{ "id": 8183865, "name": "STATE OF NORTH CAROLINA v. KENNETH BARNARD", "name_abbreviation": "State v. Barnard", "decision_date": "2007-06-19", "docket_number": "No. COA06-209", "first_page": "25", "last_page": "42", "citations": [ { "type": "official", "cite": "184 N.C. App. 25" } ], "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": "617 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633690 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "12" }, { "page": "13" } ], "opinion_index": 0, "case_paths": [ "/se2d/617/0001-01" ] }, { "cite": "612 S.E.2d 648", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632904 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "653", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/612/0648-01" ] }, { "cite": "591 S.E.2d 846", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "857" } ], "opinion_index": 0 }, { "cite": "357 N.C. 512", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491484 ], "year": 2003, "pin_cites": [ { "page": "525" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0512-01" ] }, { "cite": "400 S.E.2d 413", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 175", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2542427 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0175-01" ] }, { "cite": "417 S.E.2d 453", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "331 N.C. 695", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2500204 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/331/0695-01" ] }, { "cite": "459 S.E.2d 718", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "728", "parenthetical": "citing State v. Maynor, 331 N.C. 695, 417 S.E.2d 453 (1992); State v. Small, 328 N.C. 175, 400 S.E.2d 413 (1991)" } ], "opinion_index": 0 }, { "cite": "340 N.C. 573", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790147 ], "year": 1995, "pin_cites": [ { "page": "593", "parenthetical": "citing State v. Maynor, 331 N.C. 695, 417 S.E.2d 453 (1992); State v. Small, 328 N.C. 175, 400 S.E.2d 413 (1991)" } ], "opinion_index": 0, "case_paths": [ "/nc/340/0573-01" ] }, { "cite": "446 U.S. 291", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182222 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "301" }, { "page": "308" } ], "opinion_index": 0, "case_paths": [ "/us/446/0291-01" ] }, { "cite": "552 S.E.2d 246", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "253" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 113", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11354849 ], "year": 2001, "pin_cites": [ { "page": "121" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0113-01" ] }, { "cite": "584 S.E.2d 830", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "835", "parenthetical": "quoting State v. Patterson, 146 N.C. App. 113, 121, 552 S.E.2d 246, 253 (2001)" } ], "opinion_index": 0 }, { "cite": "160 N.C. App. 107", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8954514 ], "year": 2003, "pin_cites": [ { "page": "114", "parenthetical": "quoting State v. Patterson, 146 N.C. App. 113, 121, 552 S.E.2d 246, 253 (2001)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/160/0107-01" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 6, "year": 1966, "pin_cites": [ { "page": "478" }, { "page": "726" }, { "page": "478" }, { "page": "726" } ], "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] }, { "cite": "802 N.E.2d 850", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "pin_cites": [ { "page": "853", "parenthetical": "finding a twenty second delay at a traffic light to be an unreasonable period of time to react to the stop light change and to ascertain it to be safe to proceed" } ], "opinion_index": 0 }, { "cite": "592 S.E.2d 733", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "737" }, { "page": "737" } ], "opinion_index": 0 }, { "cite": "163 N.C. App. 129", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8915624 ], "year": 2004, "pin_cites": [ { "page": "135" } ], "opinion_index": 0, "case_paths": [ "/nc-app/163/0129-01" ] }, { "cite": "530 S.E.2d 297", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "302" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 590", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11095125 ], "year": 2000, "pin_cites": [ { "page": "598" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0590-01" ] }, { "cite": "490 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 605100 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "7" }, { "page": "10" } ], "opinion_index": 0, "case_paths": [ "/us/490/0001-01" ] }, { "cite": "446 S.E.2d 67", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1994, "pin_cites": [ { "page": "70" }, { "page": "70" }, { "page": "70" } ], "opinion_index": 0 }, { "cite": "337 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549311 ], "year": 1994, "pin_cites": [ { "page": "441" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0437-01" ] }, { "cite": "392 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167798 ], "weight": 2, "year": 1968, "pin_cites": [ { "page": "21" }, { "page": "906" } ], "opinion_index": 0, "case_paths": [ "/us/392/0001-01" ] }, { "cite": "359 N.C. 644", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3801139 ], "year": 2005, "pin_cites": [ { "page": "661" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0644-01" ] }, { "cite": "170 N.C. App. 264", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9005063 ], "year": 2005, "pin_cites": [ { "page": "271", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/170/0264-01" ] }, { "cite": "617 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633690 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "12" }, { "page": "13" } ], "opinion_index": 1, "case_paths": [ "/se2d/617/0001-01" ] }, { "cite": "243 S.E.2d 759", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "769", "parenthetical": "citations omitted" } ], "opinion_index": 1 }, { "cite": "295 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560918 ], "year": 1978, "pin_cites": [ { "page": "17-18", "parenthetical": "citations omitted" } ], "opinion_index": 1, "case_paths": [ "/nc/295/0001-01" ] }, { "cite": "412 U.S. 218", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6172008 ], "weight": 2, "year": 1973, "pin_cites": [ { "page": "227" }, { "page": "862-63" } ], "opinion_index": 1, "case_paths": [ "/us/412/0218-01" ] }, { "cite": "364 U.S. 206", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6165005 ], "weight": 2, "year": 1960, "pin_cites": [ { "page": "217" }, { "page": "1677" } ], "opinion_index": 1, "case_paths": [ "/us/364/0206-01" ] }, { "cite": "308 U.S. 338", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6140061 ], "weight": 2, "year": 1939, "opinion_index": 1, "case_paths": [ "/us/308/0338-01" ] }, { "cite": "371 U.S. 471", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 450611 ], "weight": 4, "year": 1963, "pin_cites": [ { "page": "487-88", "parenthetical": "quotation marks and citation omitted" }, { "page": "488" } ], "opinion_index": 1, "case_paths": [ "/us/371/0471-01" ] }, { "cite": "920 F.2d 498", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10543521 ], "pin_cites": [ { "page": "502" } ], "opinion_index": 1, "case_paths": [ "/f2d/920/0498-01" ] }, { "cite": "188 F.3d 860", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11576468 ], "pin_cites": [ { "page": "866" } ], "opinion_index": 1, "case_paths": [ "/f3d/188/0860-01" ] }, { "cite": "870 F.2d 778", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 11645484 ], "pin_cites": [ { "page": "783-84" } ], "opinion_index": 1, "case_paths": [ "/f2d/870/0778-01" ] }, { "cite": "603 N.E.2d 118", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1992, "pin_cites": [ { "page": "120" }, { "page": "120" }, { "page": "120-21" } ], "opinion_index": 1 }, { "cite": "510 S.E.2d 165", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 1 }, { "cite": "132 N.C. App. 22", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11236837 ], "year": 1999, "opinion_index": 1, "case_paths": [ "/nc-app/132/0022-01" ] }, { "cite": "555 S.E.2d 294", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 1 }, { "cite": "147 N.C. App. 94", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9378179 ], "year": 2001, "opinion_index": 1, "case_paths": [ "/nc-app/147/0094-01" ] }, { "cite": "291 S.E.2d 637", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "641" }, { "page": "641-42" } ], "opinion_index": 1 }, { "cite": "305 N.C. 734", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573152 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "741" }, { "page": "741" } ], "opinion_index": 1, "case_paths": [ "/nc/305/0734-01" ] }, { "cite": "809 P.2d 522", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 4414851 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "525" }, { "page": "525", "parenthetical": "\"[statistical] inferences must still be evaluated against the backdrop of everyday driving experience . . . [and the time of day of the stop] does not enhance the suspicious nature of the observation [of the delay]\"" } ], "opinion_index": 1, "case_paths": [ "/idaho/119/0661-01" ] }, { "cite": "104 L. Ed. 1", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1989, "pin_cites": [ { "page": "10" } ], "opinion_index": 1 }, { "cite": "574 S.E.2d 93", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "98" } ], "opinion_index": 1 }, { "cite": "155 N.C. App. 89", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249037 ], "year": 2002, "pin_cites": [ { "page": "95" } ], "opinion_index": 1, "case_paths": [ "/nc-app/155/0089-01" ] }, { "cite": "164 L. Ed. 2d 523", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 2006, "pin_cites": [ { "page": "662" } ], "opinion_index": 1 }, { "cite": "126 S. Ct. 1773", "category": "reporters:federal", "reporter": "S. Ct.", "year": 2006, "opinion_index": 1 }, { "cite": "802 N.E.2d 850", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "opinion_index": 1 }, { "cite": "592 S.E.2d 733", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2004, "pin_cites": [ { "page": "736" }, { "page": "737", "parenthetical": "emphasis supplied" }, { "page": "737", "parenthetical": "citations omitted" } ], "opinion_index": 1 }, { "cite": "163 N.C. App. 129", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8915624 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "134-35" }, { "page": "134-35" } ], "opinion_index": 1, "case_paths": [ "/nc-app/163/0129-01" ] }, { "cite": "490 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 605100 ], "year": 1989, "pin_cites": [ { "page": "7" } ], "opinion_index": 1, "case_paths": [ "/us/490/0001-01" ] }, { "cite": "392 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167798 ], "weight": 3, "year": 1968, "pin_cites": [ { "page": "21" } ], "opinion_index": 1, "case_paths": [ "/us/392/0001-01" ] }, { "cite": "359 N.C. 644", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3801139 ], "year": 2005, "pin_cites": [ { "page": "661" } ], "opinion_index": 1, "case_paths": [ "/nc/359/0644-01" ] } ], "analysis": { "cardinality": 1402, "char_count": 39598, "ocr_confidence": 0.745, "pagerank": { "raw": 2.177976705298716e-07, "percentile": 0.7719838106391531 }, "sha256": "cb7e5dd263372539b97e0e332c4c858bbb30e978cf74ff4086a6cb37bfd48e1b", "simhash": "1:a348726bf48d8613", "word_count": 6506 }, "last_updated": "2023-07-14T19:54:59.559545+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge TYSON concurs.", "Judge CALABRIA dissents with a separate opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. KENNETH BARNARD" ], "opinions": [ { "text": "MARTIN, Chief Judge.\nDefendant was charged in bills of indictment with two counts of possession of cocaine and two counts of having achieved the status of an habitual felon. Prior to trial, defendant moved to suppress evidence seized as a result of searches of his vehicle and his person, as well as statements which he made to the police. After a hearing, the motion to suppress was denied. Defendant was convicted by a jury of two counts of possession of cocaine and subsequently entered a plea of guilty to one count of having achieved the status of an habitual felon. The remaining habitual felon charge was dismissed. He appeals from a judgment sentencing him to a minimum term of 168 months and a maximum term of 211 months imprisonment. We find no error.\nThe evidence presented at the suppression hearing and at trial tended to show that at around 12:15 a.m. on 2 December 2004, Officer Brett Maltby was on patrol in a high crime area of downtown Asheville where a number of bars are located. Officer Maltby was driving a marked patrol car and was behind defendant\u2019s vehicle, a 1993 Ford Taurus, which was stopped at a red traffic light. When the light turned green, defendant remained stopped for approximately thirty seconds before making a left turn. Based upon his training and experience, Officer Maltby considered that the delayed reaction to the green light was an indicator that the driver of the vehicle may be impaired. Officer Maltby initiated a stop of the vehicle to determine whether, in fact, the driver was impaired.