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      While the Republican majority in the North Carolina Legislature might be composed of Tea Party bigots appealing to their Neanderthal base, they’re not completely stupid.  They know how to whip the ignorant mob (who would actually benefit from progressive policies) into an indignant frenzy – all the while keeping that mob poor, ignorant and self-destructive.  […]
    • HB2: WHAT A DISGRACE. March 29, 2016
      REPUBLICANS: YOUR MASTERS ARE NOT HAPPY WITH YOU BUT PHIL ROBERTSON LOVES YOU. In case you missed it, my fellow freedom-fighters, last Wednesday, the Tea Party leadership in the North Carolina Legislature called a special session of the General Assembly at a cost of about $42,000.00 of North Carolina tax-payer money.  What crisis, you may […]
    • Moral Monday Round Two February 27, 2016
      This week I was privileged to represent two defendants from the most recent Moral Monday arrests at the North Carolina General Assembly’s Rotunda (North Carolina’s Forum ,if you will) .  These two cases were the first cases that the State of North Carolina called for trial stemming from the 2015 Moral Monday demonstrations against the […]
      (THANKS TO THE LATE ANTONIN SCALIA FOR ACTUALLY PENNING SOME DECISIONS THAT WERE CORRECT.  R.I.P., I GUESS.) The following is based on actual events. Any resemblance to real persons, living or dead, is purely coincidental (How do these two disclaimers live with each other?) As we all know, there is no such thing as a […]
    • BLOOD TESTS January 26, 2016
      ADMISSIBILITY GOVERNING CHEMICAL ANALYSES; ADMISSIBILITY; EVIDENTIARY PROVISIONS; CONTROLLED DRINKING PROGRAMS A 1. 20-139.1(c1) ADMISSIBILITY A. NOTICE AND DEMAND. 1. WHEN THE STATE WANTS THE EVIDENCE INTRODUCED. NCGS 20-139.1(c1) is the notice and demand requirement that exists for the purpose of curing the confrontation clause problem facing the State whe […]
    • CHECKPOINTS ARE TERRIBLE. January 22, 2016
      IF YOU’RE A CRIMINAL DEFENSE LAWYER AND YOU’RE NOT CHALLENGING CHECKPOINTS, YOU’RE NOT A CRIMINAL DEFENSE LAWYER. 1. INTRODUCTION Challenging checkpoints requires, initially, a two-prong analysis: first, the checkpoint’s constitutionality on its face; and, second, its constitutionality as applied. The mistake that many defense lawyers make is looking at the […]
      NON-STATUTORY AGGRAVATING FACTORS There is no such thing as a non-statutory aggravating factor. I repeat: There is no such thing as a non-statutory aggravating factor. All together now: There is no such thing as a non-statutory aggravating factor. NCGS 20-179(d)(9): “Any other factor that aggravates the seriousness of the crime.” This is the catch-all under […]
    • HAPPY NEW (RELIGION-FREE)YEAR January 3, 2016
      My hopes for 2016, my loyal followers, are for a year in which secularism replaces sectarianism, sanity replaces stupidity, reason replaces religion. 2015 has been a fascinating year.  It has highlighted the blight on our country of senseless gun-violence.  While people are being killed daily by guns that are not for hunting and exist for […]
    • Congratulate Me On My New Website December 29, 2015
      http://www.theraleighcriminallawyer.com.  and while you’re at it, visit my DWI website, http://www.TheRaleighDWILawyer.com.
    • I HAVE TWO REVIEWS; THEY’RE BOTH BAD November 11, 2015
      Those pesky reviews. As the lawyer with the highest number of pending DWI cases in Wake County, North Carolina, I marvel at the fact that I have only two reviews.  How, I wonder to myself, do all these other lawyers have so many reviews?  Why, I ponder, do I seem to attract clients who don’t […]

Rugby World Cup 2015

My take on the RWC2015 so far.  After my initial disgust over the banning of bagpipes at all of the RWC venues, I decided to adopt the measured and philosophic attitude of the Scottish players.  But I will comment:  I started going to Scottish rugby International rugby matches in the  mid 1970’s, and have been watching rugby games live and on television all my life.  The sound of the bagpipes has always been a part of the Scottish rugby scene just as it is part of the Scottish football scene.  But rugby fans, unlike their football counterparts, are social and friendly; fans are not separated in the stands; the banter – or craic – between fans of the opposing teams is playful and joyous without taking anything away from the passion they feel for their team – especially when talking about their national teams, or, as rugby people say, international teams. And when the unmistakeable sound of the bagpipe’s drone signals the wail or skirl of the chanter, the faces of all the fans light up – the Scots in pride, the opponents in delight.  Its a delight in hearing a sound so identified with Scotland.  It’s the same delight I feel when the Welsh fans sing.

