{ "id": 12139945, "name": "STATE OF NORTH CAROLINA v. RICHARD GEORGE JOHNSTON", "name_abbreviation": "State v. Johnston", "decision_date": "1994-08-02", "docket_number": "No. 9326SC967", "first_page": "711", "last_page": "715", "citations": [ { "type": "official", "cite": "115 N.C. App. 711" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "45 ALR3d 581", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "89 ALR2d 715", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "346 S.E.2d 281", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "82 N.C. App. 270", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358654 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc-app/82/0270-01" ] }, { "cite": "729 F. Supp. 1113", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 4033273 ], "year": 1990, "pin_cites": [ { "page": "1116" } ], "opinion_index": 0, "case_paths": [ "/f-supp/729/1113-01" ] }, { "cite": "412 S.E.2d 91", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "330 N.C. 615", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2509154, 2508263, 2508168, 2512652, 2510555 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/330/0615-05", "/nc/330/0615-03", "/nc/330/0615-02", "/nc/330/0615-04", "/nc/330/0615-01" ] }, { "cite": "407 S.E.2d 583", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "587" } ], "opinion_index": 0 }, { "cite": "103 N.C. App. 708", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523227 ], "year": 1991, "pin_cites": [ { "page": "716" } ], "opinion_index": 0, "case_paths": [ "/nc-app/103/0708-01" ] }, { "cite": "347 S.E.2d 469", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "318 N.C. 287", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4731256, 4731470, 4732007 ], "year": 1986, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0287-02", "/nc/318/0287-01", "/nc/318/0287-03" ] }, { "cite": "343 S.E.2d 588", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "591", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "81 N.C. App. 200", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522153 ], "year": 1986, "pin_cites": [ { "page": "205", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/81/0200-01" ] }, { "cite": "424 S.E.2d 120", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "128-29" } ], "opinion_index": 0 }, { "cite": "333 N.C. 172", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2544442 ], "year": 1993, "pin_cites": [ { "page": "186" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0172-01" ] }, { "cite": "460 U.S. 491", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6195479 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "497-98", "parenthetical": "citations omitted" }, { "page": "236", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/us/460/0491-01" ] }, { "cite": "358 S.E.2d 58", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "320 N.C. 172", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4726601, 4731024, 4726903, 4730779, 4730591 ], "year": 1987, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0172-05", "/nc/320/0172-01", "/nc/320/0172-02", "/nc/320/0172-04", "/nc/320/0172-03" ] }, { "cite": "354 S.E.2d 344", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "347", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "85 N.C. App. 145", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169678 ], "year": 1987, "pin_cites": [ { "page": "148", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/85/0145-01" ] }, { "cite": "29 L.Ed.2d 715", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1971, "opinion_index": 0 }, { "cite": "403 U.S. 934", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12040163, 12039717, 12039973, 12040072, 12039913, 12040328, 12040209, 12040114, 12039795, 12040275, 12039857, 12039638, 12040023 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/us/403/0934-10", "/us/403/0934-02", "/us/403/0934-06", "/us/403/0934-08", "/us/403/0934-05", "/us/403/0934-13", "/us/403/0934-11", "/us/403/0934-09", "/us/403/0934-03", "/us/403/0934-12", "/us/403/0934-04", "/us/403/0934-01", "/us/403/0934-07" ] }, { "cite": "178 S.E.2d 597", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "601" } ], "opinion_index": 0 }, { "cite": "278 N.C. 36", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559596 ], "year": 1971, "pin_cites": [ { "page": "41" } ], "opinion_index": 0, "case_paths": [ "/nc/278/0036-01" ] }, { "cite": "291 S.E.2d 618", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "619", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "306 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567694 ], "year": 1982, "pin_cites": [ { "page": "134", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0132-01" ] }, { "cite": "412 S.E.2d 93", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "330 N.C. 616", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2512354, 2510747, 2509803, 2509239 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/330/0616-04", "/nc/330/0616-03", "/nc/330/0616-01", "/nc/330/0616-02" ] }, { "cite": "409 S.E.2d 614", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "616" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 260", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521175 ], "year": 1991, "pin_cites": [ { "page": "265" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0260-01" ] }, { "cite": "115 L.Ed.2d 389", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 1108039 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "401-02" }, { "page": "398" } ], "opinion_index": 0, "case_paths": [ "/us/501/0429-01" ] } ], "analysis": { "cardinality": 626, "char_count": 10188, "ocr_confidence": 0.719, "pagerank": { "raw": 2.3013246835426691e-07, "percentile": 0.7874140538695499 }, "sha256": "853a86b9cccac02f7053cf350ac0774aad259247743dcecdad3aadcfd8421fad", "simhash": "1:a3e5984a174f034e", "word_count": 1675 }, "last_updated": "2023-07-14T22:58:18.676868+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges COZORT and LEWIS concur." ], "parties": [ "STATE OF NORTH CAROLINA v. RICHARD GEORGE JOHNSTON" ], "opinions": [ { "text": "EAGLES, Judge.