{ "id": 4149866, "name": "STATE OF NORTH CAROLINA v. KENNETH BARNARD", "name_abbreviation": "State v. Barnard", "decision_date": "2008-04-11", "docket_number": "No. 347A07", "first_page": "244", "last_page": "261", "citations": [ { "type": "official", "cite": "362 N.C. 244" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "645 S.E.2d 780", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638620 ], "year": 2007, "opinion_index": -1, "case_paths": [ "/se2d/645/0780-01" ] }, { "cite": "184 N.C. App. 25", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8183865 ], "year": 2007, "opinion_index": -1, "case_paths": [ "/nc-app/184/0025-01" ] }, { "cite": "645 S.E.2d 780", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638620 ], "weight": 6, "year": 2007, "pin_cites": [ { "page": "784" }, { "page": "789-90", "parenthetical": "Calabria, J., dissenting" }, { "page": "790-91" }, { "page": "784-85" } ], "opinion_index": 0, "case_paths": [ "/se2d/645/0780-01" ] }, { "cite": "323 S.E.2d 23", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "25" } ], "opinion_index": 0 }, { "cite": "312 N.C. 460", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4753806 ], "year": 1984, "pin_cites": [ { "page": "463" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0460-01" ] }, { "cite": "511 S.E.2d 298", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "300", "parenthetical": "citing Clifford v. River Bend Plantation, Inc., 312 N.C. 460, 463, 323 S.E.2d 23, 25 (1984)" } ], "opinion_index": 0 }, { "cite": "350 N.C. 64", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 131998 ], "year": 1999, "pin_cites": [ { "page": "67", "parenthetical": "citing Clifford v. River Bend Plantation, Inc., 312 N.C. 460, 463, 323 S.E.2d 23, 25 (1984)" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0064-01" ] }, { "cite": "517 S.E.2d 128", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "131-32" } ], "opinion_index": 0 }, { "cite": "350 N.C. 630", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132043 ], "year": 1999, "pin_cites": [ { "page": "634-36" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0630-01" ] }, { "cite": "449 U.S. 411", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11716341 ], "weight": 3, "year": 1981, "pin_cites": [ { "page": "417" }, { "page": "695" }, { "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", "year": 1994, "pin_cites": [ { "page": "70", "parenthetical": "citing Terry, 392 U.S. at 21-22, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906" } ], "opinion_index": 0 }, { "cite": "337 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549311 ], "year": 1994, "pin_cites": [ { "page": "441", "parenthetical": "citing Terry, 392 U.S. at 21-22, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0437-01" ] }, { "cite": "466 U.S. 210", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6196728 ], "weight": 3, "year": 1984, "pin_cites": [ { "page": "217" }, { "page": "1763" }, { "page": "255" } ], "opinion_index": 0, "case_paths": [ "/us/466/0210-01" ] }, { "cite": "490 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 605100 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "7", "parenthetical": "quoting INS v. Delgado, 466 U.S. 210, 217, 104 S. Ct. 1758, 1763, 80 L. Ed. 2d 247, 255 (1984)" }, { "page": "1585", "parenthetical": "quoting INS v. Delgado, 466 U.S. 210, 217, 104 S. Ct. 1758, 1763, 80 L. Ed. 2d 247, 255 (1984)" }, { "page": "10", "parenthetical": "quoting INS v. Delgado, 466 U.S. 210, 217, 104 S. Ct. 1758, 1763, 80 L. Ed. 2d 247, 255 (1984)" } ], "opinion_index": 0, "case_paths": [ "/us/490/0001-01" ] }, { "cite": "528 U.S. 119", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9476180 ], "weight": 6, "year": 2000, "pin_cites": [ { "page": "123", "parenthetical": "citing Terry, 392 U.S. at 30, 88 S. Ct. at 1884, 20 L. Ed. 2d at 911" }, { "page": "675", "parenthetical": "citing Terry, 392 U.S. at 30, 88 S. Ct. at 1884, 20 L. Ed. 2d at 911" }, { "page": "576", "parenthetical": "citing Terry, 392 U.S. at 30, 88 S. Ct. at 1884, 20 L. Ed. 2d at 911" }, { "page": "123" }, { "page": "675-76" }, { "page": "576", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/us/528/0119-01" ] }, { "cite": "517 U.S. 806", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11746960 ], "weight": 6, "year": 1996, "pin_cites": [ { "page": "811-13" }, { "page": "1773-74" }, { "page": "96-98" } ], "opinion_index": 0, "case_paths": [ "/us/517/0806-01" ] }, { "cite": "464 F.3d 392", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 3730906 ], "year": 2006, "pin_cites": [ { "page": "396", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/f3d/464/0392-01" ] }, { "cite": "392 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167798 ], "weight": 10, "year": 1968, "pin_cites": [ { "page": "30" }, { "page": "1884" }, { "page": "911" }, { "page": "21-22" }, { "page": "1880" }, { "page": "906" } ], "opinion_index": 0, "case_paths": [ "/us/392/0001-01" ] }, { "cite": "440 U.S. 648", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6187389 ], "weight": 3, "year": 1979, "pin_cites": [ { "page": "653" }, { "page": "1396" }, { "page": "667" } ], "opinion_index": 0, "case_paths": [ "/us/440/0648-01" ] }, { "cite": "184 N.C. App. 25", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8183865 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "30-31" }, { "page": "30-31" } ], "opinion_index": 0, "case_paths": [ "/nc-app/184/0025-01" ] }, { "cite": "594 S.E.2d 199", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631245, 12631246 ], "year": 2004, "pin_cites": [ { "parenthetical": "holding that the defendant's eight-to-ten second delay did not give rise to reasonable, articulable suspicion" } ], "opinion_index": 1, "case_paths": [ "/se2d/594/0199-02", "/se2d/594/0199-01" ] }, { "cite": "358 N.C. 240", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12631246, 12631314, 12631219, 12631317, 12631319 ], "year": 2004, "pin_cites": [ { "parenthetical": "holding that the defendant's eight-to-ten second delay did not give rise to reasonable, articulable suspicion" } ], "opinion_index": 1, "case_paths": [ "/se2d/594/0199-01", "/se2d/596/0016-03", "/se2d/594/0032-01", "/se2d/596/0017-01", "/se2d/596/0019-01" ] }, { "cite": "633 S.E.2d 459", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636416 ], "weight": 3, "year": 2006, "pin_cites": [ { "page": "461", "parenthetical": "emphasis added" }, { "page": "462" } ], "opinion_index": 1, "case_paths": [ "/se2d/633/0459-01" ] }, { "cite": "13 Neb. App. 230", "category": "reporters:state", "reporter": "Neb. Ct. App.", "case_ids": [ 3622229 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "235", "parenthetical": "holding that a three-to-seven second delay at a green traffic light, by itself, \"could promote a reasonable suspicion that [the defendant] was operating her [vehicle] under the influence of alcohol or drugs\"" }, { "page": "428", "parenthetical": "holding that a three-to-seven second delay at a green traffic light, by itself, \"could promote a reasonable suspicion that [the defendant] was operating her [vehicle] under the influence of alcohol or drugs\"" } ], "opinion_index": 1, "case_paths": [ "/neb-app/13/0230-01" ] }, { "cite": "320 N.J. Super. 