And the stated reason for the no-bagpipes edict: something about “compromising the spectators’ enjoyment.”  I’ll end my comment on that subject and move onto the RWC itself.

This World Cup has gotten off to a cracking start. Undoubtedly the biggest story of the opening salvo of matches was Japan’s stunning victory over two-time World Cup Champions South Africa (34 – 32). This was no fluke either; Japan played clinical, brave and inspired rugby; South Africa looked disorganized. The biggest game so far has been England v. Wales in what has to be this RWC’s group of death (Australia, Fiji and Uruguay fill out this group – only the top two go through). Wales won 28 – 25 at Twickenham – Twickenham is to English rugby what Wembley is to English football. A huge victory for Wales; a devastating blow to England. The USA were disappointing in the their opener to Samoa losing 25 – 16. They then lost to Scotland 39 – 16, having led 13 – 6 at the half.  Scotland, who also beat Japan 45 – 10 now sit top of that table, and face South Africa, who manhandled Samoa 46 – 6, next.  The best game so far has been Italy v. Canada; Canada lost 23 – 18 in a game in which Canada led in every statistic as well as playing the more aggressive, open, attractive rugby, and deserved to win.  Georgia’s defeat of Tonga was a fantastic game.  The All Blacks’ 26 -16 victory over Argentina was no surprise, but Argentina’s continued rise in world rugby can’t be ignored; their dismantling of Georgia, 54 – 9, is testament to that. The disparity in world rugby is shrinking, and that’s a very good thing.

New Zealand are clearly the favourite to win the World Cup.  They are the best rugby team in the world. They’ve already played their toughest game – Argentina – in their pool and beaten Namibia 54 – 14.  Georgia and Tonga are next.  New Zealand will win Pool C and face Pool D’s runner up – my guess  is that Ireland will win Group D and France will be the runner up. I see the All Blacks in the final versus either Australia or Ireland. I hope I’m wrong.  But if I’m right I hope Ireland win.  But I don’t expect that to happen either. If Scotland can’t win, then I want Argentina, then the USA, then I start getting realistic but still with a certain bias.

The stadium-selection for this RWC is perfect. In addition to the rugby mega-stadiums of Twickenham  and Millenium Stadium in Cardiff, Wembley is the venue for a number of games  (more than 89,000 showed up for the Ireland v Romania match!).  And smaller, more intimate stadiums have been chosen to maximize atmosphere, such as Kingsholm in rugby-mad Gloucester; Sandy Park, the home to possibly the English Premiership’s most exciting team the Exeter Chiefs; and some football parks: Elland Road, Leeds’ storied football stadium; St. James’s Park; Villa Park; as well as other less well-known but fun and interesting venues all over England.  The crowds have been fantastic at every game with massive traveling fans (most of my friends are there right now) and local English fans backing the underdogs and cheering them on with renditions of “Swing Low Sweet Chariot.”

The National Anthems, sung by (or “supported by,” as the PA announcers say) choirs local to the area, are wonderful.

As for up-coming pool games: for entertainment, I’d keep an eye out on Tonga v. Namibia, Canada v. Romania, Namibia v. Georgia, USA v. Japan, Samoa v. Japan; for big games: Scotland v. South Africa, England v. Australia, Wales v. Australia, France v. Ireland. If I don’t mention Samoa v. Scotland, then I jinx Scotland. If Scotland play as they did in their warm-up games, they should beat Samoa; if they play as they did in the first half of the USA game, they’ll lose.

If you were expecting a blog-post about the law, bad luck. Go read five statutes and some case law. Rugby is my passion.


