. Chadwick, 149 N.C. App. 200 (2002). A reliable informant gave an officer information that the defendant would be delivering a large amount of cocaine to a specific location in about fifty minutes. The informant described the driver and the make of the vehicle in which the defendant would be a passenger, the direction of the vehicle’s travel to the location, and where the vehicle would park. The informant said that the defendant would act as if he were there to use the telephone and then conduct a drug transaction. The officer had previously set up a drug deal with the defendant. The officer conducted surveillance at the place and corroborated all of the informant’s information. The court ruled that the officer had probable cause to arrest and search the defendant, citing several cases, including State v. Wooten, 34 N.C. App. 85 (1977), and State v. Mills, 104 N.C. App. 724 (1991).

State v. Milien, 144 N.C. App. 335 (2001). On December 16, 1998, a drug officer conducting surveillance near a mobile home park saw the defendant bury a bag containing two or three ounces of an off-white, rocky substance in a wooded area. On December 18, 1998, two officers set up surveillance near the place where the bag was buried. Other officers went to the mobile home park and spoke with several men, including the defendant. The men consented to being frisked, but no drugs were found. An officer told the men that he was going to get a drug dog to search the wooded area. The officers then left in their cars. The officers conducting the surveillance watched the defendant go to the exact place where he had buried the bag two days earlier, dig up the bag, and place it in his jacket pocket. The defendant then got in his vehicle. The officers followed the defendant in their vehicle. The defendant threw the bag out of his vehicle into the woods. The defendant did not stop his vehicle when the officers put on their blue lights, but he stopped after they turned on their siren. The officers handcuffed the defendant, but they did not formally arrest him. One officer found the plastic bag after approximately fifteen minutes. The defendant was then placed under arrest.

The trial judge ruled that reasonable suspicion supported the detention of the defendant before his formal arrest and denied the defendant’s motion to suppress. The court stated that it was unnecessary to determine whether the detention of the defendant before his formal arrest exceeded the scope of an investigative stop and required probable cause, because probable cause existed to justify the seizure of the defendant when he was handcuffed. The court cited State v. Harrington, 283 N.C. 527 (1973), on the probable cause issue.

State v. Crawford, 125 N.C. App. 279 (1997). Responding to a call from a department dispatcher about a suspicious vehicle on the side of a road in a rural area, a deputy sheriff saw a car parked there with its engine off. The driver’s door was open, and the defendant was sitting in the driver’s seat with one leg hanging out of the car. The defendant was in a semiconscious state. His knee and shirt were wet with drool, and his pants were undone. The deputy asked the defendant if he was okay. He was initially unresponsive and appeared to have trouble speaking. As the deputy looked for a medical alert bracelet, he detected a strong odor of alcohol on the defendant’s breath. He then felt the hood of the car and, although the outdoor temperature was 26 degrees, the hood was warm. When the defendant finally spoke, he had a slight slur in his speech. The deputy asked him if he had been drinking, and the defendant replied, “Yes.” When asked how much he had had to drink, the defendant replied, “Some.” The deputy then asked the defendant several times to step out of the car. The defendant failed to respond to the deputy’s first request to get out of the car and answered “no” to the second request. After the third request, the defendant replied, “I’m not going anywhere with you.” The defendant then started to put a key into the ignition. The deputy removed the defendant from the car and arrested him for impaired driving. The court noted that the degree of certainty necessary for probable cause is a fair probability and ruled that this evidence supplied probable cause to arrest the defendant for impaired driving.

The court also ruled, relying on In re Pinyatello, 36 N.C. App. 542 (1978), that this evidence supported, under G.S. 15A-401(b)(2), the officer’s warrantless arrest for the misdemeanor of impaired driving committed outside the officer’s presence, because the defendant presented a danger to himself and others if not immediately arrested. [Author’s note: Although not applicable to the date on which the offense in this case occurred, G.S. 15A-401(b)(2)(c) now authorizes an officer to make a warrantless impaired-driving arrest without any additional justification (such as danger to the defendant or others), even if the offense was committed outside the officer’s presence.]

State v. Rogers, 124 N.C. App. 364 (1996). An officer was directing traffic with hand signals when the defendant’s vehicle approached the intersection where the officer was located. Instead of turning left as the officer directed, the defendant stopped his vehicle in the intersection. The officer approached the vehicle and noticed a strong odor of alcohol on the defendant’s breath. The officer directed the defendant to drive to the shoulder of the road, and the defendant complied with that directive. The officer then administered an Alco-Sensor test, which revealed a reading of 0.13, and the officer arrested the defendant for impaired driving.

(1) The court upheld the trial judge’s ruling that the officer had reasonable suspicion, based on the strong odor of alcohol on the defendant’s breath, to stop the defendant’s vehicle. (2) The trial judge also ruled that the strong odor of alcohol was sufficient to establish probable cause to arrest the defendant for impaired driving. The judge declined to base a finding of probable cause on the Alco-Sensor test reading because the officer failed to give a second test in what the judge stated was a violation of G.S. 20-16.3(b). The court upheld the trial judge’s ruling that there was probable cause to arrest the defendant for DWI. The court noted the evidence of the strong odor of alcohol on the defendant’s breath but stated that the evidence of the Alco-Sensor reading could also be considered in establishing probable cause, even though the failure to give a second test violated G.S. 20-16.3(b). The court stated: “There is no prohibition against the results of this test being used by the officer to form probable cause, although this evidence may not have been admissible at trial.” Id. at 370.

State v. Taylor, 117 N.C. App. 644 (1995). Officer A knew that the defendant had been previously arrested for drugs and had a reputation in the community as a drug dealer. Officer A and other officers saw the defendant with others in an area known for drug trafficking. As the officers approached the area in their marked car, the defendant left. The officers then saw him at a nearby intersection. The defendant stopped as the police car approached him. As Officer A got out of the car, the defendant walked toward him and dropped something on the ground. The officer approached the defendant and brought him over to the police car. He determined that the dropped item was marijuana and arrested the defendant. He then noticed that the defendant was talking “funny” and ordered him to spit out whatever was in his mouth. The defendant spit out individually wrapped pieces of crack cocaine.

The court ruled that (1) the defendant was not seized until after he dropped the item to the ground, because he had not yielded to a show of authority before then—see California v. Hodari D., 499 U.S. 621 (1991); (2) after the defendant dropped the item, Officer A had reasonable suspicion to detain the defendant, considering everything the officer knew; (3) Officer A had probable cause to arrest the defendant when he determined that the item was marijuana; and (4) even if the defendant did not voluntarily spit out the cocaine, it was admissible as a search incident to arrest.

Moore v. Hodges, 116 N.C. App. 727 (1994). A trooper arrived at the scene of a one-car accident and saw Moore’s vehicle in the ditch on the side of the road. Moore was lying down in the back of a rescue squad vehicle while being treated for injuries. She told the trooper at the hospital that she was driving the vehicle and it went off the road. She admitted having had some liquor earlier in the day. The trooper noticed Moore’s mumbled speech and detected a faint odor of alcohol about her. He administered an alcohol screening test, authorized for probable cause determinations under G.S. 20-16.3(d), using an Alco-Sensor, which is approved under N.C. Administrative Code title 15A, rule 19B.0503(a). The test registered a result higher than 0.10. The court ruled that, based on these facts, the trooper had probable cause to believe that Moore had committed impaired driving.

Davis v. Town of Southern Pines, 116 N.C. App. 663 (1994). The civil plaintiff sued law enforcement officers and the town for violating her Fourth Amendment rights by taking her to jail for allegedly being intoxicated in public. The evidence, taken in the light most favorable to the plaintiff on the defendant’s motion for summary judgment, showed that the plaintiff was publicly intoxicated at 1:30 a.m. and that she tripped and fell while walking to a phone booth to call a cab. The plaintiff told law enforcement officers that she was not bothering anybody and that she was going to call a cab to take her home. The plaintiff’s sister offered to call a cab for the plaintiff and take care of her. The officers then took the plaintiff to jail against her will, which the court ruled constituted an arrest under the Fourth Amendment. The court also ruled that, based on these proffered facts, the officers did not have probable cause to believe that the plaintiff was in need of assistance under G.S. 122C-303. G.S. 122C-303 authorizes officers to take a publicly intoxicated person to jail (1) if the person is apparently in need of and apparently unable to provide for himself or herself food, clothing, or shelter but is not apparently in need of immediate medical care and (2) if no other facility is readily available to receive the person.