\nOfficer Maltby approached defendant and asked for his license and registration. Defendant\u2019s breathing was rapid and he was shaking. Officer Maltby smelled a slight odor of alcohol on defendant\u2019s breath. Defendant said that he did not have his license and gave Officer Maltby a name and birth date. Officer Maltby returned to his patrol car to conduct a check of the name and birth date to determine if defendant had a driver\u2019s license and to check for outstanding warrants. He determined that the information which the defendant had given him was not correct. Officer Maltby then returned to defendant\u2019s vehicle and asked him to step out of his vehicle. Officer Maltby observed an open container of alcohol partially concealed in a paper bag. Officer Maltby placed defendant in investigatory detention, handcuffed him due to his nervousness and inability to explain his identity, and walked him back to the patrol car. Defendant then disclosed his real name, and Officer Maltby was able to determine that his driver\u2019s license had been suspended. Officer Maltby began to write a citation for possession of an open container of alcohol and driving while license revoked.\nOfficer Dwight Arrowood arrived at the scene to assist Officer Maltby. At Officer Maltby\u2019s direction, Officer Arrowood searched the interior of the Taurus and recovered a crack pipe and a Brillo pad, which is sometimes used as a filter for a crack pipe. Officer Maltby then began to, write a citation for possession of drug paraphernalia when defendant said he would do anything to get out of the situation and offered to purchase narcotics. He told Officer Maltby that he had purchased crack cocaine earlier that day from a person known as \u201cOne-Arm Willy.\u201d Maltby was familiar with \u201cOne-Arm Willy\u201d and agreed to void the citations he was writing if defendant would make a controlled buy from his drug dealer.\nOfficer Maltby stored defendant\u2019s vehicle, took him to the police station, and secured the assistance of an undercover narcotics officer, Officer Lauffer. Defendant agreed to go to the residence of One-Arm Willy and purchase a $20 rock of crack cocaine. The officers explained that defendant would be searched prior to leaving the police station, that he would accompany Officer Lauffer to the residence, purchase the crack cocaine and return immediately to the officer\u2019s car. He would then be returned to the police station where he would be debriefed and searched a second time.\nDefendant successfully purchased a crack rock from the dealer and turned it over to Officer Lauffer, who gave it to Officer Maltby when they returned to the police station. Officer Maltby then began to debrief defendant, inquiring as to what he had seen in the house for the purpose of obtaining and executing a search warrant. Officer Maltby searched defendant and found a small rock of crack cocaine concealed in defendant\u2019s pocket. Defendant told Officer Maltby that he had gotten a \u201cfront\u201d from One-Arm Willy for the second rock of cocaine. He then \u201casked [Officer Maltby] if he could just have the rock of crack cocaine back.\u201d Officer Maltby refused and concluded that the defendant was not sufficiently reliable to be used as a confidential informant to support a search warrant of the dealer\u2019s home. Officer Maltby took defendant home and subsequently charged him with possession of crack cocaine.\nOn appeal, defendant contends the trial court erred in denying his motion to suppress the evidence seized by the officers as a result of the Vehicle stop and subsequent search of his vehicle, as well as statements which he made to Officer Maltby. We have carefully considered his arguments and conclude the evidence was properly admitted.\nOn a motion to suppress, we review a trial court\u2019s findings of fact to determine if there is competent evidence to support them. State v. Brewington, 170 N.C. App. 264, 271, 612 S.E.2d 648, 653 (2005) (citation omitted). The trial court\u2019s findings upon conflicting evidence are accorded \u201cgreat deference upon appellate review as it has the duty to hear testimony and weigh the evidence.\u201d Id. If the findings are supported by competent evidence, they are conclusive on appeal. State v. Campbell, 359 N.C. 644, 661, 617 S.E.2d 1, 12 (2005). The conclusions of law which the court draws from those findings are fully reviewable. Id. at 662, 617 S.E.2d at 13.\nDefendant first challenges the trial court\u2019s denial of his motion to suppress the evidence related to Officer Maltby\u2019s traffic stop of the defendant\u2019s vehicle. He argues that Officer Maltby had neither probable cause nor a reasonable, articulable suspicion to stop defendant and therefore it was error to admit evidence resulting from the stop. We disagree.\nA police officer may effect a brief investigatory seizure of an individual where the officer has reasonable, articulable suspicion that a crime may be underway. Terry v. Ohio, 392 U.S. 1, 21, 20 L. Ed. 2d 889, 906 (1968). \u201cReasonable suspicion\u201d requires that \u201c[t]he stop . . . be based on specific and articulable facts, as well as the rational inferences from those facts, as viewed through the eyes of a reasonable, cautious officer, guided by his experience and training.\u201d State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 70 (1994). All the State is required to show is a \u201cminimal level of objective justification, something more than an \u2018unparticularized suspicion or hunch.\u2019 \u201d Id. at 442, 446 S.E.2d at 70 (quoting U.S. v. Sokolow, 490 U.S. 1, 7, 104 L. Ed. 2d 1, 10 (1989)). A court must consider the totality of the circumstances in determining whether the officer possessed a reasonable and artic-ulable suspicion to make an investigatory stop. Id. at 441, 446 S.E.2d at 70.\nThe trial court found that on 2 December 2004, defendant stopped at an intersection and \u201cremained stopped for some 30 seconds without any reasonable appearance of explanation for doing so.\u201d This finding is amply supported by competent evidence and thus binding on appeal. See State v. Parker, 137 N.C. App. 590, 598, 530 S.E.2d 297, 302 (2000). Based on this finding, the trial court concluded the following:\n[T]he Court concludes that from the totality of the circumstances that [sic] a reasonable articulable suspicion of wrongdoing on the part of the Defendant existed to warrant Officer Maltby\u2019s stop of the Defendant\u2019s vehicle in view of its prolonged existence at this intersection without any reason for doing so.