(Bida Manda is the best restaurant in Raleigh)

Before coming to the infinitely sensible decision to hire me to represent you on your criminal case and while you’re “shopping around” for a lawyer, you may encounter lawyers who will tell you that such and such lawyer is too busy and has too many clients. This is utter shit.  It’s a lie,  It’s a ploy by a lawyer who doesn’t have enough clients to convince you to hire him on the theory that so and so won’t give your case the attention that he will.  You then, on this desperate lawyer’s advice, call those lawyers with “too many clients” to find out how many open cases they have, how many cases have they opened this year, how many pending DWI’s they have, that sort of thing.  The irony is, you should ask those questions but not for the scare-tactics reasons given to you by the lawyer with no clients. but to help you whittle down your search to those lawyers with the biggest caseloads.

You want the busiest lawyer in town representing you.  You don’t want the guy who doesn’t have enough clients.  You want to eat at Bida Manda.  You don’t want to eat at Batistella’s.

Bida Manda is the best restaurant in downtown Raleigh (and probably the best in all of Raleigh). And it’s a Laotian restaurant . As in from Laos.  Bida Manda is so busy you have to make reservations for lunch.  Bida Manda serves food late and is packed all night long. Their cocktails are fantastic. Their service is top notch.  And did I mention the food?  SMH-ingly fantastic.l.  Go often and order everything at least once. Their signature dish, to me, is the Porkbelly Soup; it is absolutely incredible.  If you go only once, get the Porkbelly Soup. It’s all great.  Every time.

Oh dear.  Batistella’s on the other hand, fifty yards up the road, is, and I say this unapologetically, the worst restaurant in downtown Raleigh (but probably not the worst in all of Raleigh – so there’s something).  Batistella’s is a New Orleans-themed restaurant in a perfect corner location.  The interior is great, a kind of open kitchen.  Cool place. And absolute shit.  Gordon Ramsay needs to do an episode of  Kitchen Nightmares there. If they’re not ignoring you for an hour because you have three children, on a different occasion they’re telling four hungry lawyers that they close at two for lunch and you’re too late. And it’s one o’clock.  If they’re not telling you they’re out of diet coke, they’re telling you they’re out of ketchup for your fries. What a shame.  When it first opened, it had tons of promise, and their Gumbo was good. . But it seems that someone has given up.  It’s a terrible restaurant, And has a fraction of the customers their neighbour Bida Manda, has.

So which one do you choose?

Of course you’re going to choose Bida Manda.  You need to choose your lawyer among the Bida Mandas of what we do, and not the Batistella’s.  Youre not going to get a better dish at Batistella’s because they make fewer dishes than you are at Bida Manda because they make more.

Consider this too:  A lawyer with a heavy caseload can more easily pick and choose where he wants to be; if he sees that your case is in a courtroom with a judge who that lawyer knows is not good for the issues in your case, he can go into any number of other court rooms and deal with his cases in those court rooms; he can avoid the bad situation for you in a way that the lawyer with only one case that day can’t – that lawyer is stuck in the one courtroom he doesn’t want to be in with no excuse for being somewhere else.  Think about that when the pathetic little worm tells you that John McWilliam has too many clients.


On June 15, 1215, at Runnymede, the Earls and Barons of England forced King John to affix his seal to “one of the most important legal documents in the history of democracy,” Magna Carta or the Great Charter. The Right Honourable The Lord Denning, Master of the Rolls from 1962 to 1982, described Magna Carta as the “greatest constitutional document of all times – the foundation of the freedom of the individual against the arbitrary authority of the despot.” Franklin Delano Roosevelt declared in his 1941 Inaugural Address, “The democratic aspiration is no mere recent phase in human history … It was written in Magna Carta.”

Stirring stuff. And complete rubbish. There is nothing remotely approaching democracy or the freedom of the individual in Magna Carta. But I do appreciate Roosevelt’s correct omission of the definite article. Like hoi poloi, Magna Carta is not preceded by “The.” And that’s the only thing Magna Carta and hoi poloi have in common. The masses, the public, the multitude, the rank and file, what we now call the middle class were never meant to be the beneficiaries of the “rights” guaranteed by Magna Carta. The titled, landed gentry were – you know, today’s one percent. Magna Carta is no more a declaration of the common man’s rights than is the whining privately-educated schoolboy’s (like me) complaint that the head prefect has more privileges than the lower prefects. Magna Carta was class-warfare among the elite.

