State v. Steele

• Citation: 858 S.E.2d 325
• Decision Date: 20 April 2021
• Docket Number: No. COA20-171,COA20-171
• Parties: STATE of North Carolina v. Jody Raye STEELE, Defendant.
• Court: Court of Appeal of North Carolina (US)

858 S.E.2d 325

STATE of North Carolina

v.Jody Raye STEELE, Defendant.

No. COA20-171

Court of Appeals of North Carolina.

Filed April 20, 2021

Attorney General Joshua H. Stein, by Assistant Attorney General Nora F. Sullivan, for the State.

The Robinson Law Firm, P.A., Greenville, by Leslie S. Robinson, for the Defendant.

JACKSON, Judge.

¶ 1 The issue in this case is whether a driver is "seized" within the meaning of the Fourth Amendment when he is tailed by a marked police cruiser down empty streets at 3 a.m., followed into an empty parking lot, and then hailed down by the officer's hand gestures. Because we conclude that no reasonable person would believe he was free to go under such circumstances, we hold that Defendant was seized for purposes of the Fourth Amendment and that the trial court erred in denying his motion to suppress.

I. Factual and Procedural Background

¶ 2 Our only record of what occurred on the night of Defendant's arrest comes from the testimony of Officer Michael Plummer of the East Carolina University ("ECU") Police Department and a partial video of the stop. During the suppression hearing, Officer Plummer described his encounter with Defendant, which occurred in the early morning hours of 2 August 2017 while he was on patrol duty in Greenville, North Carolina. Officer Plummer was uniformed and driving in his patrol car that night, which had light strips and insignias identifying it as an ECU Police Department vehicle.

¶ 3 At 2:50 a.m., Officer Plummer received a dispatch advising that the county police were requesting assistance for a vehicle crash on Charles Boulevard, and began heading that way. As he was traveling south on Charles Boulevard, approaching the intersection of Charles and 14th Street, he noticed a yellow Camaro make a left turn from 14th Street and turn onto Charles heading south (the same direction he was heading in his cruiser). There was no other traffic on the road at that time—just the yellow Camaro, and Officer Plummer traveling behind it. He testified that he noticed that the Camaro "appeared to have its daytime running lights on" but that "no rear lights were illuminated."

¶ 4 Officer Plummer began following the Camaro as it proceeded south down Charles and made another left onto Ficklen Drive, at the same time radioing dispatch to ascertain whether or not the Camaro might have been involved in the accident. He continued following the Camaro down Ficklen Drive as it pulled into an on-campus parking lot. The parking lot was totally empty when the two vehicles arrived.

¶ 5 Once inside the parking lot, Officer Plummer observed the Camaro as it "made a u-turn" and began circling back towards the parking lot entrance. At that point, Officer Plummer approached the Camaro, driving toward it as the Camaro was headed the opposite direction out of the lot. Officer Plummer pulled up close enough that the cars were positioned "driver's door to driver's door," approximately three to four feet apart. As he was positioning his vehicle, Officer Plummer also rolled down his window and "stuck [his] hand out the car to flag [the driver of the Camaro] down." Specifically, Officer Plummer stated that he "rested [his] forearm on the door – on the window frame and waved [his] hand up and down." As he reached the driver's door of the Camaro and gestured, both vehicles "mutually came to a stop." At this point he had not activated his blue lights or siren.

¶ 6 Officer Plummer then began speaking with the driver to see "if he had possibly been through the area and seen anything in relation to the vehicle crash." After Defendant replied, Officer Plummer began to suspect that Defendant had been drinking. He then asked Defendant to get out of the vehicle, performed several field sobriety tests, and eventually arrested and cited Defendant for impaired driving.

¶ 7 On 2 March 2018, Defendant filed a motion to suppress in Pitt County District Court, challenging the stop of his vehicle as an unlawful seizure and detention. The district court ultimately denied his motion to suppress, and on 17 April 2019 he was found guilty of impaired driving and sentenced to twelve months of unsupervised probation in addition to a sixty-day suspended sentence. Defendant appealed the district court's judgment to Pitt County Superior Court on 18 April 2019. On 23 May 2019, Defendant filed a new motion to suppress in the superior court, again challenging the stop of his vehicle as an unlawful seizure and detention. The superior court heard arguments on Defendant's motion to suppress on 25 October 2019. Officer Plummer was the only witness who testified at the hearing.