State v. Trapp, 110 N.C. App. 584 (1993). On January 3, 1991, a confidential informant advised Detective Hines that Steven James would be driving from Jacksonville to Maysville that night to make a cocaine purchase. The informant said James would return to Jacksonville and go to 106 Circle Drive and then to the Triangle Motel. Another confidential informant advised Detective Selogy that drugs were being sold at 106 Circle Drive and that James and his girlfriend, defendant Trapp, lived at that address. The informant also said that defendant Trapp hid the drugs in her vagina while they were being transported. [Author’s note: It did not appear from the court’s opinion that either informant told the detectives the basis of his or her knowledge about James’s and defendant Trapp’s activities.] That night the detectives saw people matching the description provided by one of the informants leave a car and enter 106 Circle Drive and later leave that address in the same car and arrive at the Triangle Motel. When they left the motel, Detective Selogy followed the car and activated his blue lights. He saw the female passenger, later identified as defendant Trapp, move closer to the driver, later identified as James, and then saw the male driver put his hand over the female’s lap as he was looking in the rearview mirror. After the car was stopped, defendant Trapp was taken to the police station. The court ruled that, based on the informants’ information and the officers’ corroboration of that information, the detectives had probable cause to arrest the defendant when they stopped the car. The court relied on several cases, including Draper v. United States, 358 U.S. 307 (1959), and Illinois v. Gates, 462 U.S. 213 (1983).

State v. Mills, 104 N.C. App. 724 (1991). At about 11:00 p.m., two officers (Cruz and Brigman) in an unmarked car approached an intersection in an undercover attempt to purchase drugs. Another officer (Foster) followed the car at a distance. (Foster and Cruz had seen prior drug sales at the intersection. According to their observations, drug dealers approached cars at that intersection when the driver of a car pulled to the side of the road and turned off the headlights.) Cruz and Brigman approached the intersection, turned off the car’s headlights, and saw the defendant and another man standing at the corner. (Foster previously had seen the defendant at the corner with other people soliciting cars parked at the intersection, and he had seen the defendant approaching cars. Foster also recognized the defendant’s companion as a lookout for drug dealers.) When the defendant approached within one and one-half feet of the parked car occupied by Cruz and Brigman, his companion shouted a warning that they were the police. The defendant then turned and walked quickly away from the car. Foster blocked the defendant with his car and noticed that the defendant was “almost shaking” and acting very nervous. Foster searched the defendant’s pockets and found a crack pipe and a $10 bill with crack cocaine inside.

The court upheld the search on two independent grounds. (1) The officer had probable cause to arrest the defendant, and the search was incident to arrest—a search may precede a formal arrest if probable cause to arrest exists before the search and the evidence seized is not considered in establishing probable cause. The court noted the following factors in considering probable cause: the time of day, the defendant’s suspicious behavior, the defendant’s flight from the officers, and the officers’ knowledge of the defendant’s past criminal conduct. (2) Probable cause existed to search the defendant for cocaine, and exigent circumstances permitted the officers to search him without a search warrant.

Richardson v. Hiatt, 95 N.C. App. 196 (1989). An officer had probable cause to arrest the defendant as follows: the defendant had been involved in a one-car accident, going off the road into a ditch; driving conditions were excellent; the officer noticed a strong odor of alcohol about the defendant; and the defendant admitted that he had fallen asleep at the wheel. For other cases finding probable cause to arrest a defendant for impaired driving, see State v. Tappe, 139 N.C. App. 262 (2000); State v. Rogers, 124 N.C. App. 364 (1996); State v. Adkerson, 90 N.C. App. 333 (1988).

State v. Turner, 94 N.C. App. 584 (1989). Officers boarded a commercial bus that was stopped at the Raleigh bus terminal while passengers were entering and leaving it. Officers interviewed the defendant and another man named Ricketts and learned that both had traveled from Fort Lauderdale, Florida, and were bound for Winchester, Virginia. Both had Jamaican accents. While speaking to Ricketts, one officer saw several bulges in his jacket. When the officer asked permission to search the jacket, Ricketts fled the bus and was arrested. Officers searched the jacket and found several ball-shaped objects containing crack cocaine. An officer went to the defendant’s seat and asked him to stand. (The court ruled that the officer’s action was not a seizure because the trial court had found that the defendant was free to leave then.) When the defendant stood, the officer noticed a bulge in the defendant’s pants identical to the balls that had been removed from Rickett’s jacket. The defendant refused to respond to the officer’s questions about the bulge and whether he was traveling with Ricketts. The court ruled that, based on these facts, the officer had probable cause to arrest the defendant for possessing illegal drugs.

State v. Lynch, 94 N.C. App. 330 (1989). An officer mistakenly but reasonably believed that the defendant was another individual for whom arrest warrants had been issued; the court stated that this information was at least sufficient to provide a basis to stop the defendant and require him to identify himself. When the officer stopped the defendant’s vehicle and asked him to identify himself, the defendant fled. The court ruled that the officer then had probable cause to arrest him for a violation of G.S. 14-223 (resisting, delaying, or obstructing an officer discharging an official duty). See also State v. McNeill, 54 N.C. App. 454 (1981) (similar ruling; officer stopped defendant with reasonable suspicion and defendant fled); State v. Swift, 105 N.C. App. 550 (1992) (similar ruling; defendant fled from officers who had reasonable suspicion to stop him); State v. Washington, 193 N.C. App. 670 (2008) (similar ruling; defendant fled from officers who had reasonable suspicion to stop him and defendant fled from them).

State v. Williams, 32 N.C. App. 204 (1977). There was no probable cause to arrest for possession of drugs when the evidence consisted of only an officer’s observations in a drug area of two people joining hands and one of them putting his hand in his pocket.

State v. Cooper, 17 N.C. App. 184 (1972). Officers had probable cause to arrest the defendant, who was walking on a deserted street late at night near a shop that just had been broken into. The arrest occurred shortly after a security officer had seen two men loading clothes into a van parked at the shop’s rear door and a few minutes after one of the suspects had eluded the security officer in the same area.

Federal Appellate Courts

United States v. Myers, 986 F.3d 453 (4th Cir. 2021). A Norfolk, Virginia, police officer was watching a bus stop in an area known as a drug-trafficking hub and observed the defendant exit a bus from New York without any luggage. Within minutes, a car picked him up. Officers followed the car, which they suspected was in violation of the state window-tint law. The car passed two convenience stores and stopped at a third, then travelled back to the bus stop area. Officers found these movements suspicious and eventually stopped the car for speeding and the window-tint violation. Officers immediately noticed the smell of burnt marijuana when approaching the car. A search of the car revealed a 300-gram brick of fentanyl, along with a gun, cash, and multiple cell phones. The driver admitted that the gun, money, and phones were his, but neither he nor the defendant admitted to possession of the drugs. The officer arrested both men. The defendant moved to suppress, arguing that no probable cause particularized to him existed supporting his arrest (he did not challenge the stop). After the motion was denied, the defendant pled guilty and appealed the denial of his motion.

On appeal, the Fourth Circuit unanimously affirmed. Officers knew the bus stop was a hub for drug smuggling; the defendant left the bus from New York without any luggage; the car that picked him up drove an “unusually circuitous route”; officers smelled marijuana after stopping the car; and a distribution-level amount of drugs was found, which neither occupant claimed (but which was accessible by each). On these facts, it was reasonable to infer a relationship between the two men under the totality of circumstances. That the driver here claimed some of the contraband items did not meaningfully distinguish the facts from those in Maryland v. Pringle, 540 U.S. 366 (2003). The court noted that while the role of each occupant was not known to the officer in Pringle, the officer well could conclude that the community of conduct suggested by the circumstances particularized the suspicion as to all three and thus justified their arrest. The same is true for the defendant and the driver of the car in which the fentanyl was found.

S.P. v. City of Takoma, 134 F.3d 260 (4th Cir. 1998). The court ruled that officers had probable cause to believe, based on the facts set out in the court’s opinion, that there was a clear and imminent danger that the plaintiff (in this civil lawsuit against the city), as a result of a mental disorder, would harm herself if left alone. Thus, they had probable cause to detain her for the limited purpose of transporting her for an emergency mental evaluation. She was later involuntarily committed under Maryland law. Compare with Bailey v. Kennedy, 349 F.3d 731 (4th Cir. 2003) (no probable cause to seize person for emergency medical evaluation).

Collective Knowledge of All Officers

(This topic is discussed in the chapter text under “The Authority to Make an Investigative Stop: Reasonable Suspicion,” “Determination of Reasonable Suspicion,” “Collective Knowledge of Officers.”)

UNITED STATES SUPREME COURT

United States v. Hensley, 469 U.S. 221 (1985). An officer who is making an arrest or an investigative stop for a felony need not know the facts constituting probable cause or reasonable suspicion if the other officer or the agency that issued a directive or flyer to arrest or to stop had the facts that constitute probable cause or reasonable suspicion. See also Whiteley v. Warden, 401 U.S. 560 (1971); State v. Zuniga, 312 N.C. 251 (1984); State v. Nixon, 160 N.C. App. 31 (2003); State v. Whitehead, 42 N.C. App. 506 (1979); State v. Tilley, 44 N.C. App. 313 (1979). [Author’s note: The Hensley ruling would apply to a stop for a misdemeanor as well as for a felony.]

