Mar 30, 2012 | Criminal Defense, Uncategorized
Mr. Welty below is an awesome writer, and we appreciate his articles about recent NC cases. In this most recent posting, he discusses two cases dealing with police searches of vehicles after a lawful stop and getting permission from the driver. As he explains, the Courts have now determined that virtually unfettered access will be tolerated as long as no damage is done to the vehicle or any restrictions are given with the initial consent. As a criminal defense attorney, it seems clear that your best course if stopped by police is to “remain silent” and politely decline any search request without a warrant.
Scope of Consent to Search a Vehicle
By Jeff Welty
Yesterday, I wrote about a pair of recent cases about weaving within a lane of travel. Today, I want to mention another pair of recent cases related to automobiles. Last month, the court of appeals decided, on the same day, two cases that address the scope of a suspect’s consent to search a vehicle. In State v. Lopez, __ N.C. App. __, __ S.E.2d __ (Feb. 21, 2012), an officer stopped a vehicle for speeding. One thing led to another, and the officer came to suspect that the driver was involved in the drug trade. The officer asked for, and received, consent to search the defendant’s vehicle. The officer didn’t just search the interior of the vehicle. He also opened the hood and “released several clips or latches” securing the air filter compartment, eventually finding cocaine in that compartment. The defendant argued that the officer’s conduct exceeded the scope of the consent, making an analogy between the air filter compartment and a closed container. The court of appeals ruled otherwise, stating that “both the hood and air filter compartment are part of the vehicle,” and observing that the defendant did not specifically exclude those areas from his consent.
The second case is State v. Schiro, __ N.C. App. __, __ S.E.2d __ (Feb. 21, 2012). In that case, officers stopped the defendant, obtained consent to search the defendant’s car, and eventually found a gun that had been used in a murder. The gun was found behind some trim in the vehicle’s trunk, and the defendant argued that his consent to search did not allow the search to be so intrusive. The trial court found that the vehicle’s rear quarter panels were fitted with carpet-over-cardboard interior trim and that the trim pieces “were loose,” suggesting that the search, while thorough, did no harm to the vehicle and was therefore permissible. The trial court also noted that the searching officer “was easily able to pull back the . . . trim.” The court of appeals agreed that, on those facts, the search did not exceed the scope of the defendant’s consent.
The Schiro court explicitly distinguished State v. Johnson, 177 N.C. App. 122 (2006), where “a plastic wall panel was removed by a law enforcement officer from the interior of defendant’s van, thereby facilitating discovery of . . . cocaine.” Johnson effectively holds that when a person gives an officer consent to search his vehicle, he should expect a “thorough” search but not “the destruction of his vehicle, its parts or contents.” The federal courts have likewise generally drawn the line at damaging the vehicle. See, e.g., United States v. Gonzalez, 512 F.3d 285 (6th Cir. 2008) (“Applying an objective reasonableness standard, we agree that [the defendant’s] consent to search could not be reasonably understood as authorizing [the officer] to damage the van.”); United States v. Alverez, 235 F.3d 1086 (8th Cir. 2000). Judges, lawyers, officers, and motorists should all be aware that consent to search a vehicle will normally be interpreted to include any part of the vehicle that can be accessed without damage.
Mar 29, 2012 | Criminal Defense, Uncategorized
The attorneys of Reeves, Aiken & Hightower, LLP, believe in providing as much information as possible to new clients seeking to learn what they are facing after being charged with DWI. As you will find out, the penalities for a conviction in NC are harsh, even for first time offenders. In fact, NC has some of the strictest DWI laws in the nation. In addition to the stigma of being a convicted “drunk driver,” there can be significant consequences if convicted, including court costs, fines, SR-22 insurance, and possibly even jail time. We encourage you to review as much information as possible and then consult an experienced NC DWI attorney as early as possible. We would welcome an opportunity to help you during this critical time in your life. Call us today for a private consultation about your particular case at 704-499-9000. For even more information about our lawyers and their credentials, please visit our firm’s website at www.rjrlaw.com.
