State v. Gregory
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA13-416 NORTH CAROLINA COURT OF APPEALS Filed: 15 October 2013 STATE OF NORTH CAROLINA v. Wake County No. 10 CRS 223677 ROBERT LOUIS GREGORY Appeal by defendant from judgment entered 31 October 2012 by Judge Paul G. Gessner in Wake County Superior Court. Heard in the Court of Appeals 30 September 2013. Attorney General Roy Cooper, by Assistant Attorney General Matthew Boyatt, for the State. Mark Hayes for defendant-appellant. HUNTER, Robert C., Judge. Defendant conviction for appeals from a habitual impaired judgment driving entered and court s order denying his motion to suppress. from upon the his trial After careful review, we find no error. Evidence from the suppression following factual background. hearing establishes the On 2 October 2010, Officer Robert Smith was on patrol in downtown Raleigh. He was driving north -2on Capital Boulevard around 2:45 a.m. when he noticed defendant s vehicle traveling in close proximity to the vehicle in front of it. At the time, the roadway was lit, traffic conditions were light, and there were no conditions, such as construction, which would cause a vehicle to follow closely. Officer Smith estimated that defendant s vehicle was 15 to 20 feet behind the front vehicle. When the front vehicle made a right hand turn, defendant s vehicle swerved into the middle lane to avoid a collision. Defendant s vehicle then aggressively sped up away from the situation. Officer Smith obtained a visible estimation of defendant s speed. He determined that defendant was traveling 60 miles per hour in a 45 mile per hour zone. radar certification, estimations of speed. he As part of his training for learned how to conduct visible Officer Smith explained that he caught up to defendant s vehicle and paced it. To do so, Officer Smith stayed an equal distance from defendant s vehicle and tracked his speed. Officer Smith stopped defendant s vehicle based on the two traffic violations, speeding and following too closely. Officer Smith also explained that he stopped defendant s vehicle because he didn t know what was going on in the vehicle and wanted to make sure [defendant] was okay. He additionally -3stated that there were a high number of impaired driving offenses in the area at that time of night. As a result of the traffic stop, Officer Smith determined that defendant was impaired. Defendant was arrested, and charged with driving while impaired ( DWI ), habitual impaired driving ( habitual DWI ), and driving while license revoked. Prior evidence to trial, obtained defendant following the filed a traffic motion stop. to suppress Following a hearing, the trial court denied defendant s motion, concluding that Officer Smith had a reasonable articulable suspicion to believe that the defendant committed one or more motor vehicle violations. Defendant entered a plea of guilty to DWI and habitual DWI, but he properly preserved his right to appeal the denial of his motion to suppress. The trial court arrested judgment on the DWI charge, and sentenced defendant to a term of 13 to 16 months imprisonment. Defendant appeals. On appeal, defendant solely challenges the trial court s denial of his motion to suppress. denial of determining a motion whether to the Our review of a trial court s suppress trial is strictly limited to judge s underlying findings of fact are supported by competent evidence, in which event they -4are conclusively binding on appeal, and whether those factual findings in turn support the judge s ultimate conclusions of law. State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). The trial court s conclusions of law . . . are fully reviewable on appeal. State v. Hughes, 353 N.C. 200, 208, 539 S.E.2d 625, 631 (2000). The trial court made the following oral findings of fact: I ll specifically find the facts that it was at 2:45 in the morning and that the traffic conditions were light; the defendant was following closely behind another vehicle, the officer testified 15 to 20 feet. And that the defendant had to serve [sic] into the middle lane to avoid a collision with the vehicle in front of him. He accelerated and visually estimated his speed at approximately 60 miles an hour in a 45-mileper-hour zone. Here, defendant only contests the findings that he was following too closely and that Officer Smith visually estimated his speed remaining at 60 miles findings, and per hour. they He does therefore not are contest deemed to supported by competent evidence and binding on appeal. the be See State v. Roberson, 163 N.C. App. 129, 132, 592 S.E.2d 733, 73536, disc. review denied, 358 N.C. 240, 594 S.E.2d 199 (2004). Defendant first argues the finding that he was following too closely is not supported by the evidence. We disagree. -5Officer Smith testified that he