{ "id": 4115472, "name": "STATE OF NORTH CAROLINA v. NATHANIEL CANTY", "name_abbreviation": "State v. Canty", "decision_date": "2012-12-18", "docket_number": "No. COA12-804", "first_page": "514", "last_page": "521", "citations": [ { "type": "official", "cite": "224 N.C. App. 514" } ], "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": "641 S.E.2d 858", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637974 ], "year": 2007, "pin_cites": [ { "page": "863" } ], "opinion_index": 0, "case_paths": [ "/se2d/641/0858-01" ] }, { "cite": "654 S.E.2d 752", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640074 ], "year": 2008, "pin_cites": [ { "page": "758", "parenthetical": "nervousness alone is not enough for reasonable suspicion" } ], "opinion_index": 0, "case_paths": [ "/se2d/654/0752-01" ] }, { "cite": "672 S.E.2d 724", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642784 ], "year": 2009, "pin_cites": [ { "page": "730", "parenthetical": "believing package in vehicle contained narcotics, giving false name of passenger, and nervousness were sufficient for reasonable suspicion to prolong stop" } ], "opinion_index": 0, "case_paths": [ "/se2d/672/0724-01" ] }, { "cite": "673 S.E.2d 765", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642974 ], "year": 2009, "pin_cites": [ { "page": "69", "parenthetical": "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" } ], "opinion_index": 0, "case_paths": [ "/se2d/673/0765-01" ] }, { "cite": "626 S.E.2d 271", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635151 ], "year": 2006, "pin_cites": [ { "page": "286", "parenthetical": "citations and internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/626/0271-01" ] }, { "cite": "675 S.E.2d 687", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "397 S.E.2d 653", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "655" } ], "opinion_index": 0 }, { "cite": "100 N.C. App. 628", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527353 ], "year": 1990, "pin_cites": [ { "page": "632" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0628-01" ] }, { "cite": "182 N.C. App. 268", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8171289 ], "year": 2007, "pin_cites": [ { "page": "274-75" } ], "opinion_index": 0, "case_paths": [ "/nc-app/182/0268-01" ] }, { "cite": "188 N.C. App. 42", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4156101 ], "year": 2008, "pin_cites": [ { "page": "50", "parenthetical": "nervousness alone is not enough for reasonable suspicion" } ], "opinion_index": 0, "case_paths": [ "/nc-app/188/0042-01" ] }, { "cite": "195 N.C. App. 390", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4164581 ], "year": 2009, "pin_cites": [ { "page": "398-99", "parenthetical": "believing package in vehicle contained narcotics, giving false name of passenger, and nervousness were sufficient for reasonable suspicion to prolong stop" } ], "opinion_index": 0, "case_paths": [ "/nc-app/195/0390-01" ] }, { "cite": "725 S.E.2d 40", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "pin_cites": [ { "page": "44-45", "parenthetical": "noting nervousness as a proper factor after traffic stop has been made" } ], "opinion_index": 0 }, { "cite": "517 S.E.2d 128", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1999, "pin_cites": [ { "page": "134" }, { "page": "134" }, { "page": "133" } ], "opinion_index": 0 }, { "cite": "350 N.C. 630", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132043 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "638-639" }, { "page": "639" }, { "page": "637" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0630-01" ] }, { "cite": "195 N.C. App. 740", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4164237 ], "year": 2009, "pin_cites": [ { "page": "746", "parenthetical": "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" } ], "opinion_index": 0, "case_paths": [ "/nc-app/195/0740-01" ] }, { "cite": "675 S.E.2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "687" } ], "opinion_index": 0 }, { "cite": "196 N.C. App. 668", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4165780 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "674" }, { "page": "674" } ], "opinion_index": 0, "case_paths": [ "/nc-app/196/0668-01" ] }, { "cite": "726 S.E.2d 824", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "pin_cites": [ { "page": "828", "parenthetical": "\"weaving 'constantly and continuously' over the course of three-quarters of a mile\" around 11 p.m. is sufficient" } ], "opinion_index": 0 }, { "cite": "386 S.E.2d 217", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1989, "pin_cites": [ { "page": "221" }, { "page": "221", "parenthetical": "weaving and driving twenty mph below speed limit is enough for reasonable suspicion" }, { "page": "221" }, { "page": "221" } ], "opinion_index": 0 }, { "cite": "96 N.C. App. 389", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522580 ], "weight": 4, "year": 1989, "pin_cites": [ { "page": "395" }, { "page": "395" }, { "page": "395" }, { "page": "395" } ], "opinion_index": 0, "case_paths": [ "/nc-app/96/0389-01" ] }, { "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": "392 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167798 ], "weight": 2, "year": 1968, "pin_cites": [ { "page": "21-22" }, { "page": "906" } ], "opinion_index": 0, "case_paths": [ "/us/392/0001-01" ] }, { "cite": "449 U.S. 411", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11716341 ], "weight": 3, "year": 1981, "pin_cites": [ { "page": "417" }, { "page": "629" } ], "opinion_index": 0, "case_paths": [ "/us/449/0411-01" ] }, { "cite": "446 S.E.2d 67", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "70", "parenthetical": "quoting United States v. Cortez, 449 U.S. 411, 417, 66 L.Ed.2d 621, 629 (1981)" }, { "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", "parenthetical": "quoting United States v. Cortez, 449 U.S. 411, 417, 66 L.Ed.2d 621, 629 (1981)" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0437-01" ] }, { "cite": "665 S.E.2d 438", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2008, "pin_cites": [ { "page": "440" }, { "page": "439" } ], "opinion_index": 0 }, { "cite": "362 N.C. 412", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150881 ], "year": 2008, "pin_cites": [ { "page": "415" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0412-01" ] }, { "cite": "708 S.E.2d 719", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2011, "pin_cites": [ { "page": "724-25" }, { "page": "724-25" } ], "opinion_index": 0 }, { "cite": "209 N.C. App. 116", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4181750 ], "year": 2011, "pin_cites": [ { "page": "124-25" } ], "opinion_index": 0, "case_paths": [ "/nc-app/209/0116-01" ] }, { "cite": "551 U.S. 249", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3573063 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "251" } ], "opinion_index": 0, "case_paths": [ "/us/551/0249-01" ] }, { "cite": "713 S.E.2d 246", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2011, "pin_cites": [ { "page": "249" }, { "page": "249" } ], "opinion_index": 0 }, { "cite": "725 S.E.2d 910", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "pin_cites": [ { "page": "914" } ], "opinion_index": 0 }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "699" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "541 S.E.2d 803", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "807", "parenthetical": "quoting Strickland v. Washington, 466 U.S. 668, 699, 80 L. Ed. 2d 674 (1984)" } ], "opinion_index": 0 }, { "cite": "142 N.C. App. 145", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9439892 ], "year": 2001, "pin_cites": [ { "page": "152", "parenthetical": "quoting Strickland v. Washington, 466 U.S. 668, 699, 80 L. Ed. 2d 674 (1984)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0145-01" ] }, { "cite": "360 N.C. 297", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3787721 ], "year": 2006, "pin_cites": [ { "page": "316", "parenthetical": "citations and internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0297-01" ] }, { "cite": "693 S.E.2d 145", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2010, "pin_cites": [ { "page": "146-47" }, { "page": "147" } ], "opinion_index": 0 }, { "cite": "203 N.C. App. 718", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4176301 ], "year": 2010, "pin_cites": [ { "page": "721-23" } ], "opinion_index": 0, "case_paths": [ "/nc-app/203/0718-01" ] }, { "cite": "577 S.E.2d 500", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "524" } ], "opinion_index": 0 }, { "cite": "354 N.C. 131", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138455 ], "year": 2001, "pin_cites": [ { "page": "166" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0131-01" ] }, { "cite": "604 S.E.2d 850", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "881", "parenthetical": "quoting State v. Fair, 354 N.C. 131, 166, 577 S.E.2d 500, 524 (2001)" } ], "opinion_index": 0 }, { "cite": "359 N.C. 77", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3801733 ], "year": 2004, "pin_cites": [ { "page": "122-23", "parenthetical": "quoting State v. Fair, 354 N.C. 131, 166, 577 S.E.2d 500, 524 (2001)" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0077-01" ] }, { "cite": "543 