NORTH CAROLINA COURT OF APPEALS

State v. Watkins, 120 N.C. App. 804 (1995). An officer stopped a vehicle for impaired driving. A prior appeal of this case determined that anonymous information and the officer’s observations provided reasonable suspicion for the stop; see State v. Watkins, 337 N.C. 437 (1994). In later proceedings, the defendant filed a supplemental suppression motion based on newly discovered evidence that the anonymous information had been supplied to the stopping officer by another officer who had fabricated the information (there was no evidence that the stopping officer knew that the information was fabricated). The court ruled that reasonable suspicion that is based on information fabricated by a law enforcement officer and supplied to another law enforcement officer may not serve as a basis for a stop, even though the stopping officer did not know that the information was fabricated.

State v. Battle, 109 N.C. App. 367 (1993). Officer Harmon responded to a disturbance call at a washerette and saw the defendant seated behind the steering wheel of a red Pontiac. The officer noticed the odor of alcohol on the defendant’s breath, and the defendant also performed physical tests poorly. The officer told the defendant not to drive the vehicle because he believed the defendant was impaired by alcohol. The officer left the washerette, radioed Officer Beekin to be on the lookout for the Pontiac, and gave Beekin the vehicle’s license plate number. Officer Beekin later saw the Pontiac leave the washerette, followed it for four blocks, did not see anything unusual about its operation, and then stopped it.

The court ruled that Officer Harmon, before he communicated his request to be on the lookout for the Pontiac, had reasonable suspicion that the defendant, impaired by alcohol, would leave the parking lot operating the vehicle. Although Officer Beekin did not personally have the information to establish reasonable suspicion and had not been told that information by Officer Harmon, Officer Beekin validly stopped the Pontiac based on Harmon’s request, which was based on reasonable suspicion.

State v. Coffey, 65 N.C. App. 751 (1984). The information that justifies an arrest need not be personally known by the arresting officer when the collective knowledge of the officers of three different law enforcement agencies who were participating together in a drug investigation was sufficient to establish probable cause to arrest.

Objective Standard in Determining Reasonable Suspicion, Probable Cause, or the Fact of Arrest

(This topic is discussed in the chapter text under “Objective Standard.”)

UNITED STATES SUPREME COURT

Devenpeck v. Alford, 543 U.S. 146 (2004). Based on information that the plaintiff had impersonated a law enforcement officer while using his own vehicle to stop a motorist, an officer stopped the plaintiff’s vehicle to investigate. The officer’s suspicions about the plaintiff’s impersonating an officer increased based on information learned after the stop. Another officer joined the stopping officer and discovered that the plaintiff had been taping his conversations with the two officers. They arrested the defendant for what they believed was an unlawful taping violation. However, a state appellate court ruling at the time of this arrest had clearly established that the plaintiff’s taping was not unlawful. There were two other offenses for which the officers could possibly have made an arrest: (1) impersonating an officer and (2) obstructing a law enforcement officer. The plaintiff sued the officers for making an arrest without probable cause under the Fourth Amendment. A federal appellate court ruled that the officers did not have probable cause to arrest. It rejected the officers’ claim that there was probable cause to arrest the plaintiff for impersonating an officer and obstructing a law enforcement officer, because those offenses were not “closely related” to the offense (illegal taping) identified by the officers when they arrested the plaintiff. The Court reversed the federal appellate court’s ruling. The Court ruled, relying on Whren v. United States, 517 U.S. 806 (1996), and Arkansas v. Sullivan, 532 U.S. 769 (2001), that the Fourth Amendment requires only that an officer arrest a person based on probable cause that a crime was or is being committed. The Court rejected a requirement that an offense establishing probable cause must be closely related to, and based on the same conduct as, the offense that the arresting officer identified when the arrest occurred. The Court stated that an officer’s subjective reason for making an arrest need not be the criminal offense for which the known facts provide probable cause. The Court remanded the case for a determination as to whether there was probable cause for the two offenses for which the officers could have made an arrest. [Author’s note: The Court’s ruling effectively overrules the “sufficiently related” analysis in Glenn-Robinson v. Acker, 140 N.C. App. 606 (2000), discussed below.]

NORTH CAROLINA SUPREME COURT

State v. Nicholson, 371 N.C. 284 (2018). The state supreme court found that the court of appeals, 255 N.C. App. 665 (2017), placed undue weight on an officer’s subjective interpretation of the facts (the officer’s testimony suggested that he did not believe he had reasonable suspicion of criminal activity) rather than focusing on how an objective, reasonable officer would have viewed them. The court noted that an action is reasonable under the Fourth Amendment, regardless of the officer’s state of mind, if the circumstances viewed objectively justify the action.

State v. Freeman, 307 N.C. 357 (1983). The subjective beliefs of an officer or a suspect are not dispositive in determining whether the suspect was seized under the Fourth Amendment. The defendant was seized—arrested without probable cause—when an officer went to his home and told him he was there to “pick him up” and took him to the police station without his consent, where a confession was obtained. See also United States v. Holloway, 962 F.2d 451 (5th Cir. 1991) (officers’ subjective intent to arrest was irrelevant in deciding when arrest occurred).

State v. Sanders, 295 N.C. 361 (1978). Although an officer informed the defendant that he was not under arrest, the court determined that the officer’s initial detention of the defendant was in fact an arrest unsupported by probable cause. See also State v. Bone, 354 N.C. 1 (2001) (officer’s belief that he did not have probable cause to arrest is irrelevant; objective standard supported a finding of probable cause); State v. Zuniga, 312 N.C. 251 (1982) (although an officer testified that he detained the defendant but did not formally arrest him, the court ruled that he had in fact arrested him); Maryland v. Macon, 472 U.S. 463 (1985) (objective test is used to determine Fourth Amendment violation); Scott v. United States, 436 U.S. 128 (1978) (objective test is used to determine application of exclusionary rule under Fourth Amendment); Florida v. Royer, 460 U.S. 491 (1983) (fact that officers did not believe they had probable cause to arrest did not prevent government from showing that custody was based on probable cause); State v. Riggs, 328 N.C. 213 (1991) (officer’s belief about what constitutes legal requirements to determine reliability of informant was irrelevant).

NORTH CAROLINA COURT OF APPEALS

State v. Osterhoudt, 222 N.C. App. 620 (2012). The court ruled that an officer had reasonable suspicion to stop the defendant’s vehicle based on observed traffic violations despite the officer’s mistaken belief that the defendant also had violated G.S. 20-146(a) (drive on right side of highway). The officer’s testimony that he initiated the stop after observing the defendant drive over the double-yellow line on the street on which he was driving was sufficient to establish a violation of G.S. 20-146(d)(1) (drive within single lane); (d)(3) (failure to obey direction of official traffic-control device regarding designated lanes); (d)(4) (failure to obey direction of official traffic-control device regarding changing lanes); and 20-153(a) (proper right turns at intersections). Therefore, regardless of his subjective belief that the defendant violated G.S. 20-146(a), the officer’s testimony established objective criteria justifying the stop. The stop was reasonable, and the superior court erred in holding otherwise. The court noted that because the officer’s reason for the stop was not based solely on his mistaken belief that the defendant violated G.S. 20-146(a) but, rather, was also because the defendant crossed the double-yellow line, the case was distinguishable from others that had ruled that an officer’s mistaken belief that a defendant had committed a traffic violation is not an objectively reasonable basis for a stop. [Author’s note: Concerning an officer’s reasonable mistake of law, see Heien v. North Carolina, 574 U.S. 54 (2014), discussed above.]

Glenn-Robinson v. Acker, 140 N.C. App. 606 (2000). In this case, the plaintiff sued a law enforcement officer and the officer’s governmental unit for various torts related to the officer’s alleged unconstitutional seizure and arrest of the plaintiff. The trial judge granted summary judgment for the civil defendants, and the plaintiff appealed. The plaintiff was a school bus driver whose bus was stopped in the traveled portion of a street, awaiting the dismissal of students from school. The officer was off-duty in private employment driving a tractor trailer truck. The officer first ordered the plaintiff to move the school bus and later told her that she was under arrest for violating a section of the city code (obstructing flow of vehicular traffic by stopping or parking a vehicle in the traveled portion of a street), an infraction under G.S. 14-4(b).

On appeal, the officer acknowledged that he had no authority to arrest the plaintiff for an infraction, but he contended that he had probable cause to arrest the plaintiff for a violation of G.S. 20-114.1(a) (violating order of law enforcement officer related to traffic control), a misdemeanor. The court ruled that the officer could seek to justify his arrest of the plaintiff under G.S. 20-114.l(a)—this statutory violation was based on the plaintiff’s alleged refusal to move her bus from the travel lane and thus was sufficiently related to the infraction, which was parking the bus in the travel lane. The court relied on Trejo v. Perez, 693 F.2d 482 (5th Cir. 1982) (when officer arrested person for offense A, for which there was no probable cause, officer could still justify arrest for related offense B, for which there was probable cause), and Graham v. Connor, 490 U.S. 386 (1989) (question is whether officer’s actions are objectively reasonable). [Author’s note: See the summary of Devenpeck v. Alford, 543 U.S. 146 (2004), above, and its impact on the reasoning (but not the result) in Glenn-Robinson.]

