State v. Barnard, COA06-209.

• Citation: 645 S.E.2d 780
• Decision Date: 19 June 2007
• Docket Number: No. COA06-209.,COA06-209.
• Court: Court of Appeal of North Carolina (US)
• Parties: STATE of North Carolina v. Kenneth BARNARD.

645 S.E.2d 780

STATE of North Carolina v. Kenneth BARNARD.

No. COA06-209.

Court of Appeals of North Carolina.

June 19, 2007.

Appeal by defendant from judgment entered 6 April 2005 by Judge James U. Downs in Buncombe County Superior Court. Heard in the Court of Appeals 30 October 2006.

Roy Cooper, Attorney General, by Daniel S. Johnson, Special Deputy Attorney General, for the State.

Anne Bleyman, Chapel Hill, for defendant-appellant.

MARTIN, Chief Judge.

Defendant was charged in bills of indictment with two counts of possession of cocaine and two counts of having achieved the status of an habitual felon. Prior to trial, defendant moved to suppress evidence seized as a result of searches of his vehicle and his person, as well as statements which he made to the police. After a hearing, the motion to suppress was denied. Defendant was convicted by a jury of two counts of possession of cocaine and subsequently entered a plea of guilty to one count of having achieved the status of an habitual felon. The remaining habitual felon charge was dismissed. He appeals from a judgment sentencing him to a minimum term of 168 months and a maximum term of 211 months imprisonment. We find no error.

The evidence presented at the suppression hearing and at trial tended to show that at around 12:15 a.m. on 2 December 2004, Officer Brett Maltby was on patrol in a high crime area of downtown Asheville where a number of bars are located. Officer Maltby was driving a marked patrol car and was behind defendant's vehicle, a 1993 Ford Taurus, which was stopped at a red traffic light. When the light turned green, defendant remained stopped for approximately thirty seconds before making a left turn. Based upon his training and experience, Officer Maltby considered that the delayed reaction to the green light was an indicator that the driver of the vehicle may be impaired. Officer Maltby initiated a stop of the vehicle to determine whether, in fact, the driver was impaired.

Officer Maltby approached defendant and asked for his license and registration. Defendant's breathing was rapid and he was shaking. Officer Maltby smelled a slight odor of alcohol on defendant's breath. Defendant said that he did not have his license and gave Officer Maltby a name and birth date. Officer Maltby returned to his patrol car to conduct a check of the name and birth date to determine if defendant had a driver's license and to check for outstanding warrants. He determined that the information which the defendant had given him was not correct. Officer Maltby then returned to defendant's vehicle and asked him to step out of his vehicle. Officer Maltby observed an open container of alcohol partially concealed in a paper bag. Officer Maltby placed defendant in investigatory detention, handcuffed him due to his nervousness and inability to explain his identity, and walked him back to the patrol car. Defendant then disclosed his real name, and Officer Maltby was able to determine that his driver's license had been suspended. Officer Maltby began to write a citation for possession of an open container of alcohol and driving while license revoked.

Officer Dwight Arrowood arrived at the scene to assist Officer Maltby. At Officer Maltby's direction, Officer Arrowood searched the interior of the Taurus and recovered a crack pipe and a Brillo pad, which is sometimes used as a filter for a crack pipe. Officer Maltby then began to write a citation for possession of drug paraphernalia when defendant said he would do anything to get out of the situation and offered to purchase narcotics. He told Officer Maltby that he had purchased crack cocaine earlier that day from a person known as "One-Arm Willy." Maltby was familiar with "One-Arm Willy" and agreed to void the citations he was writing if defendant would make a controlled buy from his drug dealer.

Officer Maltby stored defendant's vehicle, took him to the police station, and secured the assistance of an undercover narcotics officer, Officer Lauffer. Defendant agreed to go to the residence of One-Arm Willy and purchase a $20 rock of crack cocaine. The officers explained that defendant would be searched prior to leaving the police station that he would accompany Officer Lauffer to the residence, purchase the crack cocaine and return immediately to the officer's car. He would then be returned to the police station where he would be debriefed and searched a second time.

