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Evasive Action as Reasonable Suspicion for a Traffic Stop

The Fourth Amendment protects people from unreasonable searches and seizures. Traffic stops are considered seizures under the Fourth Amendment and require that the officer making the stop has reasonable suspicion of criminal activity. In certain instances, a driver’s evasive actions can support an officer’s reasonable suspicion. However, for a driver’s actions to be considered evasive, the driver must be aware of the police officer’s presence. The North Carolina Court of Appeals issued an opinion in a case examining this issue last week and held that the defendant’s actions in that case were not evasive because there was not sufficient evidence showing that the defendant knew he was being followed by the police.

In State v. McKnight, the police had obtained a search warrant for the search of a man named Stokes and his home based on evidence suggesting that he was trafficking large amounts of marijuana. The police were conducting a pre-raid surveillance of Stokes before executing the search warrant. They planned to stop Stokes’ car and then execute the search warrant for his house because they did not have access to a SWAT team that day. The police watched Stokes arrive at his house, and then fifteen minutes later, the defendant arrived at Stokes’ house. The two men put two large boxes in the defendant’s vehicle.

When the defendant left Stokes’ house, two unmarked police cars followed him, as well as a patrol car at a distance so as to avoid being seen. The police followed the defendant for 10-15 minutes and observed no traffic violations. Then the defendant suddenly backed his vehicle into a residential driveway and pulled back onto the road without getting out of the car. The officers in the unmarked police vehicles observed this movement and discussed it over the radio but were unable to continue following the defendant. The officer in the patrol car had not yet reached the residential driveway but heard the discussion of the other officers over the radio. He then activated his lights and pulled the defendant over.

The stopping officers testified that they smelled an odor of marijuana coming from the defendant’s car. A search of the car revealed large amounts of marijuana inside the two boxes that the defendant had picked up at Stokes’ house. The police subsequently discovered that the defendant had a key that opened the house of the driveway into which he turned around. The defendant was later convicted of trafficking marijuana.

At trial, the defendant argued that the officer lacked reasonable suspicion to make a traffic stop based on his evasive action. He maintained that he was unaware that he was being followed and that he left the driveway without getting out of the car because he received a phone call from his wife who said that she needed the car seat back from the defendant’s car for their son. The trial court denied the defendant’s motion to suppress the marijuana found in the boxes and found that the defendant acted evasively. The defendant appealed the case to the North Carolina Court of Appeals.

The court of appeals began its analysis by reviewing the requirement of reasonable suspicion for traffic stops. This requirement stems from the Fourth Amendment, which protects us against “unreasonable searches and seizures.” It applies to even “brief investigatory detentions such as those involved in stopping a vehicle.” To stop a vehicle, “police must have a reasonable suspicion that criminal activity may be afoot.” The reasonable suspicion 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, cautions officer, guided by his experience and training.” To determine whether reasonable suspicion exists, the court must look at “the totality of the circumstances——the whole picture.”

The court stated that

It is well established under state and federal law that although mere presence in a high crime area is not sufficient to support a reasonable suspicion that an individual is involved in criminal activity, an individual’s presence in a suspected drug area coupled with evasive action may provide an adequate basis for the reasonable suspicion necessary for an investigatory stop.

However, for the defendant’s “action to be considered evasive, the State must ‘establish a nexus between [a d]efendant’s flight and the police officers’ presence.’”

The court noted that the court of appeals and the North Carolina Supreme Court have previously held that there must be evidence that the defendant “was aware he was being followed by, or in the presence of, a police officer” in order to be found to have acted evasively. The court then proceeded to analyze the facts of the McKnight case based on this requirement. It noted that neither police officer in the unmarked cars testified that the defendant “acted evasively or that his conduct indicated his awareness of the fact he was being followed.” The police officer in the patrol car testified that the talk over the radio indicated that the defendant was operating his vehicle in a manner that prevented him from being followed by the officers in the unmarked cars. However, the court noted that this police officer “did not directly observe Defendant until after Defendant had already pulled out of the driveway.” The police officer went on to testify that “he did not personally observe anything unusual about how Defendant operated his vehicle before pulling him over.”

Therefore, the court concluded “that there [was] no competent evidence in the record that indicate[d] Defendant was aware that his [vehicle] was being followed by police” and that “Defendant’s act of turning around in the driveway at [the residence] [could not] properly be considered evasive.”

However, the court proceeded to hold that the officer had reasonable suspicion to stop the defendant based on other grounds and that the trial court did not err in denying the defendant’s motion to suppress the marijuana found in the boxes.

If you have been arrested for impaired driving, typically the officer must have had reasonable suspicion to make the traffic stop. Contact an attorney at Rosensteel Fleishman Car Accident & Injury Lawyers (704) 714-1450, to discuss your options.

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