325", "category": "reporters:state", "reporter": "N.J. Super.", "case_ids": [ 1692220 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "331-32", "parenthetical": "holding that a five second delay at a green traffic light, followed by an unusually slow left turn, would not have supported a finding of reasonable suspicion" }, { "page": "96", "parenthetical": "holding that a five second delay at a green traffic light, followed by an unusually slow left turn, would not have supported a finding of reasonable suspicion" } ], "opinion_index": 1, "case_paths": [ "/nj-super/320/0325-01" ] }, { "cite": "535 N.W.2d 663", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10713037 ], "year": 1995, "pin_cites": [ { "page": "666", "parenthetical": "noting that a four second delay, \"without more, does not demonstrate erratic driving\"" } ], "opinion_index": 1, "case_paths": [ "/nw2d/535/0663-01" ] }, { "cite": "420 N.W.2d 887", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10661857 ], "year": 1988, "pin_cites": [ { "parenthetical": "commenting that being stopped in the middle of a residential street for no apparent reason was \"arguably not enough by itself to justify the stop\" of the subject vehicle" } ], "opinion_index": 1, "case_paths": [ "/nw2d/420/0887-01" ] }, { "cite": "603 N.E.2d 118", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "119-20", "parenthetical": "holding that a ninety second stop in the middle of the road for no apparent reason did not give rise to reasonable suspicion" } ], "opinion_index": 1 }, { "cite": "235 Ill. App. 3d 967", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5785483 ], "year": 1992, "pin_cites": [ { "page": "968-70", "parenthetical": "holding that a ninety second stop in the middle of the road for no apparent reason did not give rise to reasonable suspicion" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/235/0967-01" ] }, { "cite": "119 Idaho 661", "category": "reporters:state", "reporter": "Idaho", "case_ids": [ 4414851 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "664" }, { "page": "523, 525" } ], "opinion_index": 1, "case_paths": [ "/idaho/119/0661-01" ] }, { "cite": "802 N.E.2d 850", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "opinion_index": 1 }, { "cite": "344 Ill. App. 3d 1058", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3777443 ], "year": 2003, "opinion_index": 1, "case_paths": [ "/ill-app-3d/344/1058-01" ] }, { "cite": "592 S.E.2d 733", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "736-37", "parenthetical": "holding that the defendant's eight-to-ten second delay did not give rise to reasonable, articulable suspicion" } ], "opinion_index": 1 }, { "cite": "163 N.C. App. 129", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8915624 ], "year": 2004, "pin_cites": [ { "page": "134-35", "parenthetical": "holding that the defendant's eight-to-ten second delay did not give rise to reasonable, articulable suspicion" } ], "opinion_index": 1, "case_paths": [ "/nc-app/163/0129-01" ] }, { "cite": "146 F.3d 274", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11807741 ], "year": 1998, "pin_cites": [ { "page": "276, 279", "parenthetical": "holding unconstitutional a traffic stop that was based upon the defendant's flashing his vehicle's turn signal without turning or changing lanes, which did not violate the Texas Transportation Code" } ], "opinion_index": 1, "case_paths": [ "/f3d/146/0274-01" ] }, { "cite": "178 F.3d 282", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 577877 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "289", "parenthetical": "holding a traffic stop unconstitutional because \"no well-trained Texas police officer could reasonably believe that white light appearing with red light through a cracked red taillight lens constituted a violation of traffic law\"" }, { "page": "289" } ], "opinion_index": 1, "case_paths": [ "/f3d/178/0282-01" ] }, { "cite": "205 F.3d 1101", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11462472 ], "year": 2000, "pin_cites": [ { "page": "1105-06", "parenthetical": "holding unconstitutional a traffic stop that was based upon the defendant's failure to affix a registration sticker so that it was visible from the rear of his vehicle, which \"simply was not a violation of Baja California law\"" } ], "opinion_index": 1, "case_paths": [ "/f3d/205/1101-01" ] }, { "cite": "342 F.3d 1271", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9102262 ], "year": 2003, "pin_cites": [ { "page": "1276-79", "parenthetical": "holding unconstitutional a traffic stop that was based upon the defendant's failure to have a rearview mirror affixed to the inside of his vehicle, which was not a requirement under city ordinance or Alabama law" } ], "opinion_index": 1, "case_paths": [ "/f3d/342/1271-01" ] }, { "cite": "530 U.S. 1245", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9433473, 9433442, 9433509, 9433349, 9433253, 9433290, 9433227, 9433548, 9433389, 9433330, 9433365, 9433273, 9433307, 9433407 ], "year": 2000, "opinion_index": 1, "case_paths": [ "/us/530/1245-12", "/us/530/1245-11", "/us/530/1245-13", "/us/530/1245-07", "/us/530/1245-02", "/us/530/1245-04", "/us/530/1245-01", "/us/530/1245-14", "/us/530/1245-09", "/us/530/1245-06", "/us/530/1245-08", "/us/530/1245-03", "/us/530/1245-05", "/us/530/1245-10" ] }, { "cite": "520 S.E.2d 545", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "554", "parenthetical": "citing Watkins, 337 N.C. at 438, 446 S.E.2d at 68" } ], "opinion_index": 1 }, { "cite": "351 N.C. 48", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155790 ], "year": 1999, "pin_cites": [ { "page": "63", "parenthetical": "citing Watkins, 337 N.C. at 438, 446 S.E.2d at 68" } ], "opinion_index": 1, "case_paths": [ "/nc/351/0048-01" ] }, { "cite": "443 U.S. 47", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6179718 ], "year": 1979, "pin_cites": [ { "page": "51" } ], "opinion_index": 1, "case_paths": [ "/us/443/0047-01" ] }, { "cite": "534 U.S. 266", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9108176 ], "weight": 4, "year": 2002, "pin_cites": [ { "page": "274", "parenthetical": "stating that Terry precludes a \"divide-and-conquer analysis\" of reasonable suspicion" }, { "page": "277-78" }, { "page": "277" }, { "page": "277", "parenthetical": "citation omitted" } ], "opinion_index": 1, "case_paths": [ "/us/534/0266-01" ] }, { "cite": "360 N.C. 562", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3794266 ], "weight": 3, "year": 2006, "pin_cites": [ { "page": "564", "parenthetical": "emphasis added" }, { "page": "564" }, { "page": "566" } ], "opinion_index": 1, "case_paths": [ "/nc/360/0562-01" ] }, { "cite": "422 U.S. 873", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9550 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "881-82" }, { "page": "889", "parenthetical": "Douglas, J., concurring" } ], "opinion_index": 1, "case_paths": [ "/us/422/0873-01" ] }, { "cite": "367 U.S. 717", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1785575 ], "year": 1961, "pin_cites": [ { "page": "724-29" } ], "opinion_index": 1, "case_paths": [ "/us/367/0717-01" ] }, { "cite": "116 U.S. 616", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3516335 ], "weight": 2, "year": 1886, "pin_cites": [ { "page": "625", "parenthetical": "citations and internal quotation marks omitted" }, { "page": "624-29" } ], "opinion_index": 1, "case_paths": [ "/us/116/0616-01" ] }, { "cite": "379 U.S. 476", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11731294 ], "weight": 2, "year": 1965, "pin_cites": [ { "page": "481" }, { "page": "482" } ], "opinion_index": 1, "case_paths": [ "/us/379/0476-01" ] }, { "cite": "517 S.E.2d 128", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "131-32" }, { "page": "132" } ], "opinion_index": 1 }, { "cite": "350 N.C. 630", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132043 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "634-35" }, { "page": "635" } ], "opinion_index": 1, "case_paths": [ "/nc/350/0630-01" ] }, { "cite": "449 U.S. 411", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11716341 ], "weight": 3, "year": 1981, "pin_cites": [ { "page": "417" }, { "page": "418" }, { "page": "417", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 1, "case_paths": [ "/us/449/0411-01" ] }, { "cite": "446 S.E.2d 67", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1994, "pin_cites": [ { "page": "69-70", "parenthetical": "alteration in original" }, { "page": "70-71" }, { "page": "70" }, { "page": "68" }, { "page": "70" } ], "opinion_index": 1 }, { "cite": "337 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549311 ], "weight": 5, "year": 1994, "pin_cites": [ { "page": "441", "parenthetical": "alteration in original" }, { "page": "441, 443" }, { "page": "441" }, { "page": "438" }, { "page": "441" } ], "opinion_index": 1, "case_paths": [ "/nc/337/0437-01" ] }, { "cite": "490 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 605100 ], "weight": 6, "year": 1989, "pin_cites": [ { "page": "9" }, { "page": "9", "parenthetical": "citations omitted" }, { "page": "10", "parenthetical": "emphasis added" }, { "page": "7", "parenthetical": "citations omitted" }, { "page": "9", "parenthetical": "\"Any one of these factors is not by itself proof of any illegal conduct and is quite consistent with innocent travel. But we think taken together they amount to reasonable suspicion.