Below is a recent article by one of our favorite authors Jessica Smith. We appreciate her ability to make the complex seem simple and offer her latest posting for general criminal caselaw update purposes. NC courts are historically conservative, and this case reaffirms their predelection towards finding in favor of the State. Such cases also reaffirm the need for skilled and experienced criminal defense lawyers to represent those charged with a serious crime. Enjoy Ms. Smith’s analysis of State v. Cornelius:
Court OKs Offensive Collateral Estoppel
By Jessica Smith
In my experience, the mere mention of the terms “res judicata” and “collateral estoppel” in the classroom setting operates like a blast of intellectual air conditioning, causing mental processes to slow and eyes to glaze, if not to twitch. Notwithstanding this aversion to the concepts, at bottom they are quite simple. Both concepts are rules of preclusion; they preclude the relitigation of matters previously determined. Specifically, res judicata deals with claim preclusion while collateral estoppel deals with issue preclusion (Emphasis added). Although the rules typically come up in civil cases, they can arise in the criminal context as well. And while they also typically are raised as defenses, they can be used offensively as well. Consider this example:
Suppose a defendant is charged with felony murder and first-degree burglary. Suppose further that the jury finds him guilty of first-degree burglary but can’t reach a verdict on the felony murder charge. The trial court declares a mistrial on the felony murder charge and enters a PJC on the burglary charge, pending a retrial on felony murder. At the defendant’s retrial on felony murder, the trial judge instructs the jury that “because it has previously been determined beyond a reasonable doubt in a prior criminal proceeding that [the defendant] committed first degree burglary on [the date in question] . . . you should consider that this element [of felony murder (that defendant committed the felony of first degree burglary)] has been proven to you beyond a reasonable doubt.”
And now a pop quiz: Is the instruction proper?
In the recent case State v. Cornelius, the N.C. Court of Appeals answered that question in the affirmative. Cornelius involved these very facts and at the second trial, the trial court gave the precise instruction set forth above. The defendant was convicted and appealed, arguing in part that the trial court erred by applying offensive collateral estoppel to bar him from relitigating, for purposes of the felony murder trial, whether he committed the felony of burglary. According to the defendant, offensive collateral estoppel should not apply in criminal cases.
The Cornelius court noted that other jurisdictions have held that offensive collateral estoppel is inappropriate in criminal cases. However, it found that its prior decision in State v. Dial, 122 N.C. App. 298 (1996), was controlling. In Dial, the defendant was indicted for first-degree murder. The defendant asserted that the prosecution could not prove that the murder occurred in North Carolina and, therefore, the State lacked jurisdiction over the offense. Although the jury returned a special verdict finding that North Carolina had jurisdiction, it hung as to guilt or innocence. The defendant then filed a motion to dismiss the indictment for lack of jurisdiction and to set aside the special verdict finding jurisdiction. The trial court determined that the special verdict resolved the jurisdictional issue and denied both motions. The defendant then was retried and convicted of second-degree murder. On appeal he argued that the special verdict was not binding at the retrial and the State should have been required to prove, beyond a reasonable doubt, jurisdiction to the same jury charged with deciding his guilt or innocence on the murder charge. Rejecting this argument, the Court found the issue resolved by “settled principles of res judicata and collateral estoppel.” It explained:
The doctrines of res judicata and collateral estoppel apply to criminal, as well as, civil proceedings, and their application against a criminal defendant does not violate the defendant’s rights to confront the State’s witnesses or to a jury determination of all facts.
In the present case, all the requirements for precluding relitigation of the jurisdiction issue have been met: (1) the parties are the same; (2) the issue as to jurisdiction is the same; (3) the issue was raised and actually litigated in the prior action; (4) jurisdiction was material and relevant to the disposition of the prior action; and (5) the determination as to jurisdiction was necessary and essential to the resulting judgment.
Id. at 306 (internal citations omitted). The court went on to hold that the trial court’s acceptance of the special verdict at the first trial precluded the defendant from relitigating the jurisdictional issue.
The Cornelius court rejected the defendant’s attempt to distinguishDial and found the case controlling. It concluded that because the jury heard the evidence, deliberated, and without error returned a verdict of guilty of first-degree burglary, the defendant was not entitled to retry the issue of whether the defendant had committed the felony of first degree burglary.
So there you have it: application (again) of offensive collateral estoppel in the criminal context.
Mar 28, 2012 | DUI & DWI, Uncategorized
The attorneys of Reeves, Aiken & Hightower, LLP, believe in providing as much information as possible to new clients seeking to learn what they are facing after being charged with DWI. As you will find out, the penalities for a conviction in NC are harsh, even for first time offenders. In fact, NC has some of the strictest DWI laws in the nation. In addition to the stigma of being a convicted “drunk driver,” there can be significant consequences if convicted, including court costs, fines, SR-22 insurance, and possibly even jail time. We encourage you to review as much information as possible and then consult an experienced NC DWI attorney as early as possible. We would welcome an opportunity to help you during this critical time in your life. Call us today for a private consultation about your particular case at 704-499-9000. For even more information about our lawyers and their credentials, please visit our firm website at www.rjrlaw.com.
