State v. Barnard

MARTIN, Chief Judge.

CALABRIA, Judge, dissenting.

I respectfully dissent from the majority opinion that there was no error in the court's denial of defendant's motion to suppress evidence. A 30-second delay at a green light fails to provide the particularized suspicion required for an investigative stop, and I would therefore hold that the trial court erred in denying defendant's motion to suppress the crack discovered during the stop and the statements made following the stop. However, I would remand the case to the trial court for further proceedings to determine whether the crack rock seized from defendant following his participation in a controlled buy is fruit of the poisonous tree and should therefore be suppressed.

In the instant case, defendant contends that Officer Maltby, an officer with the Asheville Police Department, had no reasonable, articulable suspicion to stop him and it was therefore error for the court to deny defendant's motion to suppress evidence resulting from the stop. "On a motion to suppress evidence, the trial court's findings of fact are conclusive on appeal if supported by competent evidence."Page 34State v. Campbell,359 N.C. 644,661,617 S.E.2d 1,12(2005),pet.denied, Campbell v. N.C.,126 S. Ct. 1773,164 L. Ed. 2d 523(2006). However, the conclusions of law supported by those findings are reviewedde novo. Id.at 662,617 S.E.2d at 13.

As the majority correctly notes, a police officer may affect a brief investigatory seizure of an individual where the officer has reasonable, articulable suspicion that a crime may be underway.Terry v. Ohio,392 U.S. 1,20 L. Ed. 2d 889(1968). To justify what is known as aTerrystop, the officer "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion."Id.at 21. This rule also applies to investigatory traffic stops where the officer does not have probable cause to stop the vehicle. "[A]n investigatory-type traffic stop is justified if the totality of [the] circumstances affords an officer reasonable grounds to believe that criminal activity may be afoot."Statev. Wilson,155 N.C. App. 89,95,574 S.E.2d 93,98(2002). Something more than an "unparticularized suspicion or `hunch'" is required.U.S.v. Sokolow,490 U.S. 1,7,104 L. Ed. 1,10(1989).

In the casesub judice, Officer Maltby testified that he stopped defendant because defendant hesitated for approximately 30 seconds before proceeding through the intersection after the red light had turned green. Officer Maltby stated that he considered the defendant's delay in proceeding through the light to be indicative of a slowed reaction time, which he believed indicated impairment. Defendant presents plausible alternative reasons why a driver might hesitate before proceeding through an intersection after a red light has turned green. Defendant argues that a 30-second delay, by itself, provides insufficient grounds to justify aTerrystop. I agree.

As the majority notes, this Court has previously considered the question of whether a slight delay in proceeding through a green light provides a sufficient basis to conduct a stop of a defendant's vehicle. InState v. Roberson, we determined it was not error for a trial court to grant a motion to suppress where the only reason a police officer stopped a driver was based on an 8 to 10 second delay before responding to a traffic light changing from red to green.163 N.C. App. 129,592 S.E.2d 733(2004).

TheRobersoncase was a case of first impression in North Carolina. InRoberson, this Court noted that a driver's actions must be evaluated against the "backdrop of everyday driving experience" and stated that "[i]t is self-evident that motorists often pause at aPage 35stop sign or traffic light when their attention is distracted or preoccupied by outside influences."Id.at 134,592 S.E.2d at 736(quotingState v. Emory,809 P.2d 522,525(Idaho Sup.Ct. 1991)). The Court further stated:

A motorist waiting at a traffic light can have her attention diverted for any number of reasons. . . .When defendant did cross the intersection, therewas nothing suspicious about her driving and thus noindication that she may have been under the influenceof alcohol. Consequently, defendant's driving,including the delayed reaction at the traffic light,did not give rise to a reasonable, articulablesuspicion that she was driving while under theinfluence.

Roberson,163 N.C. App. at 134-35,592 S.E.2d at 737(emphasis supplied).

The rule stated inRobersonis applicable here since the defendant's delay in the face of a changing traffic light formed the sole basis of Officer Maltby's suspicion that defendant was engaged in or was about to be engaged in criminal activity.

The casesub judiceinvolves a delay of approximately 30 seconds, 20 seconds longer than the stop inRoberson.However, the instant case is similar toRobersonin that the delay could be attributable to impairment but it could also be attributable to numerous other causes and there was nothing else suspicious about defendant's driving.