\" (citations omitted)" }, { "page": "11", "parenthetical": "Marshall & Brennan, JJ., dissenting" } ], "opinion_index": 1, "case_paths": [ "/us/490/0001-01" ] }, { "cite": "528 U.S. 119", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9476180 ], "year": 2000, "pin_cites": [ { "page": "126" } ], "opinion_index": 1, "case_paths": [ "/us/528/0119-01" ] }, { "cite": "517 U.S. 806", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11746960 ], "weight": 3, "year": 1996, "pin_cites": [ { "page": "811-13" } ], "opinion_index": 1, "case_paths": [ "/us/517/0806-01" ] }, { "cite": "464 F.3d 392", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 3730906 ], "year": 2006, "pin_cites": [ { "page": "400-01", "parenthetical": "citing generally Whren, 517 U.S. 806" } ], "opinion_index": 1, "case_paths": [ "/f3d/464/0392-01" ] }, { "cite": "392 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167798 ], "weight": 5, "year": 1968, "pin_cites": [ { "page": "21" }, { "page": "27", "parenthetical": "citation omitted" }, { "page": "27" }, { "page": "22-23" }, { "page": "27" } ], "opinion_index": 1, "case_paths": [ "/us/392/0001-01" ] }, { "cite": "594 S.E.2d 199", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631245, 12631246 ], "year": 2004, "opinion_index": 2, "case_paths": [ "/se2d/594/0199-02", "/se2d/594/0199-01" ] }, { "cite": "358 N.C. 240", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12631246, 12631314, 12631219, 12631317, 12631319 ], "year": 2004, "opinion_index": 2, "case_paths": [ "/se2d/594/0199-01", "/se2d/596/0016-03", "/se2d/594/0032-01", "/se2d/596/0017-01", "/se2d/596/0019-01" ] }, { "cite": "592 S.E.2d 733", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "opinion_index": 2 }, { "cite": "163 N.C. App. 129", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8915624 ], "year": 2004, "opinion_index": 2, "case_paths": [ "/nc-app/163/0129-01" ] }, { "cite": "449 U.S. 411", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11716341 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "417" }, { "page": "629" } ], "opinion_index": 2, "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" }, { "page": "70" } ], "opinion_index": 2 }, { "cite": "337 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549311 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "441" }, { "page": "441" } ], "opinion_index": 2, "case_paths": [ "/nc/337/0437-01" ] }, { "cite": "392 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167798 ], "weight": 4, "year": 1968, "pin_cites": [ { "page": "21" }, { "page": "906" }, { "page": "27" }, { "page": "909", "parenthetical": "citation omitted" } ], "opinion_index": 2, "case_paths": [ "/us/392/0001-01" ] } ], "analysis": { "cardinality": 1615, "char_count": 45987, "ocr_confidence": 0.738, "pagerank": { "raw": 4.78241950067621e-07, "percentile": 0.9308401763963845 }, "sha256": "0a3b081f0a19aaafd76eeddea8e2cb94b6ab1ab578fd7cda4fb925bbd252623c", "simhash": "1:35e8960434068654", "word_count": 7313 }, "last_updated": "2023-07-14T21:47:03.529976+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice TIMMONS-GOODSON joins in this dissenting opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. KENNETH BARNARD" ], "opinions": [ { "text": "NEWBY, Justice.\nIn this case we determine whether defendant\u2019s constitutional rights were violated by the traffic stop that led to his convictions. Based on the totality of the circumstances here, defendant\u2019s thirty-second delay before proceeding through a green traffic light gave rise to a reasonable, articulable suspicion that he may have been driving while impaired. Because the stop of defendant\u2019s vehicle was constitutional, we affirm the majority decision of the Court of Appeals that affirmed the trial court\u2019s denial of defendant\u2019s motion to suppress all evidence obtained as a result of the stop.\nAround 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\u2019s marked patrol car was stopped behind defendant\u2019s vehicle at a red traffic light. When the light turned green, defendant remained stopped for approximately thirty seconds before making a legal left turn. Officer Maltby initiated a stop of the vehicle.\nWThen he approached defendant to ask for his driver\u2019s license and registration, Officer Maltby noticed that defendant was shaking and that his breathing was rapid. Officer Maltby also detected a slight odor of alcohol on defendant\u2019s breath. Defendant said he did not have his license with him and gave Officer Maltby a name and birth date that did not match information on the officer\u2019s computer. Officer Maltby returned and asked defendant to step out of the vehicle. At that point, he observed an open container of alcohol in defendant\u2019s vehicle. After Officer Maltby placed defendant in investigatory detention, defendant provided his correct name, and Officer Maltby determined that defendant\u2019s driver\u2019s license was suspended. Officer Dwight Arrowood arrived at the scene and recovered a crack pipe (later determined to contain cocaine residue) and associated paraphernalia from defendant\u2019s vehicle.\nDefendant offered to make a controlled buy of narcotics from a person known as \u201cOne-Arm Willy\u201d if Officer Maltby would void defendant\u2019s citations for possession of an open container, driving while license suspended, and possession of drug paraphernalia. Officer Maltby agreed he would void the citations if defendant made a controlled buy. Later that night defendant successfully purchased a crack rock from One-Arm Willy. However, upon defendant\u2019s return to the police station, Officer Maltby searched defendant and found a second rock of cocaine, which defendant had obtained as a \u201cfront\u201d from One-Arm Willy.\nDefendant was subsequently charged with two counts of possession of cocaine and two counts of having achieved habitual felon status. Before trial, defendant moved to suppress evidence seized as a result of the searches of his vehicle and his person, as well as the statements he made to the police. Defendant\u2019s motion to suppress was denied. A jury found defendant guilty of two counts of possession of cocaine, and defendant pled guilty to one count of having achieved habitual felon status. The remaining habitual felon status charge was dismissed.\nA divided Court of Appeals panel found no error. The majority determined that the thirty-second delay after the traffic light turned green gave Officer Maltby a reasonable suspicion that defendant was driving while impaired. Therefore, the evidence obtained as a result of the stop was properly admitted. State v. Barnard, 184 N.C. App. 25, 30-31, 645 S.E.2d 780, 784 (2007). The dissent argued that a thirty-second delay, standing alone, did not provide reasonable suspicion of driving while impaired. As a result, the dissent would have excluded the evidence obtained and statements made during the stop. Id. at -, 645 S.E.2d at 789-90 (Calabria, J., dissenting). However, the dissent recommended a remand to determine whether defendant consented to the search that occurred following the controlled buy. Id. at -, 645 S.E.2d at 790-91.\nThe question before this Court is whether the stop of defendant\u2019s vehicle was constitutional. The Fourth Amendment protects individuals \u201cagainst unreasonable searches and seizures.\u201d U.S. Const, amend. IV. The North Carolina Constitution provides similar protection. N.C. Const, art. I, \u00a7 20. A traffic stop is a seizure \u201ceven though the purpose of the stop is limited and the resulting detention quite brief.\u201d Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 1396, 59 L. Ed. 2d 660, 667 (1979). Such stops have \u201cbeen historically viewed under the investigatory detention framework first articulated in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).\u201d United States v. Delfin-Colina, 464 F.3d 392, 396 (3rd Cir. 2006) (citation omitted). Despite some initial confusion following the United States Supreme Court\u2019s decision in Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996), courts have continued to hold that a traffic stop is constitutional if the officer has a \u201creasonable, articulable suspicion that criminal activity is afoot.