                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA15-793

                                 Filed: 5 April 2016

Henderson County, No. 13 CRS 50764

STATE OF NORTH CAROLINA

               v.

JAMES L. JOHNSON


      Appeal by Defendant from judgment entered 3 March 2015 and order entered

12 November 2014 by Judge Mark E. Powell in Henderson County Superior Court.

Heard in the Court of Appeals 2 December 2015.


      Attorney General Roy Cooper, by Assistant Attorney General J. Rick Brown, for
      the State.

      Jeffrey William Gillette for Defendant.


      INMAN, Judge.


      James L. Johnson (“Defendant”) appeals from an order denying his motion to

suppress.   On appeal, Defendant argues that the police officer who made the

investigatory stop lacked sufficient reasonable suspicion to do so.

      After careful review, we reverse the judgment below and remand for further

proceedings.

                      Factual and Procedural Background
                                 STATE V. JOHNSON

                                  Opinion of the Court



      The evidence presented at Defendant’s suppression hearing tended to establish

the following: Around 10:00 p.m. on 16 February 2013, Officer Garrett Gardin

(“Officer Gardin”), a patrol officer with the Hendersonville Police Department since

2011, was on duty in his patrol vehicle stopped at a red light at the intersection of

King Street and Bearcat Boulevard when Defendant’s black Chevy truck pulled

beside him in the left-hand turning lane. It was snowing, and the snow was just

beginning to stick to the ground. Defendant was “blaring” his music “really loud” and

was “revving” his engine. The speed limit was 35 miles per hour.

      When the light turned green, Defendant “revved his engine” and “immediately

took a left turn onto Bearcat Boulevard, screeching the tires toward the back end, . .

. and the tailgate went towards the corner.” Defendant’s car never made contact with

the sidewalk, and Defendant was able to “correct[]” the car, all the while maintaining

proper lane control. According to Officer Gardin, Defendant “sped down Bearcat

[Boulevard]” and then stopped at the next red light without incident. Officer Gardin

“immediately” initiated a traffic stop based on “unsafe movement for the conditions

of the roadway.” Officer Gardin testified that, in his opinion, Defendant was driving

“too fast” down Bearcat Boulevard “for what was going on at the time as far as

weather was concerned.”

      Defendant stopped his truck promptly after Officer Gardin initiated the stop.

When Officer Gardin approached the truck, he observed that Defendant had red,



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                                 STATE V. JOHNSON

                                  Opinion of the Court



glassy eyes and a red face.      When Defendant spoke, his speech was slurred.

Defendant admitted that he had consumed a few beers that evening.                After

performing various field sobriety tests, Officer Gardin placed Defendant under arrest

for driving while impaired (“DWI”). Defendant blew a .13 on the Intoxilyzer.

      On cross-examination, Officer Gardin stated that he did not know how fast

Defendant was driving down Bearcat Boulevard, noting only that he believed that it

was “too fast” for the conditions given that Defendant “almost lost control making the

left turn.” Officer Gardin admitted that there were no other cars or pedestrians in

the area and that he did not cite Defendant for any traffic violations.

      Defendant filed a motion to suppress the traffic stop in District Court, which

was granted by Judge Peter Knight on 5 June 2014. The State appealed to Superior

Court for de novo review. Following an evidentiary hearing on Defendant’s motion to

suppress, Judge Powell denied the motion and remanded the matter back to District

Court for entry of an order and further proceedings. Defendant pled guilty to DWI in

District Court and appealed the judgment to Superior Court. Defendant refiled his

motion to suppress, which was again denied.              Pursuant to a plea agreement,

Defendant again pled guilty but preserved his right to appeal the denial of his motion

to suppress. Defendant received a suspended sentence of 12 months of unsupervised

probation. Defendant timely appeals.

                                      Analysis



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                                   STATE V. JOHNSON

                                   Opinion of the Court



      Defendant’s sole argument on appeal is that the trial court erred in denying

his motion to suppress because Officer Gardin lacked reasonable, articulable

suspicion to stop him. We agree.

      “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.” State v. Biber, 365 N.C. 162, 167-

68, 712 S.E.2d 874, 878 (2011). We review the trial court’s conclusions of law de novo.

Id. at 168, 712 S.E.2d at 878.