Defendant successfully purchased a crack rock from the dealer and turned it over to Officer Lauffer, who gave it to Officer Maltby when they returned to the police station. Officer Maltby then began to debrief defendant, inquiring as to what he had seen in the house for the purpose of obtaining and executing a search warrant. Officer Maltby searched defendant and found a small rock of crack cocaine concealed in defendant's pocket. Defendant told Officer Maltby that he had gotten a "front" from One-Arm Willy for the second rock of cocaine. He then "asked [Officer Maltby] if he could just have the rock of crack cocaine back." Officer Maltby refused and concluded that the defendant was not sufficiently reliable to be used as a confidential informant to support a search warrant of the dealer's home. Officer Maltby took defendant home and subsequently charged him with possession of crack cocaine.

On appeal, defendant contends the trial court erred in denying his motion to suppress the evidence seized by the officers as a result of the vehicle stop and subsequent search of his vehicle, as well as statements which he made to Officer Maltby. We have carefully considered his arguments and conclude the evidence was properly admitted.

On a motion to suppress, we review a trial court's findings of fact to determine if there is competent evidence to support them. State v. Brewington, 170 N.C.App. 264, 271, 612 S.E.2d 648, 653 (2005) (citation omitted). The trial court's findings upon conflicting evidence are accorded "great deference upon appellate review as it has the duty to hear testimony and weigh the evidence." Id. If the findings are supported by competent evidence, they are conclusive on appeal. State v. Campbell, 359 N.C. 644, 661, 617 S.E.2d 1, 12 (2005). The conclusions of law which the court draws from those findings are fully reviewable. Id. at 662, 617 S.E.2d at 13.

Defendant first challenges the trial court's denial of his motion to suppress the evidence related to Officer Maltby's traffic stop of the defendant's vehicle. He argues that Officer Maltby had neither probable cause nor a reasonable, articulable suspicion to stop defendant and therefore it was error to admit evidence resulting from the stop. We disagree.

A police officer may effect 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, 21, 88 S.Ct. 1868, 1879-80, 20 L.Ed.2d 889, 906 (1968). "Reasonable suspicion" requires that "[t]he stop ... be based on specific and articulable facts, as well as the rational inferences from those facts, as viewed through the eyes of a reasonable, cautious officer, guided by his experience and training." State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 70 (1994). All the State is required to show is a "minimal level of objective justification, something more than an `unparticularized suspicion or hunch.'" Id. at 442, 446 S.E.2d at 70 (quoting U.S. v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1, 10 (1989)). A court must consider the totality of the circumstances in determining whether the officer possessed a reasonable and articulable suspicion to make an investigatory stop. Id. at 441, 446 S.E.2d at 70.

The trial court found that on 2 December 2004, defendant stopped at an intersection and "remained stopped for some 30 seconds without any reasonable appearance of explanation for doing so." This finding is amply supported by competent evidence and thus binding on appeal. See State v. Parker, 137 N.C.App. 590, 598, 530 S.E.2d 297, 302 (2000). Based on this finding, the trial court concluded the following:

[T]he Court concludes that from the totality of the circumstances that [sic] a reasonable articulable suspicion of wrongdoing on the part of the Defendant existed to warrant Officer Maltby's stop of the Defendant's vehicle in view of its prolonged existence at this intersection without any reason for doing so.

When considering the totality of the circumstances, the trial court's findings provide the requisite objective justification from which a conclusion can be drawn that a reasonable suspicion existed to warrant Officer Maltby's stop. From defendant's thirty second delay, Officer Maltby made a rational inference that defendant might be impaired. This inference was based on Officer Maltby's training and experience, as reflected by his testimony.

Q: Based upon your training and experience, do you have an opinion as to whether or not that sort of delayed reaction could usually involve an impaired substance or driving while impaired?

A: Absolutely. Yes, sir.

Q: Can you articulate that?

A: People's reaction is slowed down. A red light turning green and hesitating for 30 seconds definitely would be an indicator of impairment.

Defendant, however, cites State v. Roberson, 163 N.C.App. 129, 135, 592 S.E.2d 733, 737 (2004), in which this Court held that a driver's eight to ten second delayed reaction at a traffic light did not give the officer a reasonable and articulable suspicion of criminal activity. This Court predicated its holding on the multitude of reasons a motorist's attention may be diverted for such a quick span of time. Id. at 134, 592 S.E.2d at 737. The instant case is distinguishable in that the length of defendant's delay at the traffic light, at thirty seconds, was three times longer than the delay in Roberson. A thirty second delay goes well beyond the delay caused by a motorist's routine distractions,...