Opinion
No. COA11–1364.
2012-04-17
STATE of North Carolina v. Timothy Kevin ATWATER, Defendant.
Roy Cooper, Attorney General, by Marc X. Sneed, Assistant Attorney General, for the State. Ryan McKaig, for defendant-appellant.
Appeal by defendant from judgment entered 13 June 2011 by Judge Lindsay R. Davis, Jr., in Alamance County Superior Court. Heard in the Court of Appeals 9 April 2012. Roy Cooper, Attorney General, by Marc X. Sneed, Assistant Attorney General, for the State. Ryan McKaig, for defendant-appellant.
MARTIN, Chief Judge.
Timothy Kevin Atwater (“defendant”) appeals from a judgment entered 13 June 2011 upon his guilty plea to felony possession of cocaine. We affirm.
On 9 September 2010, at approximately 1:00 a.m., Officer B.C. Modlin of the Graham Police Department responded to a call regarding a possible disturbance. Officer Modlin spoke with Ms. Heather Walston, who complained that Michael Parrish had knocked on her door on multiple occasions that night. Ms. Walston stated that Mr. Parrish came to her home that night in a vehicle, and as she was describing the vehicle it drove past her house. Ms. Walston identified the vehicle to Officer Modlin, who stated that the vehicle slowed down and looked like it was about to pull into Ms. Walston's driveway, but it then “cut back to the left and proceeded to go down [the road] at a high rate of speed” when the driver noticed Officer Modlin's patrol car in the driveway. Officer Modlin finished taking Ms. Walston's statement and then got into his patrol car and drove after the vehicle. Once Officer Modlin saw taillights in the distance, he turned on his blue lights and siren and proceeded to go after the vehicle.
Officer Modlin caught up to the vehicle, but the driver initially did not stop. Officer Modlin stated the driver was weaving erratically as he drove and ran two stop signs, before coming to a stop over half-a-mile from where the chase began. Officer Modlin spoke to defendant, who was driving the vehicle, and discovered defendant's driver license had been revoked. Officer Modlin arrested defendant for driving while his license was revoked. A subsequent search uncovered cocaine in defendant's possession, for which defendant was charged.
Defendant filed a motion to suppress the discovery of the cocaine, arguing that Officer Modlin lacked reasonable suspicion that a crime had occurred or was occurring when he stopped defendant. After a hearing, the trial court denied defendant's motion to suppress. Defendant subsequently entered a guilty plea to felony possession of cocaine, while specifically reserving his right to appeal the denial of his motion to suppress. Defendant gave notice of appeal in open court from the judgment entered against him.
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Defendant's sole argument on appeal is that the trial court erred in denying his motion to suppress because the stop of his vehicle was supported by neither probable cause nor reasonable, articulable suspicion. Defendant contends that he was seized when Officer Modlin activated the blue lights on his patrol car, and at that moment Officer Modlin had no reason to believe that any crime was underway. Thus, defendant argues the stop of his vehicle by Officer Modlin violated his constitutional rights to be free from unreasonable searches and seizures. Defendant's argument is misplaced.
Defendant is correct that the activation of the blue lights on a police vehicle is a factor to be considered when determining whether a person has been seized by the police. State v. Baker, ––– N.C.App. ––––, ––––, 702 S.E.2d 825, 832 (2010). However, the United States Supreme Court has held that a defendant is not seized upon a mere exhibition of authority by police officers where the defendant does not relent to their authority. California v. Hodari D., 499 U.S. 621, 626, 113 L.Ed.2d 690, 697 (1991). Where the defendant does not yield to a show of authority by the police, the defendant is not seized for the purposes of the Fourth Amendment until the officers physically restrain the defendant or the defendant submits to their authority. Id.
Here, defendant did not stop upon Officer Modlin's activation of his patrol car's blue lights. Defendant fled from Officer Modlin at a high rate of speed, drove erratically, and ran two stop signs. Regardless of whether Officer Modlin had a reasonable suspicion that defendant was involved in criminal activity prior to turning on his blue lights, defendant's subsequent actions gave Officer Modlin reasonable suspicion to stop defendant for traffic violations. See State v. Styles, 362 N.C. 412, 414–15, 665 S.E.2d 438, 440 (2008); see alsoN.C. Gen.Stat. § 20–140 (2011) (providing that operation of a motor vehicle “carelessly and heedlessly in willful or wanton disregard of the rights or safety of others” or “without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property” is a Class 2 misdemeanor); N.C. Gen.Stat. § 20–158(b)(1) (2011) (providing that it “shall be unlawful for the driver of any vehicle to fail to stop” at an intersection where a stop sign has been erected or installed). Accordingly, the trial court did not err in denying defendant's motion to suppress, and we affirm the entry of judgment upon defendant's guilty plea to felony possession of cocaine.
Affirmed. Judges STEELMAN and THIGPEN concur.
Report per Rule 30(e).