What is an Investigatory Stop?
Begin any argument attacking the validity of a traffic stop with the highest law in the land: The Constitution. The Fourth Amendment protects individuals “against unreasonable searches and seizures.” U.S. Const. amend. IV. Do not start your argument by citing North Carolina cases, the Vehicle Code, or a blog article; begin by reminding the Court that the question before the Court is a question of whether the State (though its officer) has violated the U.S. Constitution.
Some DWI stops result from violations of the vehicle code, not indicative of impairment, such as an expired registration, speeding, or a non-functioning taillight.
However, some DWI stops are an investigation of impaired driving. “[A] traffic stop based on an officer’s [reasonable] suspicion that a traffic violation is being committed, but which can only be verified by stopping the vehicle, such as drunk driving or driving with a revoked license, is classified as an investigatory stop, also known as a Terry stop. Such an investigatory-type traffic stop is justified if the totality of circumstances affords an officer reasonable grounds to believe that criminal activity may be afoot.” State v. Wilson, 155 N.C. App. 89, 94-95, 584 S.E.2d 93, 98 (2002). Such a stop “must be based on specific and articulable facts, as well as the rational inferences from those facts as viewed through the eyes of a reasonable, cautious officer, guided by his experience and training.” State v. Steen, 352 N.C. 227, 238-39, 536 S.E.2d 1, 8 (2000).
Let’s consider the requirements of reasonable suspicion from Steen:
- Reasonableness – the officer must make logical arguments for his suspicion.
- Specificity – the officer must be able to articulate a specific factual basis for the stop and not point to vague and general facts. Ex. “there had been criminal activity in the area.”
- Carefulness – the officer must be cautious. This requirement means that where the officer is not sure, the best thing to do is to let the driver go, not to stop. Don’t let a DA argue that the officer was just making his best guess. A cautious officer is not the officer who conducts a traffic stop if he is unsure of criminal activity, but the one that respects the privacy rights of the individual until he has reasonable suspicion to stop.
- Knowledge – the officer should utilize his training and experience in making a stop. Can the officer use the NHTSA manual to help articulate the stop? Were any of the 24 clues of impaired driving observed?
Argue each of these components of the definition of reasonable suspicion. Since reasonable suspicion is a somewhat flexible definition and depends of facts and circumstances, give the judge these black and white criteria for evaluating the constitutionality of the stop.
Moreover, the officer’s evaluation of suspicious driving behavior “must still be evaluated against the backdrop of everyday driving experience.” State v. Roberson, 163 N.C. App. 129, 592 S.E.2d 733 (2004). Don’t allow the State to take common sense out of the equation.
NHTSA — 24 Driving Clues
NHTSA has identified 24 clues of driving that statistically indicate impairment in its publication The Visual Detection of DWI Motorists. This publication is available online so start by going to the source.
Problems Maintaining Proper Lane Position
- Weaving across lane lines
- Straddling a lane line
- Almost striking another object or vehicle
- Turning with a wide radius
Speed and Braking Problems
- Stopping problems
- Unnecessary acceleration or deceleration
- Varying speed
- 10 mph or more under the speed limit
- Driving without headlights at night
- Failure to signal or signal inconsistent with action
- Driving in opposing lanes or wrong way on one way
- Slow response to traffic signals
- Slow or failure to respond to officer’s signals
- Stopping in lane for no apparent reason
- Following too closely
- Improper or unsafe lane change
- Illegal or improper turn
- Driving on other than designated roadway
- Stopping inappropriately in response to officer
- Inappropriate or unusual behavior
- Appearing to be impaired
Defining Each Clue
While the newer NHTSA student manuals simply list the clues, some of the older manuals include detailed descriptions of each of these clues, which are listed in the publication itself. For example the February 2006 Student Manual describes Clue 23 Inappropriate or Unusual Behavior as “[t]hrowing objects from the vehicle, drinking in the vehicle, urinating at the roadside, arguing without cause, other disorderly actions.” This more detailed description comes straight from The Visual Detection of DWI Motorists and becomes important during a reasonable suspicion argument, because an officer might say that unusual behavior was the basis for the stop. The more detailed definition from the 2006 Manual helps cement the idea that to meet this clue the behavior must be highly unusual and not just eccentric.
Appearing to be Impaired
The Visual Detection of DWI Motorists and student manuals prior to 2010 gives specific indicators of impairment to look for including: eye fixation, tightly gripping the steering wheel, slouching in the seat, gesturing erratically or obscenely, face close to the windshield, or driver’s head protruding from the vehicle. This level of specificity should be the level that matches an officer’s articulation of the sign of impairment he observed, driving or physical. Use the detail from the officer’s training to indicate when this would be observed.