State v. Coffey, 65 N.C. App. 751 (1984). Although officers told the defendant that they were detaining him, they in fact had arrested him. However, the officers had probable cause to arrest, even though they subjectively believed that they did not have probable cause.

The Arrest Warrant and Other Criminal Process

Arrest Warrants

Validity of Warrant

(This topic is discussed in the chapter text under “Arrest Warrant,” “Validity of Warrant.”)

UNITED STATES SUPREME COURT

Malley v. Briggs, 475 U.S. 335 (1986). An officer may be civilly liable under federal law for violating a person’s constitutional rights if the officer obtains an arrest warrant and makes an arrest with it when a reasonably well-trained officer in that position would have known that the information failed to establish probable cause to arrest. But see Hunter v. Bryant, 502 U.S. 224 (1991) (qualified immunity for officers who had reasonable belief in probable cause to arrest).

NORTH CAROLINA SUPREME COURT

State v. McGowan, 243 N.C. 431 (1956). An arrest warrant was void, because there was no evidence that it was signed by a judicial officer.

Alexander v. Lindsey, 230 N.C. 663 (1949). An arrest was valid when it was made with an arrest warrant that defectively charged a criminal offense (“did unlawfully and willfully trespass”). The warrant was not void on its face, because it charged a recognizable criminal offense.

NORTH CAROLINA COURT OF APPEALS

State v. Taylor, 61 N.C. App. 589 (1983). An arrest warrant’s description of the defendant by the defendant’s nickname, Blood, was proper.

Service of Warrant

NORTH CAROLINA COURT OF APPEALS

Robinson v. City of Winston-Salem, 34 N.C. App. 401 (1977). An arresting officer is liable for false imprisonment only when the officer is not reasonably diligent in determining whether the person arrested was actually the same person described in the arrest warrant. See also cases under “The Right to Resist an Illegal Arrest” below in this appendix.

Arrest without a Warrant for a Felony

UNITED STATES SUPREME COURT

United States v. Watson, 423 U.S. 411 (1976). A warrantless felony arrest may be made in a public place even if the arresting officer had time to obtain an arrest warrant.

Arrest without a Warrant for a Misdemeanor

(This topic is discussed in the chapter text under “Arrest without a Warrant or Order for Arrest,” “Misdemeanor.”)

In the Officer’s Presence

UNITED STATES SUPREME COURT

Atwater v. City of Lago Vista, 532 U.S. 318 (2001). An officer made a warrantless arrest for a seat belt violation that was punishable only by a fine under Texas law. The Court ruled that the Fourth Amendment does not bar an officer from making a warrantless arrest for a misdemeanor that is punishable only by fine. [Author’s note: This ruling has no practical effect in North Carolina. North Carolina law does not authorize an officer to arrest a person for an infraction, which is punishable by a penalty only.]

NORTH CAROLINA SUPREME COURT

State v. McAfee, 107 N.C. 812 (1890). A crime is committed in the officer’s presence if the officer heard it being committed. See also State v. Crockett, 82 N.C. 599 (1880).

NORTH CAROLINA COURT OF APPEAls

State v. Wooten, 34 N.C. App. 85 (1977). If a reliable informant gives an officer information that establishes probable cause that a person possesses heroin, and the officer shortly thereafter sees a person who matches the informant’s description, the offense is being committed in the officer’s presence—even though the officer has not yet seen the drugs. (Although this case involved a felony, its discussion about an offense committed in an officer’s presence applies to misdemeanor arrests as well.) See also State v. Roberts, 276 N.C. 98 (1970).

Outside the Officer’s Presence: The Defendant “Will Not Be Apprehended Unless Immediately Arrested”

NORTH CAROLINA COURT OF APPEALS

State v. Tilley, 44 N.C. App. 313 (1979). The defendant committed a crime in Dare County. The court ruled that Tyrrell County officers could make a warrantless misdemeanor arrest of the defendant as he traveled in a car away from Dare County.

In re Pinyatello, 36 N.C. App. 542 (1978), and In re Gardner, 39 N.C. App. 567 (1979). In both of these driving-under-the-influence cases, the court did not state why the defendants could not be arrested without a warrant based on the arresting officer’s reason that they would not be apprehended unless immediately arrested. Apparently, however, in both cases the officers knew the defendants’ identities and could easily have arrested them later with a warrant. In any event, the court in each case ultimately upheld the out-of-presence misdemeanor warrantless arrest for other reasons—see the discussion of these cases below. [Author’s note: After these cases were decided, G.S. 15A-401(b)(2) was amended to authorize an officer to make an out-of-presence arrest for both impaired driving and commercial impaired driving based solely on whether the officer had probable cause to make the arrest.]

“May Cause Physical Injury to Himself [or Herself] or Others”

[Author’s note: After the cases below were decided, G.S. 15A-401(b)(2) was amended to permit an officer to make an out-of-presence arrest for both impaired driving and commercial impaired driving based solely on whether the officer had probable cause to make the arrest.]

NORTH CAROLINA COURT OF APPEALS

State v. White, 84 N.C. App. 111 (1987). A security guard told an officer that the defendant had twice come to a studio making threats—the second time driving a car to the studio parking lot. The officer approached the defendant, who was not then in a car, saw that he was intoxicated, and arrested him for driving while impaired. The court ruled that the officer had authority to arrest under G.S. 15A-401(b)(2) because the defendant’s car was nearby and the officer knew that the defendant had come and gone once already. Thus, he had probable cause to believe that the defendant would drive again in an impaired condition if he was not immediately arrested without a warrant.

State v. Spencer, 46 N.C. App. 507 (1980). The warrantless arrest of the defendant at a food store, after the defendant had driven under the influence and been involved in an accident, was upheld because he might have caused injury to himself or others unless immediately arrested.

State v. Matthews, 40 N.C. App. 41 (1979). The warrantless arrest of the defendant at a police station for driving under the influence was upheld because he might have caused injury to himself or others unless immediately arrested.

In re Gardner, 39 N.C. App. 567 (1979). The warrantless arrest of the defendant for driving under the influence—at the front steps of his house within 200 to 300 yards of an accident scene—was upheld because he might have caused injury to himself or others unless immediately arrested.

In re Pinyatello, 36 N.C. App. 542 (1978). The warrantless arrest of the defendant at an accident scene for driving under the influence was upheld because he might have caused injury to himself or others unless immediately arrested. See also State v. Crawford, 125 N.C. App. 279 (1997) (similar ruling).

“May Damage Property”

NORTH CAROLINA COURT OF APPEALS

In re Gardner, 39 N.C. App. 567 (1979). The warrantless arrest of the defendant for driving under the influence—at the front steps of his house within 200 to 300 yards of an accident scene—was upheld because he might have damaged property unless immediately arrested. [Author’s note: After this case was decided, G.S. 15A-401(b)(2) was amended to permit an officer to make an out-of-presence arrest for both impaired driving and commercial impaired driving based solely on whether the officer had probable cause to make the arrest.]

The Arrest Procedure

Use of Force, Including Deadly Force

(This topic is discussed in the chapter text under “The Arrest Procedure,” “Use of Force.”)

UNITED STATES SUPREME COURT

Plumhoff v. Rickard, 572 U.S. 765 (2014). The Court ruled that officers did not use excessive force in violation of the Fourth Amendment when they used deadly force to end a high-speed car chase. The chase ended when officers shot and killed the fleeing driver. The driver’s daughter filed a civil rights action under Title 42, Section 1983, of the United States Code, alleging that the officers used excessive force in terminating the chase in violation of the Fourth Amendment. Given the circumstances of the chase—among other things, speeds in excess of 100 m.p.h. when other cars were on the road—the Court found it “beyond serious dispute that [the driver’s] flight posed a grave public safety risk, and . . . the police acted reasonably in using deadly force to end that risk.” Id. at 777. The Court rejected the respondent’s contention that, even if the use of deadly force was permissible, the officers acted unreasonably in firing a total of fifteen shots, stating: “It stands to reason that, if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended.” Id.

Scott v. Harris, 550 U.S. 372 (2007). The plaintiff sued an officer and others for allegedly violating his Fourth Amendment rights in a high-speed chase that resulted in injury to the plaintiff. The Court ruled, based on the facts in this case, that the officer did not violate the Fourth Amendment by ramming the plaintiff’s vehicle from behind in an attempt to stop the plaintiff’s vehicle from continuing its public-endangering flight.

Brosseau v. Haugen, 543 U.S. 194 (2004). The Court ruled that a law enforcement officer was entitled to qualified immunity in the defense of a civil lawsuit alleging the officer’s improper use of deadly force under the Fourth Amendment. The Court stated that the issue in this case involved the officer’s shooting a disturbed felon set on avoiding capture through vehicular flight when people in the immediate area were at risk from that flight. (See the detailed facts set out in the Court’s opinion.) The Court concluded that the case law at the time of the shooting did not “clearly establish” that the officer’s conduct violated the Fourth Amendment.