While testifying on direct examination, Officer Maltby stated that he believed defendant's attention was diverted by the presence of a police cruiser pulling in behind him. The relevant exchange in the record is as follows:

Officer Maltby: The traffic light turned green for northbound direction of travel. I observed the Defendant's car stopped at this red light for approximately 30 seconds before it finally made a left-hand turn onto Hilliard Avenue.

Prosecutor: Did you find that to be unusual?

Officer Maltby: Yes sir, I did.

Prosecutor: Why is that unusual?

Officer Maltby: Typically it would mean, I believe, that the Defendant was paying particular attention to the rear view mirror and noticing me and not the actual traffic light.

Page 36

As Officer Maltby himself recognized, it is typical for a driver to watch the rear view mirror when a patrol car pulls in behind him, and this fact explains why a driver's attention was diverted from the traffic light changing from red to green. Officer Maltby testified that he did not look at his watch to determine the exact amount of time defendant delayed making his turn, but merely estimated that approximately 30 seconds elapsed while the light changed from redtogreen. Officer Maltby also stated that the light remained green as defendant made his lawful left-hand turn and noticed nothing suspicious in defendant's driving.

Officer Maltby's testimony indicates that he did not believe he had ample reason to stop defendant based on the delay alone, but decided to further observe defendant's driving for signs of impairment. On cross-examination, Officer Maltby was asked why he did not honk or beep his horn to get the defendant's attention. The officer responded: "I wanted to further my investigation and watch him in his driving demeanor at that point." When Officer Maltby was asked about defendant's driving demeanor, he responded that the left turn defendant made was a legal left turn. Officer Maltby further stated that he previously observed defendant's driving for approximately two minutes prior to stopping him at the red light. Just as there was nothing suspicious about defendant's driving after the light turned green and he turned left, there was also nothing suspicious about defendant's driving during the two minutes prior to his stop at the red light. Thus, Officer Maltby's suspicion was a vague, unparticularized suspicion, which underTerryand its progeny, does not justify a stop. Further, neither the location of the stop nor the time bolster the officer's unparticularized suspicion.

The fact that Officer Eaton's observation of defendant gave rise to no more than an "`unparticularized suspicion or hunch,'"Steen,352 N.C. at 239,536 S.E.2d at 8(citation omitted), cannot be rehabilitated by adding to the mix of considerations the general statistics advocated by the State on time, location, and special events from which a law enforcement officer would draw his inferences based on his training and experience, see, e.g.,Emory,119 Idaho at 664,809 P.2d at 525("[statistical] inferences must still be evaluated against the backdrop of everyday driving experience . . . [and the time of day of the stop] does not enhance the suspicious nature of the observation [of the delay]").

Page 37Roberson,163 N.C. App. at 134-35,592 S.E.2d at 737(citations omitted).

Although the majority notes that Officer Maltby initiated the stop in a "highcrime area," it does not include this factor in weighing the totality of the circumstances which must be considered in evaluating the legality of the stop. Officer Maltby testified that the area in question has a specific reputation for drug activity, prostitution, breaking and entering, and possession of stolen vehicles, not that the area is notorious for impaired driving.

A neighborhood's general reputation for drug activity is not enough to support a specific suspicion that a defendant is driving while intoxicated. Otherwise, police would be justified in stopping any motorist driving through a bad neighborhood where the motorist hesitates at a stop light or other traffic control device, and this justification would come largely from external factors nonspecific to the driver of the automobile.

We have previously determined that an officer's decision to stop a vehicle based on reasonable suspicion is justified only if the totality of circumstances affords an officer reasonable grounds to believe that criminal activity may be afoot.State v. Peck,305 N.C. 734,741,291 S.E.2d 637,641(1982). For instance, an officer had reasonable suspicion to stop a vehicle when he observed a driver who the officer believed was driving with a revoked license.State v. Kincaid,147 N.C. App. 94,555 S.E.2d 294(2001). Similarly, we have held that an officer may conduct an investigatory stop of a vehicle where he reasonably suspects the vehicle's windows may be tinted more darkly than allowed by North Carolina law.State v. Schiffer,132 N.C. App. 22,510 S.E.2d 165(1999).