Speeding Not a Clue
Not listed in the 24 clues of impairment identified by NHTSA is speeding. While this article is focused on reasonable suspicion, don’t let an officer use speeding in articulating the probable cause for a DWI arrest. If speeding is the only basis for the stop, be sure to go through each of the 24 clues above and ask specifically if that clue was observed. After the litany of non-present clues is complete, make sure during your closing to remind the judge that the driving itself in no way indicated impairment.
NC Law Trumps NHTSA
While NHTSA has identified these 24 clues as indicators of impairment, observation of one of these clues alone may not justify a traffic stop in NC.
Weaving – NC Courts have repeatedly held that “weaving within [one’s] lane, standing alone, is insufficient to support a reasonable suspicion that defendant was driving under the influence of alcohol.” State v. Fields, 673 S.E.2d 765, 769 (N.C. App. 2009).
Slow Response to Traffic Signals – The Court of Appeals has held that an 8-10 second delay at a traffic light does not by itself create reasonable suspicion because “[i]t is self-evident that motorists often pause at a stop sign or traffic light when their attention is distracted or preoccupied by outside influences.” State v. Roberson, 163 N.C. App. 129, 592 S.E.2d 733 (2004).
Remind your judge of these decisions if the State is trying to hang its hat on one clue alone. Even a clue that has been identified through research as indicative of an impaired driver may not create a sufficient factual basis for an investigatory stop.
Reasonable Suspicion Not Necessary
In some cases the State may not need to establish that there was reasonable suspicion to stop a vehicle.
Consent – If the State can prove there was a consensual interaction between the defendant and the officer then reasonable suspicion is not required. The State might argue this in a situation where a defendant exits his vehicle and immediately engages an officer standing nearby.
Community Caretaking Doctrine – North Carolina has found that there can be situations where government intrusion into individual privacy for the purposes of rending aid is reasonable, regardless of whether criminal activity is afoot. If the State is arguing the Community Caretaking Doctrine applies the State bears the burden of proving three things: (1) a search or seizure within the meaning of the Fourth Amendment has occurred; (2) that under the totality of the circumstances an objectively reasonable basis for a community caretaking function is shown; and (3) that the public need or interest outweighs the intrusion upon the privacy of the individual. State v. Smathers, ___ N.C. App. ___, 753 S.E.2d 380 (2014).
Accident – If police are responding to an accident then no reasonable suspicion is required.
Additional Reasonable Suspicion for Impaired Driving Investigation
As we noted above, some traffic stops occur without any initial indication of impairment. Stops for speeding or expired registration are examples of these. For an officer making a stop that is not based on impaired driving what additional facts would give an officer reasonable suspicion to investigate the crime of impaired driving?
The State would probably argue that an odor of alcohol alone should give the officer the additional reasonable suspicion necessary to investigate DWI (i.e. ask driver to exit vehicle, perform SFSTs, a PBT, etc.). But an odor of alcohol does not indicate appreciable impairment or give anything more than a guess as to a person’s BAC. State v. Davis, 702 S.E.2d 507 (N.C. App. 2010) (State witness Paul Glover testified that in his opinion the odor of alcohol can be smelled coming from a person’s breath even if his BAC level is as low as .02).
If an officer saw a pill bottle in the center console and the driver admits to taking that pill recently does that fact alone allow for a DWI investigation if the person appears coherent, alert, well spoken? It should not. If it is not illegal to drive after drinking then why is it inherently suspicious for a person to do so?
A traffic stop “can become unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission” of the stop. Illinois v. Caballes, 543 U.S. 405, 407 (2005). “On-scene investigation into other crimes, however, detours from that mission.” Rodriguez v. United States, 575 U.S. ___ (2015) (finding that “the overall duration of the stop remains reasonable in relation to the duration of other traffic stops involving similar circumstances”). Using the logic from Rodriguez, it may be unreasonable for the police to hold an individual for 30 minutes at the roadside while they wait for an officer trained in DWI investigation to evaluate a suspect whose clues of impairment are limited to an odor of alcohol and an admission of drinking.
Argue that a smell of alcohol alone gives no more than an unparticularized hunch of impairment and therefore your client being investigated or held for investigation on that basis alone is inadequate to create the additional reasonable suspicion necessary to prolong the stop.
If you or someone you know has been charged with a crime, it is important to consult with an experienced criminal defense attorney that can help zealously defend your case. Contact us at Minick Law, P.C. for a free consultation on your case.