S.E.2d 849", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "856" } ], "opinion_index": 0 }, { "cite": "353 N.C. 281", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135893 ], "year": 2001, "pin_cites": [ { "page": "292" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0281-01" ] } ], "analysis": { "cardinality": 871, "char_count": 18092, "ocr_confidence": 0.745, "pagerank": { "raw": 1.0805449815513237e-07, "percentile": 0.562410395355096 }, "sha256": "da9f613a09d8e33e9beeac18f178b8fa62909ca0282cf4e3b7137f5768cc78f6", "simhash": "1:8120d4ea4c1d16c7", "word_count": 2979 }, "last_updated": "2023-07-14T22:14:41.206072+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ELMORE and STROUD concur." ], "parties": [ "STATE OF NORTH CAROLINA v. NATHANIEL CANTY" ], "opinions": [ { "text": "BEASLEY, Judge.\nNathaniel Canty (Defendant) appeals from his convictions of possession of a firearm by a convicted felon and carrying a concealed handgun. For the following reasons, we order a new trial.'\nDefendant was indicted for possession of a firearm by a convicted felon and carrying a concealed weapon on 16 May 2011.15 April 2011, Corporals Bass and Pope of the Sampson County Sheriffs Office were stationed along 1-40 in Sampson County. Corporal Bass testified that he saw a green minivan slow from approximately 73 miles per hour (mph) to 65 mph. Corporal Pope\u2019s and Corporal Bass\u2019s official reports stated that the vehicle was going 65 mph before it slowed down. The speed limit in that portion of 1-40 was 70 mph. Corporal Pope\u2019s 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 \u201cdramatic\u201d 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.\nCorporal Bass pulled the patrol car from its location and began to follow the vehicle. At one point, Corporal Bass pulled the patrol car alongside of the vehicle and observed that the occupants would not make eye contact. Corporals Bass and Pope then observed that the vehicle had slowed to 59 mph. 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\u2019s lights only after the vehicle \u201ccompletely crossed\u2014 went across the fog line.\u201d Based on the reduction in speed and crossing the fog line, Corporal Bass initiated a traffic stop for \u201cunsafe movement.\u201d Corporal Pope approached the passenger side of the vehicle after the driver pulled over. Gina Canty (Ms. Canty), Defendant\u2019s ex-wife, was the driver, and Defendant was the passenger. Ms. Canty was instructed to sit in the patrol vehicle with Corporal Bass whereupon he wrote a warning for unsafe movement.\nDuring that time, Corporal Pope talked with Defendant. Corporal Pope asked Defendant about his travel plans and his destination. Corporal Pope became suspicious based on Defendant\u2019s lack of eye contact, evasive answers, and nervous demeanor. Corporal Pope could see a strong pulse in Defendant\u2019s stomach and neck. In Coiporal Pope\u2019s experience, the driver, rather than a passenger, is nervous during a traffic stop. There was no odor of marijuana or alcohol in the vehicle or on Defendant.\nAfter writing the warning, Corporal Bass returned Ms. Canty\u2019s information and license and told her to \u201chave a nice day.\u201d Corporal Pope then asked Ms. Canty for permission to search the vehicle. Ms. Canty consented to the search of the vehicle which revealed a revolver and a rifle in a suitcase. Corporal Bass testified that the shit-case was behind the passenger seat. Upon finding the weapons, Corporal Bass handcuffed Ms. Canty and Defendant. He read them their Miranda rights and questioned them about the weapons. Ms. Canty began crying and said she did not know anything about the weapons. According to Corporal Pope, Defendant agreed to speak to him about the weapons. Corporal Pope did not ask Ms. Canty about the suitcase. Defendant said that he was taking the guns back to Philadelphia for his \u201cold lady\u201d who needed protection and that he had more guns in Philadelphia. Corporal Bass then placed Defendant under arrest for carrying a concealed weapon and possession of a firearm by a convicted felon.\nSergeant Stroud testified regarding the operation of the camera and microphone system in the patrol car. For the patrol car used by Corporals Bass and Pope, the camera system automatically records when the lights and siren are used or if the officers manually turn on either the camera system or the microphone. The camera system automatically records 45 seconds of video, but no audio, before the system is engaged. An \u201cM\u201d appears on the screen indicating that the audio is muted. The recording from this traffic stop, State\u2019s Exhibit 8, was admitted into evidence and played for the jury. Sergeant Stroud explained that the \u201cM\u201d on the recording indicated that the microphone system was muted and that the \u201cL\u201d on the recording indicated that either Corporal Bass or Corporal Pope had activated the lights and siren. Defendant\u2019s counsel noted, without asking a question to Sergeant Stroud, that he never saw the vehicle touch the white fog line.