\u201d Illinois v. Wardlow, 528 U.S. 119, 123, 120 S. Ct. 673, 675, 145 L. Ed. 2d 570, 576 (2000) (citing Terry, 392 U.S. at 30, 88 S. Ct. at 1884, 20 L. Ed. 2d at 911); see Delfin-Colina, 464 E3d at 396-97.\nReasonable suspicion is a \u201cless demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence.\u201d Wardlow, 528 U.S. at 123, 120 S. Ct. at 675-76, 145 L. Ed. 2d at 576 (citation omitted). Only \u201c \u2018some minimal level of objective justification\u2019 \u201d is required. United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1, 10 (1989) (quoting INS v. Delgado, 466 U.S. 210, 217, 104 S. Ct. 1758, 1763, 80 L. Ed. 2d 247, 255 (1984)). This Court has determined that the reasonable suspicion standard 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) (citing Terry, 392 U.S. at 21-22, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906). Moreover, \u201c[a] court must consider \u2018the totality of the circumstances \u2014 the whole picture\u2019 in determining whether a reasonable suspicion\u201d exists. Id. (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621, 629 (1981)).\nHere, the trial court concluded that based on the totality of the circumstances \u201ca reasonable articulable suspicion of wrongdoing on the part of the [defendant existed.\u201d This conclusion of law is supported by the trial court\u2019s finding of fact that, after the traffic light turned green, defendant\u2019s vehicle \u201cremained stopped for some 30 seconds without any reasonable appearance of explanation for doing so.\u201d The trial court\u2019s conclusion of law is also supported by Officer Maltby\u2019s testimony showing that, based on his training and experience, he made a rational inference from the thirty-second delay that defendant might be impaired:\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 [Officer Maltby] 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.\nBecause defendant\u2019s thirty-second delay at a green traffic light under these circumstances gave rise to a reasonable, articulable suspicion that defendant may have been driving while impaired, the stop of defendant\u2019s vehicle was constitutional and the evidence obtained as a result of the stop was properly admitted. It is irrelevant that part of Officer Maltby\u2019s motivation for stopping defendant may have been a perceived, though apparently non-existent, statutory violation of impeding traffic. The constitutionality of a traffic stop depends on the objective facts, not the officer\u2019s subjective motivation. See Whren, 517 U.S. at 811-13, 116 S. Ct. at 1773-74, 135 L. Ed. 2d at 96-98; State v. McClendon, 350 N.C. 630, 634-36, 517 S.E.2d 128, 131-32 (1999).\nAll other issues raised by defendant are not properly before this Court. The decision of the Court of Appeals is affirmed.\nAFFIRMED.\n. The majority also affirmed the admission of defendant\u2019s statements to Officer Maltby. Although defendant made the statements before he was advised of his Miranda rights, the evidence showed the statements were volunteered and not the result of an interrogation. Barnard, 184 N.C. App. at 30-31, 645 S.E.2d at 784-85. The dissent did not address this Miranda issue. As such, defendant\u2019s arguments on this issue are not properly before this Court. See, e.g., Steingress v. Steingress, 350 N.C. 64, 67, 511 S.E.2d 298, 300 (1999) (citing Clifford v. River Bend Plantation, Inc., 312 N.C. 460, 463, 323 S.E.2d 23, 25 (1984)).", "type": "majority", "author": "NEWBY, Justice." }, { "text": "BRADY, Justice,\ndissenting.\nDefendant\u2019s thirty second delay at a traffic intersection after the light turned green did not violate any law and, standing alone, could not have raised a reasonable, articulable suspicion that defendant was engaged in criminal activity. Consequently, Officer Maltby\u2019s stop of defendant\u2019s vehicle for purportedly \u201cimpeding flow of traffic\u201d was an unconstitutional seizure of defendant\u2019s person in violation of the Fourth Amendment\u2019s prohibition against unreasonable searches and seizures. The trial court erred when it concluded otherwise.\nBy affirming the decision of a divided panel of the Court of Appeals below and holding that the stop of defendant\u2019s vehicle was constitutional, the majority has lowered the threshold of the Fourth Amendment\u2019s standard of reasonable, articulable suspicion to an unacceptable level, dangerously exposing the citizens of North Carolina to the potential for unreasonable and arbitrary police practices unchecked by our state\u2019s trial and appellate courts. Accordingly, I am compelled to respectfully dissent.\nANALYSIS\nI. THE FOURTH AMENDMENT AND TRAFFIC STOPS\nA. The Foundational Importance of the Fourth Amendment\nThe Fourth Amendment to the United States Constitution was created in direct response to the abuses of general writs of assistanee, which gave \u201ccustoms officials blanket authority to search where they pleased for goods imported in violation of the British tax laws.\u201d Stanford v. Texas, 379 U.S. 476, 481 (1965). The uproar against and denunciation of these general writs, and the abuses by the petty officers to whom they had been issued, were instrumental in giving birth to the \u201cchild Independence.\u201d Boyd v. United States, 116 U.S. 616, 625 (1886) (citations and internal quotation marks omitted). Yet, the roots of the Fourth Amendment \u201cgo far deeper,\u201d Stanford, 379 U.S. at 482, to include all the abuses of the British Crown that the citizens of the Empire had endured for centuries, \u201cfrom the time of the Tudors, through the Star Chamber, the Long Parliament, the Restoration, and beyond,\u201d id.; see also Marcus v. Search Warrant of Prop., 367 U.S. 717, 724-29 (1961); Boyd, 116 U.S. at 624-29. It is against this backdrop that the Court must determine whether an officer may constitutionally seize an individual because of a single act or omission which is not itself a violation of any law or regulation.\nB. Terry v. Ohio: the Reasonable, Articulable Suspicion Standard\nIn State v. Watkins, this Court said:\nThe Fourth Amendment protects the \u201cright of the people . . . against unreasonable searches and seizures.\u201d U.S. Const, amend. IV. It is applicable to the states through the Due Process Clause of the Fourteenth Amendment. It applies to seizures of the person, including brief investigatory detentions such as those involved in the stopping of a vehicle.\n337 N.C. 437, 441, 446 S.E.2d 67, 69-70 (1994) (alteration in original) (citations omitted). The Supreme Court of the United States has held that a law enforcement officer may initiate a brief stop and frisk of an individual if there are \u201cspecific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.\u201d Terry v. Ohio, 392 U.S. 1, 21 (1968). \u201cAnd in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or \u2018hunch,\u2019 but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.\u201d Id. at 27 (citation omitted). Since Terry, the reasonable, articulable suspicion standard has been applied to brief investigatory traffic stops. See United States v. Brignoni-Ponce, 422 U.S. 873, 881-82 (1975); Watkins, 337 N.C. at 441, 443, 446 S.E.2d at 70-71.\nThe majority suggests there has been \u201cconfusion\u201d following Whren v. United States, 517 U.S. 806 (1996), as to whether \u201ca traffic stop\u201d is constitutional if supported by reasonable, articulable suspicion. I cannot acknowledge such confusion, at least among the decisions of this Court issued after Whren was decided. However, the imprecise language employed by the majority opinion paints over the important and intuitive distinction between an investigatory traffic stop, to which the reasonable, articulable suspicion standard has been applied, and a traffic stop performed on the basis of a \u201cperceived traffic violation,\u201d to which we recently applied the standard of probable cause in State v. Ivey. See 360 N.C. 562, 564, 633 S.E.2d 459, 461 (2006) (emphasis added).\nC. United States v. Cortez: the Totality of the Circumstances\nWhen determining whether a law enforcement officer had the reasonable, articulable suspicion necessary to seize a defendant, \u201c[a] court must consider \u2018the totality of the circumstances \u2014 -the whole picture.