State v. Ivey

• Decision Date: 18 August 2006
• Docket Number: No. 458PA05.,458PA05.
• Citation: 633 S.E.2d 459
• Parties: STATE of North Carolina v. Twanprece Neshawn IVEY.
• Court: North Carolina Supreme Court

Page 459

633 S.E.2d 459

STATE of North Carolina v. Twanprece Neshawn IVEY.

No. 458PA05.

Supreme Court of North Carolina.

August 18, 2006.

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous, unpublished decision of the Court of Appeals, 171 N.C.App. 516, 615 S.E.2d 738 (2005), affirming a judgment entered on 25 May 2004 by

Judge David S. Cayer in Superior Court, Mecklenburg County. Heard in the Supreme Court 18 April 2006.

Roy Cooper, Attorney General, by Clinton C. Hicks, Assistant Attorney General, for the State.

Isabel Scott Day, Mecklenburg County Public Defender, by Julie Ramseur Lewis, Assistant Public Defender, for defendant-appellant.

BRADY, Justice.

On 11 September 2002, Charlotte-Mecklenburg Police Officer Christopher Rush (Officer Rush) stopped a sport utility vehicle driven by defendant Twanprece Neshawn Ivey after defendant made a right turn without using a turn signal. Officer Rush subsequently obtained defendant's consent and searched the vehicle, recovering a firearm. The fruit of this search was the basis of defendant's convictions of possession of a firearm by a felon and carrying a concealed weapon. We must determine the constitutionality of the traffic stop by ascertaining whether Officer Rush had probable cause to believe defendant's operation of his vehicle violated any applicable traffic statute.

Before the trial court, defendant made a motion in limine to exclude the firearm from evidence, arguing Officer Rush lacked probable cause to believe a traffic violation had occurred. The trial court denied defendant's motion, and defendant then pleaded guilty to both offenses, which were consolidated under the possession of a firearm by a felon charge. The trial court sentenced defendant, who had a prior record level of II, at the maximum of the presumptive range to a term of fifteen to eighteen months imprisonment.

Defendant appealed the denial of his motion to suppress to the Court of Appeals, which unanimously affirmed the trial court's decision in an unpublished opinion. State v. Ivey, 171 N.C.App. 516, 615 S.E.2d 738, 2005 WL 1669023 (July 19, 2005) (No. COA04-1420). We hold a reasonable officer, under the circumstances presented, would not have had probable cause to believe that a traffic violation occurred and, thus, the seizure and subsequent search of defendant's vehicle were unreasonable and violated defendant's rights under the Fourth Amendment to the United States Constitution and Article I, Section 20 of the North Carolina Constitution. Therefore, we reverse the decision of the Court of Appeals and remand with instructions to vacate defendant's convictions and remand to the trial court for proceedings not inconsistent with this opinion.

FACTUAL BACKGROUND

On 11 September 2002, while on routine patrol of an urban area, Officer Rush observed defendant driving a white Chevrolet Tahoe sport utility vehicle with "tinted windows and expensive, fancy chrome wheels" on Monument Street in Charlotte, North Carolina. There is no indication that any other automobile or pedestrian traffic which might have been in the area would have been affected by defendant's operation of the vehicle. Officer Rush, some distance directly behind the automobile, saw defendant come to a complete stop at a T-intersection and then make a right turn without signaling. A concrete median at the T-intersection blocked a left turn, so that, as Officer Rush confirmed at the suppression hearing, defendant had no choice but to turn right. After observing defendant's turn, Officer Rush initiated a traffic stop of the sport utility vehicle and issued a uniform citation to defendant for unsafe movement under N.C.G.S. § 20-154(a) for failure to signal. During this traffic stop, Officer Rush solicited and received defendant's consent to a warrantless search of the automobile. During this search, Officer Rush discovered a firearm, which was the basis for defendant's convictions of possession of a firearm by a felon and carrying a concealed weapon.

ANALYSIS

As a general rule, "the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred." Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). In examining the legality of a traffic stop, the proper inquiry is not the subjective reasoning of the officer, but whether the objective facts support a finding that probable cause existed to stop the defendant. See State v. McClendon, 350 N.C. 630, 635, 517 S.E.2d 128, 132 (1999). Probable cause exists when there is a fair probability or substantial chance a crime has been committed and that the defendant committed it. See Illinois v. Gates, 462 U.S. 213, 245-46, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Thus, the United States and North Carolina Constitutions require an officer who makes a seizure on the basis of a perceived traffic violation to have probable cause to believe the driver's actions violated a motor vehicle law. See McClendon, 350 N.C. at 635-36, 517 S.E.2d at 132 (adopting the reasoning of Whren v. United States in interpreting Article I, Section 20 of the North Carolina Constitution). The standard of probable cause is a basic tenet that applies regardless of whether the action is taken by a deputy sheriff, a city police officer, a state Alcohol Law Enforcement agent, or a wildlife enforcement officer.

Although neither party briefed the issue, there was discussion at oral argument concerning whether this traffic stop was a case of "driving while black." "`Driving while black' refers to the charge that police stop, question, warn, cite or search African American citizens because of their race." Matthew T. Zingraff et al., Evaluating North Carolina State Highway Patrol Data: Citations, Warnings, and Searches in 1998, at 2 (Nov. 1, 2000) (report submitted to North Carolina Department of Crime Control & Public Safety). From the record in the instant case, we cannot determine whether the stop of defendant, a black male, was a selective enforcement of the law based upon race. Regardless, this Court will not tolerate discriminatory application of the law based upon a citizen's race. As espoused by the Supreme Court of the United States, "the Constitution prohibits selective enforcement of the law based on considerations such as race," because such enforcement violates the Fourteenth Amendment's Equal Protection Clause. Whren, 517 U.S. at 806, 116 S.Ct. 1769. However, such "[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis." Id.

In making a determination of whether Officer Rush had probable cause to stop defendant, we must consider the alleged violation of North Carolina traffic law. Our General Statutes provide:

The driver of any vehicle upon a highway or public vehicular area before starting, stopping or turning from a direct line shall first see that such movement can be made in safety, and if any pedestrian may be affected by such movement shall give a clearly audible signal...