      Pursuant to Terry v. Ohio, 392 U.S. 1, 30, 20 L. Ed. 2d 889, 911 (1968), an

officer may conduct a traffic stop if he or she has reasonable suspicion that “criminal

activity may be afoot.” This includes investigatory stops made on the basis of a

readily observed traffic violation or an officer’s suspicion that a violation is being

committed. State v. Styles, 362 N.C. 412, 415-16, 665 S.E.2d 438, 440-41 (2008). As

our Supreme Court has explained, an officer “must be able to point to specific and

articulable facts, which taken together with rational inferences from those facts,

reasonably warrant the intrusion.” State v. Foreman, 351 N.C. 627, 630, 527 S.E.2d

921, 923 (2000).

      Based on the testimony of Officer Gardin, the trial court found that:

             1. On February 16, 2013 Hendersonville Police Department
             Officer G. Gardin was on routine patrol in the City of
             Hendersonville, and was stopped at the intersection of
             King Street and Bearcat Boulevard. The Defendant was


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                                       STATE V. JOHNSON

                                        Opinion of the Court



               also operating a vehicle, a truck, which was also stopped at
               the intersection, in the lane of travel next to Officer Gardin.
               King Street is a one-way public street in the City of
               Hendersonville.

               2. While waiting in his truck at the intersection for the
               light to change, the Defendant revved his truck engine,
               drawing the attention of Officer Gardin.

               3. When the light changed to green for traffic traveling in
               the direction of Officer Gardin and the Defendant, the
               Defendant abruptly accelerated his vehicle into a left-hand
               turn, which left-hand turn was appropriate for his lane.
               His vehicle "fish tailed", but the Defendant regained
               control of his vehicle before the rear struck the curb or left
               his lane of travel. Officer Garden [sic] was unable to
               estimate the speed of the Defendant's vehicle.

               4. Snow had begun falling at this time and slush was
               present on the roads and in the area in question.

               5. Officer Gardin immediately initiated a stop of the
               Defendant's vehicle, as it was the Officer's opinion that the
               Defendant's operation of his vehicle was unsafe for road
               conditions. The Defendant stopped his vehicle promptly,
               in a public vehicular area suitable for stopping.

Based on these findings, the trial court denied Defendant’s motion to suppress,

concluding that:

               1. As the Defendant was stopped because of a traffic
               violation observed by Officer Gardin, the standard for the
               stop is not reasonable suspicion but whether Officer Gardin
               had objective probable cause to believe that the Defendant
               had committed a traffic violation.1

       1 The trial court misstated the standard for determining whether the stop was constitutional.
As explained by our Supreme Court, reasonable suspicion, not probable cause, is the appropriate
standard in determining whether a traffic stop is appropriate. State v. Styles, 362 N.C. 412, 415-16,
665 S.E.2d 438, 440-41 (2008).

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                                 STATE V. JOHNSON

                                  Opinion of the Court




             2. Although the actions of the Defendant might be
             categorized as de minimus, and although a charge of
             traveling too fast for conditions may be rarely charged
             absent an accident, the Defendant's actions nevertheless
             gave probable cause for Officer Gardin to stop the
             Defendant's vehicle for a traffic violation.

      Although the trial court’s findings of fact are supported by competent evidence,

they do not support the conclusion that Officer Gardin had reasonable, articulable

suspicion that Defendant had committed a violation of “unsafe movement” or

“traveling too fast for conditions,” the purported traffic offenses Officer Gardin

claimed Defendant had committed.

      Essentially, Officer Gardin stopped Defendant based on his belief that

Defendant was engaging in the following “unsafe movements” given the winter

weather conditions: (1) Defendant spun his tires when making the left-hand turn onto

Bearcat Boulevard; (2) the back end of Defendant’s truck swerved or “fish-tailed”; and

(3) Officer Gardin’s belief that Defendant was driving “too fast” down Bearcat

Boulevard.

      Generally, “unsafe movement” offenses are based on N.C. Gen. Stat. § 20-

154(a), which provides:

             The driver of any vehicle upon a highway or public
             vehicular area before starting, stopping or turning from a
             direct line shall first see that such movement can be made
             in safety, and if any pedestrian may be affected by such
             movement shall give a clearly audible signal by sounding
             the horn, and whenever the operation of any other vehicle


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                                  STATE V. JOHNSON

                                   Opinion of the Court



             may be affected by such movement, shall give a signal as
             required in this section, plainly visible to the driver of such
             other vehicle, of the intention to make such movement. The
             driver of a vehicle shall not back the same unless such
             movement can be made with safety and without interfering
             with other traffic.

