Opinion
No. COA02-1006
Filed 6 May 2003 This case not for publication
Appeal by defendant from order filed 5 April 2002 by Judge Stanford L. Steelman, Jr. in Onslow County Superior Court. Heard in the Court of Appeals 16 April 2003.
Attorney General Roy Cooper, by Assistant Attorney General Leonard G. Green, for the State. Richard E. Jester for defendant appellant.
Onslow County No. 01 CRS 55500.
Gary Richard Newkirk (defendant) appeals from a judgment dated 29 April 2002 following an order filed 5 April 2002 denying his motion to suppress plastic baggies containing marijuana and a partially smoked marijuana cigarette seized after a traffic stop of a vehicle in which he was a passenger. Defendant, after the denial of the motion to suppress, pled guilty to the crime of possession with intent to sell and deliver marijuana. As part of a plea arrangement, defendant preserved his right to appeal the denial of this motion to suppress pursuant to N.C. Gen. Stat. § 15A-979(b) (2001).
With respect to defendant's motion to suppress, the trial court found in pertinent part:
5. Sergeant Otto and Lieutenant Bryant of the Holly Ridge Police Department testified at this voir dire hearing.
6. On August 28, 2001, at approximately 5:45 p.m., Sergeant Otto and Lieutenant Bryant of the Holly Ridge Police Department were conducting a seat belt checkpoint on N.C. Highway 50 and South Smith Street in the Town of Holly Ridge. They were checking all vehicles for seat belt use by occupants, but were only stopping the vehicles if a passenger or driver was not using their seatbelts. The officers were standing in N.C. Highway 50, and their patrol vehicles were parked on either side of the checkpoint, with their lights flashing. There was no challenge made to the validity of the seat belt checkpoint.
7. Both of the officers observed a green vehicle approach N.C. Highway 50 on Sanders Street, and stop at the stop sign controlling traffic entering N.C. Highway 50 from Sanders Street. This intersection was approximately 200 feet away from the seat belt checkpoint. The vehicle stopped at the stop sign, with its right turn signal on. There was no traffic on N.C. Highway 50 that would have prevented the green vehicle from executing a right turn onto N.C. Highway 50. There were no obstructions that prevented the two officers from seeing the green vehicle, or that prevented the driver of the green vehicle from seeing the officers. A right turn from Sanders Street onto N.C. Highway 50 would have brought the green vehicle directly to the seat belt checkpoint and the officers. The green vehicle hesitated at the intersection of Sanders Street and N.C. Highway 50 for approximately 10 seconds. The green vehicle then put on its left turn signal and turned left onto N.C. Highway 50, and proceeded away from the seatbelt checkpoint. Sergeant Otto pursued the green vehicle, and made an investigatory stop. Upon the window of the green vehicle being opened, Sergeant Otto immediately smelled a strong odor of marijuana smoke. The defendant admitted that he had marijuana, which was sent to the SBI lab, and confirmed to be marijuana. The defendant was arrested and charged with possession with intent to sell and deliver marijuana, and manufacture of marijuana.
8. Our Supreme Court, in the case of State v. Foreman, 351 N.C. 627, 527 S.E.2d 921 (2000), has defined the perimeter of a checkpoint very broadly . . . . In this case, the checkpoint was marked by the officers presence in the roadway, and flashing lights on the patrol vehicles on each side of N.C. Highway 50.
. . . .
10. Based upon the vehicle hesitating at the intersection of N.C. Highway 50 and Sanders Street; the unobstructed visibility between Sanders Street and the seatbelt checkpoint; the lack of traffic between the checkpoint and Sanders Street; the switching of the signals from right to left; and the green vehicle turning away from the seatbelt checkpoint, Sergeant Otto had [a] reasonable articulable suspicion sufficient to support the stop [of] the green vehicle, in which the defendant was a passenger.
Based on these findings, the trial court concluded that the green vehicle in which the defendant was a passenger was within the perimeter of the checkpoint when it executed a left turn away from the seatbelt checkpoint and that Sergeant Otto had a reasonable, articulable suspicion sufficient to support the stop of the green vehicle.
The issue is whether Sergeant Otto had a reasonable, articulable suspicion to support the stop of the green vehicle.