Following all the greetings, a listing of the endless titles held by John, supplications to God and his servants on earth, references to this constable and that seneschal, we have: “To All Free Men Of Our kingdom…” Sounds good (unless you happen to be a woman or not a free man). To be clear, the free men to be protected by Magna Carta were in fact a tiny minority of the English population at the time – titled men who owned property. Magna Carta was designed to do nothing more than codify the feudal system that already protected the rights and property of the small number of powerful families that, through good fortune or violence or both, happened to sit atop the rigid feudal system. Magna Carta didn’t advance democracy; it retarded democracy. It legislated the status quo that kept the vast majority of Englishmen and women enslaved and the powerful in power.

Article 6 of this to-be-much-revered document prohibits heirs of any earl or baron from marrying someone of a lower social standing. But, to be fair, Article 7 is kind enough to allow a widow to remain in her husband’s house for 40 days after his death.

Articles 10 and 11 liberate Jews from the burden of collecting debts from the estates of people who die owing them money.

Article 21 stipulates that earls and barons will be fined only by their peers. Now we know why “peers” has come to mean both one thing and its opposite (like “cleave”): our superiors and our equals – a Peer of the Realm – a jury of his peers.

Articles 38, 39 and 40 are very nice and are the three remnants of Magna Carta that get American lawyers all a-twitter and falling all over themselves in fawning adulation. Article 38 describes the corpus delicti rule; Article 39 deals with due process; Article 40 tells us that justice will not be denied, delayed or sold. All of which, we have the Romans to thank for. And the Romans, for all their faults, at least applied these principles in all cases, not just for those out of society’s top drawer. Just like today!

There are lots of fascinating forest rights to read about in Magna Carta depending on whether you’re reading the original version (you’re not, it doesn’t exist), or Henry III’s 1216 version, or the 1217 version, or the 1225 version, or even Edward I’s 1297 version. In any event, I’m sure the common man of 1215 was much relieved to know that his overlord could still hunt the land on which he lived – unlike yon afore-mentioned common man who would be branded a poacher, forced to admit to his wrong-doing with no “credible witnesses to the truth of it” (Article 38), and be denied the right to due process and a trial, because those rights belong only to his master.

So happy 800th birthday, MC, you’re not that important. I do, however, look forward, in five years’ time, to celebrating the 700th anniversary of an inspired, inspiring and relevant document that truly champions freedom, Jefferson’s inspiration, and the battle-cry of at least one modern country’s desire and destiny of Independence still: The Declaration of Arbroath.


What a gripping title! This post raises the question of whether evidence obtained as a result cops’ good faith mistakes of fact or law will survive motions to suppress. And the answer is:  It depends; which Constitution are you arguing under?

In the last few months, criminal defense lawyers across the country collectively moaned a moan of moanly pain in light of the abomination known as  Heien v. North  Carolina.  In Heien, the  United Supreme Court decided that the theory of reasonable mistakes of fact by law enforcement not being subject to suppression should be extended to cops’ reasonable mistakes of law.  In other words, while “ignorance of the law” is no excuse for a citizen who unwittingly breaks the law, it is an excuse for a cop – the very person who we would expect to know the law – to justify his unwitting breaking of the law.

It is settled law that, for example, a cop who makes the mistake of fact that a driver is not wearing his seatbelt (but who is in fact wearing his seatbelt) and who pulls that person over will not be deemed to have acted unreasonably if the mistake of fact was reasonable.  And if the officer then develops probable cause to search the car and finds a kilo of cocaine, that subsequent search will be deemed reasonable because it was supported by probable cause to search; and the kilo of cocaine will not be suppressed, or excluded, even though the initial seizure of the defendant was based on a mistake of fact. As long as the mistake of fact was reasonable.  His reasonable, or good faith, belief that the properly-seatbelted driver was not wearing his seatbelt, will not result in the subsequent search – if supported by probable cause to search – and the kilo of cocaine being suppressed or excluded. This is the mistake of fact scenario.