However, in this case, Officer Maltby observed nothing suspicious about defendant's driving except for a pause in the face of a traffic light turning green. As we noted inRoberson, such a delay could be caused by any number of factors common in everyday driving. A motorist hesitating at a light could be distracted by things such as changing a radio station or glancing at a map, as the majority recognizes, or even glancing in the rear view mirror at a patrol car, as Officer Maltby himself recognized. But despite the majority's assertion to the contrary, such factors may cause a motorist to hesitate longer than 10 seconds after a light has changed. As such, the justifications cited inRobersonare not erased by the passage of an additional 20 seconds.Page 38

The majority citesPeople v. Kelly,802 N.E.2d 850(Ill.Ct.App. 2003), for the proposition that a 20-second delay at a traffic light is an unreasonable period of time to react to the stop light change and to ascertain it to be safe to proceed. InKelly, the Illinois Court of Appeals affirmed a trial judge who also denied defendant's motion to suppress evidence. The trial court's denial was based on the officer's reasonable grounds to stop a defendant who paused for 20 seconds after a red light changed to green. However, the Illinois trial court based its decision on defendant's violation of Illinois statutes requiring drivers to obey traffic control devices. That is, the defendant's delay at the light changing from red to green provided grounds for the officer to stop himbased on his violation of specific statutesthat prohibited stopping, standing, or parking in specific places. The courtdid notdetermine that the 20-second delay provided reasonable grounds to believe that defendant was impaired. Here, since no such statute is implicated,Kellyis wholly inapplicable to this case.

In fact, Illinois has another case which is instructive to the casesubjudice.InPeople v. Dionesotes,603 N.E.2d 118(Ill.Ct.App. 1992), the Illinois Court of Appeals held that there was no reasonable, articulable suspicion for an officer to stop a driver who at 2:30 a.m. was observed driving 10 miles per hour in a 25 mile per hour zone and who subsequently stopped his car for approximately one-anda-half minutes before resuming his driving. TheKellycourt stated that under the facts inDionesotes, it would have been objectively reasonable for an officer to suspect impairment.Id.at 856. However, this is a misreading of theDionesotesdecision. InDionesotes, the court stated:

In the present case, defendant drove slowly and stopped his car in the middle of the street for a short period of time. These facts do not support a reasonable inference that defendant is committing, is about to commit, or has committed an offense.

Dionesotes,603 N.E.2d at 120.

InDionesotes, the arresting officer testified that he did not subjectively suspect impairment, but suspected that something "unusual" was underway. Although theKellycourt indictacriticizedDionesotesand sought to distinguish it on the grounds that the officer inDionesoteshad no subjective belief that defendant was specifically impaired, it is clear from the language ofDionesotesthat the court did not consider driving that is merely "unsusual" enough toPage 39provide the particularization necessary to initiate aTerrystop, regardless of the officer's lack of a subjective, particularized belief that a specific crime was being committed.

It should be further noted that courts are split on the issue of whether an officer's subjective belief is relevant in determining whether reasonable, articulable suspicion exists. Some courts have determined that an officer must have a subjective suspicion that is objectively reasonable in order to conduct aTerrystop,see United States v. Lott,870 F.2d 778,783-84(1st Cir. 1989), while others have determined thatTerryis a purely objective test rendering an officer's subjective suspicions irrelevant.United States v. Brown,188 F.3d 860,866(7th Cir. 1999);United States v. Cummins,920 F.2d 498,502(8th Cir. 1990). North Carolina has followed the line of cases holding that the officer's subjective suspicion is irrelevant and that the test is a purely objective one.Peck,305 N.C. at 741,291 S.E.2d at 641-42("The officer's subjective opinion is not material. Nor are the courts bound by an officer's mistaken legal conclusion as to the existence or non-existence of probable cause or reasonable grounds for his actions. The search or seizure is valid when the objective facts known to the officer meet the standard required.").

Regardless of the officer's subjective suspicions or lack thereof inDionesotes, it is apparent from the opinion that the court did not believe the totality of the circumstances, viewed objectively, gave rise to a reasonable suspicion of wrongdoing sufficient to justify aTerrystop. As cited above, the court determined that the facts "do not support a reasonable inference that defendant is committing, is about to commit, or has committed an offense."Dionesotes,603 N.E.2d at 120. This language implicitly recognizes that even if the officer had subjectively suspected impairment, the facts known to him at the time would not have supported an investigative stop.

TheDionesotescourt further stated, "[U]nusual behavior alone does not necessarily support a reasonable suspicion that a crime has occurred, is occurring or is about to occur. Without more, a proper basis to make aTerrystop has not been established."Id.at 120-21. DespiteKelly'scriticisms ofDionesotes, Dionesoteshas never been overruled and remains good law in Illinois.

Although it is not binding precedent on this Court,Dionesotesdemonstrates that other courts have required much more to justify an investigative stop of a vehicle than the majority does in the instant case. While I agree with the majority that a 30-second delay in thePage 40face of a changing traffic light is unusual, I disagree that it provides sufficient particularized suspicion that a driver is impaired.

