State v. Fox

¶1dissenting.

¶2In Delaware v. Prouse, 440 U.S. 648, 663, 59 L.Ed. 2d 660, 673, 99 S.Ct. 1391, 1401 (1979), the United States Supreme Court held that

. . . except in those situations in which there is at least ar-ticulable and reasonable suspicion that a motorist is unli*696censed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver’s license and the registration of the automobile are unreasonable under the Fourth Amendment.

¶3Believing that the majority has failed properly to consider the application of Prouseto the facts of this case, I dissent.

¶4To reach its conclusion that Officer Bryant had a reasonable suspicion that defendant might be engaged in criminal activity, the majority relies on State v. Tillett and State v. Smith, 50 N.C. App. 520, 274 S.E. 2d 361, appeal dismissed 302 N.C. 633, 280 S.E. 2d 448 (1981). The Tillett and Smith Court relied upon State v. Thompson, 296 N.C. 703, 252 S.E. 2d 776 (1979). Significantly, Thompsonwas decided eleven (11) days before Prouse,1 and Tillett and Smith is factually distinguishable from the case sub judice.

¶5There was an arguable basis for stopping Tillett and Smith —Officer Wagner “did not observe an inspection sticker on the vehicle,” 50 N.C. App. at 521, 274 S.E. 2d at 362, as is required by G.S. 20-183.2(a). In the case sub judice, the majority correctly points out that Officer Bryant “did not observe any traffic or equipment violations,” ante p. 2. Further, in Tillett and Smith, Officer Wagner “approached the vehicle, asked the driver of the vehicle what he was doing[,] . . . shined his flashlight into the vehicle and” simultaneously observed, in Officer Wagner’s opinion, marijuana. 50 N.C. App. at 522, 274 S.E. 2d at 362. In the case sub judice, Officer Bryant observed nothing about defendant to justify the intrusion.

¶6I am particularly concerned that the majority deems significant the fact that the “[defendant was dressed shabbily but drove a ‘real nice’ 1981 Chevrolet” and that the defendant “did not stop to ask directions, or otherwise communicate with the officer, though he drove within two feet of Officer Bryant, and appeared to avoid his gaze.” The majority’s reasoning subjects most people *697on late-night (or even weekend) errands to the grocery store to police detention. The law has yet to deem shoulder-length braids on males or any other non-mainstream lifestyle, even while worn in a Chevrolet, as grounds for suspicious inference. Compare United States v. Brignoni-Ponce, 422 U.S. 873, 45 L.Ed. 2d 607, 95 S.Ct. 2574 (1975), in which the Supreme Court rejected the Border Patrol’s argument that it was lawful to stop cars late at night near the border because the occupants appeared to be of Mexican descent. Further, to construe a “cock” of the head as an intent to avoid a gaze (of the officer) rather than a glare (of the oncoming cruiser’s headlights) is to “invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, . . .” Terry v. Ohio, 392 U.S. 1, 22, 20 L.Ed. 2d 889, 906, 88 S.Ct. 1868, 1880 (1968).

¶7Officer Bryant himself testified that he thought defendant may have been lost. Based on Delaware v. Prouse, I do not believe Officer Bryant had a reasonable and articulable suspicion that criminal activity was afoot when he observed defendant driving slowly from a dead-end street “of locked businesses previously fraught with property crime.” Ante, p. 4.

¶8In my opinion, the defendant’s motion to suppress the evidence should have been allowed.