No. COA05-1254 JUDICIAL DISTRICT THIRTY-B
NORTH CAROLINA COURT OF APPEALS
STATE OF NORTH CAROLINA)
) ) From Haywood
JUAN MANUEL CASTANEDA)03 CR 53115, 03 CRS 53116
)03 CR 53075, 03 CR 53077
)03 CR 53078, 03 CR 53079
______)03 CR 3736
********************************
APPELLANT’S BRIEF
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INDEX
TABLE OF CASES AND AUTHORITIES………………………………...... ii
QUESTION PRESENTED………………………………...... 1
JURISDICTIONAL STATEMENT……………...... 1
STATEMENT OF THE CASE.………...……...... 1
STATEMENT OF FACTS………………………………...... 2
ARGUMENT:
I.The Trial Court committed reversible error by denying the Defendant’s motion to suppress the introduction of evidence seized by police from an automobile operated by the Defendant because the evidence was seized pursuant to an illegal stop in violation of both the United States Constitution and the North Carolina Constitution. ………………………………...... 6
CONCLUSION………………………………...... 12
CERTIFICATE OF SERVICE………………………………...... 13
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TABLE OF CASES AND AUTHORITIES
Brown v. Texas, 443 U.S. 47(1979)……………………………...... 8
State v. Aubin, 100 N.C. App. 628, 397 S.E.2d 653(1990)……..7
State v. Crews, 286 N.C. 41, 209 S.E.2d 462(1974)……………………….9
State v. Davis, 305 N.C. 400, 290 S.E.2d 574(1982)…………………..9
State v. Davis, ___N.C. App. ___, ___S.E.2d___(2005)……………..7
State v. Earwood, 155 N.C. App. 698, 574 S.E.2d 707(2003)..6
State v. Fernandez, 346 N.C. 1, 484 S.E.2d 350(1997)……………..9
State v. Garner, 331 N.C. 491, 417 S.E.2d 502(1992)………………..8
State v. Hernandez, ___ N.C. App. ______S.E.2d ___(2005).7
State v. Hughes, 353 N.C. 200, 539 S.E.2d 630(2000)……………..10
State v. Hunter, 107 N.C. App. 402, 420 S.E.2d 700(1992)…..6
State v. Morocco, 99 N.C. App. 421, 393 S.E.2d 545(1990). .6
State v. Munoz, 141 N.C. App. 675, 541 S.E.2d 218(2001)…..9
State v. Payne, 327 N.C. 194, 394 S.E.2d 158(1990)…………………..9
State v. Phifer, 297 N.C. 216, 254 S.E.2d 586(1979)………………….7
State v. Villeda, ___N.C. App.___, ___S.E.2d___(2004)………….11
State v. Watkins, 337 N.C. 437, 446 S.E.2d 67(1994)………………..8
N.C. Gen. Stat. § 15A-979(b)……………………………...... 1
N.C. Gen. Stat. § 15A-1441.……………………………...... 1
N.C. Gen. Stat. § 15A-1442(4)(d)……………………………...... 1
N.C. Gen. Stat .§ 15A-1442(6)……………………………...... 1
N.C. Gen. Stat.§ 15A-1443.……………………………...... 1
N.C. Gen. Stat. §15A-1444(a)……………………………...... 1
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U.S. CONST. AMEND IV………………………………...... 8
N.C. CONST. Art. 1, Sec. 20.……………………………...... 7
No. COA05-1254 JUDICIAL DISTRICT THIRTY-B
NORTH CAROLINA COURT OF APPEALS
STATE OF NORTH CAROLINA)
) ) From Haywood
JUAN MANUEL CASTANEDA)03 CR 53115, 03 CRS 53116
)03 CR 53075, 03 CR 53077
)03 CR 53078, 03 CR 53079
______)03 CR 3736
********************************
APPELLANT’S BRIEF
*******************************
QUESTION PRESENTED
I.DID The Trial Court commit reversible error by denying the Defendant’s motion to suppress the introduction of evidence seized by police from an automobile operated by the Defendant because the evidence was seized pursuant to an illegal stop in violation of both the United States Constitution and the North Carolina Constitution?
