Publisher's Note: This article originally appeared in the Beaufort Observer.
Individual liberties won one in the N. C. Court of Appeals last week. In the case of The State v. Michael Canty the court overturned a conviction and set the case back to trial court because the two deputy sheriffs did not have reasonable suspicion, or probable cause, to stop the vehicle in which Mr. Canty was a passenger and thus held that the evidence seized in the stop was illegally admitted in court. The Court ruling held, in part:
Here, the State argues that Ms. Canty's alleged crossing of the fog line, Ms. Canty's and Defendant's alleged nervousness and failure to make eye contact with the officers as they drove by and drove alongside the patrol car, and the vehicle's slowed speed for reasonable suspicion were legitimate grounds for the traffic stop. Based on the totality of the circumstances, these factors fall short of reasonable suspicion.
First, the State's evidence shows that there was no traffic violation. State's Exhibit 8 shows that the vehicle did not cross the fog line in the forty-five second interval before Corporal Bass engaged the lights and siren. Corporal Bass testified that he only turned on the blue lights and siren after he saw the vehicle cross the fog line.
Second, even in the absence of a "verifiable traffic code violation," the officer's beliefs about Defendant and Ms. Canty's conduct amounts to nothing more than an "unparticularized suspicion or hunch." Nervousness, slowing down, and not making eye contact is nothing unusual when passing law enforcement stationed on the side of the highway. We find it hard to believe that these officers could tell Ms. Canty and Defendant were "nervous" as they passed by the officers on the highway and as the officers momentarily rode alongside them. A vehicle's slowed speed has been a factor in initiating a traffic stop, but the weight of this factor is minimal since the officers' reports state that the vehicle was going 65 mph and slowed to 59 mph, which is hardly significant in comparison to Jones where we held that driving twenty mph below the speed limit in addition to weaving amounted to reasonable suspicion. Jones, 96 N.C. App. at 395, 386 S.E.2d at 221. Slowed speed also tends to be a factor in reasonable suspicion for impaired driving. See State v. Aubin, 100 N.C. App. 628, 632, 397 S.E.2d653, 655 (1990); Jones, 96 N.C. App. at 395, 386 S.E.2d at 221. Impaired driving, however, was not the offense for which the officers testified that they pulled over Ms. Canty. Even if the nose of the car dipping from the sudden reduction in speed demonstrates a significant change in speed, it is the only factor on which this stop is premised. The reduction in speed standing alone could be explained a number of different ways, including normal apprehension many people feel when approaching a law enforcement officer. Nervousness, failure to make eye contact with law enforcement, and a relatively small reduction in speed is "conduct falling within the broad range of what can be described as normal driving behavior." Peele, 196 N.C. App. at 674, 675 S.E.2d 687 (citations and internal quotation marks omitted). Based on the totality of the circumstances, these officers lacked reasonable suspicion to initiate the traffic stop that resulted in the search and seizure of the weapons in this case.
Well established law holds that in order for a law enforcement officer to stop a vehicle the officer must either observe a violation of the law or have probable cause to believe that a crime is or has been committed. In certain circumstances the officer must have reasonable suspicion but he cannot simply stop the car to see what he can find, either by search or by interrogation.
But unfortunately, the practice use using some subterfuge to stop a vehicle is common practice. You read quite often in news releases from the Beaufort County Sheriff's Office that "deputies performed a traffic stop...and evidence seized from the car was then used to charge the person with something the deputies had no idea about at the time they pulled the car. That simply is not legal.
Fortunately, this case sends a message to officers that they must have either probable cause or reasonable suspicion (in certain cases) to stop, search, seize and interrogate a "suspect."
The North Carolina Court of Appeals on the corner of W. Morgan Street and Salisbury Street in Raleigh, NC, with the former Wachovia building rising above in the background: Above. photo by Stan Deatherage
Unfortunately, there are no consequences for a deputy violating a person's rights other than having the illegal evidence excluded from the trial. In some instances a defendant can sue for a civil rights violation but such action is costly. So in this instance it is a hollow victory for individual liberties.
What should be learned from this particular case is that a person, who is stopped, for any reason, should seldom if ever sacrifice their Fourth Amendment rights by agreeing to a search. Rather the officer should be required to present his probable cause to a magistrate to obtain a search warrant. As in this case, the driver who consented to allow her car to be searched had no belief that there was anything illegal in the car but it turned out that a passenger had indeed possession of a concealed weapon and was a felon in possession of a firearm. And even prior passengers could have left something illegal in the car. Moreover, a major reason to make the officer get a search warrant is that it creates a record of what his evidence was to stop, search and seize something, even if it is illegal.
Another factor in this case was ineffective legal counsel. The defendant's attorney did not, at trial, challenge the admission of the evidence of the weapons into evidence. He should have. You have to wonder why an experienced attorney would not have done so.
A reliable legal expert tells us that very often a local attorney will not have challenged such evidence because the local judge does not take to kindly to such action by another local good ole boy. We don't know whether that is what happened here or not, but it does seem strange that the defendant's attorney did not challenge admission of the evidence.
We don't know how much it cost Mr. or Ms. Canty to take this case to the Court of Appeals. Most likely it was several thousand dollars. All of that could have been prevented by Ms. Canty refusing to allow her car to be searched and both driver and passenger demanding to have an attorney present before answering any questions. Sure they would have probably been taken in and many even booked into jail, but just think how much time and money it cost them because they agreed to a search and answered questions.
Click here to read the decision.