This is the mistake of law scenario.  Until Heien v. North Carolina, it has been settled law that the same rule does not apply to mistakes of law.  Mistakes of law are – or were – presumptively unreasonable.  No good faith exception applied in cases where the policeman made a mistake of law.  For example, evidence obtained from a policeman’s stop of a car that is traveling 55 mph in a 55 mph zone that the cop reasonable believed to be in a 35 mph zone will be suppressed.  The mistake of law – however reasonable – will not survive the motion to suppress.  Until Heien v. North Carolina, that is.  Thanks to Heien, the cop’s ignorance of the law will forgive his unlawful action, and any evidence obtained as a result of that unlawful action will not be suppressed or excluded.

In Heien, the policeman stopped a car because it had only one working brake-light.  In North Carolina, it turns out, a car need have only one working brake-light; however, the policeman believed that the law required all brake-lights to be working.  He pulled the car over – for something that is not a violation of the law – and somehow got Mr. Heien to consent to a search his car; that search yielded cocaine somewhere in the car.  Prior to the Heien decision, the policeman’s ignorance of the law – or mistake of law – would not have served as an excuse for his actions, and the cocaine that was seized would have been suppressed (bad stop; cocaine not coming into evidence).  In Heien, the North Carolina Superior Court Judge inexplicably broke with precedent and denied the Defendant’s motion to suppress (good stop; cocaine coming into evidence).  The Defendant appealed to the Court of Appeals, who, relying on precedent,  reversed the Superior Court Judge’s decision (bad stop; cocaine not coming into evidence).  The State appealed to the North Carolina Supreme Court, who (and this happens a lot in North Carolina – our two appellate courts are in a pissing contest with each other), reversed the Court of Appeals decision (good stop; cocaine coming into evidence).  The Defendant appealed directly to the US Supreme Court, who agreed to hear the case.  The US Supreme Court sided with the Superior Court Judge and the NC Supreme Court, and denied the motion to suppress (good stop; cocaine coming into evidence).

I’m not going to comment on that lone employee of the state choosing to create new law, or the politics behind North Carolina’s Supreme Court decision, or the motivations behind the US Supreme Court’s decision. I’m pretty sure I’ve already done that in a prior post. This post deals with the question of whether, even in light of Heien, evidence obtained as a result of a cop’s good faith mistake of law or fact can be suppressed.

In North Carolina, evidence obtained unlawfully but in good faith – whether a mistake of fact or law – .can, and in fact, should be suppressed pursuant to State v. Carter, a 1988 North Carolina Supreme Court case. This case is the landmark case that declares there to be no good faith exception under Article 1, Section 20 of the North Carolina Constitution to the exclusion of evidence obtained by unreasonable search or seizure. I blogged several years ago about the legislature’s attempt to influence the Supreme Court into overturning State v. Carter when it re-wrote NCGS 15A-974 (“Evidence shall not be suppressed under this subdivision if the person committing the violation of the … provisions under this chapter acted under the objectively reasonable, good faith belief that the actions were lawful.”).  According to Carter, whether the reasonable or good faith mistake is one of fact or law, it makes no difference as to the suppression issue; the evidence will be suppressed because the North Carolina Constitution does not recognize a good faith exception to the exclusionary rule.  But, Heien, taken together with the new 15A-974, would seem to signal the end of North Carolina’s bright-line rule that unlawfully-obtained evidence will be suppressed – regardless of good faith.

But not so fast.

State v. Garner, a 1992 North Carolina Supreme Court case states that both the Federal.and North Carolina Constitutions protect the “same fundamental right to be free from unreasonable searches and seizures” – the Fourth Amendment in the Federal Constitution; and Article 1, Section 20 in the North Carolina Constitution.  But while there is a recognized good faith exception to the exclusionary rule under the Federal Constitution, there is no such exception under the North Carolina Constitution (State v. Carter).  And the legislature’s enacting a good faith exception to the exclusionary rule under the re-written version of 15A-974 is meaningless, as that exclusion applies only to motions to suppress pursuant to the statute alone and not the State Constitution.  But a Defendant’s moving to suppress evidence under only the Federal Constitution, opens the door to the good faith exception argument.  It is important, therefore, for defense lawyers to make their motions to suppress evidence that was unreasonably obtained under Article 1, Section 20 of the North Carolina Constitution either in lieu of or at least, in addition to the Fourth Amendment to the Federal Constitution.