\nDefendant argues that the trial court committed plain error in admitting evidence resulting from the traffic stop. Defendant, however, did not file a motion to suppress nor did he argue his Fourth Amendment claim to the trial court. Constitutional arguments not made at trial are generally not preserved on appeal. State v. Cummings, 353 N.C. 281, 292, 543 S.E.2d 849, 856 (2001). We therefore dismiss Defendant\u2019s constitutional argument.\nDefendant also argues that he received ineffective assistance of counsel because his attorney did not file a motion to suppress this evidence. We agree.\nIt is well established that ineffective assistance of counsel claims \u201cbrought on direct review will be decided on the merits when the cold record reveals that no further investigation is required, i.e., claims that may be developed and argued without such ancillary procedures as the appointment of investigators or an evidentiary hearing.\u201d\nState v. Thompson, 359 N.C. 77, 122-23, 604 S.E.2d 850, 881 (2004) (quoting State v. Fair, 354 N.C. 131, 166, 577 S.E.2d 500, 524 (2001)) (citation omitted). This Court has declined to consider a claim of ineffective assistance of counsel where it was argued that counsel was deficient in failing to file a timely written motion to suppress. State v. Johnson, 203 N.C. App. 718, 721-23, 693 S.E.2d 145, 146-47 (2010). In Johnson, no evidentiary hearing was held, and there was a clear conflict in the testimony regarding whether the crack pipe was in plain view. Id. at 722, 693 S.E.2d at 147. In this case, there is a very detailed transcript and a DVD of the traffic stop. The \u201ccold record\u201d in this case is sufficient to review Defendant\u2019s ineffective assistance of counsel claim.\nTo prevail on a claim of ineffective assistance of counsel, a defendant must first show that his counsel\u2019s performance was deficient and then that counsel\u2019s deficient performance prejudiced his defense. Deficient performance may be established by showing that counsel\u2019s representation fell below an objective standard of reasonableness. Generally, to establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel\u2019s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.\nState v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (2006)(citations and internal quotation marks omitted). \u201cWhere the strategy of trial counsel is \u2018well within the range of professionally reasonable judgments,\u2019 the action of counsel is not constitutionally ineffective.\u201d State v. Campbell, 142 N.C. App. 145, 152, 541 S.E.2d 803, 807 (2001)(quoting Strickland v. Washington, 466 U.S. 668, 699, 80 L. Ed. 2d 674 (1984)). We have held that failure to file a motion to suppress is not ineffective assistance of counsel where the search or stop that led to the discovery of the evidence was lawful. State v. Jones, _ N.C. App. _, _, 725 S.E.2d 910, 914 (2012); State v. Brown, _N.C. App. _, _, 713 S.E.2d 246, 249 (2011). Our review thus turns to whether the stop that led to the discovery of the challenged evidence was lawful.\nA passenger has standing under the Fourth Amendment to challenge the constitutionality of a traffic stop. Brendlin v. California, 551 U.S. 249, 251, 168 L. Ed. 2d 132 (2007). Neither this Court nor our Supreme Court has explicitly held that a passenger has standing to contest the stop of the vehicle. The closest case is State v. Mackey, 209 N.C. App. 116, 124-25, 708 S.E.2d 719, 724-25 (2011), where this Court cited Brendlin but did not ultimately hold that a passenger has standing to contest the traffic stop. That case turned on whether the defendant had standing to contest a search of the vehicle. Id. at 124-25, 708 S.E.2d at 724-25. Here, Defendant challenges the stop that led to the search, not the search itself. In accordance with the United States Supreme Court, we hold that Defendant has standing to contest the stop of the vehicle in which he was a passenger.