ASSIGNMENT OF ERROR NO. 1
Transcript, page 25
JURISDICTIONAL STATEMENT
Jurisdiction in the North Carolina Court of Appeals for this case is based upon N.C. Gen. Stat. § 15A-1441, N.C. Gen. Stat. § 15A-1442(4)(d), N.C. Gen. Stat .§ 15A-1442(6), N.C. Gen. Stat.§ 15A-1443, N.C. Gen. Stat. §15A-1444(a), and N.C. Gen. Stat. § 15A-979(b).
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STATEMENT OF THE CASE
From a ruling and sentence imposed in the Superior Court Division of the General Court of Justice for Haywood County, North Carolina, the week of April 12, 2005, the Honorable Ronald K. Payne, presiding, Defendant appeals.
Defendant was found to be indigent at the time of his notice of appeal; and the Appellate Defender was appointed to perfect his appeal. Present counsel was appointed by the Appellate Defender on the above entitled and numbered case on May 6, 2005. The transcript of the hearing in this matter was mailed to The Appellate Defender, then counsel for the Defendant, by the Court Reporter, Shari Young, on April 28, 2005; and was received by The Appellate Defender on May 2, 2005. The Appellate Defender mailed it to present counsel for the Defendant on May 6, 2005; and it was received on May 8, 2005, a Sunday.
Motions for extension of time were granted at the trial and appellate levels, the last order from the North Carolina Court Of Appeals granting Defendant until August 12, 2005, to serve the proposed record on appeal, which was served on August 12, 2005. The case was filed with the North Carolina Court of Appeals on September 21, 2005; and docketed on September 27, 2005. The printed record on appeal was mailed to the parties on October 4, 2005. Defendant was granted an
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extension of time until December 5, 2005 to file his brief by the North Carolina Court Of Appeals.
STATEMENT OF THE FACTS
On September 14, 2003, at approximately two thirty in the afternoon(2:30 p.m.), the Defendant was driving a white Malibu on Interstate 40 East through Haywood County, North Carolina, in the Clyde/Crabtree area, when he caught the attention of Officer Doug Carver of the Haywood County Sheriff’s Department. Officer Carver, a canine officer accompanied by a German Shepherd dog, was working drug interdiction, and was parked in a marked patrol car behind the exit sign for Exit Twenty-Seven(27)off the exit ramp. As a drug interdiction officer, he was looking for vehicles making minor traffic violations to justify stopping and searching them. (R. pp. App-2-App-3, App-5, App-7; T. p. 5)
Although the Defendant was “driving normal“, Officer Carver’s attention was drawn to the Defendant’s vehicle because it was ahead of a pack of five(5)other cars, there were tinted windows in the back of the vehicle, it was in the left hand lane, and when the Defendant and his passenger drove by him, they did not look at him and drove perfectly straight ahead. All of the cars were traveling at the same speed, slightly over the speed limit, sixty-five(65)to sixty-six(66)miles per hour in a sixty(60)miles per hour
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zone.(R. p. App-3, App-6-App-7, App-14; T. p. 4) The Defendant was three hundred(300)to four hundred(400)feet behind the nearest vehicle in front of him. (R. p. App-6) On September 17, 2003, three(3)days later, Officer Carver would tell Officer Toby Hayes of the State Bureau Of Investigation that the occupants of the car had black hair, and he determined they were Hispanics. (T. p. 14)
Officer Carver pulled out on to the Interstate and followed the Defendant until he caught up with him. Officer Carver was looking for a second violation to stop the Defendant for. In the past, he had only written two(2)or three(3)tickets for sixty five(65)or sixty six(66)in a sixty(60)miles per hour zone, and those were ones where he found drugs in the cars. (R. p. App-8) The reason Officer Carver wanted to stop the Defendant’s car was to find drugs, and it was his practice, in situations where he stopped some one for a low level speeding or other minor violations, to give a verbal warning, rather than a ticket, unless drugs were found, at which time a ticket would be written. (R. p. App-8)
As Officer Carver approached him, the Defendant was in the left hand lane, but pulled over into the right lane when Officer Carver came to within about four hundred(400)feet behind him. (R. p. App-8-App.-9; T. pp. 6-7) The Defendant