\u2019 \u201d Watkins, 337 N.C. at 441, 446 S.E.2d at 70 (quoting United States v. Cortez, 449 U.S. 411, 417 (1981)). Moreover, \u201can assessment of the whole picture . . . must raise a suspicion that the particular individual being stopped is engaged in wrongdoing.\u201d Cortez, 449 U.S. at 418. Consistent with the totality of the circumstances approach, a court must ascertain whether all of the circumstances taken together amount to reasonable suspicion. United States v. Sokolow, 490 U.S. 1, 9 (1989); see also United States v. Arvizu, 534 U.S. 266, 274 (2002) (stating that Terry precludes a \u201cdivide-and-conquer analysis\u201d of reasonable suspicion).\nD. The Degree of Suspicion Mandated by the Fourth Amendment\nFor investigatory traffic stops conducted pursuant to Terry, the totality of the circumstances approach creates the possibility that multiple factors \u201cquite consistent with innocent travel\u201d can, when viewed together, \u201camount to reasonable suspicion.\u201d See Sokolow, 490 U.S. at 9 (citations omitted). Indeed, Terry and its progeny \u201caccept[] the risk that officers may stop innocent people.\u201d See Illinois v. Wardlow, 528 U.S. 119, 126 (2000). Ultimately, then, the key determination is not the innocence of an individual\u2019s conduct, \u201cbut the degree of suspicion that attaches to particular types of noncriminal acts.\u201d Sokolow, 490 U.S. at 10 (emphasis added) (citation and internal quotation marks omitted).\nAs a consequence of the inherent risk that Terry stops will be conducted against innocent persons, appellate courts should take great care not to set the standard of reasonable, articulable suspicion so low that the Fourth Amendment is rendered meaningless. It is true that the degree of suspicion required for Terry stops is \u201cconsiderably less than proof of wrongdoing by a preponderance of the evidence\u201d and \u201cobviously less demanding than that for probable cause.\u201d Id. at 7 (citations omitted). On the other hand, the requisite degree of suspicion must be high enough \u201cto assure that an individual\u2019s reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field.\u201d See Brown v. Texas, 443 U.S. 47, 51 (1979). Such would be the case if reasonable suspicion were to be founded upon an \u201cinchoate and unparticularized suspicion or \u2018hunch\u2019 \u201d and nothing more. See Terry, 392 U.S. at 27.\nII. FOURTH AMENDMENT JURISPRUDENCE APPLIED TO THE INSTANT CASE\nA. Due Deference to the Trial Court\u2019s Findings of Fact\nAs the majority notes, the trial court\u2019s relevant findings of fact in its order denying defendant\u2019s motion to suppress were limited to the following statement: \u201c[Defendant] remained stopped [at the green light] for some 30 seconds without any reasonable appearance of explanation for doing so, and the officer observed that the victim [sic] was impeding traffic, if nothing else.\u201d It is well established that the appellate courts of this State are bound by a trial court\u2019s findings of fact on appeal if supported by competent evidence, and our determination is limited to \u201cwhether the trial court\u2019s findings of fact support its conclusions of law.\u201d State v. Cheek, 351 N.C. 48, 63, 520 S.E.2d 545, 554 (1999) (citing Watkins, 337 N.C. at 438, 446 S.E.2d at 68), cert. denied, 530 U.S. 1245 (2000). Appellate courts are simply not in a position to make findings of fact on the basis of a cold reading of the transcript and trial record.\nTo the extent the majority reaches beyond the trial court\u2019s findings of fact and relies substantially upon the testimony of Officer Maltby to buttress the trial court\u2019s conclusion of law, this action constitutes a usurpation of the trial court\u2019s preeminence as finder of fact and is contrary to this Court\u2019s settled precedent set forth in Cheek This overreach is especially troublesome considering that the testimony quoted in the majority opinion was provided by Officer Maltby in response to a leading question from the prosecutor. In fact, the only unprompted reasoning given by Officer Maltby for stopping defendant\u2019s vehicle was that defendant was \u201cimpeding flow of traffic,\u201d which Officer Maltby mistakenly believed to be a traffic violation, and that defendant\u2019s thirty second delay would typically mean \u201cthat the Defendant was paying particular attention to the rear view mirror and noticing me and not the actual traffic light,\u201d which is an innocent explanation for the officer\u2019s observations.\nB. A Perpetuated Mistake of Law:\n\u201cImpeding Traffic\u201d\nThe State has conceded on appeal that the North Carolina motor vehicle safety regulations, codified in Chapter 20 of the North Carolina General Statutes, do not prohibit \u201cimpeding traffic.\u201d To the contrary, the statutory provision regulating motor vehicle movement at traffic signals provides: \u201cWhen the traffic signal is emitting a steady green light, vehicles may proceed with due care through the intersection subject to the rights of pedestrians and other vehicles as may otherwise be provided by law.\u201d N.C.G.S. \u00a7 20-158(b)(2a) (2007) (emphasis added).\nIt is readily apparent that Officer Maltby\u2019s decision to stop defendant\u2019s vehicle was made under the misapprehension that \u201cimpeding traffic\u201d constitutes a violation of North Carolina\u2019s motor vehicle safety regulations. This conclusion follows from the officer\u2019s response on cross-examination regarding whether defendant\u2019s left turn into the intersection of Coxe Avenue and Hilliard Avenue constituted a \u201clegal turn\u201d: \u201cThe stop at a green light was impeding flow of traffic, yes, ma\u2019am.\u201d\nThe characterization of \u201cimpeding traffic\u201d as a punishable offense also occurred during the hearing on defendant\u2019s motion to suppress when the prosecutor, who evidently lacked a clear understanding of the law, argued:\n[PROSECUTOR:] There\u2019s a crime of impeding traffic. [Defendant] did impede traffic, the officer\u2019s vehicle, was impeding traffic. The officer had a right to stop him, had probable cause to believe he\u2019s \u2014 that he was impeding traffic. I would ask Your Honor to deny the Defendant\u2019s motion in that regard.\n(Emphasis added.) Finally, the trial court perpetuated this mistake of law in its order denying defendant\u2019s motion to suppress the evidence resulting from the traffic stop. The court\u2019s finding of fact was that defendant \u201cremained stopped [at the green light] for some 30 seconds without any reasonable appearance of explanation for doing so, and the officer observed that the [defendant] was impeding traffic, if nothing else.\" (Emphasis added.) Based solely upon this finding of fact, the court made its conclusion of law \u201cthat from the totality of the circumstances that 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.\u201d\nThe majority would have us believe that this mistake of law is wholly \u201cirrelevant,\u201d citing Whren, 517 U.S. at 811-13, and State v. McClendon, 350 N.C. 630, 634-35, 517 S.E.2d 128, 131-32 (1999), for the proposition that courts are generally more concerned with the \u201cobjective facts\u201d of a case than with an officer\u2019s \u201csubjective motivation.\u201d While it is true that \u201c[i]n examining the legality of a traffic stop, the proper inquiry is not the subjective reasoning of the officer, but whether the objective facts support a finding\u201d that the stop was constitutional, see Ivey, 360 N.C. at 564, 633 S.E.2d at 460-61 (citing McClendon, 350 N.C. at 635, 517 S.E.2d at 132), neither of the two decisions relied upon by the majority for this assertion involved a mistake of law.