Graham v. Connor, 490 U.S. 386 (1989). All claims that law enforcement officers have used excessive force in the course of an arrest, investigative stop, or other seizure of a free person must be analyzed under the Fourth Amendment standard of objective reasonableness (that is, without regard to an officer’s intent or motivation), not under substantive due process.

Tennessee v. Garner, 471 U.S. 1 (1985). A Tennessee statute was found unconstitutional because it authorized an officer to use deadly force against an apparently unarmed, nondangerous felony suspect who was fleeing from the scene of a recently committed nondangerous burglary.

NORTH CAROLINA SUPREME COURT

State v. Ellis, 241 N.C. 702 (1955). An officer has no duty to retreat when the officer acts in self-defense while performing official duties. See also State v. Dunning, 177 N.C. 559 (1919).

State v. Miller, 197 N.C. 445 (1929). An officer who is making a lawful arrest may use whatever force is reasonably necessary to overcome resistance.

State v. Simmons, 192 N.C. 692 (1926). Deputy sheriffs were properly convicted of manslaughter for shooting and killing the occupant of a car when they had no authority to arrest the occupant or to search the car.

NORTH CAROLINA COURT OF APPEALS

Hinton v. City of Raleigh, 46 N.C. App. 305 (1980). Two armed robbers, ordered by Raleigh police officers to halt, refused to do so. One robber pointed a gun at an officer, who then killed him. The other robber crouched and raised his arm toward the same officer, who then killed him. The court ruled that the officer was justified, by reason of self-defense, to kill both robbers.

The Right to Resist an Illegal Arrest

NORTH CAROLINA SUPREME COURT

State v. Mobley, 240 N.C. 476 (1954). A person has the right to resist an illegal arrest but may not use excessive force. See also State v. Allen, 166 N.C. 265 (1914); State v. Polk, 76 N.C. 11 (1877); State v. Sparrow, 276 N.C. 499 (1970); State v. Hewson, 88 N.C. App. 128 (1987).

NORTH CAROLINA COURT OF APPEALS

State v. Truzy, 44 N.C. App. 53 (1979). A person may not resist an arrest pursuant to an arrest warrant even if the warrant does not in fact charge a crime. [Author’s note: However, it appears that the warrant in this case correctly charged the common law offense of public nuisance.] See also State v. Wright, 1 N.C. App. 479, aff’d on other grounds, 274 N.C. 380 (1968). For cases that appear to be in conflict with Truzy and Wright, see State v. McGowan, 243 N.C. 431 (1953); State v. Honneycutt, 237 N.C. 595 (1953); State v. Queen, 66 N.C. 615 (1872); State v. Curtis, 2 N.C. 471 (1797); and State v. Carroll, 21 N.C. App. 530 (1974).

Notice of Authority

When an Arrest Is Made

(This topic is discussed in the chapter text under “Notice of Authority,” “When an Arrest Is Made.”)

NORTH CAROLINA SUPREME COURT

State v. Kinch, 314 N.C. 99 (1985). Officers properly advised the defendant that he was being arrested for rape. It is not necessary to give Miranda warnings to make a lawful arrest.

State v. Ladd, 308 N.C. 272 (1983). An officer violated G.S. 15A-401(c)(2)c. (giving notice of arrest) by responding, “You know why,” when the defendant asked why he was arrested.

Before Entering a Dwelling

(This topic is discussed in the chapter text under “Notice of Authority,” “Before Entering a Dwelling.”)

UNITED STATES SUPREME COURT

Wilson v. Arkansas, 514 U.S. 927 (1995). Officers made an unannounced entry into a home to execute a search warrant. The Arkansas Supreme Court ruled that the Fourth Amendment does not require officers to knock and announce before entering a home. The Court, rejecting the state court’s ruling, ruled that an officer’s unannounced entry into a home must be reasonable under the Fourth Amendment. Whether an officer announced his or her presence and authority before entering a home is among the factors to be considered in determining whether the entry was reasonable, along with the threat of physical harm to the officer, pursuit of a recently escaped arrestee, and the likely destruction of evidence if advance notice were given. The Court specifically stated that it will leave to lower courts the task of determining whether an unannounced entry was reasonable and remanded this case to the Arkansas Supreme Court for that purpose.

[Author’s note: G.S. 15A-249 sets standards for entering private premises to execute a search warrant, and G.S. 15A-401(e) sets standards for entering private premises to arrest.]

NORTH CAROLINA COURT OF APPEALS

Lee v. Greene, 114 N.C. App. 580 (1994). An officer arrested the suspect’s husband in the driveway of the couple’s home. Because the suspect blocked the front door of the officer’s car, in which the husband was sitting, the officers (another officer had arrived by then) decided to arrest her for obstructing and delaying the arrest of her husband. When the suspect began moving toward her house, they ran after her. As she entered her house and was closing the door, the officers grabbed the door and entered the house. The court ruled that under these circumstances, the officers were not required to give notice of their authority and purpose under G.S. 15A-401(e). The suspect knew the officers’ identities and their reason for being at her house. Moreover, the officers were about to arrest the suspect as she entered her house and attempted to close the door. Compliance with G.S. 15A-401(e) was not required.

State v. Sutton, 34 N.C. App. 371 (1977). Officers properly broke down a door to serve an arrest order after they knocked, demanded entry, received no response from occupants, and heard sounds that would justify the conclusion that their admittance was being unreasonably delayed so that occupants could escape.

Entrance onto Premises to Arrest

(This topic is discussed in the chapter text under “Entering Premises to Arrest”; entering premises to search for evidence or weapons is discussed in Chapter 3 under “Exigent Circumstances to Enter Home with Probable Cause to Search for Evidence” and “Entering a home to seize weapons for self-protection”; entering premises for a public-safety reason is discussed in Chapter 3 under “Entry or Search of a Home to Render Emergency Assistance or for Self-Protection.”)

Generally

UNITED STATES SUPREME COURT

Lange v. California, 594 U.S. ___, 141 S. Ct. 2011 (2021). A California highway patrol officer attempted to stop the defendant’s car after observing him driving while playing loud music through his open windows and repeatedly honking his horn. The defendant (Lange), who was within 100 feet of his home, did not stop. Instead, he drove into his attached garage. The officer followed Lange into the garage, where he questioned him and saw that he was impaired. Lange was later charged with misdemeanor driving under the influence of alcohol and a noise infraction.

The Court ruled that the flight from an officer of a person who is suspected of committing a misdemeanor offense does not categorically justify an officer’s warrantless entry into a home. Instead, all the circumstances surrounding the pursuit of the suspected misdemeanant must be considered to determine whether there is an exigency that would excuse the warrant requirement. The Court noted that its Fourth Amendment precedents point toward assessing case by case the exigencies arising from a misdemeanant’s flight. It stated:

That approach will in many, if not most, cases allow a warrantless home entry. When the totality of circumstances shows an emergency—such as imminent harm to others, a threat to the officer himself, destruction of evidence, or escape from the home—the police may act without waiting. And those circumstances . . . include the flight itself. But the need to pursue a misdemeanant does not trigger a categorical rule allowing home entry, even absent a law enforcement emergency. When the nature of the crime, the nature of the flight, and surrounding facts present no such exigency, the officers must respect the sanctity of the home—which means they must get a warrant. Id.  at ___, 141 S. Ct. at 2021–22 (footnote omitted).

Steagald v. United States, 451 U.S. 204 (1981). An officer may not enter a third party’s home—a place where the defendant does not reside—to arrest a defendant unless the officer has a search warrant or consent to enter or unless exigent circumstances justify entry without a search warrant.

Payton v. New York, 445 U.S. 573 (1980). An officer may not enter a defendant’s residence to arrest the defendant unless the officer has an arrest warrant or consent to enter or unless exigent circumstances justify an entry without an arrest warrant. See also Kirk v. Louisiana, 536 U.S. 635 (2002).

United States v. Santana, 427 U.S. 38 (1976). The defendant, who was standing in the doorway of her home when officers sought to arrest her by shouting “Police” and displaying their identification, was in a public place under the Fourth Amendment. Therefore, the officers had the authority to arrest her without a warrant, and she could not defeat their authority to make the warrantless arrest by retreating into her home. The officers’ entry into her home was justified because they were in hot pursuit of the defendant. See also United States v. Ramos, 933 F.2d 968 (11th Cir. 1991) (when defendant and confidential informant consummated drug deal outside house and defendant began moving rapidly toward house, officers could enter house to pursue and arrest her); United States v. Sewell, 942 F.2d 1209 (7th Cir. 1991) (undercover officer purchased drugs while standing in apartment hallway and while defendant was inside apartment, although defendant may have crossed threshold of doorway to apartment when completing sale; defendant closed door on officer when he realized he had sold to an officer; exigent circumstances permitted warrantless entry to arrest); City of Middletown v. Flinchum, 765 N.E.2d 330 (Ohio 2002) (officers saw defendant driving recklessly and followed him to his house, where he got out of his car; ignoring officers’ commands to stop, defendant ran into house; court ruled that officers in hot pursuit could warrantlessly enter house to arrest defendant for misdemeanor motor vehicle violation).