Back to Heien v. North Carolina. The Defendant in Heien limited his constitutional argument to the Fourth Amendment, and unfortunately gave the US Supreme Court the opportunity to curtail citizens’ freedom even more than it already was by allowing policemen’s mistakes of law to be forgiven and for unlawfully-obtained evidence to be used against us.  As a North Carolina criminal defense lawyer, I feel I owe an apology to the rest of the country for Heien:  Sorry; we foisted this terrible law on you.  What the Defendant in Heien should have done was moved to suppress the evidence under Article 1, Section 20 of the North Carolina Constitution.  This way, the Fourth amendment would not be relevant as North Carolina’s Constitution and case-law provide greater search and seizure-protection than the the Federal Constitution and case-law do.  Had Heien moved for suppression under the North Carolina Constitution, any appellate court would have been obliged to suppress the evidence as North Carolina’s Constitution does not recognize a good faith exception to the exclusionary rule – whether the mistake was one of fact or law.

Scenario:  A policeman is behind a car in North Carolina; he runs the car’s registration through the Division of Motor Vehicles’ computer system; the information the policeman receives is that there is an insurance lapse on this car and that the license plate must be seized; the policeman stops the car and after talking to the driver becomes suspicious that the driver is impaired; he investigates the possible drunk driving violation and arrests the driver for driving while impaired.  It later turns out that the Division of Motor Vehicles’ information about the insurance lapse was incorrect – there was no lapse.

Issue:  Should the evidence beyond the stop of the car be suppressed?


Well done Court of Appeals:  You got State v. Knudsen right.  The cops had no right to do what they did.  And we’re all better off for it; freedom from governmental interference in our lives has been protected; we can all rejoice in this decision…right GOP?

My thoughts:

1.  This is the problem with these “DWI Task Forces”; they seem to instil a sense of empowerment in the police to do things that they know they can’t do;

2.  Lower level – District Court – judges, too afraid to obey the Constitution lest they lose their mediocre government jobs, rule in favour of the government and let the cops get away with it – only to further empower the cops to do more of it, and do it even more aggressively;

3.  Certain lawyers, too afraid (or incompetent) to try their cases, persuade their clients to plead guilty – to even further empower the cops to keep on fucking with people;

4.  Thank Christ (or whoever) for certain lawyers who are not afraid to fight, and Superior Court judges not afraid to obey the Constitution.

5.  What is the State doing spending our tax-money appealing this piece-of-shit case?

6.  And finally, why do I get the feeling that Republicans would applaud the actions of the cops, the decision of the District Court Judge, and the State’s decision to appeal this case? … And they’re the ones  who claim to want less government in our lives.


State v. Knudsen, 747 SE 2d 641 – NC: Court of Appeals 2013

747 S.E.2d 641 (2013)

STATE of North Carolina,
Eric Lars KNUDSEN.

Court of Appeals of North Carolina.

August 20, 2013. Attorney General Roy Cooper, by Special Deputy Attorney General Robert C. Montgomery and Assistant Attorney General Joseph L. Hyde, for the State.

Rudolf Widenhouse & Fialko, Chapel Hill, by M. Gordon Widenhouse, Jr.; and Ashley Canon, for Defendant-Appellee.

McGEE, Judge.

Eric Lars Knudsen (Defendant) was charged with driving while impaired on 20 July 2011 in violation of N.C. Gen.Stat. § 20-138.1. Defendant pleaded guilty to the charge in Forsyth County District Court on 27 March 2012, and received a sixty-day suspended sentence and twelve months’ unsupervised probation.

On that same day, Defendant filed notice of appeal to superior court. Defendant filed a “Motion to Dismiss for Lack of Reasonable Suspicion” on 27 April 2012, and a hearing was held in superior court on 14 June 2012. A written order was filed on 11 January 2013, in which the trial court held that Defendant was illegally stopped and seized in violation of the Fourth Amendment to the United States Constitution. All evidence resulting from that seizure was suppressed as “fruit of the poisonous tree.”