\nIndeed, since Whren was decided, federal circuit courts have widely held that a law enforcement officer\u2019s mistake of law concerning whether a traffic violation has occurred \u2014 as opposed to a mistake of fact \u2014 will generally render a stop unconstitutional. See, e.g., United States v. Chanthasouxat, 342 F.3d 1271, 1276-79 (11th Cir. 2003) (holding unconstitutional a traffic stop that was based upon the defendant\u2019s failure to have a rearview mirror affixed to the inside of his vehicle, which was not a requirement under city ordinance or Alabama law); United States v. Lopez-Soto, 205 F.3d 1101, 1105-06 (9th Cir. 2000) (holding unconstitutional a traffic stop that was based upon the defendant\u2019s failure to affix a registration sticker so that it was visible from the rear of his vehicle, which \u201csimply was not a violation of Baja California law\u201d); United States v. Lopez-Valdez, 178 F.3d 282, 289 (5th Cir. 1999) (holding a traffic stop unconstitutional because \u201cno well-trained Texas police officer could reasonably believe that white light appearing with red light through a cracked red taillight lens constituted a violation of traffic law\u201d); United States v. Miller, 146 F.3d 274, 276, 279 (5th Cir. 1998) (holding unconstitutional a traffic stop that was based upon the defendant\u2019s flashing his vehicle\u2019s turn signal without turning or changing lanes, which did not violate the Texas Transportation Code); see also Ivey, 360 N.C. at 566, 633 S.E.2d at 462 (\u201cBecause failure to give a signal, in and of itself, does not constitute a violation of N.C.G.S. \u00a7 20-154(a), nothing in the record suggests [the officer] had probable cause to believe any traffic violation occurred.\u201d). However, at least one federal circuit court has held that the constitutionality of the traffic stop might be based upon whether the defendant\u2019s actions gave rise to a reasonable, articulable suspicion that criminal activity was afoot, notwithstanding the officer\u2019s mistake of law. See United States v. Delfin-Colina, 464 F.3d 392, 400-01 (3d Cir. 2006) (citing generally Whren, 517 U.S. 806). But see Lopez-Valdez, 178 F.3d at 289 (\u201cBut if officers are allowed to stop vehicles based upon their subjective belief that traffic laws have been violated even where no such violation has, in fact, occurred, the potential for abuse of traffic infractions as pretext for effecting stops seems boundless and the costs to privacy rights excessive.\u201d).\nC. Defendant\u2019s Thirty Second Delay at the Traffic Signal\nEven if this Court were to apply the reasonable, articulable suspicion standard despite the mistake of law committed by Officer Maltby and perpetuated by the prosecutor and the trial court, defendant\u2019s thirty second delay at the traffic signal after the light changed to green, standing alone, is woefully inadequate to support a conclusion that the stop of defendant\u2019s vehicle was constitutional. The majority\u2019s application of the totality of the circumstances test underscores this stark reality: defendant\u2019s thirty second delay is \u201cthe totality of the circumstances \u2014 the whole picture\u201d in the instant case. See Watkins, 337 N.C. at 441, 446 S.E.2d at 70 (quoting Cortez, 449 U.S. at 417 (internal quotation marks omitted)). The thirty second delay is the sole factor relied upon by the majority in its holding that defendant\u2019s conduct could have given rise to a reasonable, articulable suspicion that he was operating his vehicle under the influence of an impairing substance in violation of N.C.G.S. \u00a7 20-138.1(a).\nIt is unprecedented for a court to hold, as the majority does, that a single act or omission that does not constitute a punishable offense and is therefore, by definition, subject to a myriad of innocent explanations, can nevertheless give rise to a reasonable, articulable suspicion that criminal activity is afoot. The Fourth Amendment demands something more. When Terry was decided in 1568, the Supreme Court of the United States established a basic pattern of analysis to be employed when courts apply the reasonable, articulable suspicion standard: Even though the factors presented in a case, when analyzed separately, might lend themselves to an innocent explanation, the determination which must be made is whether, when taken together, these otherwise innocent factors raise a reasonable, articulable suspicion of criminal activity. As stated in Terry.\nIt was this legitimate investigative function Officer McFadden was discharging when he decided to approach petitioner and his companions. He had observed Terry, Chilton, and Katz go through a series of acts, each of them perhaps innocent in itself, but which taken together warranted further investigation. There is nothing unusual in two men standing together on a street corner, perhaps waiting for someone. Nor is there anything suspicious about people in such circumstances strolling up and down the street, singly or in pairs. Store windows, moreover, are made to be looked in. But the story is quite different where, as here, two men hover about a street corner for an extended period of time, at the end of which it becomes apparent that they are not waiting for anyone or anything; where these men pace alternately along an identical route, pausing to stare in the same store window roughly 24 times; where each completion of this route is followed immediately by a conference between the two men on the corner; where they are joined in one of these conferences by a third man who leaves swiftly; and where the two men finally follow the third and rejoin him a couple of blocks away.\n392 U.S. at 22-23. The same basic pattern of analysis was repeated by our nation\u2019s highest court more recently. See Arvizu, 534 U.S. at 277-78 (\u201cUndoubtedly, each of these factors alone is susceptible of innocent explanation, and some factors are more probative than others. Taken together, we believe they sufficed to form a particularized and objective basis for [the officer\u2019s] stopping the vehicle, making the stop reasonable within the meaning of the Fourth Amendment.\u201d); Sokolow, 490 U.S. at 9 (\u201cAny one of these factors is not by itself proof of any illegal conduct and is quite consistent with innocent travel. But we think taken together they amount to reasonable suspicion.\u201d (citations omitted)).\nBy departing from this basic, well-established pattern of analysis, the majority has drastically lowered the bar for the degree of suspicion required when applying the reasonable, articulable suspicion standard. The majority begins with a single innocent factor and concludes that it gives rise to a reasonable, articulable suspicion of criminal activity. However, at no point does the majority attempt to combine this factor with others to reach the requisite degree of suspicion. The reason is there were no additional factors to consider.\nAs a consequence of the majority\u2019s holding, one factor \u201csusceptible of innocent explanation,\u201d see Arvizu, 534 U.S. at 277, can raise a sufficient level of suspicion for an investigatory traffic stop to pass constitutional muster, so long as that factor is also susceptible of a iess-than-innocent explanation. Single instances of conduct which the people of the Old North State have always considered well within the boundaries set by our criminal statutes will now subject all North Carolinians, innocent and guilty alike, to limitless searches or seizures by law enforcement personnel without the protection of any meaningful judicial oversight.\nEven more disturbing is the utter lack of evidence in the record, much less contained in the trial court\u2019s findings of fact, that defendant\u2019s thirty second delay is even rationally related to a suspicion that he was operating his vehicle under the influence of an impairing substance. The lone exception is Officer Maltby\u2019s testimony, provided at the prosecutor\u2019s prompting, that this conduct might be consistent with impairment. The majority must be operating under the assumption that this rational relationship is patently obvious, as the majority provides no rationale to support its conclusion that a thirty second delay could even indicate the possibility of a defendant\u2019s impairment, apart from quoting the testimony of Officer Maltby, who it seems certain had not considered this possibility at the time he stopped defendant\u2019s vehicle.\nIn its brief and at oral argument, the State sought to have this Court consider the National Highway Traffic Safety Administration guide to the visual detection of motorists who are driving while under the influence of an impairing substance. Although this source was included in the appendix to the State\u2019s brief before this Court, it was not made a part of the record at trial and ought not to play a role in this Court\u2019s appellate review. Nonetheless, that portion of the copied text which was underlined by the State in its appendix is entirely unpersuasive: \u201cA driver whose vigilance has been impaired by alcohol also might respond more slowly than normal to a change in a traffic signal.