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Traffic stop OK despite male-female mix-up

A police officer who pulled over a car to look for a man driving without a license but instead found a woman who smelled of alcohol was justified in detaining the woman for sobriety testing, the North Carolina Court of Appeals has ruled.

Officer Shaun Henry had run the plate number of a vehicle that had passed by and saw that the vehicle’s owner was a man with a suspended license. He stopped the car and saw that the driver was actually a woman. Henry quickly noticed red flags–fumbling, slurred speech, odors of alcohol–that the driver, Barbara Jean Myers McNeil might be intoxicated. Henry conducted a field sobriety test and ultimately charged McNeil with DWI.

Before trial, McNeil moved to suppress the evidence of anything that happened after Henry approached the car and could tell that she was a woman. She argued that the reason for the stop was to determine whether a male with a suspended license was driving, and by not letting her go, Henry had extended her detention in violation of her Fourth Amendment rights. Wake County Superior Court Judge Elaine O’Neal denied the motion, and a jury convicted McNeil of DWI.

McNeil appealed the denial of her motion, but on Nov. 20, a unanimous Court of Appeals panel affirmed, saying that officers may conduct certain unrelated checks during an otherwise lawful traffic stop so long as they don’t prolong the time reasonably required to complete the “mission” of the stop. It rejected McNeil’s content that Henry’s mission was limited to verifying that the male listed as the owner of the car was not driving the vehicle.

“Because Officer Henry developed reasonable suspicion of a new offense while he was in the process of completing his original mission in stopping defendant’s vehicle, the Fourth Amendment clock was in essence ‘re-set’ so as to permit him to extend the detention in order to inquire about that new violation,” Judge Valerie Zachary wrote for the court.

Zachary said that McNeil’s argument was based on an erroneous assumption that a police officer can discern the gender of a driver from a distance based simply upon outward appearance.

“Not all men wear stereotypical ‘male’ hairstyles, nor do they all wear ‘male’ clothing,” Zachary wrote. “The driver’s license includes a physical description of the driver, including ‘sex.’ Until Officer Henry had seen Defendant’s driver’s license, he had not confirmed that the person driving the car was female and not its owner.”

Judge Hunter Murphy dissented based on jurisdictional grounds.

Follow Bill Cresenzo on Twitter @bcresenzonclw

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