\nIn State v. Styles, 362 N.C. 412, 415, 665 S.E.2d 438, 440 (2008), our Supreme Court held that reasonable suspicion is the standard for all traffic stops. A traffic stop is a seizure for the purposes of the Fourth Amendment. Id. at 414, 665 S.E.2d at 439. \u201cA court must consider \u2018the totality of the circumstances \u2014 the whole picture\u2019 in determining whether a reasonable suspicion to make an investigatory stop exists.\u201d State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 70 (1994)(quoting United States v. Cortez, 449 U.S. 411, 417, 66 L.Ed.2d 621, 629 (1981)). \u201cThe stop must 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 Id. (citing Terry v. Ohio, 392 U.S. 1, 21-22, 20 L. Ed. 2d 889, 906 (1968)). \u201cThe only requirement is a minimal level of objective justification, something more than an \u2018unparticularized suspicion or hunch.\u2019 \u201d Id. at 442, 446 S.E.2d at 70 (quoting United States v. Sokolow, 490 U.S. 1, 7, 104 L. Ed. 2d 1, 10 (1989)). Even the absence of a \u201cverifiable traffic code violation,\u201d the driver\u2019s conduct may give rise to reasonable suspicion to initiate a traffic stop. See State v. Jones, 96 N.C. App. 389, 395, 386 S.E.2d 217, 221 (1989).\nOur courts have decided numerous cases regarding the factual circumstances giving rise to reasonable suspicion to initiate a traffic stop. See, e.g., State v. Otto, _ N.C. __, _, 726 S.E.2d 824, 828 (2012)(\u201cweaving \u2018constantly and continuously\u2019 over the course of three-quarters of a mile\u201d around 11 p.m. is sufficient); State v. Peele, 196 N.C. App. 668, 674, 675 S.E.2d 682, 687 (2009)(holding one instance of weaving in one\u2019s own lane coupled with an anonymous tip does not constitute reasonable suspicion, as a single instance of weaving is \u201cconduct falling within the broad range of what can be described as normal driving behavior\u201d (citations and internal quotation marks omitted)); State v. Fields, 195 N.C. App. 740, 746, 673 S.E.2d 765, 69 (2009)(holding that weaving in one\u2019s own lane standing alone does not provide reasonable suspicion to stop a motorist for driving under the influence of alcohol); Jones, 96 N.C. App. at 395, 386 S.E.2d at 221 (weaving and driving twenty mph below speed limit is enough for reasonable suspicion).\n\u201cNervousness, like all other facts, must be taken in light of the totality of the circumstances. It is true that many people do become nervous when stopped by an officer of the law. Nevertheless, nervousness is an appropriate factor to consider when determining whether a basis for a reasonable suspicion exists.\u201d State v. McClendon, 350 N.C. 630, 638-639, 517 S.E.2d 128, 134 (1999). 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. See id.; State v. Fisher, _ N.C. App. _, _, 725 S.E.2d 40, 44-45 (2012)(noting nervousness as a proper factor after traffic stop has been made); State v. Hodges, 195 N.C. App. 390, 398-99, 672 S.E.2d 724, 730 (2009)(believing package in vehicle contained narcotics, giving false name of passenger, and nervousness were sufficient for reasonable suspicion to prolong stop); State v. Myles, 188 N.C. App. 42, 50, 654 S.E.2d 752, 758 (2008)(nervousness alone is not enough for reasonable suspicion). \u201cOrdinary nervousness\u201d does not amount to reasonable suspicion. See McClendon, 350 N.C. at 639, 517 S.E.2d at 134.\nRefusal 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. See, e.g., McClendon, 350 N.C. at 637, 517 S.E.2d at 133; State v. Euceda-Valle, 182 N.C. App. 268, 274-75, 641 S.E.2d 858, 863 (2007).\nHere, the State argues that Ms. Canty\u2019s alleged crossing of the fog line, Ms. Canty\u2019s and Defendant\u2019s alleged nervousness and failure to make eye contact with the officers as they drove by and drove alongside the patrol car, and the vehicle\u2019s slowed speed for reasonable suspicion were legitimate grounds for the traffic stop. Based on the totality of the circumstances, these factors fall short of reasonable suspicion.\nFirst, the State\u2019s evidence shows that there was no traffic violation. State\u2019s Exhibit 8 shows that the vehicle did not cross the fog line in the forty-five second interval before Corporal Bass engaged the lights and siren. Corporal Bass testified that he only turned on the blue lights and siren after he saw the vehicle cross the fog line.\nSecond, even in the absence of a \u201cverifiable traffic code violation,\u201d the officer\u2019s beliefs about Defendant and Ms. Canty\u2019s conduct amounts to nothing more than an \u201cunparticularized suspicion or hunch.