Accordingly, I believe the officer did not have reasonable, articulable suspicion to stop the defendant given that he had nothing more than an unparticularized hunch that defendant was committing a crime. Any other factor, such as unsteady driving, might tip the scales to favor aTerrystop. But the delay alone is not enough.

The majority's opinion determines that at some point in the 20 seconds between a 10-second delay and a 30-second delay, an unparticularized hunch ripens into a reasonable, particularized suspicion, leaving trial courts in the unfortunate position of having to guess at the exact location of that point. This will inevitably lead to uneven enforcement and require trial courts to engage in anad hocguessing game. Further, the majority's decision so weakens the reasons supporting theRobersondecision that today's decision effectively overrulesRoberson.

Since I believe that there was no basis for Officer Maltby to stop defendant, I further believe the crack pipe seized from defendant's car and statements made as a result of the stop were fruit of the poisonous tree and should have been excluded at trial.Wong Sun v. United States,371 U.S. 471,9 L. Ed. 2d 441(1963).

The more difficult question in this case is whether the second crack rock seized from defendant after he completed the controlled buy should have been suppressed as fruit of the poisonous tree. The second crack rock would not have been discovered but for the police officers' violation of defendant's constitutional rights. However, the United States Supreme Court has made it clear that application of the fruit of the poisonous tree doctrine does not rest on a but-for test.

We need not hold that all evidence is fruit of the poisonous tree simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.

Id.at 487-88 (quotation marks and citation omitted). Here, the evidence seized was discovered as part of defendant's participation in a controlled buy By promising to dispose of the original charges stemmingPage 41from the illegal stop in exchange for defendant's cooperation, the police secured defendant's participation in the controlled buy, thus exploiting the original violation of defendant's rights. However, the evidence subsequently seized related to a crime committed by defendantduringthe course of the controlled buy, an intervening act unrelated to the original arrest. As such, the evidence can be said to have been gained by "means sufficiently distinguishable to be purged of the primary taint."Id.at 488,9 L. Ed. at 455. The United States Supreme Court has previously held that evidence sufficiently attenuated from the primary taint may not be subject to suppression as fruit of the poisonous tree.Nardone v. United States,308 U.S. 338,84 L. Ed. 307(1939).

"The [exclusionary] rule is calculated to prevent, not to repair. Its purpose is to deter — to compel respect for the constitutional guaranty in the only effectively available way — by removing the incentive to disregard it."Elkins v. United States,364 U.S. 206,217,4 L. Ed. 2d 1669,1677(1960). Thus, the purpose underlying the fruit of the poisonous tree doctrine, deterring police misconduct, would not be furthered by suppression of the evidence.

Accordingly, I would determine that the second crack rock was not fruit of the poisonous tree, but evidence of a subsequent crime, and that the defendant's commission of a separate and intervening crime while participating in the controlled buy sufficiently purged the taint of the original illegality. Nevertheless, the second crack rock would never have been discovered by police if not for defendant's participation in the controlled buy. Since I believe there was no justification for police to stop, detain, and search defendant, I conclude the search that produced the crack rock can only be justified as a consent search. So the question becomes whether defendant consented to a search of his person following the controlled buy, and if so, whether that consent was given voluntarily or coerced by police.

[T]he question whether a consent to a search was in fact "voluntary" or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances. While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as thesine qua nonof an effective consent. As with police questioning, two competing concerns must be accommodated in determining the meaning of a "voluntary" consent — the legitimate need for such searchesPage 42and the equally important requirement of assuring the absence of coercion.

Schneckloth v. Bustamonte,412 U.S. 218,227,36 L. Ed. 2d 854,862-63(1973). "Merely because a defendant is under arrest when consent is given does not render the consent involuntary. . . . It is, however, a factor which must be considered, and places a greater burden upon the State to show voluntariness."State v. Cobb,295 N.C. 1,17-18,243 S.E.2d 759,769(1978) (citations omitted).

The issues of defendant's consent and the voluntariness of that consent are issues of fact to be determined by the trial court. Since the trial court made no findings of fact with respect to these issues, this Court is unable to conduct a proper review. Thus, I would vacate the judgment and hold that the evidence deriving from the illegal stop should be suppressed. I would remand to the trial court for further proceedings consistent with this opinion to determine whether defendant voluntarily consented to the search of his person that turned up the crack rock from the controlled buy.