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was doing forty eight(48)to fifty(50)miles an hour and was slowing down the traffic behind him. (R. p. App-4) An off duty officer, Mac Price, was following Officer Carver and the Defendant in his own personal vehicle, a pick up truck. Officer Price pulled in behind the Defendant, but Officer Carver hand signaled for him to back off because he was following too closely. (R. p. App-4, App-9) Officer Carver could see that Defendant’s car had California plates as he got closer. (R. p. App-11) As the Defendant moved out of the left lane to the right lane, Officer Carver felt that the Defendant came too close to the vehicle in front of him; approximately one and a half(1 ½) to two(2)car lengths for approximately two hundred(200)to three hundred(300)feet.(T. pp. 8-9, 12)Officer Carver then pulled the Defendant’s car over for drug interdiction, to see if the Defendant’s car had any drugs in it. (R. p. App. 12) The Defendant consented to a search of his vehicle, and pursuant to that search, twenty-six(26)grams of methamphetamine were discovered. (T. p. 29) Defendant was also cited for following too closely. R. p. App-18)
The Defendant, through counsel filed a motion to suppress evidence seized as a result of the stop.(R. pp. 24-27) Defendant introduced into evidence, without objection, a transcript of Officer Carver’s sworn testimony in a prior
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suppression hearing for one of Defendant’s co-defendants. (R. p. App. 1-23; T. p. 2)The motion was heard and denied; and Defendant pleaded guilty to one count of trafficking in methamphetamine. Defendant gave notice of appeal two(2)days later. (R. pp. 29-38, T. pp. 2-34)
ARGUMENT
I.The Trial COURT committed reversible error by denying Defendant’s motion to suppress the introduction of evidence seized by police from an automobile operated by the Defendant because the evidence was seized pursuant to an illegal stop in violation of both the United States Constitution and the North Carolina Constitution.
ASSIGNMENT OF ERROR NO. 1
Transcript, page 25
Standard Of Review.The Court must determine if the stop of the defendant’s car was reasonable, or invalid because it used a pretext concealing an investigatory motive. State v. Hunter, 107 N.C. App. 402, 420 S.E.2d 700(1992); State v. Morocco, 99 N.C. App. 421, 393 S.E.2d 545(1990). The standard of review in evaluating a trial court's ruling on a motion to suppress is that the trial court's findings of fact are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting. State v. Earwood, 155 N.C. App. 698, 574 S.E.2d 707(2003).
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******
An order denying a motion to suppress evidence may be reviewed upon an appeal from a judgment entered upon a plea of guilty." N.C. Gen. Stat. § 15A-979(b); State v. Hernandez, ___ N.C. App. ______S.E.2d ___(2005). While the trial court in the instant case did not enter a written order, the trial court orally entered an order on the record with adequate findings of fact and conclusions of law to allow appellate review. State v. Davis, ___N.C. App. ___, ___S.E.2d___(2005).
A stop is invalid if it seeks to use a "pretext concealing an investigatory motive" on the part of the police. State v. Phifer, 297 N.C. 216, 254 S.E.2d 586(1979). An officer, however, does not need probable cause to investigate a potential traffic offense, but instead is governed by the reasonableness standards of the Fourth Amendment. State v. Aubin, 100 N.C. App. 628, 397 S.E.2d 653(1990); State v. Hunter, 107 N.C. App. 402(1992).
General warrants, whereby any officer or other person may be commanded to search suspected places without evidence of the act committed, or to seize any person or persons not named, whose offense is not particularly described and supported by evidence, are dangerous to liberty and shall not be granted. N.C. Const. Art. I, Sec. 20.
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The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. CONST. AMEND IV.
The Fourth Amendment to the Constitution of the United States, and Section 20 of Article I of the North Carolina Constitution, prohibit unreasonable searches and seizures. State v. Garner, 331 N.C. 491, 417 S.E.2d 502(1992). This applies "to seizures of the person, including brief investigatory detentions such as those involved in the stopping of a vehicle." State v. Watkins, 337 N.C. 437, 446 S.E.2d 67(1994). An investigatory stop must be justified by "a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity." Brown v. Texas, 443 U.S. 47(1979). A court must consider the totality of the circumstances in determining whether a reasonable suspicion to make an investigatory stop exists. State v. Watkins, 337 N.C. 437(1994); State v. Davis, ___N.C. App. ___(2005).