NORTH CAROLINA SUPREME COURT

State v. Workman, 344 N.C. 482 (1996). Officers had probable cause to believe that the defendant was inside his home when they entered late at night to execute an arrest warrant for two murders, based on the following facts. The defendant’s accomplice in the murders pointed out a trailer as the defendant’s home. Officers maintained surveillance on the trailer while another officer obtained an arrest warrant. The officers did not see anyone leave the trailer. As the officers approached the trailer, they saw lights on and heard noises inside.

NORTH CAROLINA COURT OF APPEALS

State v. Adams, 250 N.C. App. 664 (2016). The court ruled that exigent circumstances justified officers’ warrantless entry into the defendant’s home to arrest him. It was undisputed that the officers had reasonable suspicion to stop the defendant for driving while license revoked. They pulled into the defendant’s driveway behind him and activated blue lights as the defendant was leaving his vehicle and making his way toward his front door. The defendant did not stop for the blue lights and continued hurriedly toward the door after the officers told him to stop. At that point, the court explained, the officers had probable cause to arrest the defendant for resisting a public officer and began a hot pursuit of the defendant. The officers arrived at the front door just as the defendant was making his way across the threshold and were able to prevent him from closing the door. The officers then forced the front door open and detained and arrested the defendant just inside the door. The court held that the warrantless entry and arrest was proper under United States v. Santana, 427 U.S. 38 (1976). It explained that hot pursuit has been recognized as an exigent circumstance sufficient to justify a warrantless entry into a residence when there is probable cause without consideration of immediate danger or destruction of evidence. [Author’s note: The later ruling in Lange v. California, 594 U.S. ___, 141 S. Ct. 2011 (2021), summarized above, casts doubt on the Adams court’s analysis of the officers’ warrantless entry to arrest the defendant for the misdemeanor of driving while license revoked.]

State v. Basden, 8 N.C. App. 401 (1970). Within minutes of a robbery, officers arrived at a residence where the vehicle used in the robbery was parked in the driveway. All curtains on the residence windows were drawn. This was sufficient evidence that the robbers were inside the residence.

FEDERAL APPELLATE COURTS

Watts v. County of Sacramento, 256 F.3d 886 (9th Cir. 2001). If a suspect named in an arrest warrant is a guest of a third party, then—absent exigent circumstances—officers must obtain a search warrant to enter the third party’s dwelling. If the suspect is a co-resident of the third party, an arrest warrant is sufficient to enter the third party’s dwelling and any evidence found in the dwelling is admissible against the third party.

United States v. Oaxaca, 233 F.3d 1154 (9th Cir. 2000). Officers violated the Fourth Amendment when they entered the defendant’s attached garage and arrested him without an arrest warrant, even though the defendant had left the garage door open, when exigent circumstances did not support the entry into the garage.

United States v. Bervaldi, 226 F.3d 1256 (11th Cir. 2000). Officers had a reasonable belief (probable cause is not required) that (1) the dwelling they entered to arrest a person, for whom they had an arrest warrant, was that person’s residence and (2) the person was inside the dwelling when they entered it.

United States v. Winchenbach, 197 F.3d 548 (1st Cir. 1999). Officers obtained a search warrant to search a residence for drugs. They did not obtain an arrest warrant for the defendant who lived there, although they did have probable cause to arrest him. Upon entering the residence to execute the search warrant, the officers arrested the defendant without an arrest warrant. The court ruled, distinguishing Payton v. New York, 445 U.S. 573 (1980), discussed above, that the warrantless arrest did not violate the Fourth Amendment.

United States v. Risse, 83 F.3d 212 (8th Cir. 1996). Officers had a reasonable belief that the female person (Rhoads) for whom they had an arrest warrant resided with a male person (Risse) at his home, and therefore an arrest warrant was sufficient to enter Risse’s home to arrest Rhoads. Rhoads had previously told the officers that she was “staying with” Risse and the officers could contact her there. In addition, a confidential reliable informant had told an officer that Rhoads was living with Risse. While officers twice successfully contacted Rhoads at Risse’s residence, they were unable to contact her at her permanent residence elsewhere. The court rejected the defendant’s argument that a person can have only one residence for Fourth Amendment purposes.

United States v. May, 68 F.3d 515 (D.C. Cir. 1995). Officers had a reasonable belief that the person (Thomas) named in an arrest warrant for murder was in the dwelling that they entered to execute the arrest warrant. Police records disclosed that Thomas lived there. Two witnesses placed Thomas at that dwelling after the murder. The murder occurred on a Saturday afternoon, the arrest warrant was issued on Monday, and officers entered the dwelling on Tuesday morning.

United States v. Gooch, 6 F.3d 673 (9th Cir. 1993). The defendant had a reasonable expectation of privacy in his tent located on a public campground, and the officers’ warrantless entry into the tent to arrest him—without exigent circumstances or consent—violated the Fourth Amendment. See also United States v. Sandoval, 200 F.3d 659 (9th Cir. 2000) (similar ruling involving search of tent on government land). But see United States v. Ruckman, 806 F.2d 1471 (10th Cir. 1986) (warrantless search of cave on government land did not violate Fourth Amendment because defendant did not have reasonable expectation of privacy there).

Perez v. Simmons, 884 F.2d 1136 (9th Cir. 1989), opinion amended, 900 F.2d 213 (1990), 998 F.2d 773 (9th Cir. 1993). An officer may not enter a third party’s home to arrest a defendant who is merely temporarily staying in the home unless the officer has a search warrant or consent to enter or unless exigent circumstances justify entry without a search warrant.

Exigent Circumstances

(This topic is discussed in the chapter text under “Exigent Circumstances That Justify Entering Premises.”)

United States Supreme Court

Lange v. California, 594 U.S. ___, 141 S. Ct. 2011 (2021). A California highway patrol officer attempted to stop the defendant’s car after observing him driving while playing loud music through his open windows and repeatedly honking his horn. The defendant (Lange), who was within 100 feet of his home, did not stop. Instead, he drove into his attached garage. The officer followed Lange into the garage, where he questioned him and saw that he was impaired. Lange was later charged with misdemeanor driving under the influence of alcohol and a noise infraction.

The Court ruled that the flight from an officer of a person who is suspected of committing a misdemeanor offense does not categorically justify an officer’s warrantless entry into a home. Instead, all the circumstances surrounding the pursuit of the suspected misdemeanant must be considered to determine whether there is an exigency that would excuse the warrant requirement. The Court noted that its Fourth Amendment precedents point toward assessing case by case the exigencies arising from a misdemeanant’s flight. It stated:

That approach will in many, if not most, cases allow a warrantless home entry. When the totality of circumstances shows an emergency—such as imminent harm to others, a threat to the officer himself, destruction of evidence, or escape from the home—the police may act without waiting. And those circumstances . . . include the flight itself. But the need to pursue a misdemeanant does not trigger a categorical rule allowing home entry, even absent a law enforcement emergency. When the nature of the crime, the nature of the flight, and surrounding facts present no such exigency, the officers must respect the sanctity of the home—which means they must get a warrant. Id. at ___, 141 S. Ct. at 2021–22 (footnote omitted).

Minnesota v. Olson, 495 U.S. 91 (1990). The Court affirmed the ruling of the Minnesota Supreme Court that exigent circumstances did not exist to justify officers’ warrantless, nonconsensual entry of the upper unit of a duplex where the defendant had been staying as an overnight guest. The officers knew that residents who were in the unit with the defendant were not endangered by his presence. In addition, police squads surrounded the duplex, and thus the defendant could not escape. Although grave crimes—murder and robbery—had been committed the prior day, the defendant was not the murderer but was thought to be the driver of the getaway car, and the officers had already recovered the murder weapon. Also, the officers were not in hot pursuit of the defendant.

Welsh v. Wisconsin, 466 U.S. 740 (1984). There were no exigent circumstances sufficient to justify an officer’s entry into a defendant’s home to arrest him without a warrant when (1) the officer was not in hot pursuit, (2) the offense involved was relatively minor (Wisconsin punished impaired driving as a noncriminal civil violation), and (3) the defendant did not pose a threat to public safety. The imminent dissipation of the defendant’s blood-alcohol content did not justify a warrantless entry to arrest for this minor offense, considering all the circumstances in this case. See also Howard v. Dickerson, 34 F.3d 978 (10th Cir. 1994) (no exigent circumstances to make warrantless entry into house to arrest person for minor traffic misdemeanors—no hot pursuit in this case); Norris v. State, 993 S.W.2d 918 (Ark. 1999) (similar ruling); People v. Thompson, 135 P.3d 3 (Cal. 2006) (Welsh limited to nonjailable offenses); Beachwood v. Sims, 647 N.E.2d 821 (Ohio Ct. App. 1994) (distinguishing Welsh, court ruled exigent circumstances supported warrantless entry into home to arrest defendant for driving under influence of alcohol, an offense punishable by imprisonment); Goines v. James, 433 S.E.2d 572 (W. Va. 1993) (court noted that officer may make warrantless entry into defendant’s home in hot pursuit of defendant to arrest for serious misdemeanor of driving under the influence); State v. Paul, 548 N.W.2d 260 (Minn. 1996) (similar ruling). See generally Illinois v. McArthur, 531 U.S. 326 (2001) (upholding an officer’s seizure of the defendant while another officer sought a search warrant to search the defendant’s home, the Court rejected the defendant’s argument, relying on Welsh, that the minor misdemeanor involved in this case required a ruling for the defendant; the Court distinguished the nonjailable misdemeanor involved in Welsh from the jailable misdemeanors involved in the case before it).

