State v. Foreman

527 S.E.2d 921, 351 N.C. 627, 2000 N.C. LEXIS 349
CourtSupreme Court of North Carolina
DecidedMay 5, 2000
Docket291PA99
StatusPublished
Cited by40 cases

This text of 527 S.E.2d 921 (State v. Foreman) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Foreman, 527 S.E.2d 921, 351 N.C. 627, 2000 N.C. LEXIS 349 (N.C. 2000).

Opinions

LAKE, Justice.

On 16 November 1996, defendant was arrested for driving while impaired (DWI), possession of drug paraphernalia and possession of cocaine. Defendant was subsequently indicted for the DWI charge. On 16 September 1997, defendant was found guilty of DWI in District Court, Craven County, and gave notice of appeal to the superior court. On 12 February 1997, defendant filed a motion to dismiss the charge because there was no probable cause sufficient to justify the stop of her vehicle or, in the alternative, to suppress any evidence obtained from the stop of defendant’s vehicle. The trial court denied defendant’s motion to dismiss or to suppress, and defendant was tried before a jury at the 23 February 1998 Criminal Session of Superior Court, Craven County. The jury found defendant guilty of DWI. On 25 February 1998, the trial court, inter alia, sentenced defendant to a suspended sentence of sixty days in jail with unsupervised probation for two years and revoked her license for one year. Defendant appealed to the North Carolina Court of Appeals.

On appeal, the Court of Appeals found no error. State v. Foreman, 133 N.C. App. 292, 515 S.E.2d 488 (1999). In support of its decision, the Court of Appeals concluded that it was not constitutionally permissible for an officer to stop a vehicle which had made a legal turn away from a posted DWI checkpoint. Although we disapprove of the Court of Appeals’ conclusion that a legal turn away from a DWI checkpoint, upon entering the checkpoint’s perimeters, cannot justify an investigatory stop, we find no error in defendant’s conviction. Accordingly, we affirm the decision of the Court of Appeals as modified herein.

[629]*629The State’s evidence tended to show that during the early morning hours of 16 November 1996, officers from the New Bern Police Department were conducting a “DWI Checkpoint” on Neuse Boulevard in New Bern, North Carolina. Notice signs stating that there was a “DWI Checkpoint Ahead” were posted approximately one-tenth of a mile prior to the stop. Officer Doug Ipock was in a police cruiser parked close to the checkpoint’s perimeter. His assigned task was to pursue any and all vehicles which appeared to attempt to avoid the checkpoint by turning around or away from it and to determine the basis for such avoidance.

At approximately 2:00 a.m., Officer Ipock observed a small red vehicle traveling on Neuse Boulevard towards the checkpoint. Immediately prior to passing the checkpoint’s sign giving notice of the checkpoint, the vehicle made a quick left turn onto Midgette Avenue. Officer Ipock then followed this vehicle and remained approximately thirty to forty yards behind it. Officer Ipock continued to observe the vehicle until it made a second abrupt left turn onto Taylor Street. At this point, Officer Ipock lost sight of the vehicle. After continuing a short distance up and then back down Taylor Street, Officer Ipock ultimately found the vehicle parked in a residential driveway on Taylor Street. The car’s lights and ignition were off, and its doors were closed. Officer Ipock directed his bright lights onto the vehicle and also turned on his “take-down lights,” thereby enabling the officer to see that people were bent or crouched down inside the car. At this point, the officer radioed for backup and remained in his vehicle until backup arrived, approximately two minutes later. The officer observed that the occupants remained bent or crouched down and that they did not change positions in the vehicle.

Once backup arrived, Officer Ipock approached the vehicle and saw that defendant was sitting in the driver’s seat, with the keys still in the ignition. Officer Ipock testified that there were several open containers of alcohol in the vehicle and that the vehicle emitted a “strong odor of alcohol.” Additionally, the officer testified that defendant had a strong to moderate odor of alcohol about her person once she exited the vehicle and that she was unsteady on her feet. The officer’s observations were admitted into evidence.

Defendant contends that the Court of Appeals erroneously upheld her DWI conviction because the evidence derived from Officer Ipock’s observations was inadmissible since his observations were the result of an invalid stop and seizure. Specifically, defendant [630]*630argues that at the time she made the legal left turn, just prior to entering the DWI checkpoint, Officer Ipock did not have a reasonable or articulable suspicion of criminal activity, and therefore he had no legal basis to stop her. For the reasons discussed herein, we conclude that the Court of Appeals correctly determined that the arresting officer, under the totality of the circumstances, had a reasonable, articulable suspicion that defendant was engaged in criminal activity prior to any seizure.

This Court has recently reaffirmed the long-standing rule that “[w]hen an officer observes conduct which leads him reasonably to believe that criminal conduct may be afoot, he may stop the suspicious person to make reasonable inquiries.” State v. Pearson, 348 N.C. 272, 275, 498 S.E.2d 599, 600 (1998). “ ‘[T]he police officer must be able to point to specific and articulable facts, which taken together with rational inferences from those facts, reasonably warrant [the] intrusion.’ ” State v. Thompson, 296 N.C. 703, 706, 252 S.E.2d 776, 779 (quoting Terry v. Ohio, 392 U.S. 1, 21, 20 L. Ed. 2d 889, 906 (1968)), cert. denied, 444 U.S. 907, 62 L. Ed. 2d 143 (1979). In the instant case, the officer observed a “quick left turn” away from the checkpoint at the precise point where the driver of the vehicle would have first become aware of its presence. However, Officer Ipock did not stop defendant’s vehicle once it turned away from the checkpoint. In fact, we cannot conclude that Officer Ipock “stopped” defendant’s vehicle at any point. Defendant voluntarily parked in a residential driveway and remained hidden in the car until Officer Ipock approached the vehicle. Therefore, defendant was not “seized” by the police officer until at least that point. Based upon that series of incriminating circumstances, we conclude that the Court of Appeals correctly determined that Officer Ipock observed sufficient activity to raise a “reasonable and articulable suspicion of criminal activity.” Foreman, 133 N.C. App. at 298, 515 S.E.2d at 493.

Although defendant in the case sub judice was not stopped because of her legal turn, or at all by the arresting officer, the Court of Appeals stated:

[A] legal left turn at the intersection immediately preceding a posted DWI checkpoint, without more, does not justify an investigatory stop. We emphasize, however, that it is constitutionally permissible, and undoubtedly prudent, for officers to follow vehicles that legally avoid DWI checkpoints, in order to ascertain whether other factors exist which raise a reasonable and articu[631]*631lable suspicion that an occupant of the vehicle is engaged in criminal activity.... Thus, if [defendant was seized solely based on a legal left turn preceding the DWI checkpoint, that seizure was unconstitutional.

Id. at 296, 515 S.E.2d at 492. For the reasons discussed herein, we disagree and clarify this language.

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Cite This Page — Counsel Stack

Bluebook (online)
527 S.E.2d 921, 351 N.C. 627, 2000 N.C. LEXIS 349, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-foreman-nc-2000.