\nDefendant brings forward one assignment of error. Assignments of error 2 and 3 are not brought forward on appeal and are deemed abandoned. N.C.R. App. P. Rule 28(b)(5).\nDefendant contends that the trial court erred by denying his motion to suppress evidence pursuant to G.S. 15A-974. After careful review, we find no error.\nIn order to determine \u201cwhether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers\u2019 requests or otherwise terminate the encounter.\u201d Florida v. Bostick, - U.S. -, 115 L.Ed.2d 389, 401-02 (1991). See State v. Poindexter, 104 N.C. App. 260, 265, 409 S.E.2d 614, 616 (1991), disc. review denied, 330 N.C. 616, 412 S.E.2d 93 (1992). The scope of appellate review of a ruling upon a motion to suppress is \u201cstrictly limited to determining whether the trial judge\u2019s 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\u2019s ultimate conclusions of law.\u201d State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982) (citations omitted). An appellate court accords great deference to the trial court\u2019s ruling on a motion to suppress because the trial court is entrusted with the duty to hear testimony (thereby observing the demeanor of the witnesses) and to weigh and resolve any conflicts in the evidence. Id.) State v. Smith, 278 N.C. 36, 41, 178 S.E.2d 597, 601, cert. denied, 403 U.S. 934, 29 L.Ed.2d 715 (1971). We note that the record on appeal contains no findings of fact or conclusions of law by the trial court regarding the denial of defendant\u2019s motion to suppress. We further note that nothing in the record indicates that defendant objected at trial to the trial court\u2019s failure to make findings or conclusions and that defendant has not assigned error to the absence of such findings or conclusions. No material conflict in the evidence exists here. \u201cWhere there is no material conflict in the evidence, findings and conclusions are not necessary even though the better practice is to find facts.\u201d State v. Edwards and State v. Jones, 85 N.C. App. 145, 148, 354 S.E.2d 344, 347, disc. review denied, 320 N.C. 172, 358 S.E.2d 58 (1987) (citation omitted).\nIt is well established that\nlaw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification. The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way.\nFlorida v. Royer, 460 U.S. 491, 497-98, 75 L.Ed.2d 229, 236 (1983) (citations omitted). See also State v. Farmer, 333 N.C. 172, 186, 424 S.E.2d 120, 128-29 (1993).\nHere, the evidence shows that after defendant got out of his car and appeared unsteady, Trooper Ashby asked defendant why he turned off of the road prior to the license check and for his drivers license. \u201c[A] seizure does not occur simply because a police officer approaches an individual and asks a few questions.\u201d Bostick, \u2014 U.S. \u2014, 115 L.Ed.2d at 398. At this point, there was no evidence of coercion or detention. \u201c \u2018Communications between police and citizens involving no coercion or detention are outside the scope of the fourth amendment.\u2019 \u201d State v. Thomas, 81 N.C. App. 200, 205, 343 S.E.2d 588, 591, disc. review denied, 318 N.C. 287, 347 S.E.2d 469 (1986) (citation omitted).\nDefendant voluntarily answered Trooper Ashby\u2019s question by responding that he could not produce his license. \u201c[A drivers] license shall be carried by the licensee at all times while engaged in the operation of a motor vehicle.\u201d G.S. 20-7(n). See G.S. 20-7(a). Failure to carry one\u2019s license at all times while engaged in the operation of a motor vehicle is a misdemeanor. G.S. 20-35. See also G.S. 20-29. Accordingly, Trooper Ashby had sufficient probable cause at that time to place defendant under arrest. State v. Hudson, 103 N.C. App. 708, 716, 407 S.E.2d 583, 587 (1991), disc. review denied, 330 N.C. 615, 412 S.E.2d 91 (1992); see also U.S. v. Dixon, 729 F. Supp. 1113, 1116 (W.D.N.C. 1990).\nWhile Trooper Ashby could have placed defendant under arrest at this time, he merely chose to ask defendant to step back to the patrol car so that he could check defendant\u2019s license information and so that he could further investigate defendant\u2019s intoxication based upon defendant\u2019s unsteady movements and the smell of alcohol noticed during the course of the conversation. Only after defendant failed the field sobriety tests was he placed under arrest and advised of his rights. We conclude that the seizure was constitutionally permissible and that the trial court\u2019s decision to deny defendant\u2019s motion to suppress was supported by the evidence. See State v. Badgett, 82 N.C. App. 270, 346 S.E.2d 281 (1986).