Payton v. New York & Riddick v. New York, 445 U.S. 573 (1980). Exigent circumstances did not exist in these cases to permit entry into the defendants’ residences to arrest without an arrest warrant. The arrests were routine. There was no factual justification to justify the entries without a warrant.

United States v. Santana, 427 U.S. 38 (1976). Officers properly entered the defendant’s house without a warrant to arrest her when (1) they shouted “Police” as she was standing in her doorway, (2) she retreated into her house, and (3) the officers entered to arrest her and to prevent the destruction of evidence (drugs and marked money used in a recently completed drug transaction).

Warden v. Hayden, 387 U.S. 294 (1967). The defendant committed an armed robbery and shortly there­after ran into a house. Exigent circumstances allowed the officers to make a warrantless entry into the house when they arrived within minutes after the defendant entered the house.

North Carolina Supreme Court

State v. Guevara, 349 N.C. 243 (1998). Officers A and B went to the defendant’s home with information that there were outstanding felony arrest warrants for him. They saw the defendant, accompanied by a young boy, standing outside his mobile home’s back door. Although he denied being the person who was the subject of the arrest warrants, the officers believed otherwise. After confirmation from a dispatcher that the defendant was still wanted, Officer B stated to Officer A that they would arrest him. The defendant, hearing Officer B’s words, retreated into his home and slammed the door. Officer A pushed the door open and entered the home, where he was shot and killed by the defendant. Officer B was shot and seriously injured by the defendant while Officer B was outside the mobile home.

(1) The court, relying on State v. Miller, 282 N.C. 633 (1973), ruled that even if Officer A violated the Fourth Amendment in entering the defendant’s home to arrest him, the exclusionary rule did not bar the testimony of Officer B about the killing of Officer A. (2) The court ruled that exigent circumstances supported Officer A’s entry into the defendant’s home to arrest him. The court stated that the defendant’s actions—suddenly withdrawing into his home and slamming the door—created the appearance that he was fleeing or trying to escape and, coupled with the young child’s presence, established exigent circumstances to enter the defendant’s home to arrest him.

State v. Worsley, 336 N.C. 268 (1994). Officers arrived at a murder scene and discovered the victim’s body, the subject of a brutal stabbing, lying in a common area of an apartment complex. An eyewitness to the murder identified the defendant as the killer. Another witness informed the officers that he had seen the defendant running toward the defendant’s apartment shortly after the murder. The officers went to the defendant’s nearby apartment and discovered fresh blood on the doorknob of the back door. The officers knocked loudly on the defendant’s door and identified themselves as officers but received no response. They then entered the apartment. The court ruled that the officers had exigent circumstances to enter the defendant’s home—without consent or an arrest warrant—to arrest the defendant.

State v. Allison, 298 N.C. 135 (1979). An officer had a right to enter the defendant’s trailer to arrest him when the officer had probable cause to believe that the defendant had just committed a murder, was armed and in the trailer, and would probably escape if not immediately arrested.

North Carolina Court of Appeals

State v. Adams, 250 N.C. App. 664 (2016). The court ruled that exigent circumstances justified officers’ warrantless entry into the defendant’s home to arrest him. It was undisputed that the officers had reasonable suspicion to stop the defendant for driving while license revoked. They pulled into the defendant’s driveway behind him and activated blue lights as the defendant was leaving his vehicle and making his way toward his front door. The defendant did not stop for the blue lights and continued hurriedly toward the door after the officers told him to stop. At that point, the court explained, the officers had probable cause to arrest the defendant for resisting a public officer and began a hot pursuit of the defendant. The officers arrived at the front door just as the defendant was making his way across the threshold and were able to prevent him from closing the door. The officers then forced the front door open and detained and arrested the defendant just inside the door. The court held that the warrantless entry and arrest was proper under United States v. Santana, 427 U.S. 38 (1976). It explained that hot pursuit has been recognized as an exigent circumstance sufficient to justify a warrantless entry into a residence when there is probable cause without consideration of immediate danger or destruction of evidence. [Author’s note: The later ruling in Lange v. California, 594 U.S. ___, 141 S. Ct. 2011 (2021), summarized above, casts doubt on the Adams court’s analysis of the officers’ warrantless entry to arrest the defendant for the misdemeanor of driving while license revoked.]

State v. Stover, 200 N.C. App. 506 (2009). The court ruled that officers had probable cause and exigent circumstances to enter a home based on the following facts. Officers stopped a vehicle and noticed a passenger with marijuana, who then told them about the house at which she had purchased the marijuana. Officers went to the house to conduct a knock and talk. When they arrived, they perceived a strong odor of marijuana emanating from the house. An officer heard a noise from the back of the house and saw the defendant with his upper torso partially out of a window. The court noted that the officer could reasonably believe that the defendant was attempting to flee the scene and that the officers were also concerned about possible destruction of evidence.

State v. Fuller, 193 N.C. App. 670 (2009). The court ruled that exigent circumstances supported officers’ warrantless entry into a mobile home to arrest the defendant pursuant to an outstanding arrest warrant when officers reasonably believed that the defendant was attempting to escape and also presented a danger to the officers and others in the home.

State v. Harris, 145 N.C. App. 570 (2001). An officer who had probable cause to believe that drugs were being sold in a hotel room telephoned the room and told the defendant that maintenance would be coming to the room to fix a smoke detector. The officer then knocked on the door. A voice from inside the room asked who was there. The officer responded, “Maintenance.” One of the occupants opened the door. The officer, holding his credentials in his hand, identified himself as a police officer. The officer then observed activity that gave him exigent circumstances to enter the room to arrest and search. The court ruled that the officer’s use of a ruse (trickery) to get one of the hotel room’s occupants to open the door did not violate the Fourth Amendment. The court noted that the officer did not enter the room based on the ruse—the entry was based on exigent circumstances that existed after the door was opened.

State v. Nowell, 144 N.C. App. 636 (2001), aff’d, 355 N.C. 273 (2002). The court ruled that officers did not have exigent circumstances to enter a residence to seize marijuana, based on the following facts. A drug courier working with law enforcement officers and wearing a body wire delivered approximately 50 pounds of marijuana to a residence where the purchaser and his accomplice were waiting for the delivery of the marijuana. When an officer heard through a radio transmitter that the purchaser and his accomplice were about to roll a marijuana cigarette from the marijuana and smoke it, law enforcement officers entered the residence without a search warrant.

State v. Woods, 136 N.C. App. 386 (2000). Officers were dispatched to investigate an alarm sounding at the defendant’s residence. After arriving at the residence, an officer heard the alarm and saw that the rear door of the residence was open. He heard no response from inside the residence after announcing his presence and identity. The officer conducted a cursory search of the residence for potential victims or suspects. He found no one but saw evidence of a break-in. He and other officers reentered to conduct a more thorough search, looking again for victims and suspects. In the master bedroom, they opened a drawer in a standing chest that was about fifteen to twenty inches deep, twenty-five to thirty inches long, and eighteen inches wide and discovered a bag of green vegetable material. In the kitchen and living room area, they saw a cabinet that was about thirty-four inches tall and forty-eight inches wide. While attempting to open the cabinet doors, an officer moved a chair and heard a noise underneath it. His flashlight revealed a tear on the bottom of the chair and a bag inside that appeared to contain money. He opened the cabinet door but found nothing. Officers later obtained a search warrant and discovered various drugs, money, and drug paraphernalia.

(1) Relying on United States v. Dart, 747 F.2d 263 (4th Cir. 1984), and other cases, the court ruled that the officer’s warrantless entry into the residence to investigate a possible break-in was justified by exigent circumstances and thus was reasonable under the Fourth Amendment. It was clear that a break-in had occurred, and the officers had reason to believe that the intruders or victims could still be in the residence. (2) The court ruled, relying on Mincey v. Arizona, 437 U.S. 385 (1978), that the officers’ search of the chest of drawers, chair, and cabinet exceeded the scope of the permissible search for suspects and victims. It was unreasonable to believe that a person could have been found in the cabinet based on the facts in this case.

State v. Wallace, 71 N.C. App. 681 (1984). Officers, who had probable cause to arrest the defendant for two armed robberies, entered the defendant’s motel room without a warrant to arrest him. The court ruled that exigent circumstances justified the officers’ warrantless entry because a motel clerk had called the officers and told them that the defendant had recently returned to his motel room and was taking articles out of the room as if he were leaving (the officers were preparing arrest warrants when the clerk called).