\u201d (Emphasis added). Again, the State has established no rational relationship between impaired driving and such a lengthy delay of thirty seconds.\nThe State also contends that the greater weight of authority from other states with regard to delayed reactions to traffic signals turning green tends to support the Court of Appeals\u2019 majority opinion in the instant case and to undermine that court\u2019s earlier decision in State v. Roberson. See 163 N.C. App. 129, 134-35, 592 S.E.2d 733, 736-37, disc, rev. denied, 358 N.C. 240, 594 S.E.2d 199 (2004) (holding that the defendant\u2019s eight-to-ten second delay did not give rise to reasonable, articulable suspicion). One case cited by the State, State v. Liberda, 2002 Minn. App. LEXIS 1216 (Minn. Ct. App. Oct. 22, 2002), is an unpublished decision of the Minnesota Court of Appeals and should not be considered persuasive authority, as it serves no precedential value for Minnesota courts. See Minn. Stat. Ann. \u00a7 480A.08 subdiv. 3(c) (West 2002). Another case cited by the State, and also relied upon by the majority of the Court of Appeals, is inapplicable in this case because the holding was based upon the violation of a perceived motor vehicle safety regulation, meaning a probable cause standard should be applied. See People v. Kelly, 344 Ill. App. 3d 1058, 802 N.E.2d 850 (2003). In fact, the majority of cases from other states tend to undermine the State\u2019s contention that a delayed reaction to a traffic signal turning green, without more, can give rise to reasonable, articulable suspicion. See, e.g., State v. Emory, 119 Idaho 661, 664, 809 P.2d 522, 523, 525 (Ct. App. 1991) (holding that a five-to-six second delay at a green traffic light, coupled with defendant\u2019s proceeding to drive straight but very close to a long line of parked cars on a narrow street, failed to give rise to reasonable suspicion and \u201ccould just as easily be explained as conduct falling within the broad range of what can be described as normal driving behavior\u201d); People v. Dionesotes, 235 Ill. App. 3d 967, 968-70, 603 N.E.2d 118, 119-20 (1992) (holding that a ninety second stop in the middle of the road for no apparent reason did not give rise to reasonable suspicion); Minnetonka v. Shepherd, 420 N.W.2d 887, 891 n.2 (Minn. 1988) (commenting that being stopped in the middle of a residential street for no apparent reason was \u201carguably not enough by itself to justify the stop\u201d of the subject vehicle); State v. Hjelmstad, 535 N.W.2d 663, 666 (Minn. Ct. App. 1995) (noting that a four second delay, \u201cwithout more, does not demonstrate erratic driving\u201d); State v. Cryan, 320 N.J. Super. 325, 331-32, 727 A.2d 93, 96 (App. Div. 1999) (holding that a five second delay at a green traffic light, followed by an unusually slow left turn, would not have supported a finding of reasonable suspicion). But see, e.g., State v. Puls, 13 Neb. App. 230, 235, 690 N.W.2d 423, 428 (2004) (holding that a three-to-seven second delay at a green traffic light, by itself, \u201ccould promote a reasonable suspicion that [the defendant] was operating her [vehicle] under the influence of alcohol or drugs\u201d).\nDefendant\u2019s thirty second delay was entirely consistent with any number of innocent explanations, such as changing a radio station, consulting a map for directions, indecision as to which direction one wishes to travel, placing or receiving a call on a cellular phone, or even, as Officer Maltby himself testified, a natural nervous reaction to observing an approaching law enforcement vehicle in the rearview mirror. In fact, a delay of thirty seconds is arguably more consistent with any of these innocent explanations than a delayed reaction of only a few seconds, which itself could be indicative of the slowed reaction time one might expect to result from impairment.\nAlthough \u201c[a] determination that reasonable suspicion exists . . . need not rule out the possibility of innocent conduct,\u201d see Arvizu, 534 U.S. at 277 (citation omitted), a determination that reasonable, articulable suspicion does not exist must be made by an appellate court when faced with a single, isolated factor that is susceptible to innocent explanation. To hold otherwise would be to permit law enforcement officers to act upon a mere \u201cinchoate and unparticularized suspicion or \u2018hunch\u2019 \u201d and would expose law-abiding citizens to searches or seizures at the slightest whiff of suspicion. See Terry, 392 U.S. at 27.\nCONCLUSION\nJustice Thurgood Marshall gave us a stark reminder in his dissenting opinion in Sokolow. \u201cBecause the strongest advocates of Fourth Amendment rights are frequently criminals, it is easy to forget that our interpretations of such rights apply to the innocent and the guilty alike.\u201d 490 U.S. at 11 (Marshall & Brennan, JJ., dissenting) (citation omitted); see also Brignoni-Ponce, 422 U.S. at 889 (Douglas, J., concurring) (\u201cIn criminal cases we see those for whom the initial intrusion led to the discovery of some wrongdoing. But the nature of the test permits the police to interfere as well with a multitude of law-abiding citizens, whose only transgression may be a nonconformist appearance or attitude.\u201d).\nLest the American people, and the people of North Carolina in particular, forget the foundational importance of the Fourth Amendment right to be secure against unreasonable searches and seizures, we should recall that the cherished liberties enjoyed in our brief historical moment have been inherited by this generation only because they have been nurtured and protected by earlier generations of Americans so driven in their pursuit of liberty that life itself was not too great a cost to purchase liberty for themselves and their posterity. If the Framers of the first ten amendments of the Federal Constitution thought it worthy to enshrine this liberty into the Bill of Rights, conscious as they were of the abuses they endured under British colonial rule, this Court should not be so quick to make a short sighted and imprudent decision to render it obsolete.\nThe Supreme Court of North Carolina now stands alone among the nation\u2019s courts of last resort in holding that a single factor susceptible of innocent explanation can give rise to a reasonable, articulable suspicion that criminal activity is afoot. I would hold instead that the stop of defendant\u2019s vehicle was unconstitutional and would reverse the decision of the Court of Appeals and remand to that court for consideration of those issues not addressed in its initial opinion. For the multitude of reasons set forth above, I respectfully dissent.\n. It is apropos, perhaps, that even the trial court referred to defendant as \u201cthe victim\u201d when describing the unconstitutional seizure of defendant in making its findings of fact.\n. Apart from relying upon Officer Maltby\u2019s testimony that defendant\u2019s thirty second delay might have been consistent with impairment, the majority also asserts in its statement of the facts: \u201cAround 12:15 a.to. 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.\u201d (Emphasis added.) However, neither the time at which the traffic stop occurred nor the characterization of the area in which it occurred as a \u201chigh crime area\u201d comprised any part of the trial court\u2019s findings of fact. The majority has simply assumed the role of a trial court in order to \u201cestablish\u201d these facts and cast defendant\u2019s thirty second delay in a more inculpatory light. Nevertheless, the majority is still left with only one factor to support its holding that the traffic stop was constitutional: defendant\u2019s thirty second delay.\n. The majority never contends, as indeed it cannot, that Officer Maltby subjectively believed defendant was driving while impaired at any time before he stopped defendant\u2019s vehicle. As reflected in his testimony under cross-examination, Officer Maltby never sounded his horn to alert defendant of the traffic signal turning green because he \u201cwanted to further [his] investigation and watch [defendant] in his \u2014 in his driving demeanor at that point.