Here is the seminal case relating to your rights regarding checkpoints in North Carolina. In this case, the defendant clearly saw the checkpoint ahead and took aggressive steps to avoid the police. Accordingly, the NC Supreme Court ruled his arrest was separate and apart from the checkpoint as the officer witnessed bad driving and pursued him independently. Much closer cases involve situations where a driver sees “blue lights” ahead and turns around to avoid what is believed to be an accident. Can the police come chase you down under this scenario? The answer now is “yes.” However, there are some interesting caveats found in other NC cases which we will be posting in subsequent blogs. For now, read the case below for a glimpse of how judges evaulate the various issues presented with police stops and checkpoints.
STATE v. FOREMAN
STATE of North Carolina v. Karen Seagle FOREMAN.
No. 291PA99.
— May 05, 2000
Michael F. Easley, Attorney General, by Jonathan P. Babb, Assistant Attorney General, for the State-appellant and -appellee.
Ward, Potter & Brown, P.A., by William F. Ward, III, New Bern, for defendant-appellant and -appellee.
On 16 November 1996, defendant was arrested for driving while impaired (DWI), possession of drug paraphernalia and possession of cocaine. Defendant was subsequently indicted for the DWI charge. On 16 September 1997, defendant was found guilty of DWI in District Court, Craven County, and gave notice of appeal to the superior court. On 12 February 1997, defendant filed a motion to dismiss the charge because there was no probable cause sufficient to justify the stop of her vehicle or, in the alternative, to suppress any evidence obtained from the stop of defendant’s vehicle. The trial court denied defendant’s motion to dismiss or to suppress, and defendant was tried before a jury at the 23 February 1998 Criminal Session of Superior Court, Craven County. The jury found defendant guilty of DWI. On 25 February 1998, the trial court, inter alia, sentenced defendant to a suspended sentence of sixty days in jail with unsupervised probation for two years and revoked her license for one year. Defendant appealed to the North Carolina Court of Appeals.
On appeal, the Court of Appeals found no error. State v. Foreman, 133 N.C.App. 292, 515 S.E.2d 488 (1999). In support of its decision, the Court of Appeals concluded that it was not constitutionally permissible for an officer to stop a vehicle which had made a legal turn away from a posted DWI checkpoint. Although we disapprove of the Court of Appeals’ conclusion that a legal turn away from a DWI checkpoint, upon entering the checkpoint’s perimeters, cannot justify an investigatory stop, we find no error in defendant’s conviction. Accordingly, we affirm the decision of the Court of Appeals as modified herein.
The State’s evidence tended to show that during the early morning hours of 16 November 1996, officers from the New Bern Police Department were conducting a “DWI Checkpoint” on Neuse Boulevard in New Bern, North Carolina. Notice signs stating that there was a “DWI Checkpoint Ahead” were posted approximately one-tenth of a mile prior to the stop. Officer Doug Ipock was in a police cruiser parked close to the checkpoint’s perimeter. His assigned task was to pursue any and all vehicles which appeared to attempt to avoid the checkpoint by turning around or away from it and to determine the basis for such avoidance.
At approximately 2:00 a.m., Officer Ipock observed a small red vehicle traveling on Neuse Boulevard towards the checkpoint. Immediately prior to passing the checkpoint’s sign giving notice of the checkpoint, the vehicle made a quick left turn onto Midgette Avenue. Officer Ipock then followed this vehicle and remained approximately thirty to forty yards behind it. Officer Ipock continued to observe the vehicle until it made a second abrupt left turn onto Taylor Street. At this point, Officer Ipock lost sight of the vehicle. After continuing a short distance up and then back down Taylor Street, Officer Ipock ultimately found the vehicle parked in a residential driveway on Taylor Street. The car’s lights and ignition were off, and its doors were closed. Officer Ipock directed his bright lights onto the vehicle and also turned on his “take-down lights,” thereby enabling the officer to see that people were bent or crouched down inside the car. At this point, the officer radioed for backup and remained in his vehicle until backup arrived, approximately two minutes later. The officer observed that the occupants remained bent or crouched down and that they did not change positions in the vehicle.