\nWhen considering the totality of the circumstances, the trial court\u2019s findings provide the requisite objective justification from which a conclusion can be drawn that a reasonable suspicion existed to warrant Officer Maltby\u2019s stop. From defendant\u2019s thirty- second delay, Officer Maltby made a rational inference that defendant might be impaired. This inference was based on Officer Maltby\u2019s training and experience, as reflected by his testimony.\nQ: Based upon your training and experience, do you have an opinion as to whether or not that sort of delayed reaction could usually involve an impaired substance or driving while impaired?\nA: Absolutely. Yes, sir.\nQ: Can you articulate that?\nA: People\u2019s reaction is slowed down. A red light turning green and hesitating for 30 seconds definitely would be an indicator of impairment.\nDefendant, however, cites State v. Roberson, 163 N.C. App. 129, 135, 592 S.E.2d 733, 737 (2004), in which this Court held that a driver\u2019s eight to ten second delayed reaction at a traffic light did not give the officer a reasonable and articulable suspicion of criminal activity. This Court predicated its holding on the multitude of reasons a motorist\u2019s attention may be diverted for such a quick span of time. Id. at 134, 592 S.E.2d at 737. The instant case is distinguishable in that the length of defendant\u2019s delay at the traffic light, at thirty seconds, was three times longer than the delay in Roberson. A thirty second delay goes well beyond the delay caused by a motorist\u2019s routine distractions, such as changing a radio station, glancing at a map or looking in the rear view mirror. See People v. Kelly, 802 N.E.2d 850, 853 (Ill. Ct. App. 2003) (finding a twenty second delay at a traffic light to be an unreasonable period of time to react to the stop light change and to ascertain it to be safe to proceed). As a result, Officer Maltby was confronted with a far greater likelihood that the driver might be impaired.\nThe trial court did not err in ruling that Officer Maltby had an objectively reasonable articulable suspicion that defendant may be impaired and properly performed a Terry stop of defendant\u2019s vehicle. Therefore, the evidence seized as a result of the stop was properly admitted.\nDefendant next argues that the trial court erred in denying his motion to suppress any statements he made after he was handcuffed and placed in the patrol car because Officer Maltby failed to properly advise him of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966). \u201c \u2018It is well established that Miranda warnings are required only when a [criminal] defendant is subjected to custodial interrogation.\u2019 \u201d State v. Smith, 160 N.C. App. 107, 114, 584 S.E.2d 830, 835 (2003) (quoting State v. Patterson, 146 N.C. App. 113, 121, 552 S.E.2d 246, 253 (2001)). The United States Supreme Court has defined \u201cinterrogation\u201d as \u201c[a] practice that the police should know is reasonably likely to evoke an incriminating response from a suspectf.]\u201d Rhode Island v. Innis, 446 U.S. 291, 301, 64 L. Ed. 2d 297, 308 (1980). \u201cVolunteered statements of any kind are not barred by the Fifth Amendment^]\u201d Miranda, 384 U.S. at 478, 16 L. Ed. 2d at 726.\nDuring the trial, the prosecutor asked Officer Maltby about events which occurred after he had placed defendant in his patrol car:\nQ: Did you then proceed to write the Defendant a citation for Possession of Drug Paraphernalia?\nA: Yes, I did.\nQ: Okay. And did the Defendant say anything to you in response to your writing those citations?\nDefense Counsel: Objection, Your Honor, prior motion.\nThe Court: Overruled.\nA: I asked the Defendant how long he had had a habit. At that point the defendant stated for a number of years. He said he just recently started back with his habit because of recent legal problems and troubles.\nDefense Counsel: Objection, move to strike, Your Honor.\nThe Court: The motion is allowed. Members of the jury, do not consider that last response of the witness.\nOur Supreme Court has held \u201cwhere the trial court immediately sustains the defendant\u2019s objection to a prosecutor\u2019s comment and instructs the jury to disregard the offending remark, the impropriety is cured.\u201d State v. Garner, 340 N.C. 573, 593, 459 S.E.2d 718, 728 (1995) (citing State v. Maynor, 331 N.C. 695, 417 S.E.2d 453 (1992); State v. Small, 328 N.C. 175, 400 S.E.2d 413 (1991)). Assuming, arguendo, that it was error for the trial court to deny defendant\u2019s motion to suppress defendant\u2019s response to this particular question, any error was cured by the trial court\u2019s grant of defendant\u2019s motion to strike and prompt instruction to the jury not to consider the statement.\nAs for defendant\u2019s statements regarding his willingness to participate in the controlled buy, the trial court found that those statements were made \u201cwithout any questions being asked.\u201d Officer Maltby\u2019s direct examination continued:\nQ: Officer Maltby, did the Defendant at some time initiate a conversation with you, not in response to any question that you might have asked\u2014\nDefense Counsel: Objection, leading, Your Honor.\nThe Court: Overruled.\nQ: \u2014not in response to any question you may have asked him, regarding the charges that you were writing?\nA: Yes. He advised there\u2019s no way that he could hold another charge, to be charged with something of this magnitude, and advised that he would do anything and everything to try to help himself out in this matter.\nDefense Counsel: Objection. Move to strike.\nThe Court: The motion is denied. The objection is overruled.\nQ: What did he say with regards to what he could do to help?\nA: He said he knew several different locations where he could go back and purchase narcotics. He advised one location through a gentleman in West Asheville on 70 Howard Street by the name of \u2014 nickname of One-Arm Willy.\nQ: And did he say that he had been to One-Arm Willy\u2019s recently?\nA: He did. He said he had recently purchased crack at One-Arm Willy\u2019s house as recently as that day.\nQ: I\u2019m going to ask you to try to raise your voice just a little bit.