\u201d However, under direct examination, Officer Maltby testified that he stopped defendant\u2019s vehicle \u201cas he was turning.\u201d Thus, at no point does it appear that Officer Maltby actually attempted to observe defendant\u2019s driving demeanor for further signs of defendant\u2019s impairment, which clearly indicates that impairment played no part in Officer Maltby\u2019s on-the-spot decision to stop defendant\u2019s vehicle.\n. Apart from the lack of precedent to support such a holding, there are two additional problems with the majority\u2019s reliance upon the particular suspicion that defendant was \u201cdriving while impaired,\u201d as have been noted above: First, there is no indication from the record that a suspicion of \u201cdriving while impaired\u201d had anything to do with Officer Maltby\u2019s actual reasons for stopping defendant\u2019s vehicle. Second, the trial court made no finding of fact that defendant\u2019s conduct would have indicated he was impaired, but merely found that \u201cdefendant remained stopped for some 30 seconds without any reasonable appearance of explanation for doing so.\u201d Thus, the majority has usurped the trial court\u2019s role as finder of fact in order to establish the connection between a thirty second delay at an intersection and impaired driving.\n. Likewise, the facts of the instant case are not probative of this connection between a thirty second delay and impaired driving, since upon stopping defendant\u2019s vehicle, Officer Maltby almost immediately ascertained that defendant was not, in fact, impaired. Thus, there was by necessity some other explanation for defendant\u2019s conduct besides impairment.", "type": "dissent", "author": "BRADY, Justice," }, { "text": "HUDSON, Justice\ndissenting.\nThe officer here stopped defendant for \u201cimpeding traffic,\u201d because defendant delayed for thirty seconds after a traffic light had turned green before making a legal turn. These were the only reasons articulated for stopping defendant\u2019s vehicle, and I do not agree that these reasons, without more, provide a reasonable basis for the stop. Therefore, I respectfully dissent.\nBefore trial, defendant moved to suppress evidence seized from his vehicle and from his person when he was stopped in the early morning hours of 2 December 2004 and to suppress any in-custody statements in connection with the incident. Defendant contended that \u201che was illegally seized and detained by Officer Maltby . . . without reasonable and articulable suspicion of criminal wrongdoing or probable cause for his arrest.\u201d Therefore, he argued, the physical evidence and statements he made were all fruits of his illegal search and seizure. The trial court found as fact that defendant \u201cremained stopped for some 30 seconds without any reasonable appearance of explanation for doing so, and the officer observed that the victim [sic] was impeding traffic, if nothing else.\u201d Based solely thereon, the court denied defendant\u2019s motion. Although Officer Maltby testified that in his opinion, based on his training and experience, the delay \u201cdefinitely would be an indicator of impairment,\u201d the trial court did not find this to be a reason for the stop.\nIt is well established that an officer may make a brief, investigatory stop of a vehicle if there are \u201cspecific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.\u201d Terry v. Ohio, 392 U.S. 1, 21, 20 L. Ed. 2d 889, 906 (1968); State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 70 (1994). \u201c[I]n determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or \u2018hunch,\u2019 but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.\u201d Terry, 392 U.S. at 27, 20 L. Ed. 2d at 909 (citation omitted). On review, we must evaluate the totality of the circumstances to determine whether the officer possessed the reasonable, articulable suspicion needed to justify the stop. United States v. Cortez, 449 U.S. 411, 417, 66 L. Ed. 2d 621, 629 (1981); Watkins, 337 N.C. at 441, 446 S.E.2d at 70.\nThe State argues that there are no controlling authorities and that defendant cites no cases dealing with a thirty second delayed reaction to a green light. After also noting that this Court is not bound by the decision in State v. Roberson, 163 N.C. App. 129, 592 S.E.2d 733, disc. rev. denied, 358 N.C. 240, 594 S.E.2d 199 (2004), in which an eight to ten second delay was held not to justify a stop, the State also distinguishes Roberson on the basis that a thirty second delay cannot be explained as reasonable. However, in conducting its reasonable suspicion analysis, this Court does not review the thirty second delay in isolation, but rather, views the delay as part of the totality of the circumstances.\nHere, in addition to the basis noted by the trial court, the circumstances included that the officer had followed defendant and observed no problems with his driving and that after the delay at the stoplight, defendant made a legal turn. Further, defendant contends that the sheer presence of a police cruiser immediately behind a vehicle can distract even law abiding citizens and that the officer\u2019s own testimony supports this reasonable, innocent explanation for the delay at the stoplight. The officer testified that the delay could have been due to the fact that \u201cDefendant was paying particular attention to the rear view mirror and noticing [the officer] and not the actual traffic light.\u201d\nIt appears that the officer and the trial court here mistakenly believed that impeding the flow of traffic was a violation of the law which justified the stop and that the trial court rested its denial of defendant\u2019s motion to suppress solely on this mistaken belief and the thirty second delay. Because impeding the flow of traffic is not a violation of law and because the thirty second delay is easily explained as innocent, I do not agree that under the totality of these circumstances, the officer here had reasonable suspicion to stop defendant\u2019s vehicle. Thus, I respectfully dissent.\nJustice TIMMONS-GOODSON joins in this dissenting opinion.", "type": "dissent", "author": "HUDSON, Justice" } ], "attorneys": [ "Roy Cooper, Attorney General, by Daniel S. Johnson, Special Deputy Attorney General, for the State.", "Anne Bleymanfor defendant-appellant.", "The Avery, RC., by Isaac T. Avery, III, for North Carolina Association of Police Attorneys, and Kimberly N. Overton for North Carolina Conference of District Attorneys, amici curiae." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. KENNETH BARNARD\nNo. 347A07\n(Filed 11 April 2008)\nSearch and Seizure\u2014 traffic stop \u2014 thirty-second delay at green light \u2014 reasonable suspicion of driving while impaired\nDefendant\u2019s thirty-second delay at a green traffic light under the circumstances gave rise to a reasonable, articulable suspicion that defendant may have been driving while impaired; the stop of his vehicle was constitutional, and the evidence (a crack pipe) obtained as a result of the stop was properly admitted. It is irrelevant that part of the officer\u2019s motivation for stopping defendant may have been a perceived, though apparently nonexistent, statutory violation of impeding traffic.\nJustice BRADY dissenting.\nJustice HUDSON dissenting.\nJustice TIMMONS-GOODSON joins in this dissenting opinion.\nAppeal pursuant to N.C.G.S. \u00a7 7A-30(2) from the decision of a divided panel of the Court of Appeals, 184 N.C. App. 25, 645 S.E.2d 780 (2007), finding no error in a judgment entered 6 April 2005 by Judge James U. Downs in Superior Court, Buncombe County. Heard in the Supreme Court 13 February 2008.\nRoy Cooper, Attorney General, by Daniel S. Johnson, Special Deputy Attorney General, for the State.\nAnne Bleymanfor defendant-appellant.\nThe Avery, RC., by Isaac T. Avery, III, for North Carolina Association of Police Attorneys, and Kimberly N. Overton for North Carolina Conference of District Attorneys, amici curiae." }, "file_name": "0244-01", "first_page_order": 322, "last_page_order": 339 }