Once backup arrived, Officer Ipock approached the vehicle and saw that defendant was sitting in the driver’s seat, with the keys still in the ignition. Officer Ipock testified that there were several open containers of alcohol in the vehicle and that the vehicle emitted a “strong odor of alcohol.” Additionally, the officer testified that defendant had a strong to moderate odor of alcohol about her person once she exited the vehicle and that she was unsteady on her feet. The officer’s observations were admitted into evidence.
Defendant contends that the Court of Appeals erroneously upheld her DWI conviction because the evidence derived from Officer Ipock’s observations was inadmissible since his observations were the result of an invalid stop and seizure. Specifically, defendant argues that at the time she made the legal left turn, just prior to entering the DWI checkpoint, Officer Ipock did not have a reasonable or articulable suspicion of criminal activity, and therefore he had no legal basis to stop her. For the reasons discussed herein, we conclude that the Court of Appeals correctly determined that the arresting officer, under the totality of the circumstances, had a reasonable, articulable suspicion that defendant was engaged in criminal activity prior to any seizure.
This Court has recently reaffirmed the long-standing rule that “[w]hen an officer observes conduct which leads him reasonably to believe that criminal conduct may be afoot, he may stop the suspicious person to make reasonable inquiries.” State v. Pearson, 348 N.C. 272, 275, 498 S.E.2d 599, 600 (1998). “ ‘[T]he police officer must be able to point to specific and articulable facts, which taken together with rational inferences from those facts, reasonably warrant [the] intrusion.’ ” State v. Thompson, 296 N.C. 703, 706, 252 S.E.2d 776, 779 (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968)), cert. denied, 444 U.S. 907, 100 S.Ct. 220, 62 L.Ed.2d 143 (1979). In the instant case, the officer observed a “quick left turn” away from the checkpoint at the precise point where the driver of the vehicle would have first become aware of its presence. However, Officer Ipock did not stop defendant’s vehicle once it turned away from the checkpoint. In fact, we cannot conclude that Officer Ipock “stopped” defendant’s vehicle at any point. Defendant voluntarily parked in a residential driveway and remained hidden in the car until Officer Ipock approached the vehicle. Therefore, defendant was not “seized” by the police officer until at least that point. Based upon that series of incriminating circumstances, we conclude that the Court of Appeals correctly determined that Officer Ipock observed sufficient activity to raise a “reasonable and articulable suspicion of criminal activity.” Foreman, 133 N.C.App. at 298, 515 S.E.2d at 493.
Although defendant in the case sub judice was not stopped because of her legal turn, or at all by the arresting officer, the Court of Appeals stated:
[A] legal left turn at the intersection immediately preceding a posted DWI checkpoint, without more, does not justify an investigatory stop. We emphasize, however, that it is constitutionally permissible, and undoubtedly prudent, for officers to follow vehicles that legally avoid DWI checkpoints, in order to ascertain whether other factors exist which raise a reasonable and articulable suspicion that an occupant of the vehicle is engaged in criminal activity․ Thus, if [d]efendant was seized solely based on a legal left turn preceding the DWI checkpoint, that seizure was unconstitutional.
Id. at 296, 515 S.E.2d at 492. For the reasons discussed herein, we disagree and clarify this language.
Although a legal turn, by itself, is not sufficient to establish a reasonable, articulable suspicion, a legal turn in conjunction with other circumstances, such as the time, place and manner in which it is made, may constitute a reasonable, articulable suspicion which could justify an investigatory stop. As the United States Supreme Court recently stated in Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), “flight-wherever it occurs-is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.” Id. at —-, 120 S.Ct. at 676, 145 L.Ed.2d at 576.
Further, the United States Supreme Court has stated:
No one can seriously dispute the magnitude of the drunken driving problem or the States’ interest in eradicating it. Media reports of alcohol-related death and mutilation on the Nation’s roads are legion․
Conversely, the weight bearing on the other scale-the measure of the intrusion on motorists stopped briefly at sobriety checkpoints-is slight.
Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 451, 110 S.Ct. 2481, 2486, 110 L.Ed.2d 412, 420-21 (1990). Therefore, the United States Supreme Court held that DWI checkpoints are constitutional if vehicles are stopped according to a neutral, articulable standard (e.g., every vehicle) and if the government interest in conducting the checkpoint outweighs the degree of the intrusion. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412.