\nFor the reasons stated, we find no error.\nNo error.\nJudges COZORT and LEWIS concur.", "type": "majority", "author": "EAGLES, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Associate Attorney General Robert T. Hargett, for the State.", "Public Defender Isabel Scott Day, by Assistant Public Defender Alicia Delaney Brooks and Assistant Public Defender Julie Ramseur Lewis, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. RICHARD GEORGE JOHNSTON\nNo. 9326SC967\n(Filed 2 August 1994)\nSearches and Seizures \u00a7 44 (NCI4th)\u2014 defendant avoiding driver\u2019s license check \u2014 officer\u2019s questioning of defendant \u2014 constitutionally permissible seizure\nBecause an officer may approach a person in a public place and ask questions without violating that person\u2019s constitutional rights, an officer\u2019s encounter with defendant was a constitutionally permissible seizure and the trial court did not err in denying defendant\u2019s motion to suppress evidence from that confrontation where the evidence tended to show that defendant turned into a parking lot 200 yards before a license check point and did not get out of his car; the officer approached defendant, asked why he had pulled into the lot, and asked to see defendant\u2019s driver\u2019s license; defendant could produce no license; the officer conducted a field sobriety test based on the odor of alcohol about defendant; defendant failed the test; and it was only at that point that the officer placed defendant under arrest.\nAm Jnr 2d, Searches and Seizures \u00a7\u00a7 64, 69, 70.\nLawfulness of nonconsensual search and seizure without warrant, prior to arrest. 89 ALR2d 715.\nSearch and seizure: \u201cfurtive\u201d movement or gesture as justifying police search. 45 ALR3d 581.\nAppeal by defendant from judgment signed 20 May 1993 by Judge Forrest A. Ferrell in Mecklenburg County Superior Court. Heard in the Court of Appeals 7 June 1994.\nDefendant was convicted of impaired driving, G.S. 20-138.1, and was sentenced to four months imprisonment. From judgment entered, defendant appeals.\nOn 31 May 1992, North Carolina State Trooper T. L. Ashby conducted a license check at the intersection of Canterwood and Tom Hunter Road. At approximately 4:50 p.m., Trooper Ashby observed defendant\u2019s car turn off of Canterwood into the parking lot of an apartment complex. The entrance to the parking lot was approximately 200 yards from the intersection where Trooper Ashby was checking licenses. He observed that defendant remained seated in the parked car for approximately four to five minutes. When asked on direct examination what alerted his attention to defendant\u2019s car, Trooper Ashby testified that \u201c[t]he fact that the vehicle pulled off the roadway into the apartment complex, which [sic] you could clearly see the vehicle, and the fact that no one exited that vehicle led me to believe \u2014 well, it was uncommon that someone would pull up, just [sic], and turn off just prior to the license check and no one exit the vehicle.\u201d Trooper Ashby drove over to defendant\u2019s car. As Trooper Ashby got out of his patrol car, defendant stepped out of his (defendant\u2019s) car. Trooper Ashby noticed that defendant was \u201cunsteady on his feet.\u201d Trooper Ashby walked over to defendant and asked him why he turned off of the road prior to the license check. Defendant responded that he lived at the apartment complex. (This information was later verified as true by Trooper Ashby.)\nTrooper Ashby testified that \u201c[a]s we stood there and spoke, I noted a strong odor of alcoholic beverage about his breath.... It was basically just light, pleasant conversation at that point. I asked to see his drivers license and informed him as to why I had approached him.\u201d Defendant was unable to produce a drivers license. Trooper Ashby testified, \u201c[ajfter I detected the odor of alcohol and no I.D. I simply asked him to step back to my vehicle, so I could verify drivers license information and check further as far as intoxication.\u201d Trooper Ashby gave defendant a field sobriety test. First, defendant was unable to recite the alphabet correctly. Trooper Ashby testified that he then gave defendant \u201ca sway test, at which point you ask the person to place both feet together, put their arms freely to the side and put their head back and close their eyes, at which point Mr. Johnston [defendant] swayed pretty much. It was very noticeable.\u201d Defendant was then placed under arrest for impaired driving, G.S. 20-138.1, and was advised of his rights. Defendant was taken to the \u201cIn-take Center.\u201d Defendant declined to answer any questions. A breathalyzer test was given to defendant and the result of the test was .13.\nA jury trial was held on 19 May 1993. The trial court denied defendant\u2019s motion to suppress evidence, G.S. 15A-974, and motion to dismiss at the close of all evidence. The jury found defendant guilty of impaired driving, G.S. 20-138.1.\nAttorney General Michael F. Easley, by Associate Attorney General Robert T. Hargett, for the State.\nPublic Defender Isabel Scott Day, by Assistant Public Defender Alicia Delaney Brooks and Assistant Public Defender Julie Ramseur Lewis, for defendant-appellant." }, "file_name": "0711-01", "first_page_order": 743, "last_page_order": 747 }