\nA: I\u2019m sorry. Repeat. He did advise that he had been to One-Arm Willy\u2019s house and had been there as recently as that day to purchase crack.\nQ: Did he indicate whether or not he had smoked that crack?\nA: Yes, he did.\nQ: And what else did he say about One-Arm Willy in connection with his pleading with you to help out with the charges?\nA: He advised again that he would do absolutely anything to help himself out to \u2014 to get rid of these charges that I had on him during this vehicle stop.\nOfficer Maltby testified that defendant volunteered the statements spontaneously without prompting or questioning. The trial court concluded that these statements were \u201cvoluntarily made, not as a result of any questions being asked of [defendant].\u201d The trial court\u2019s conclusion is supported by the findings of fact. The holding in Miranda does not apply to voluntary statements and, therefore, the motion to suppress the statements was properly denied. See Miranda, 384 U.S. at 478, 16 L. Ed. 2d at 726.\nFinally, though defendant has assigned error to the admission of evidence regarding Officer Maltby\u2019s search of his person after defendant returned from the controlled buy, he has not specifically argued it in his brief and the assignment of error could be taken as abandoned. N.C. R. App. P. 28(b)(6) (2006). In any event, the defendant did not raise the issue of the search of his person in his argument to the trial court and we will not consider it on appeal. N.C. R. App. P. 10(b)(1); see State v. Valentine, 357 N.C. 512, 525, 591 S.E.2d 846, 857 (2003).\nNo error.\nJudge TYSON concurs.\nJudge CALABRIA dissents with a separate opinion.", "type": "majority", "author": "MARTIN, Chief Judge." }, { "text": "CALABRIA, Judge,\ndissenting.\nI respectfully dissent from the majority opinion that there was no error in the court\u2019s denial of defendant\u2019s motion to suppress evidence. A 30-second delay at a green light fails to provide the particularized suspicion required for an investigative stop, and I would therefore hold that the trial court erred in denying defendant\u2019s motion to suppress the crack discovered during the stop and the statements made following the stop. However, I would remand the case to the trial court for further proceedings to determine whether the crack rock seized from defendant following his participation in a controlled buy is fruit of the poisonous tree and should therefore be suppressed.\nIn the instant case, defendant contends that Officer Maltby, an officer with the Asheville Police Department, had no reasonable, articulable suspicion to stop him and it was therefore error for the court to deny defendant\u2019s motion, to suppress evidence resulting from the stop. \u201cOn a motion to suppress evidence, the trial court\u2019s findings of fact are conclusive on appeal if supported by competent evidence.\u201d State v. Campbell, 359 N.C. 644, 661, 617 S.E.2d 1, 12 (2005), pet. denied, Campbell v. N.C., 126 S. Ct. 1773, 164 L. Ed. 2d 523 (2006). However, the conclusions of law supported by those findings are reviewed de novo. Id. at 662, 617 S.E.2d at 13.\nAs the majority correctly notes, a police officer may affect a brief investigatory seizure of an individual where the officer has reasonable, articulable suspicion that a crime may be underway. Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889 (1968). To justify what is known as a Terry stop, the officer \u201cmust be able to point to specific and articu-lable facts which, taken together with rational inferences from .those facts, reasonably warrant that intrusion.\u201d Id. at 21. This rule also applies to investigatory traffic stops where the officer does not have probable cause to stop the vehicle. \u201c[A]n investigatory-type traffic stop is justified if the totality of [the] circumstances affords an officer reasonable grounds to believe that criminal activity may be afoot.\u201d State v. Wilson, 155 N.C. App. 89, 95, 574 S.E.2d 93, 98 (2002). Something more than an \u201cunparticularized suspicion or \u2018hunch\u2019 \u201d is required. U.S. v. Sokolow, 490 U.S. 1, 7, 104 L. Ed. 1, 10 (1989).\nIn the case sub judice, Officer Maltby testified that he stopped defendant because defendant hesitated for approximately 30 seconds before proceeding through the intersection after the red light had turned green. Officer Maltby stated that he considered the defendant\u2019s delay in proceeding through the light to be indicative of a slowed reaction time, which he believed indicated impairment. Defendant presents plausible alternative reasons why a driver might hesitate before proceeding through an intersection after a red light has turned green. Defendant argues that a 30-second delay, by itself, provides insufficient grounds to justify a Terry stop. I agree.\nAs the majority notes, this Court has previously considered the question of whether a slight delay in proceeding through a green light provides a sufficient basis to conduct a stop of a defendant\u2019s vehicle. In State v. Roberson, we determined it was not error for a trial court to grant a motion to suppress where the only reason a police officer stopped a driver was based on an 8 to 10 second delay before responding to a traffic light changing from red to green. 163 N.C. App. 129, 592 S.E.2d 733 (2004).\nThe Roberson case was a case of first impression in North Carolina. In Roberson, this Court noted that a driver\u2019s actions must be evaluated against the \u201cbackdrop of everyday driving experience\u201d and stated that \u201c[i]t is self-evident that motorists often pause at a stop sign or traffic light when their attention is distracted or preoccupied by outside influences.\u201d Id. at 134, 592 S.E.2d at 736 (quoting State v. Emory, 809 P.2d 522, 525 (Idaho Sup. Ct. 1991)). The Court further stated:\nA motorist waiting at a traffic light can have her attention diverted for any number of reasons. . . . When defendant did cross the intersection, there was nothing suspicious about her driving and thus no indication that she may have been under the influence of alcohol. Consequently, defendant\u2019s driving, including the delayed reaction at the traffic light, did not give rise to a reasonable, articulable suspicion that she was driving while under the influence.\nRoberson, 163 N.C. App. at 134-35, 592 S.E.2d at 737 (emphasis supplied).\nThe rule stated in Roberson is applicable here since the defendant\u2019s delay in the face of a changing traffic light formed the sole basis of Officer Maltby\u2019s suspicion that defendant was engaged in or was about to be engaged in criminal activity.