Section 20-16.3A of our General Statutes governs the establishment, organization and management of impaired driving checkpoints and sets forth the bases for “stopping vehicles” at any such checkpoint. That section provides:
A law-enforcement agency may make impaired driving checks of drivers of vehicles on highways and public vehicular areas if the agency:
(1) Develops a systematic plan in advance that takes into account the likelihood of detecting impaired drivers, traffic conditions, number of vehicles to be stopped, and the convenience of the motoring public.
(2) Designates in advance the pattern both for stopping vehicles and for requesting drivers that are stopped to submit to alcohol screening tests. The plan may include contingency provisions for altering either pattern if actual traffic conditions are different from those anticipated, but no individual officer may be given discretion as to which vehicle is stopped or, of the vehicles stopped, which driver is requested to submit to an alcohol screening test.
(3) Marks the area in which checks are conducted to advise the public that an authorized impaired driving check is being made.
N.C.G.S. § 20-16.3A (1999).
There is no dispute that the DWI checkpoint in the case sub judice met all the statutory requirements for an impaired driving checkpoint. The perimeters of the checkpoint were marked with signs stating that there was a DWI checkpoint ahead, and the signs were posted approximately one-tenth of a mile prior to the actual stop. The checkpoint was established with the intent to stop every vehicle briefly and to check for impaired drivers traveling on Neuse Boulevard within the vicinity of the checkpoint. It is obvious that a law-enforcement agency cannot “make impaired driving checks of drivers of vehicles on highways” unless such vehicles can be stopped. Certainly, the purpose of any checkpoint and the above statute would be defeated if drivers had the option to “legally avoid,” ignore or circumvent the checkpoint by either electing to drive through without stopping or by turning away upon entering the checkpoint’s perimeters. Further, it is clear that the perimeters of the checkpoint or “the area in which checks are conducted” would include the area within which drivers may become aware of its presence by observation of any sign marking or giving notice of the checkpoint. Therefore, we hold that it is reasonable and permissible for an officer to monitor a checkpoint’s entrance for vehicles whose drivers may be attempting to avoid the checkpoint, and it necessarily follows that an officer, in light of and pursuant to the totality of the circumstances or the checkpoint plan, may pursue and stop a vehicle which has turned away from a checkpoint within its perimeters for reasonable inquiry to determine why the vehicle turned away.
Our state’s interest in combating intoxicated drivers outweighs the minimal intrusion that an investigatory stop may impose upon a motorist under these circumstances. We therefore conclude that the Court of Appeals correctly found no error in defendant’s conviction, and we affirm the decision of the Court of Appeals as modified herein.
MODIFIED AND AFFIRMED.
In this case, the Court of Appeals held that the facts available to Officer Ipock before defendant was seized were sufficient to raise a reasonable and articulable suspicion of criminal activity and that the trial court did not err by denying defendant’s motion to suppress. I agree. The majority modifies the Court of Appeals’ opinion in order to “disagree [with] and clarify” the Court of Appeals’ statement that a legal left turn at the intersection immediately preceding a posted DWI checkpoint does not, without more, justify an investigatory stop. I would affirm the decision of the Court of Appeals without modification.
The key in the Court of Appeals’ language is the phrase “without more.” Here, as the Court of Appeals indicated, there was more than the left turn which justified the seizure. When Officer Ipock located the vehicle within seconds after it turned onto Taylor Street, the vehicle’s engine was not running, the lights were off, and the occupants were crouched down in the dark. These additional factors were sufficient to raise a reasonable and articulable suspicion of criminal activity before defendant was seized by Officer Ipock.
The Court of Appeals emphasized that it was not only constitutionally permissible, but prudent, for officers to follow vehicles that avoided the DWI checkpoint in order to ascertain whether other factors raised a reasonable and articulable suspicion of criminal activity. However, there is a difference between stopping a vehicle and simply following it. Reasonable and articulable suspicion is necessary for an investigatory stop, but unnecessary to justify following a vehicle. While mere avoidance of a DWI checkpoint may prompt law enforcement officers to follow a vehicle, it does not, alone, give rise to a reasonable and articulable suspicion of criminal activity.
I would add that if a systematic plan for an impaired driving checkpoint pursuant to N.C.G.S. § 20-16.3A provides for stopping every car that turns off the highway within the perimeters of the checkpoint, then it is unnecessary to justify such a stop on the basis of reasonable and articulable suspicion. In such case, the stop is based on the systematic plan rather than the discretion of the officer or an articulable suspicion of criminal activity. However, as the Court of Appeals stated, avoidance of a posted DWI checkpoint, “without more, does not justify an investigatory stop.”
LAKE, Justice.
