State v. Weaver

• Citation: 752 S.E.2d 240
• Decision Date: 17 December 2013
• Docket Number: No. COA13–578.,COA13–578.
• Parties: STATE of North Carolina v. Frederick L. WEAVER.
• Court: Court of Appeal of North Carolina (US)

752 S.E.2d 240

STATE of North Carolina

v.Frederick L. WEAVER.

No. COA13–578.

Court of Appeals of North Carolina.

Dec. 17, 2013.

Appeal by the State from order entered 27 March 2013 by Judge W. Allen Cobb, Jr. in New Hanover County Superior Court. Heard in the Court of Appeals 23 October 2013.

Attorney General Roy Cooper, by Assistant Attorney General Teresa M. Postell, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defender Constance E. Widenhouse, for defendant.

ELMORE, Judge.

On 20 April 2012, Frederick Lloyd Weaver, Jr. (defendant) was arrested in New Hanover County and charged with driving while impaired (DWI) and carrying a concealed weapon. He was found guilty of DWI in New Hanover County District Court and appealed his conviction to New Hanover County Superior Court. Defendant filed a pre-trial motion to suppress, which was heard on 23 January 2013 and granted by the trial court.

The State now appeals and raises as error the trial court's conclusion that an armed security guard was an agent of the State. After careful consideration, we reverse the trial court's order granting defendant's motion to suppress and remand for further proceedings.

I. Facts

Brett Hunter is a security guard employed by Metro Special Police and Security Services, Inc. (Metro). Hunter is a licensed security officer as defined by N.C. Gen.Stat. § 74C–3(a)(6) (2011). He is certified through the Private Protective Services Board (PPSB). As required by the PSSB, Hunter satisfied the basic required training, including a minimum of four hours of class time and eight hours of range time for firearm certification.¹ He is not trained in speed detection or in detection of impaired drivers. On 20 April 2012, Hunter had been employed by Metro for two years as a security officer. Although Metro employed an estimated 40 employees, some of whom were “special police officers,” Hunter was not a “special police officer.” On the date of defendant's arrest, and as part of his job responsibilities, Hunter wore a uniform, carried a firearm, and worked as a patrol and standing officer. He also drove a patrol car that had “Metro Public Safety” printed on the outside. The vehicle also had overhead warning lights that were white, red, and amber in color. The patrol car did not have a siren.

On 20 April 2012, Hunter was assigned to provide security services for Carleton Place, a town home community close to the campus of the University of North Carolina at Wilmington (UNCW). Although not a part of campus, Carleton Place is a college community with the usual concerns of any area close to a university: parties, underage drinking and possession of alcohol, vandalism, and failure to abide by community rules and regulations. As part of Metro's contract with Carleton Place, Hunter was authorized to issue civil citations and fines to anyone on the property who violated the rules and regulations of the community, such as exceeding the posted community speed limit. Unpaid civil fines would be sent to collections agencies for resolution.

At the suppression hearing, the only witnesses who testified were Hunter and Detective Michael Tenney of the Wilmington Police Department (WPD). Hunter testified that at approximately 2:10 A.M. on Friday, 20 April 2012, he observed a dark-colored Acura enter Carleton Place. Hunter testified that he saw the Acura through his rearview mirror as it crossed over the center street lines several times at a high rate of speed. Although cars were parked on both sides of the street, he reported seeing no other vehicles on the street. Hunter estimated the Acura to be travelling at 25 miles per hour (m.p.h.), 10 m.p.h. above the posted community speed limit. He believed this speed was unreasonable due to the rainy weather conditions. Hunter observed the Acura turn on a side street in the complex. At that time, Hunter activated his vehicle's warning lights and followed the Acura. The Acura pulled over to the side of the road and stopped.