\nThe case sub judice involves a delay of approximately 30 seconds, 20 seconds longer than the stop in Roberson. However, the instant case is similar to Roberson in that the delay could be attributable to impairment but it could also be attributable to numerous other causes and there was nothing else suspicious about defendant\u2019s driving.\nWhile testifying on direct examination, Officer Maltby stated that he believed defendant\u2019s attention was diverted by the presence of a police cruiser pulling in behind him. The relevant exchange in the record is as follows:\nOfficer Maltby: The traffic light turned green for northbound direction of travel. I observed the Defendant\u2019s car stopped at this red light for approximately 30 seconds before it finally made a left-hand turn onto Hilliard Avenue.\nProsecutor: Did you find that to be unusual?\nOfficer Maltby: Yes sir, I did.\nProsecutor: Why is that unusual?\nOfficer Maltby: Typically it would mean, I believe, that the Defendant was paying particular attention to the rear view mirror and noticing me and not the actual traffic light.\nAs Officer Maltby himself recognized, it is typical for a driver to watch the rear view mirror when a patrol car pulls in behind him, and this fact explains why a driver\u2019s attention was diverted from the traffic light changing from red to green. Officer Maltby testified that he did not look at his watch to . determine the exact amount of time defendant delayed making his turn, but merely estimated that approximately 30 seconds elapsed while the light changed from red to green. Officer Maltby also stated that the light remained green as defendant made his lawful left-hand turn and noticed nothing suspicious in defendant\u2019s driving.\nOfficer Maltby\u2019s testimony indicates that he did not believe he had ample reason to stop defendant based on the delay alone, but decided to further observe defendant\u2019s driving for signs of impairment. On cross-examination, Officer Maltby was asked why he did not honk or beep his horn to get the defendant\u2019s attention. The officer responded: \u201cI wanted to further my investigation and watch him in his driving demeanor at that point.\u201d When Officer Maltby was asked about defendant\u2019s driving demeanor, he responded that the left turn defendant made was a legal left turn. Officer Maltby further stated that he previously observed defendant\u2019s driving for approximately two minutes prior to stopping him at the red light. Just as there was nothing suspicious about defendant\u2019s driving after the light turned green and he turned left, there was also nothing suspicious about defendant\u2019s driving during the two minutes prior to his stop at the red light. Thus, Officer Maltby\u2019s suspicion was a vague, unparticularized suspicion, which under Terry and its progeny, does not justify a stop. Further, neither the location of the stop nor the time bolster the officer\u2019s unparticularized suspicion.\nThe fact that Officer Eaton\u2019s observation of defendant gave rise to no more than an \u201c \u2018unparticularized suspicion or hunch,\u2019 \u201d Steen, 352 N.C. at 239, 536 S.E.2d at 8 (citation omitted), cannot be rehabilitated by adding to the mix of considerations the general statistics advocated by the State on time, location, and special events from which a law enforcement officer would draw his inferences based on his training and experience, see, e.g., Emory, 119 Idaho at 664, 809 P.2d at 525 (\u201c[statistical] inferences must still be evaluated against the backdrop of everyday driving experience . . . [and the time of day of the stop] does not enhance the suspicious nature of the observation [of the delay]\u201d).\nRoberson, 163 N.C. App. at 134-35, 592 S.E.2d at 737 (citations omitted).\nAlthough the majority notes that Officer Maltby initiated the stop in a \u201chigh-crime area,\u201d it does not include this factor in weighing the totality of the circumstances which must be considered in evaluating the legality of the stop. Officer Maltby testified that the area in question has a specific reputation for drug activity, prostitution, breaking and entering, and possession of stolen vehicles, not that the area is notorious for impaired driving.\nA neighborhood\u2019s general reputation for drug activity is not enough to support a specific suspicion that a defendant is driving while intoxicated. Otherwise, police would be justified in stopping any motorist driving through a bad neighborhood where the motorist hesitates at a stop light or other traffic control device, and this justification would come largely from external factors nonspecific to the driver of the automobile.\nWe have previously determined that an officer\u2019s decision to stop a vehicle based on reasonable suspicion is justified only if the totality of circumstances affords an officer reasonable grounds to believe that criminal activity may be afoot. Sate v. Peck, 305 N.C. 734, 741, 291 S.E.2d 637, 641 (1982). For instance, an officer had reasonable suspicion to stop a vehicle when he observed a driver who the officer believed was driving with a revoked license. State v. Kincaid, 147 N.C. App. 94, 555 S.E.2d 294 (2001). Similarly, we have held that an officer may conduct an investigatory stop of a vehicle where he reasonably suspects the vehicle\u2019s windows may be tinted more darkly than allowed by North Carolina law. State v. Schiffer, 132 N.C. App. 22, 510 S.E.2d 165 (1999).\nHowever, in this case, Officer Maltby observed nothing suspicious about defendant\u2019s driving except for a pause in the face of a traffic light turning green. As we noted in Roberson, such a delay could be caused by any number of factors common in everyday driving. A motorist hesitating at a light could be distracted by things such as changing a radio station or glancing at a map, as the majority recognizes, or even glancing in the rear view mirror at a patrol car, as Officer Maltby himself recognized. But despite the majority\u2019s assertion to the contrary, such factors may cause a motorist to hesitate longer than 10 seconds after a light has changed. As such, the justifications cited in Roberson are not erased by the passage of an additional 20 seconds.