\u201d Nervousness, slowing down, and not making eye contact is nothing unusual when passing law enforcement stationed on the side of the highway. We find it hard to believe that these officers could tell Ms. Canty and Defendant were \u201cnervous\u201d as they passed by the officers on the highway and as the officers momentarily rode alongside them. A vehicle\u2019s slowed speed has been a factor in initiating a traffic stop, but the weight of this factor is minimal since the officers\u2019 reports state that the vehicle was going 65 mph and slowed to 59 mph, which is hardly significant in comparison to Jones where we held that driving twenty mph below the speed limit in addition to weaving amounted to reasonable suspicion. Jones, 96 N.C. App. at 395, 386 S.E.2d at 221. Slowed speed also tends to be a factor in reasonable suspicion for impaired driving. See State v. Aubin, 100 N.C. App. 628, 632, 397 S.E.2d 653, 655 (1990); Jones, 96 N.C. App. at 395, 386 S.E.2d at 221. Impaired driving, however, was not the offense for which the officers testified that they pulled over Ms. Canty. Even if the nose of the car dipping from the sudden reduction in speed demonstrates a significant change in speed, it is the only factor on which this stop is premised. The reduction in speed standing alone could be explained a number of different ways, including normal apprehension many people feel when approaching a law enforcement officer. Nervousness, failure to make eye contact with law enforcement, and a relatively small reduction in speed is \u201cconduct falling within the broad range of what can be described as normal driving behavior.\u201d Peele, 196 N.C. App. at 674, 675 S.E.2d 687 (citations and internal quotation marks omitted). 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.\nSince we have found that the search of the vehicle was illegal, a motion to suppress would likely succeed, distinguishing this case from Jones, _ N.C. App. at _, 725 S.E.2d at 914, and Brown, _ N.C. App. at _, 713 S.E.2d at 249. We cannot discern a strategic advantage by not filing a motion to suppress the incriminating evidence. Defense counsel apparently realized that the search was illegal but chose not to file a motion to suppress, saying, \u201cFirst of all, I never saw the vehicle touch the line but I\u2019m going to move on.\u201d Without the traffic stop, there would have been no search. Without the search, no weapons would have been found. Without the weapons, Defendant could not have been convicted of carrying a concealed weapon or possession of a firearm by a convicted felon. We hold that defense counsel\u2019s performance fell below an objective standard of reasonableness and that there is a reasonable probability that the outcome would have been different, had defense counsel filed a motion to suppress. As such, Defendant has demonstrated that he received ineffective assistance of counsel and is entitled to a new trial.\nFor the above reasons, we order a new trial.\nNew Trial.\nJudges ELMORE and STROUD concur.\n. State\u2019s Exhibit 8, a recording of the traffic stop and search, shows Corporal Bass removing the suitcase from the driver\u2019s side of the vehicle.", "type": "majority", "author": "BEASLEY, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Stuart M. Saunders, for the State.", "Reece & Reece, by Michael J. Reece, for Defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. NATHANIEL CANTY\nNo. COA12-804\nFiled 18 December 2012\n1. Appeal and Error \u2014 preservation of issues \u2014 no motion to suppress filed \u2014 constitutional issue not raised at trial\nDefendant\u2019s argument that the trial court committed plain error in a possession of a firearm by a convicted felon and carrying a concealed handgun case by admitting evidence resulting from a traffic stop was dismissed as defendant did not file a motion to suppress nor did he argue his Fourth Amendment claim to the trial court.\n2. Constitutional Law \u2014 effective assistance of counsel\u2014 search and seizure \u2014 no reasonable suspicion to initiate traffic stop\nDefendant received ineffective assistance of counsel in a possession of a firearm by a convicted felon and carrying a concealed handgun case because his attorney did not file a motion to suppress evidence seized as a result of a traffic stop. Based on the totality of the circumstances, the officers lacked reasonable suspicion to initiate the traffic stop and a motion to suppress would likely have succeeded.\nAppeal by Defendant from judgment entered 22 February 2012 by Judge Phyllis M. Gorham in Sampson County Superior Court. Heard in the Court of Appeals 14 November 2012.\nAttorney General Roy Cooper, by Assistant Attorney General Stuart M. Saunders, for the State.\nReece & Reece, by Michael J. Reece, for Defendant." }, "file_name": "0514-01", "first_page_order": 524, "last_page_order": 531 }