was able to observe defendant s vehicle from his position, that traffic was light, that the roadway was lit, and that there were no road conditions, such as construction, that would cause one to follow closer. Furthermore, Officer Smith testified that defendant was 15 to 20 feet away from the front vehicle and that he had to swerve into the middle lane to avoid a collision when the front car made a right turn. This evidence is sufficient to support the trial court s finding that defendant was following too closely. Second, defendant argues that Officer Smith s visual estimate of defendant s speed was not competent evidence. He argues to that Officer Smith did estimate defendant s speed. established intelligence, in this who had State, a not have sufficient We again disagree. that reasonable any person opportunity time [I]t is well of to ordinary observe a vehicle in motion and judge its speed may testify as to his estimation of the speed of that vehicle. State v. Barnhill, 166 N.C. App. 228, 232, 601 S.E.2d 215, 218 (2004). Officer Smith is not just a person of ordinary intelligence, but was trained to estimate speeds through his radar certification. He also confirmed that he caught up to defendant before beginning to pace the vehicle. Ultimately, defendant argues that Officer -6Smith s testimony is not credible, and issues of credibility are for the trial court to determine when sitting without a jury. See State v. Darrow, 83 N.C. App. 647, 649, 351 S.E.2d 138, 140 (1986). We therefore find the evidence sufficient to support the trial court s finding that defendant was speeding. Next, defendant contends that the trial court should have used the probable cause standard, rather than reasonable suspicion, in determining the constitutionality of the traffic stop. Defendant argues that the higher standard was required because the stop had nothing to do with the investigation of suspected traffic violations. In support for this assertion, defendant relies on Officer Smith s testimony that he stopped the vehicle, in part, because he did not know what was going on in the vehicle and wanted to make sure that defendant was okay. We disagree with defendant s assertions. First, defendant overlooks the second part of Officer Smith s explanation of the stop, in which Officer Smith stated that he stopped defendant based on the traffic violations of speeding and driving too closely. reasonable Second, our Supreme Court suspicion is the has expressly necessary standard held that for traffic stops, regardless of whether the traffic violation was readily observed or merely suspected. State v. Styles, 362 N.C. 412, -7415, 665 S.E.2d 438, 440 (2008) (footnote omitted). We therefore reject defendant s argument, and hold that the trial court properly applied the correct standard of reasonable suspicion. Finally, we hold that the trial court did not err in concluding that the traffic stop was justified based on Officer Smith s reasonable suspicion traffic violations. Our that Supreme defendant Court has committed two explained the reasonable suspicion standard as follows: Reasonable suspicion is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence. Illinois v. Wardlow, 528 U.S. 119, 123, 120 S. Ct. 673, 675-76, 145 L. Ed. 2d 570, 576 (2000) (citation omitted). The standard is satisfied by some minimal level of objective justification. 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 requires that [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. State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 70 (1994) (citing Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968)). Moreover, [a] court must consider the totality of the circumstances--the whole picture in determining whether a reasonable suspicion exists. Id. (quoting United -8States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621, 629 (1981)). See generally State v. Barnard, 362 N.C. 244, 246, 658 S.E.2d 643, 645 (2008). Styles, 362 N.C. at 414, 665 S.E.2d at 439-40. The trial justified court based on concluded Officer that Smith s the traffic reasonable stop was articulable suspicion that defendant committed two traffic violations. This conclusion is supported by the trial court s factual findings, which establish that Officer Smith observed defendant following too closely and traveling at 60 miles per hour in a 45 mile per hour zone. The findings also establish that Officer Smith s observations were based on specific and articulable facts and rational inferences from those facts. See id. We therefore hold of support that the trial conclusion of law. court s findings fact its Accordingly, we find no error in the trial court s denial of defendant s motion to suppress. NO ERROR. Judges BRYANT and McCULLOUGH concur. Report per Rule 30(e).
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