Criminal Practice – Search & Seizure – Flagged Down Motorist – Voluntary — DWI

State v. Wilson (Lawyers Weekly No. 011-407-16, 18 pp.) (Linda Stephens, J.) (Chris Dillon, J., dissenting) Appealed from Alamance County Superior Court (Michael O’Foghludha, J.) N.C. App.

Holding: Defendant was not seized within the meaning of the Fourth Amendment when a police officer, standing alone in the street with no weapon drawn, flagged down defendant’s truck.

We affirm the trial court’s denial of defendant’s motion to suppress the evidence of impaired driving that was obtained from the officer’s encounter with defendant.

The officer was in the neighborhood attempting to serve an arrest warrant at a particular house. He flagged down defendant – whom he did not suspect was the wanted individual – as he drove away from the house.

Defendant stopped and rolled down his window. The officer immediately smelled alcohol, and defendant was subsequently arrested for driving while impaired.

A seizure occurs only when an officer, by means of physical force or show of authority, in some way restrains the liberty of a citizen.

The fact that defendant was in a truck while the officer was on foot and not blocking the road indicates that defendant’s movement was not restricted. The officer was alone on the scene, he did not draw his weapon, and his patrol car’s lights and sirens were off.

The officer did not touch defendant or use any language or tone which would indicate that compliance with his request would be compelled. The presence of a single police officer waving his hands in the road is a less authoritative display than a patrol car driving parallel to a pedestrian, which has been held insufficient to constitute a seizure.

Defendant argues that he was compelled to stop by G.S. § 20-114.1(a), which obligated him to “comply with any lawful order or direction of any law-enforcement officer or traffic-control officer … which order or direction related to the control of traffic.” We disagree.

The officer’s hand motion was not related to the control of traffic nor were there any circumstances which would indicate to a reasonable person that the officer was acting as a traffic control officer. Thus, this is not a factor which would indicate to a reasonable person that he was not free to leave the encounter.

Affirmed.

Dissent

(Dillon, J.) Defendant’s encounter with the officer was a Fourth Amendment seizure. Any reasonable motorist in defendant’s position – seeing a uniformed officer standing next to a marked patrol car waving his arms, gesturing to the motorist to stop – would feel compelled to stop, as defendant did. The subjective intent of the officer is irrelevant in this analysis.

However, the fact that the officer had no reasonable suspicion that defendant was involved in criminal activity does not necessarily mean that the seizure was unconstitutional. In some circumstances, an officer may conduct an “information stop” of a random passing motorist as part of an investigation of the area. Illinois v. Lidster, 540 U.S. 419 (2004).

The safety of our law enforcement officers is a matter of grave public concern. So too is the proper and timely execution of arrest warrants.

The officer’s stop of defendant might advance these public interests. The trial court needs to make additional findings to balance these public interests against defendant’s constitutionally protected interests.

Accordingly, my vote is to vacate the trial court’s order and remand the matter for more findings concerning the reasonableness of the seizure.