State v. Yananokwiak, 65 N.C. App. 513 (1983). There were no exigent circumstances to justify a warrantless entry into a house to arrest the defendant for a drug offense because there was no evidence that he was about to escape or destroy drugs or that he presented a danger to a police informant inside the house or to the police outside.

Federal Appellate Courts

McCabe v. Life-Line Ambulance Service, Inc., 77 F.3d 540 (1st Cir. 1996). The officers’ warrantless forcible entry into a person’s house to serve a licensed psychiatrist’s signed application for a ten-day involuntary commitment of that person based on the finding of a likelihood of serious harm was reasonable under the Fourth Amendment.

United States v. McCraw, 920 F.2d 224 (4th Cir. 1990). Officers went to a hotel room without an arrest warrant and knocked on the door without announcing themselves. The defendant opened the door about halfway while standing inside his room. When he saw the officers, he attempted to close the door. The officers forced their way inside and arrested him. The court, distinguishing United States v. Santana, 427 U.S. 38 (1976), ruled that because the defendant was not in the threshold of the doorway, he was not in a public area, and a warrantless arrest was unconstitutional. The court also ruled that exigent circumstances did not support the warrantless arrest because (1) the defendant did not know that his accomplice had been arrested; (2) he did not know that his room was under surveillance; and (3) he had no reason to destroy evidence, and any risk of his destroying evidence was precipitated by the officers themselves when they knocked on the door.

Entrance onto Premises to Accompany the Arrestee

(This topic is discussed in the chapter text under “Entering Premises to Accompany the Arrestee.”)

UNITED STATES SUPREME COURT

Washington v. Chrisman, 455 U.S. 1 (1982). An officer arrested a college student, who then asked to return to his dormitory room to get his identification. The officer accompanied him into his room. The Court ruled that an officer has an automatic right to accompany an arrestee wherever the arrestee goes. This right is not dependent on evidence that the arrestee might have a weapon available there or might attempt to escape.

NORTH CAROLINA COURT OF APPEALS

State v. Weakley, 176 N.C. App. 642 (2006). The defendant appeared at the front door of a residence and was told that officers had an arrest warrant for her. The defendant was not fully clothed. One of the officers accompanied her into the residence while she got dressed. Relying on Washington v. Chrisman, 455 U.S. 1 (1982), the court ruled that the officer’s presence in the residence was lawful because the officer was entitled to monitor the defendant’s movements while she got dressed.

Completion of Custody: Taking the Arrestee to a Magistrate without Unnecessary Delay

(This topic is discussed in the chapter text under “Taking the Arrestee to a Judicial Official.”)

UNITED STATES SUPREME COURT

County of Riverside v. McLaughlin, 500 U.S. 44 (1991). The detention for more than forty-eight hours of a defendant arrested without a warrant and without a determination of probable cause by a judicial official or a judicial body (for example, a grand jury) presumptively violated the Fourth Amendment.

NORTH CAROLINA SUPREME COURT

State v. Wallace, 351 N.C. 481 (2000). The defendant was arrested on an arrest warrant for a larceny, but he also was a suspect in three murders. Before giving the defendant Miranda warnings, officers spoke with him for about three hours, mostly about sports, his employment and military experience, and his biographical information. The defendant voluntarily raised the issue of his drug use. The officers did not interrogate him about the murders for which he was a suspect and did not ask any questions designed to elicit incriminating responses. After having properly been given Miranda warnings, the defendant confessed to nine murders. He was given opportunities to use the restroom and was fed. At some point during the interrogation, the defendant requested to see his girlfriend and daughter. An officer told the defendant that the police would attempt to contact them but that they had no control over whether either of them would come to see him. The defendant was taken to magistrate nineteen hours after his arrest—he had slept four hours just before being taken to the magistrate. The court ruled that the officers did not violate G.S. 15A-501(2) because of the number of crimes to which the defendant confessed and the amount of time needed to record the details of them. Given the officers’ accommodation of the defendant’s request to sleep, the nineteen-hour delay was not unnecessarily long under the statute.

State v. Chapman, 343 N.C. 495 (1996). At about 9:30 a.m., the defendant was arrested at a bank for attempting to cash a forged check. He waived his Miranda rights and admitted that he had attempted to cash a check that he had forged after taking it in a robbery. Officers took the defendant to a school to search for a purse that had been taken in the robbery. They then returned the defendant to the police station, where he confessed to forgery and uttering charges. A detective procured arrest warrants for these charges at 12:30 p.m. and served them on the defendant. The defendant then was questioned by another detective who was investigating the robbery in which the checks were taken, and the defendant confessed to the robbery at 1:27 p.m. Officers prepared an arrest warrant to charge the robbery, but it was not immediately presented to the magistrate. The defendant then was interviewed by another detective about an unrelated robbery and murder. The detective put nine photos of the murder victim on the walls of the interrogation room and one photo of the victim on the floor directly in front of the chair in which the defendant sat during the interrogation. Thus, the defendant saw a photo of the victim in every direction he turned. During the interview, the detective falsely implied to the defendant that handwriting analysis of a note found next to the victim’s body showed it was written by the defendant and that the defendant’s fingerprints were on the note. The defendant confessed to the murder at about 7:05 p.m. and was taken to the magistrate about 8:00 p.m.

(1) The court ruled that there was no unreasonable delay in a magistrate’s determination of whether there was probable cause to issue an arrest warrant. Distinguishing County of Riverside v. McLaughlin, 500 U.S. 44 (1991), and Gerstein v. Pugh, 420 U.S. 103 (1975), the court noted that the defendant was arrested at 9:30 a.m. without a warrant and that a magistrate issued an arrest warrant based on probable cause at 12:30 p.m. This procedure satisfied the rulings in these cases that a magistrate promptly determine probable cause. The court noted that the defendant was then in lawful custody and could be interrogated about other crimes. (2) The court ruled that the defendant’s statutory right under G.S. 15A-501(2) to be taken to a magistrate without unnecessary delay was not violated. The court noted that much of the time between the defendant’s arrest at 9:30 a.m. and his being taken before a magistrate at 8:00 p.m. was spent interrogating the defendant about several crimes. The court stated that the officers had the right to conduct these interrogations and that they did not cause an unnecessary delay by doing so. (3) The officers failed to advise the defendant of his right to communicate with friends, in violation of G.S. 15A-501(5). The court ruled that, based on State v. Curmon, 295 N.C. 453 (1978), the defendant was not prejudiced by this violation based on the facts in this case.

State v. Littlejohn, 340 N.C. 750 (1995). The defendant was arrested for murder and other offenses; interrogated for ten hours, during which time he confessed; and then taken to a magistrate. The total period of time from arrest to appearance before the magistrate was thirteen hours. The court ruled, based on these and other facts (for example, the officers advised the defendant of his constitutional rights before they began the interrogation), that the delay did not violate G.S. 15A-501(2).

State v. Daniels, 337 N.C. 243 (1994). An officer’s one-hour delay between arresting the defendant and informing him of his rights under G.S. 15A-501(5) was not unnecessary, because during that time period the officer was involved in interactions with the defendant, including taking him to a house at the defendant’s request.

State v. Reynolds, 298 N.C. 380 (1979). The two to three hours during which officers questioned the defendant and took hair and blood samples did not constitute “unnecessary delay” under G.S. 15A-501. See also State v. Martin, 315 N.C. 667 (1986).

NORTH CAROLINA COURT OF APPEALS

State v. Sings, 35 N.C. App. 1 (1978). A seven-hour delay after the defendant’s arrest was not “unnecessary delay” when officers used that time to take the co-­defendant to recover stolen property and to recapture him when he escaped from their custody. After this, the officers obtained a confession from the defendant.

State v. Wheeler, 34 N.C. App. 243 (1977). A one-hour delay between the defendant’s arrest and his appearance before a magistrate was not “unnecessary delay.”

State v. Sanders, 33 N.C. App. 284 (1977). Delay in taking the defendant to a magistrate was unnecessary when officers took him to another city for a showup after calling a local magistrate to come to the police station. The court interpreted “reasonably necessary” in G.S. 15A-501(4) (taking a person elsewhere before taking the person to a magistrate is permissible if it is reasonably necessary for identification) as limited to exigent circumstances—that is, when an eyewitness is critically injured. This ruling may not be sound because the court failed to note that the legislature did not adopt the more- restrictive provision in the Model Penal Code on which G.S. 15A-501(4) was based.

Bringing News Media during Execution of Warrant

(This topic is discussed in the chapter text under “Entering Premises with News Media.”)

UNITED STATES SUPREME COURT

Wilson v. Layne, 526 U.S. 603 (1999). Law enforcement officers invited news media representatives to accompany them during the execution of an arrest warrant in a home. The Court ruled that officers violate the Fourth Amendment when they bring news media or other third parties into a home during the execution of a warrant when the third parties’ presence is not aiding the warrant’s execution. The news media clearly were not aiding the execution of the arrest warrant in this case. The Court noted that third parties may properly aid the execution of a search warrant, for example, by identifying stolen property.