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State v. Sutton

Court of Appeals of North Carolina

June 5, 2018

LARIS SUTTON, Defendant.

          Heard in the Court of Appeals 8 August 2017.

          Appeal by defendant from judgment entered on or about 9 August 2016 by Judge Alan Z. Thornburg in Superior Court, Jackson County, No. 15 CRS 050090-92

          Attorney General Joshua H. Stein, by Assistant Attorney General Kacy L. Hunt, for the State.

          Julie C. Boyer, for defendant-appellant.

          STROUD, JUDGE.

         Defendant appeals from the trial court's order denying his motion to suppress all evidence recovered as a result of a traffic stop and subsequent dog sniff. Although the law enforcement officer had seen defendant's truck cross only once about one inch over the double yellow lines on a curvy road, crossing the center line is a traffic violation which is sufficient to justify the stop. After the stop, the officer's observations of defendant and additional information that defendant had drugs in the truck gave the officer reasonable suspicion to request a canine sniff of the car, and the canine officer arrived without unreasonable delay. We affirm the trial court's order.


         Defendant was indicted on trafficking in methamphetamine by transportation, trafficking in methamphetamine by possession, felonious maintaining a vehicle for keeping and/or selling a controlled substance, possession of methamphetamine, possession with intent to sell and/or deliver methamphetamine, possession of drug paraphernalia, and driving left of center on 29 February 2016. On 5 August 2016, defendant moved to suppress the traffic stop which led to his arrest based on both a lack of reasonable suspicion to justify the initial stop and on the search of defendant's vehicle after the "passage of an amount of time far in excess of any justification for said stop and seizure." The trial court held a hearing on the motion to suppress on 8 August 2016 and denied the motion both on the initial stop and to the extension of time and dog sniff. The trial court later entered a written order in accord with its rendition of the ruling on the motion to suppress in open court on 8 August 2016. Defendant reserved his right to appeal the ruling on the motion to suppress and pled guilty to all of the charges against him on or about 9 August 2016. Defendant timely filed written notice of appeal from the order denying motion to suppress and the judgment entered upon his guilty plea.


         On appeal, defendant challenges the trial court's conclusion of law that there was reasonable suspicion to stop defendant's vehicle. He also challenges some of the trial court's findings of fact and conclusions of law regarding the officer's questioning of defendant after the stop and contends the traffic stop was unreasonably extended beyond the time necessary for the traffic violation.

         I. Traffic stop

         What a difference a few inches can make in cases dealing with traffic stops. This Court and many other appellate courts have struggled with making fine distinctions between weaving within a travel lane and "weaving plus, " such as weaving repeatedly within a lane, weaving and barely crossing a fog line, weaving in the wee hours of the morning, weaving near a bar, weaving while driving under the speed limit, and many other factors. The rules regarding weaving are hazy at best.

         But there is a "bright line" rule in some traffic stop cases. Here, the bright line is a double yellow line down the center of the road. Where a vehicle actually crosses over the double yellow lines in the center of a road, even once, and even without endangering any other drivers, the driver has committed a traffic violation of N.C. Gen. Stat. § 20-146 (2017). This is a "readily observable" traffic violation and the officer may stop the driver without violating his constitutional rights. See, e.g., State v. Johnson, __ N.C. __, __, 803 S.E.2d 137, 141 (2017) ("To be sure, when a defendant does in fact commit a traffic violation, it is constitutional for the police to pull the defendant over." (Citation omitted)).

         Defendant challenges none of the findings of fact regarding the initial traffic stop, so they are binding on appeal:

The standard of review in evaluating the denial of a motion to suppress is whether competent evidence supports the trial court's findings of fact and whether the findings of fact support the conclusions of law. However, when, as here, the trial court's findings of fact are not challenged on appeal, they are deemed to be supported by competent evidence and are binding on appeal. Conclusions of law are reviewed de novo and are subject to full review. Under a de novo review, the court considers the matter anew and freely substitutes its own judgment for that of the lower tribunal.

State v. Biber, 365 N.C. 162, 167-68, 712 S.E.2d 874, 878 (2011) (citations and quotation marks omitted).

         The trial court found these facts which are relevant to the traffic stop:

6. Daniel Wellmon is an officer with the Jackson County Sheriff's office. Officer Wellmon received his Basic Law Enforcement Training in 2009 and has maintained that certification each year through in-service training. In addition, Officer Wellmon is certified to operate an Intoxilyzer and has maintained that certification as required by law.
7. Officer Wellmon has worked as a Patrol officer with the Jackson County Sheriff's office since 2009 handling, among other things, serving papers, traffic stops, regular patrol duties and community patrols. During his Tenure as a Deputy Sheriff, Officer Wellmon has made in excess of 500 Chapter 20 related investigations.
8. On the 13th day of January, 2015 Officer Wellmon was working a regular day shift beginning at 6 am through 6 pm. He was operating a marked Dodge Charger equipped with Blue lights, sirens, radio and a computer. His assignment for that day was to conduct a community patrol of Cabe Road because the Sheriff's office had received multiple complaints about drug activity in that area.
9. That same morning Officer Wellmon was advised by a State Bureau of Investigation Agent, who was involved in drug related investigations, to be on the lookout for a black vehicle driven by [defendant]. According to the Agent, this vehicle was bringing large quantities of methamphetamine to a supplier off of Cabe Road.
10. At approximately 3:09 pm on January 13, 2016, Officer Wellmon was traveling on Cabe Road behind a white Ford Ranger Pick-up truck. Cabe Road is a dead end, curvy, paved road located in Jackson County and is of sufficient width for two lanes of travel. The officer observed the Ford Ranger travel left of center with the driver's side tires crossing over the double yellow lines approximately one inch.
11. Officer Wellmon activated his blue lights and the vehicle pulled into Comfort Road, a one lane gravel driveway off of Cabe Road.

         Defendant argues that the trial court erred in concluding that "Officer Wellmon had reasonable suspicion to stop the Defendant's vehicle for failing to operate his vehicle on the right half of the roadway that was of sufficient width for more than one lane of traffic in violation of N.C. G.S. 20-146(A)." Defendant relies heavily on State v. Derbyshire, 228 N.C.App. 670, 677, 745 S.E.2d 886, 891 (2013) and contends that the facts of this case are "substantially similar, and, in fact, even less suspicious than the facts presented in Derbyshire."

         But the facts of Derbyshire differ greatly from this case. Derbyshire was a "weaving plus" case in which this Court held that the officer did not have a sufficient basis for a reasonable suspicion to stop the defendant. Id. ("On a number of occasions, this Court has determined that an officer has the reasonable suspicion necessary to justify an investigatory stop after observing an individual's car weaving in the presence of certain other factors. This has been referred to by legal scholars as the 'weaving plus' doctrine." (Citation ...

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