Officer Gardin’s concern that Defendant was not driving safely based on the weather

conditions suggests that he suspected a violation of N.C. Gen. Stat. § 20-141(a), which

provides that “[n]o person shall drive a vehicle on a highway or in a public vehicular

area at a speed greater than is reasonable and prudent under the conditions then

existing.” Subsection (m) explains that

             the fact that the speed of a vehicle is lower than the
             foregoing limits shall not relieve the operator of a vehicle
             from the duty to decrease speed as may be necessary to
             avoid colliding with any person, vehicle or other
             conveyance on or entering the highway, and to avoid injury
             to any person or property.

      Defendant’s tires may have spun when he accelerated through the green light

and the back end of Defendant’s truck may have “fish tail[ed]” when he turned onto

Bearcat Boulevard. However, Officer Gardin admitted that Defendant was able to

maintain lane control the entire time. Defendant’s truck did not make contact with

the sidewalk nor did he fail to stay within his lane of travel. Consequently, there was

nothing illegal about Defendant’s left-hand turn onto Bearcat Boulevard.

      As our Supreme Court has explained, “[a]lthough a legal turn, by itself, is not

sufficient to establish a reasonable, articulable suspicion, a legal turn in conjunction



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                                  STATE V. JOHNSON

                                   Opinion of the Court



with other circumstances, such as the time, place and manner in which it is made,

may constitute a reasonable, articulable suspicion which could justify an

investigatory stop.” State v. Foreman, 351 N.C. 627, 631, 527 S.E.2d 921, 923 (2000).

In this case, the trial court found no “other circumstances” that provided any

justification for the stop. Despite Officer Gardin’s allegation that Defendant was

driving “too fast” after making the turn, he testified that he had no idea how fast

Defendant was actually driving on Bearcat Boulevard, a road with a 35 mile per hour

speed limit.   Nor did he suggest that Defendant was speeding.          Although it is

undisputed that there was snow falling at the time of the stop, Officer Gardin

admitted that he had no trouble driving around in “an older model Crown Vic.”

Nothing that Officer Gardin observed Defendant doing—and nothing that the trial

court found that Defendant had done—constituted unsafe driving, as defined by our

statutes, even factoring in the weather conditions.

      Finally, we note that this Court has held that N.C. Gen. Stats. §§ 20-141(a)

and 20-141(m)—subsections of the “unsafe movement” statute at issue—“establish a

duty to drive with caution and circumspection and to reduce speed if necessary to

avoid a collision, irrespective of the lawful speed limit or the speed actually driven.”

State v. Stroud, 78 N.C. App. 599, 603, 337 S.E.2d 873, 876 (1985).          Similarly,

violations for “unsafe movement” as provided for in N.C. Gen. Stat. § 20-154(a)

involve a movement that “affect[s] the operation of another vehicle.” Cooley v. Baker,



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                                  STATE V. JOHNSON

                                   Opinion of the Court



231 N.C. 533, 536, 58 S.E.2d 115, 117 (1950); see also State v. Ivey, 360 N.C. 562, 565,

633 S.E.2d 459, 461 (2006) abrogated on other grounds by State v. Styles, 362 N.C.

412, 415-16, 665 S.E.2d 438, 440-41 (2008) (holding that the standard for

constitutional stops when an officer believes that a defendant has committed a

criminal offense is reasonable suspicion not probable cause). Here, Defendant’s left-

hand turn onto Bearcat Boulevard did not affect any other traffic or increase the risk

of collision to any other motorists or pedestrians.

      We cannot conclude that Officer Gardin had more than a hunch or generalized

suspicion that Defendant violated N.C. Gen. Stat. § 20-141(a) or any other traffic law.

Therefore, the trial court erred in denying Defendant’s motion to suppress the

evidence obtained as a result of the search.

                                     Conclusion

      Based on the foregoing reasons, we reverse the judgment below and remand

for further proceedings.

      REVERSED AND REMANDED.

      Judges STEPHENS and HUNTER, JR. concur.




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