\nThe majority cites People v. Kelly, 802 N.E.2d 850 (Ill. Ct. App. 2003), for the proposition that a 20-second delay at a traffic light is an unreasonable period of time to react to the stop light change and to ascertain it to be safe to proceed. In Kelly, the Illinois Court of Appeals affirmed a trial judge who also denied defendant\u2019s motion to suppress evidence. The trial court\u2019s denial was- based on the officer\u2019s reasonable grounds to stop a defendant who paused for 20 seconds after a red light changed to green. However, the Illinois trial court based its decision on defendant\u2019s violation of Illinois statutes requiring drivers to obey traffic control devices. That is, the defendant\u2019s delay at the light changing from red to green provided grounds for the officer to stop him based on his violation of specific statutes that prohibited stopping, standing, or parking in specific places. The court did not determine that the 20-second delay provided reasonable grounds to believe that defendant was impaired. Here, since no such statute is implicated, Kelly is wholly inapplicable to this case.\nIn fact, Illinois has another case which is instructive to the case sub judice. In People v. Dionesotes, 603 N.E.2d 118 (Ill. Ct. App. 1992), the Illinois Court of Appeals held that there was no reasonable, articulable suspicion for an officer to stop a driver who at 2:30 a.m. was observed driving 10 miles per hour in a 25 mile per hour zone and who subsequently stopped his car for approximately one-and-a-half minutes before resuming his driving. The Kelly court stated that under the facts in Dionesotes, it would have been objectively reasonable for an officer to suspect impairment. Id. at 856. However, this is a misreading of the Dionesotes decision. In Dionesotes, the court stated:\nIn the present case, defendant drove slowly and stopped his car in the middle of the street for a short period of time. These facts do not support a reasonable inference that defendant is committing, is about to commit, or has committed an offense.\nDionesotes, 603 N.E.2d at 120.\nIn Dionesotes, the arresting officer testified that he did not subjectively suspect impairment, but suspected that something \u201cunusual\u201d was underway. Although the Kelly court in dicta criticized Dionesotes and sought to distinguish it on the grounds that the officer in Dionesotes had no subjective belief that defendant was specifically impaired, it is clear from the language of Dionesotes that the court did not consider driving that is merely \u201cunsusual\u201d enough to provide the particularization necessary to initiate a Terry stop, regardless of the officer\u2019s lack of a subjective, particularized belief that a specific crime was being committed.\nIt should be further noted that courts are split on the issue of whether -an officer\u2019s subjective belief is relevant in determining whether reasonable, articulable suspicion exists. Some courts have determined that an officer must have a subjective suspicion that is objectively reasonable in order to conduct a Terry stop, see United States v. Lott, 870 F.2d 778, 783-84(lst Cir.1989), while others have determined that Terry is a purely objective test rendering an officer\u2019s subjective suspicions irrelevant. United States v. Brown, 188 F.3d 860, 866 (7th Cir.1999); United States v. Cummins, 920 F.2d 498, 502 (8th Cir.1990). North Carolina has followed the line of cases holding that the officer\u2019s subjective suspicion is irrelevant and that the test is a purely objective one.. Peck, 305 N.C. at 741, 291 S.E.2d at 641-42 (\u201cThe officer\u2019s subjective opinion is not material. Nor are the courts bound by an officer\u2019s mistaken legal conclusion as to the existence or non-existence of probable cause or reasonable grounds for his actions. The search or seizure is valid when the objective facts known to the officer meet the standard required.\u201d).\nRegardless of the officer\u2019s subjective suspicions or lack thereof in Dionesotes, it is apparent from the opinion that the court did not believe the totality of the circumstances, viewed objectively, gave rise to a reasonable suspicion of wrongdoing sufficient to justify a Terry stop. As cited above, the court determined that the facts \u201cdo not support a reasonable inference that defendant is committing, is about to commit, or has committed an offense.\u201d Dionesotes, 603 N.E.2d at 120. This language implicitly recognizes that even if the officer had subjectively suspected impairment, the facts known to him at the time would not have supported an investigative stop.\nThe Dionesotes court further stated, \u201c[U]nusual behavior alone does not necessarily support a reasonable suspicion that a crime has occurred, is occurring or is about to occur. Without more, a proper basis to make a Terry stop has not been established.\u201d Id. at 120-21. Despite Kelly\u2019s criticisms of Dionesotes, Dionesotes has never been overruled and remains good law in Illinois.\nAlthough it is not binding precedent on this Court, Dionesotes demonstrates that other courts have required much more to justify an investigative stop of a vehicle than the majority does in the instant case. While I agree with the majority that a 30-second delay in the face of a changing traffic light is unusual, I disagree that it provides sufficient particularized suspicion that a driver is impaired.\nAccordingly, \u00cd believe the officer did not have reasonable, articu-lable suspicion to stop the defendant given that he had nothing more than an unparticularized hunch that defendant was committing a crime. Any other factor, such as unsteady driving, might tip the scales to favor a Terry stop. But the delay alone is not enough.\nThe majority\u2019s opinion determines that at some point in the 20 seconds between a 10-second delay and a 30-second delay, an unpar-ticularized hunch ripens into a reasonable, particularized suspicion, leaving trial courts in the unfortunate position of having to guess at the exact location of that point. This will inevitably lead to uneven enforcement and require trial courts to engage in an ad hoc guessing game. Further, the majority\u2019s decision so weakens the reasons supporting the Roberson decision that today\u2019s decision effectively overrules Roberson.\nSince I believe that there was no basis for Officer Maltby to stop defendant, I further believe the crack pipe seized from defendant\u2019s car and statements made as a result of the stop were fruit of the poisonous tree and should have been excluded at trial. Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441 (1963).