A police officer may conduct a brief investigative stop of a vehicle where justified by specific, articulable facts which give rise to a reasonable suspicion of illegal conduct. However, police may not make Terry-stops based on the pretext of a minor traffic violation. In determining if
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the traffic stop was pretextual, the trial court should look at what a reasonable officer would do rather than what an officer could do. State v. Morocco, 99 N.C. App. 421, 393 S.E.2d 545(1990). The appellate court is bound by the findings of the trial court if they are supported by competent evidence. State v. Crews, 286 N.C. 41, 209 S.E.2d 462(1974). In determining whether a stop was pretextual, the appellate court is not bound by the trial court's conclusion. State v. Davis, 305 N.C. 400, 290 S.E.2d 574(1982). The conclusion of the trial court may be reviewed by the appellate court de novo. State v. Munoz, 141 N.C. App. 675, 541 S.E.2d 218(2001). The trial court's conclusions of law are reviewed de novo and must be legally correct. State v. Fernandez, 346 N.C. 1, 484 S.E.2d 350(1997); State v. Payne, 327 N.C. 194, 394 S.E.2d 158(1990); State v. Hernandez, ___ N.C. App. ___(2005)
In the instant case, the trial court’s findings are not supported in the record by competent evidence, and they do n not support the trial court’s conclusion that the subject stop of the Defendant was not pretextual, and thereby unconstitutional. (T. pp. 24-25) Officer Carver’s first observation of the Defendant gave no reason for him to suspect criminal activity. He pursued the Defendant with the expressed purpose of finding a second violation to stop the
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Defendant for. In his career as an officer, he had only written two(2)or three(3)tickets for sixty five(65)or sixty six(66)in a sixty(60)miles per hour zone, and those were ones where he found drugs in the cars. (R. p. App-8) He admitted that he wanted to stop the Defendant’s car to find drugs, and it was his practice, in situations where he stopped some one for a low level speeding or other minor violations, to give a verbal warning, rather than a ticket, unless drugs were found, at which time a ticket would be written. (R. p. App-8) "If reasonable suspicion for the stop exists before the stop is made, there is no violation of the Fourth Amendment." State v. Hughes, 353 N.C. 200, 539 S.E.2d 630(2000). Based on the officer’s testimony, there was no reasonable suspicion because the Defendant was driving “normal”, looking straight head, and was traveling at the same speed as the rest of traffic.
Officer Carver actually created the following too closely situation by rapidly approaching the Defendant, who yielded the left lane to the officer. According to Officer Carver, there were at least four(4)or five(5)other cars traveling at the same speed as Defendant, and none of them were stopped. .(R. p. App-3, App-6-App-7, App-14; T. p. 4) An off duty officer also was noted to have followed too closely on the Defendant but without consequence. (R. p.
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App-4, App-9)
Although he denied that he recognized the Defendant and his companion as Hispanic, the record suggests that Officer Carver did notice it initially and it was ethnicity, not speed in miles per hour, that created Officer’s Carver’s suspicion that the Defendant might be carrying drugs. On September 17, 2003, three(3)days later, Officer Carver told Officer Toby Hayes of the State Bureau Of Investigation that the occupants of the car had black hair, and he determined they were Hispanics. (T. p. 14) The trial court stated that it did not find ethnicity of any relevance, and did not consider or address this in its findings of fact. The issue of intentional, racially discriminatory law enforcement conduct was squarely before the court, and a question was raised as to its relevance by the prior statement Officer Carver admitted to making, that he noticed the Defendant was Hispanic when he first saw him. (T. pp. 8, 13, 19) State v. Villeda, ___N.C. App.___, ___S.E.2d___ (2004). Because it was based on ethnicity, the stop of the Defendant was pretextual and should have been ruled unconstitutional.
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CONCLUSION
The trial court’s conclusion of law that the stop of the Defendant was legal and constitutional is not supported by competent evidence. State v. Earwood, 155 N.C. App. 698(2003). Accordingly, the trial court’s order denying Defendant’s motion to suppress should be reversed and vacated.
This the 5th day of December, 2005.
______
David Childers
Attorney for the Appellant
108 Tuckaseege Road
Mount Holly, North Carolina
28120
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CERTIFICATE OF SERVICE
I hereby certify that I have this day served a copy of the foregoing APPELLANT’S BRIEF by depositing a copy thereof in envelopes bearing sufficient postage in the United States Mail addressed to the following:
Robert T. Hargett
State Of North Carolina
Department Of Justice
9001 Mail Service Center
Raleigh, North Carolina
27699-9001
The Clerk Of The North Carolina Court Of Appeals
P.O. Box 2779
Raleigh, North Carolina 27602-2779
This the 5th day of December, 2005
______
David Childers, Attorney
108 Tuckaseege Road
Mount Holly, North Carolina 28120