Defendant argues that (A) the vehicle in which he was a passenger was not within the "perimeter of the checkpoint" as defined by State v. Foreman, 351 N.C. 627, 527 S.E.2d 921 (2000), and (B) the driver's legal left turn "away from the inspection" did not constitute grounds to stop the vehicle.
[T]he scope of appellate review of an order such as this is strictly limited to determining whether the trial judge's underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge's ultimate conclusions of law.
State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). Further, "the trial court's ruling on a motion to suppress is afforded great deference upon appellate review as it has the duty to hear testimony and weigh the evidence." State v. McClendon, 130 N.C. App. 368, 377, 502 S.E.2d 902, 908 (1998), aff'd, 350 N.C. 630, 517 S.E.2d 128 (1999).
The Fourth Amendment to the Constitution of the United States and Section 20 of Article I of the North Carolina Constitution prohibit unreasonable searches and seizures. State v. Garner, 331 N.C. 491, 506-07, 417 S.E.2d 502, 510 (1992). It is well established, however, that police officers may conduct a brief investigatory stop of a vehicle without probable cause "when justified by specific, articulable facts which would lead a police officer `reasonably to conclude in light of his experience that criminal activity may be afoot.'" State v. Battle, 109 N.C. App. 367, 370, 427 S.E.2d 156, 158 (1993) (quoting Terry v. Ohio, 392 U.S. 1, 30, 20 L.Ed.2d 889, 911 (1968)).
In Foreman, our Supreme Court recognized:
[I]t 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 light of and pursuant to 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.
Foreman, 351 N.C. at 633-4, 527 S.E.2d at 924.
A
We first address the question of whether the green vehicle was in the perimeter of the seatbelt checkpoint. In Foreman, "[t]he perimeters of the checkpoint were marked with signs stating that there was a DWI checkpoint ahead, and the signs were posted approximately one-tenth of a mile prior to the actual stop." Id. at 632, 527 S.E.2d at 924. Our Supreme Court, in defining the perimeters of a checkpoint, stated that perimeters of a checkpoint "would include the area within which drivers may become aware of its presence by observation of any sign marking or giving notice of the checkpoint." Id.
The evidence at the suppression hearing demonstrated that although the seatbelt checkpoint in this case did not have a posted sign stating that there was a checkpoint ahead like the Foreman case, the seatbelt checkpoint was clearly marked by the two patrol cars with their lights flashing, parked on both sides of the highway, and two uniformed police officers standing in the middle of the highway. The flashing lights, the positioning of the patrol cars, and the officers gave drivers notice of the checkpoint at the intersection of Highway 50 and South Smith Street. The evidence also showed the green vehicle stopped 200 feet away from the checkpoint at the intersection of Highway 50 and Sanders Street, with no traffic to prevent the driver of the green vehicle from observing the checkpoint. Thus, we conclude, there was sufficient evidence to support the trial court's findings and those findings support the conclusion that the green vehicle was in the perimeter of the seatbelt checkpoint.
B
We now turn to the question of whether Sergeant Otto had a reasonable, articulable suspicion to support the stop of the green vehicle to inquire into why the driver sought to evade the checkpoint. Our Supreme Court clarified in Foreman that
[a]lthough a legal turn, by itself, is not sufficient to establish a reasonable, articulable suspicion, a legal turn in conjunction with other circumstances, such as the time, place and manner in which it is made, may constitute a reasonable, articulable suspicion which could justify an investigatory stop.
Id. at 631, 527 S.E.2d at 923 (emphasis in original). In this case, the evidence showed that Sergeant Otto and Lieutenant Bryant noticed that the green vehicle had its right turn signal on when it stopped at the stop sign, that the vehicle hesitated for approximately ten seconds even though there was no traffic, that the driver put on the vehicle's left turn signal, and that the driver then turned left, away from the checkpoint. The officers noted that there was no traffic to prevent the green vehicle from turning right onto Highway 50. This evidence supports the trial court's findings of fact and its conclusion, based on the totality of the circumstances, that the officers had a reasonable, articulable suspicion sufficient to support the stop of the green vehicle, "which has turned away from a checkpoint within its perimeters for reasonable inquiry to determine why the vehicle turned away." Id. at 633-4, 527 S.E.2d at 924. Accordingly, the trial court properly denied defendant's motion to suppress.
Affirmed.
Judges HUNTER and ELMORE concur.
Report per Rule 30(e).