in the Court of Appeals 8 August 2017.
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.
C. Boyer, for defendant-appellant.
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.
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
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.
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
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)).
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).
trial court found these facts which are relevant to the
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
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
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
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."