Hunter testified that he approached the driver's window and observed defendant sitting in the driver's seat with no other occupants in the vehicle. Hunter introduced himself as “Officer Hunter from Metro Public Safety” and asked defendant if he had identification or a driver's license on him. Hunter testified that defendant was unresponsive and that he could “smell an odor of alcohol coming from the vehicle and [defendant's] person and also observed that his eyes were bloodshot.” Hunter told defendant that he was stopped for “careless and reckless speeding.” Hunter asked defendant if he had any “physical limitations or medical conditions that would ... prevent [defendant] from understanding [his] questioning and also if [defendant] had any intoxicating substance that night.” When defendant admitted that he had consumed alcohol at a local bar, Hunter then asked defendant to “step out of [the] vehicle and have a seat on the ... sidewalk[.]” Hunter called city dispatch and asked them to “[s]end an officer out for possible DUI.” Hunter issued defendant a civil citation and testified that he did not give defendant any further instructions or carry on any additional conversation thereafter.

Five to ten minutes later, a UNCW police officer arrived. However, the officer realized that Carleton Place was outside her jurisdiction, so she called city dispatch back, requested that they send an officer from the WPD, and left the scene. At approximately 2:45 A.M., Detective Tenney arrived on the scene. Hunter told Detective Tenney about his observations of defendant's driving and physical condition. Thereafter, Detective Tenney saw defendant sitting on the curb. When Detective Tenney approached defendant, he testified that defendant “stood up,” was “unsteady on his feet,” had bloodshot eyes, and exhibited slurred speech. Detective Tenney then conducted several field sobriety tests, formed the opinion that defendant was appreciably impaired, and arrested defendant for DWI.

II. Analysis

a.) Findings of Fact

First on appeal, the State challenges several of the trial court's findings of fact and argues that the findings are not supported by competent evidence. We agree.

Our review of a trial court's denial of a motion to suppress 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). “The trial court's conclusions of law ... are fully reviewable on appeal.” State v. Hughes, 353 N.C. 200, 208, 539 S.E.2d 625, 631 (2000).

Here, the trial court concluded as a matter of law that:

1. The armed security guard ... [a]cted as an agent for the State[.]

2. The armed security guard is a State actor.

3. There was lack of reasonable suspicion to stop.

4. The search and seizure were unconstitutional.

5. The evidence acquired beyond the stop and detention should be excluded.

The State challenges the following pertinent findings of fact in support of the trial court's conclusions of law above:

9. When Hunter suspected [d]efendant's impairment, he made him get out of his car and sit on the curb. The purpose of his encounter with [d]efendant then changed. No longer was he performing under Metro's contract. After issuing the civil citation his actions exceeded his contractual authority. His goal and purpose evolved into detaining [d]efendant until local law enforcement arrived to investigate a suspected impaired driver. His motivation was no longer personal to his employment. His primary intent was to serve law enforcement efforts.

10. His show of apparent lawful authority (flashing lights, uniform, badge, and gun) intimidated [d]efendant and made him feel compelled to wait outside his car for 45 minutes until WPD arrived.

21. Hunter likely had prior (and subsequent) handoff scenarios similar to the one in this case. His primary purpose when assisting law enforcement officers is to help them make arrests. He does not derive any personal benefit.

22. Various empirical measures suggest that private police outnumber public police forces. Private police forces in the United States near 1,000,000 officers. It is reasonable to assume that the factual scenario of this case occurs in all parts of this county, state, and nation on a regular basis.

23. Most state statutes only regulate a certain category of private police officers, leaving a substantial portion of the private policing industry virtually unregulated. Many state regulations of private police misunderstand, and thus inadequately protect against the threat posed by the private policing industry. Few statutes protect individuals from the potential social harms of the privatized police.

24. It is given that law enforcement officers are spread thin. Handoff cases occur on a regular basis. More times than imagined armed security guards arrest individuals and hold them for law enforcement officers who arrive on scene and make arrests. If law enforcement officers do not have to make the initial stop, and armed security guards detain individuals until they arrive, substantial time is saved.

34. Private security guards in North Carolina are subject to a high level of government regulation. North Carolina has a comprehensive regulatory scheme for its private security guards. They are vetted, trained, and continue to be subject to disciplinary action under the aegis of the North Carolina Attorney General.

38. Although the state may not have advanced knowledge of every individual arrest and search undertaken by a private security guard, the same is true of its sworn law enforcement officers. The state cannot turn its back in ignorance on armed private security guards when they do exactly what they are trained, regulated, licensed, and authorized to do.

55. Hunter wore a uniform,...