\nThe more difficult question in this case is whether the second crack rock seized from defendant after he completed the controlled buy should have been suppressed as fruit of the poisonous tree. The second crack rock would not have been discovered but for the police officers\u2019 violation of defendant\u2019s constitutional rights. However, the United States Supreme Court has made it clear that application of the fruit of the poisonous tree doctrine does not rest on a but-for test.\nWe need not hold that all evidence is fruit of the poisonous tree simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.\nId. at 487-88 (quotation marks and citation omitted). Here, the evidence seized was discovered as part of defendant\u2019s participation in a controlled buy. By promising to dispose of the original charges stemming from the illegal stop in exchange for defendant\u2019s cooperation, the police secured defendant\u2019s participation in the controlled buy, thus exploiting the original violation of defendant\u2019s rights. However, the evidence subsequently seized related to a crime committed by defendant during the course of the controlled buy, an intervening act unrelated to the original arrest. As such, the evidence can be said to have been gained by \u201cmeans sufficiently distinguishable to be purged of the primary taint.\u201d Id. at 488, 9 L. Ed. at 455. The United States Supreme Court has previously held that evidence sufficiently attenuated from the primary taint may not be subject to suppression as fruit of the poisonous tree. Nardone v. United States, 308 U.S. 338, 84 L. Ed. 307 (1939).\n\u201cThe [exclusionary] rule is calculated to prevent, not to repair. Its purpose is to deter \u2014 to compel respect for the constitutional guaranty in the only effectively available way \u2014 by removing the incentive to disregard it.\u201d Elkins v. United States, 364 U.S. 206, 217, 4 L. Ed. 2d 1669, 1677 (1960). Thus, the purpose underlying the fruit of the poisonous tree doctrine, deterring police misconduct, would not be furthered by suppression of the evidence.\nAccordingly, I would determine that the second crack rock was not fruit of the poisonous tree, but evidence of a subsequent crime, and that the defendant\u2019s commission of a separate and intervening crime while participating in the controlled buy sufficiently purged the taint of the original illegality. Nevertheless, the second crack rock would never have been discovered by police if not for defendant\u2019s participation in the controlled buy. Since I believe there was no justification for police to stop, detain, and search defendant, I conclude the search that produced the crack rock can only be justified as a consent search. So the question becomes whether defendant consented to a search of his person following the controlled buy, and if so, whether that consent was given voluntarily or coerced by police.\n[T]he question whether a consent to a search was in fact \u201cvoluntary\u201d or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances. While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent. As with police questioning, two competing concerns must be accommodated in determining the meaning of a \u201cvoluntary\u201d consent \u2014 the legitimate need for such searches and the equally important requirement of assuring the absence of coercion.\nSchneckloth v. Bustamonte, 412 U.S. 218, 227, 36 L. Ed. 2d 854, 862-63 (1973). \u201cMerely because a defendant is under arrest when consent is given does not render the consent involuntary. ... It is, however, a factor which must be considered, and places a greater burden upon the State to show voluntariness.\u201d State v. Cobb, 295 N.C. 1, 17-18, 243 S.E.2d 759, 769 (1978) (citations omitted).\nThe issues of defendant\u2019s consent and the voluntariness of that consent are issues of fact to be determined by the trial court. Since the trial court made no findings of fact with respect to these issues, this Court is unable to conduct a proper review. Thus, I would vacate the judgment and hold that the evidence deriving from the illegal stop should be suppressed. I would remand to the trial court for further proceedings consistent with this opinion to determine whether defendant voluntarily consented to the search of his person that turned up the crack rock from the controlled buy.", "type": "dissent", "author": "CALABRIA, Judge," } ], "attorneys": [ "Roy Cooper, Attorney General, by Daniel S. Johnson, Special Deputy Attorney General, for the State.", "Anne Bleymanfor defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. KENNETH BARNARD\nNo. COA06-209\n(Filed 19 June 2007)\n1. Search and Seizure\u2014 traffic stop \u2014 thirty-second delay at stop light \u2014 reasonable articulable suspicion\nThe trial court did not err by ruling that an officer had an objectively reasonable articulable suspicion that defendant might be impaired and properly stopped defendant\u2019s vehicle after defendant hesitated for thirty seconds after a stop light turned green. Thirty seconds goes well beyond the delay caused by routine distractions.\n2. Evidence\u2014 testimony stricken and curative instruction given \u2014 any error in allowing testimony cured\nGranting defendant\u2019s motion to strike and giving a prompt curative instruction cured any error in denying defendant\u2019s motion to suppress his response to an officer\u2019s question about how long he had had a habit.\n3. Confessions and Incriminating Statements\u2014 voluntary statements \u2014 Miranda not applicable\nDefendant\u2019s motion to suppress statements he had made to an officer was properly denied where he had volunteered those statements. Miranda does not apply to voluntary statements made without questioning.\n4. Appeal and Error\u2014 preservation of issues \u2014 contention not raised below \u2014 not briefed \u2014 not considered\nDefendant\u2019s argument concerning a search of his person was not considered where he did not raise it to the trial court and did not specifically argue it in his brief on appeal.\nJudge Calabria dissenting.\nAppeal by defendant from judgment entered 6 April 2005 by Judge James U. Downs in Buncombe County Superior Court. Heard in the Court of Appeals 30 October 2006.\nRoy Cooper, Attorney General, by Daniel S. Johnson, Special Deputy Attorney General, for the State.\nAnne Bleymanfor defendant-appellant." }, "file_name": "0025-01", "first_page_order": 57, "last_page_order": 74 }