¶ 8 At the conclusion of the hearing, the trial court determined that the encounter between Defendant and Officer Plummer was not a traffic stop, because Officer Plummer had not indicated to Defendant that he was not free to leave. The trial court accordingly denied Defendant's motion to suppress. Defense counsel then announced Defendant's intent (which had been previously communicated to the State) to enter a guilty plea following the denial of his motion to suppress. Defendant subsequently pleaded guilty to driving while impaired. The trial court again imposed a suspended sixty-day sentence and placed Defendant on unsupervised probation for twelve months.

¶ 9 Defendant gave oral notice of appeal in open court and filed a written notice of appeal with this Court on 4 November 2019. On 10 January 2020, the trial court entered a written order denying Defendant's motion to suppress that included the following pertinent Findings of Fact:

4. That Officer Plummer saw the Defendant's vehicle and observed that the Defendant's vehicle appeared to have its daytime running lights on for the headlights, but the rear lights were not illuminated.

5. That the lack of illuminated rear lights on the Defendant's vehicle drew Officer Plummer's attention to the vehicle.

....

13. That after Officer Plummer followed the Defendant's vehicle into the parking lot, the Defendant's vehicle made a U-turn and began traveling towards Officer Plummer's vehicle.

14. That Officer Plummer drove driver's door to driver's door with the Defendant's vehicle, with Officer Plummer's vehicle facing the opposite direction as the Defendant's vehicle.

15. That as Officer Plummer pulled alongside the Defendant's vehicle, Officer Plummer extended his hand out of his driver's window, rested his forearm on his driver's door, and waved his hand up and down.

16. That Officer Plummer testified that his intention was to engage in a voluntary consensual conversation with the Defendant.

17. That as Officer Plummer reached the driver's door of the Defendant's vehicle, both vehicles came to a stop and the Defendant rolled down his window.

...

19. That Officer Plummer was approximately three to four feet away from the Defendant as they spoke.

20. That at the time Defendant stopped his vehicle and engaged in a conversation with Officer Plummer, no other officers or patrol vehicles were on scene.

21. That at the time Defendant stopped his vehicle and engaged in a conversation with Officer Plummer, Officer Plummer had not engaged his blue lights or siren.

22. That at the time Defendant stopped his vehicle and engaged in a conversation with Officer Plummer, Officer Plummer had not positioned his patrol vehicle in a manner that would obstruct the Defendant's vehicle from exiting the parking lot nor restrict his movement in any way.

23. That at the time Defendant stopped his vehicle and engaged in a conversation with Officer Plummer, Officer Plummer had not directed the Defendant to get out of the Defendant's vehicle nor restricted the Defendant's freedom of movement in any way.

24. That at the time Defendant stopped his vehicle and engaged in a conversation with Officer Plummer, Officer Plummer had not indicated to the Defendant that the Defendant was in custody or that the Defendant was not free to leave.

25. That at the time Defendant stopped his vehicle and engaged in a conversation with Officer Plummer, Officer Plummer had not exited his patrol vehicle, taken any enforcement action, given any orders or commands to the Defendant, nor displayed any weapon or demonstrated any other show of authority to indicate that this was a traffic stop.

26. That during the conversation with the Defendant, Officer Plummer observed factors that ultimately led Officer Plummer to investigate and arrest the Defendant for Driving While Impaired.

Based on these findings, the trial court concluded as a matter of law:

4. That pursuant to State v. Wilson , this Court has considered the factors that Officer Plummer was alone when he encountered the Defendant, that Officer Plummer did not draw his weapon, that Officer Plummer did not activate his lights or siren on his patrol car, that Officer Plummer did not do or say anything to indicate to the Defendant that the Defendant was required to stop, and that the Defendant was in the Defendant's own vehicle and could have driven around Officer Plummer's patrol car.

5. That Officer Plummer had not initiated a traffic stop at the time of his conversation with the Defendant.

6. That Officer Plummer's conversation with the Defendant was a voluntary, consensual conversation between Officer Plummer and the Defendant at a time when the Defendant's freedom of movement was not restricted, and Officer Plummer had made no show of authority to indicate that the interaction was a traffic stop or that the Defendant was under arrest.

7. That the Defendant was not seized under the Fourth Amendment when he voluntarily stopped his own vehicle in the parking lot next to Officer Plummer's patrol vehicle and began conversing with Officer Plummer.

II. Analysis

A. Standard of Review

¶ 10 On appeal of an order denying a motion to suppress, we conduct a two-part review: (1) to determine whether there is "competent evidence" to support the trial court's findings of fact, and (2) to determine whether "those factual findings in turn support the...