State v. Otto

Justice NEWBY

concurring.

I agree with the majority that there was reasonable, articulable suspicion to stop defendant’s vehicle. In my view, however, defendant’s constant and continuous weaving standing alone is sufficient to support such a conclusion.

A law enforcement officer may conduct an investigatory stop when there is “a reasonable, articulable suspicion that criminal activity is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123, 120 S. Ct. 673, 675, 145 L. Ed. 2d 570, 576 (2000) (citing Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884, 20 L. Ed. 2d 889, 911 (1968)). As this Court has explained:

Reasonable suspicion is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence. The standard is satisfied by some minimal level of objective justification. This Court requires that [t]he stop ... be based on specific and articulable facts, as well as the rational inferences from those facts, as viewed through the eyes of a reasonable, cautious officer, guided by his experience and training.

*139State v. Styles, 362 N.C. 412, 414, 665 S.E.2d 438, 439 (2008) (alterations in original) (internal citations and quotation marks omitted).

A criminal act need not occur before an officer may initiate a stop. In Terry v. Ohio, the law enforcement officer observed lawful conduct, “a series of acts, each of them perhaps innocent in itself, but which taken together warranted further investigation.” Terry, 392 U.S. at 22, 88 S. Ct. at 1880-81, 20 L. Ed. 2d at 907. Furthermore, the reasonable suspicion standard is a “commonsense, nontechnical conception[ ] that deal[s] with ‘ “the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians act.” ’ ” Ornelas v. United States, 517 U.S. 690, 695, 116 S. Ct. 1657, 1661, 134 L. Ed. 2d 911, 918 (1996) (quoting Illinois v. Gates, 462 U.S. 213, 231, 103 S. Ct. 2317, 2328, 76 L. Ed. 2d 527, 544 (1983) (quoting Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 1310, 93 L. Ed. 1879, 1890 (1949))).

In this case, Trooper Smith followed behind defendant “for approximately three-quarters of a mile, during which time Trooper Smith observed the vehicle weaving constantly and continuously within the width of the travel lane.” That alone provides the minimal level of objective justification required for reasonable suspicion. The specific and articulable fact that defendant weaved “constantly and continuously” for three-quarters of a mile is sufficient to cause a reasonable and prudent officer to infer that defendant may be driving while impaired. See Terry, 392 U.S. at 22-23, 88 S. Ct. at 1880-81, 20 L. Ed. 2d at 907 (concluding that a series of lawful acts, while seemly innocent in isolation, can warrant investigation when taken together); see also, e.g., State v. Barnard, 362 N.C. 244, 248, 658 S.E.2d 643, 645, cert. denied, 555 U.S. 914, 129 S. Ct. 264, 172 L. Ed. 2d 198 (2008) (holding that a defendant’s singular, but prolonged, delay in response at a green traffic signal gave rise to reasonable suspicion of criminal activity). While constant and continuous weaving within defendant’s own lane could be innocent, lawful conduct, it also gives rise to reasonable suspicion that defendant is driving while impaired. Thus, there was reasonable, articulable suspicion for Trooper Smith to stop defendant’s vehicle.

Although unnecessary to resolve this case, I believe the trial court had sufficient evidence to find that Trooper Smith “knew” when he stopped defendant’s vehicle that Rock Springs Equestrian Center served alcohol. Under common-usage definitions of the word “know,” actual certainty or first-hand knowledge is not required. See Random House Webster’s College Dictionary 750 (1991) (defining “to know” *140as “to be cognizant or aware of’ or “to be acquainted or familiar with (a thing, place, person, etc.)”). Further, this is a matter on which our Court should defer to the trial court. See, e.g., Ornelas, 517 U.S. at 699, 116 S. Ct. at 1663, 134 L. Ed. 2d at 920-21 (pointing out that a reviewing court should give due weight to inferences drawn from facts by resident judges and local law enforcement officers since a trial judge views the facts “in light of the distinctive features and events of the community” and a law enforcement officer views the facts “through the lens of his police experience and expertise”).

In any event, defendant’s constant and continuous weaving standing alone is sufficient to support reasonable suspicion.

Justice JACKSON joins in this concurring opinion.