Stopping a Car – Are you Nervous?

Many Driving While Impaired offenses turn on the question of whether the police had the constitutional power to stop the car. That’s because once the car is stopped, most people make all kinds of admissions and display all kinds of clues that indicate that they may be impaired. Once those field sobriety tests are conducted, and statements are made about having had “only two beers” or coming from “The Alehouse,” a DWI case turns from bad to worse.

Consequently, your DWI lawyer will first look at the reason for the stop. Note that police have the right to pull a car over for any observed violation of traffic regulations or laws. And, pursuant to State v. Heien, police can even be mistaken about the law, so long as that belief is a good faith and honest mistake. In Heien, one of the defendant’s taillights was out. Even though North Carolina traffic law does not require both lights to be burning, the officer, not being up-to-date on the fine points of Chapter 20 of the NCGS, pulled the car over. The Court of Appeals in Heien ruled that the mistake of law meant that the stop was illegal. But the Supreme Court of North Carolina recently reversed, ruling that the mistake was honest and therefore did not create an unconstitutional stop.

But what if there’s been no specific traffic infraction or violation? Can police still pull over the vehicle?

The answer is “yes,” but here police need to rely upon reasonable and articulable suspicion – something more than a hunch – that a crime is being committed.

That standard is not a high standard. It is a far cry from “beyond a reasonable doubt.”

But, as the North Carolina Court of Appeals recently announced in State v. Canty, the State must show some reasonable, articulable fact pattern that justifies a stop of a car.

On April 15, 2011, Corporals Bass and Pope of the Sampson County Sheriff’s Office were stationed along I-40 in Sampson County. Corporal Bass later testified in court that he saw a green minivan slow from approximately 73 miles per hour to 65 mph. (The speed limit was 70 mph.) Corporal Pope’s and Corporal Bass’s official reports stated that the vehicle was going 65 mph before it slowed down.

If the car were truly going 65 mph, as the court believed it was, then there was no violation of the law. Therefore, the police would need to rely upon reasonable suspicion to stop the vehicle. Corporal Pope said his attention was drawn to the vehicle because he noted that it slowed down
even though it was not exceeding the posted speed limit. Corporal Pope described the reduction in speed as “dramatic” since the front of the vehicle dipped from the reduction in speed. Both officers testified that the two occupants of the vehicle stared straight ahead and appeared nervous.

At one point, Corporal Bass pulled the patrol car alongside of the vehicle and observed that the occupants would not make eye contact. While following the vehicle, the officers testified that the vehicle crossed the solid white fog line separating the driving lane from the shoulder. Corporal Bass switched on the patrol car’s lights only after the vehicle “completely crossed – went across the fog line.” Based on the reduction in speed and crossing the fog line, Corporal Bass initiated a traffic stop for “unsafe movement.”

Unfortunately for Corporal Bass and Pope, there was a video in the car that recorded the stop, including the vehicle’s movement prior to the stop. No where on the video did the car travel over the fog line.

Canty’s attorney failed to object to the introduction of evidence after the stop and failed to file a Motion to Suppress. Mr. Canty was arrested and ultimately convicted for felon in possession of firearms for the possession of guns found in the car after the stop.

He appealed.

The Court of Appeals held that the attorney’s failure to object or raise the issue in a Motion to Suppress before trial consituted ineffective assistance of counsel. It further held that Mr. Canty, who was a passenger in the car, has standing to challenge the stop, and adopted the federal rule in Brendlin v. California in this respect.

But did the officers have reasonable suspicion to stop the car in which Canty was riding?

The Court of Appeals reviewed some applicable case law:

State v. Otto, 726 S.E.2d 824 – “weaving ‘constantly and continuously’ over the course of three-quarters of a mile” around 11 p.m. is sufficient

State v. Peele, 196 N.C. App. 668 – holding one instance of weaving in one’s own lane coupled with an anonymous tip does not constitute reasonable suspicion, as a single instance of weaving is “conduct falling within the broad range of what can be described as normal driving behavior”

State v. Fields, 195 N.C. App. 740 – holding that weaving in one’s own lane standing alone does not provide reasonable suspicion to stop a motorist for driving under the influence of alcohol

State v. Jones, 96 N.C. App. 389 – weaving and driving twenty mph below speed limit is enough for reasonable suspicion

What about Canty’s or the driver’s nervousness? Nervousness has been considered a factor in prolonging the seizure after the traffic stop has been
initiated, but nervousness has not been held to be a factor in initiating the stop.

State v. Myles, 188 N.C. App. 42 – nervousness alone is not enough for reasonable suspicion.

State v. McClendon, 350 N.C. 630 – “Ordinary nervousness” does not amount to reasonable suspicion.

What about Canty’s or the driver’s lack of eye contact?

State v. Euceda-Valle, 182 N.C. App. 268 – Refusal to make eye contact has also been considered in determining whether there was reasonable suspicion to prolong the traffic stop but has not been considered in the context of initiating the traffic stop.

The Court of Appeals concluded in State v. Canty that nervousness, failure to make eye contact with law enforcement, and a relatively small reduction
in speed is “conduct falling within the broad range of what can be described as normal driving behavior.” 196 N.C. App. 668. Based on the totality of the circumstances, these officers lacked reasonable suspicion to initiate the traffic
stop that resulted in the search and seizure of the weapons in this case.

Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.