At the hearing, Officer B.L. Williams (Officer Williams) and Corporal R.A. Necessary (Corporal Necessary), with the Winston-Salem Police Department, testified for the State. The officers’ testimony tended to show the following:

Officer Williams, a bicycle officer with the police department, was on routine patrol in the 500-600 block of North Trade Street in downtown Winston-Salem, on the evening of 28 July 2011. Corporal Necessary was also 644*644 on patrol in that same area in a marked police department vehicle. At approximately 11:10 p.m., Corporal Necessary observed Defendant get into a 2007 blue Volkswagen Rabbit (the vehicle) while holding a cup that looked similar to cups that were commonly used at downtown bars to serve mixed drinks. The vehicle was parked near Finnegan’s, a local restaurant and pub.

Corporal Necessary testified that, as he was driving south on Trade Street, he saw Defendant open the driver’s side door and get into the vehicle, which was parked on the west side of Trade Street, facing south. At this point, Corporal Necessary slowed down drastically, and noticed that the headlights of the vehicle had come on. After passing by the vehicle, Corporal Necessary spotted Officer Williams in the street on his bicycle, facing north. Corporal Necessary stopped, relayed to Officer Williams what he had seen, and asked Officer Williams if he would ride by the vehicle and determine if the cup Corporal Necessary had seen Defendant holding contained alcohol. When Corporal Necessary stopped to talk to Officer Williams, he was very close to the vehicle, roughly a car length and a half away. After speaking with Officer Williams, Corporal Necessary then turned his police cruiser around, passed by the vehicle again, and turned right on Sixth Street.

Officer Williams, riding north on his bicycle in the southbound lane, approached the vehicle and noticed that its lights were on and that the engine was running. Officer Williams was in his police uniform, which included a weapon. According to Officer Williams’ testimony, he rode past the vehicle at an arm’s length distance, and made it obvious that he was looking inside the vehicle. Officer Williams observed two men sitting in the front seat. Defendant, who was sitting in the driver’s seat, was holding a clear, light-colored, Solo-type cup, similar to ones used in downtown bars.

After passing by the vehicle, Officer Williams rode a short distance away and stopped on the sidewalk at an entrance to a parking lot so that he could contact Corporal Necessary and relay what he had just seen. As he was doing so, the two males exited the vehicle, and began walking the short distance down the sidewalk towards Officer Williams. Corporal Necessary, who had been planning on leaving the area, saw Defendant and the other male get out of the vehicle and walk toward Officer Williams. Instead of leaving the area, Corporal Necessary decided to park his police cruiser behind Officer Williams, blocking the entrance of the parking lot in the process. Corporal Necessary testified as follows:

I was actually going to leave the area at that point. And I was traveling extremely slow. [Defendant] and the other white male get out and start walking down the sidewalk towards Officer Williams. When I seen this, I pulled in.

Q. And how close were you when you saw the defendant walking with the passenger on the sidewalk?

A. I’m still in the car on the road, and I turned. It’s kind of hard to explain. I’ll show you. This is the entrance to the parking lot. I’m in this lane. I drove down, faced towards the entrance to the parking lot, at an angle, and stopped and got out.

Corporal Necessary further testified that, when he got out of his cruiser, Officer Williams and Defendant were already talking. Corporal Necessary stayed roughly three to four feet behind Officer Williams and Defendant as they spoke. As Defendant walked towards Officer Williams and was approximately an arm’s length away, Officer Williams asked Defendant, “what do you have in the cup?”

There is conflicting testimony about whether Defendant had the cup in his hands while on the sidewalk. Officer Williams testified that, although he saw the cup in Defendant’s hand while Defendant was in the vehicle, he believed that Defendant did not have the cup with him on the sidewalk. However, Corporal Necessary testified that Defendant did, in fact, have the cup in his hand while he was on the sidewalk. Corporal Necessary further testified that, when Officer Williams asked Defendant what was in the cup, Defendant replied, “water” and handed the cup to Officer Williams, who determined that the cup contained water. Officer Williams stated 645*645 that Defendant’s clothes were not messy, but that his eyes appeared “a little glazy and his face was kind of flush.”

Both Officer Williams and Corporal Necessary admitted that, prior to speaking with Defendant, they did not know where Defendant had been, where he was going, or what was in the cup that had first drawn their attention. Defendant never moved the vehicle and Officer Williams, who testified that he was roughly three feet from Defendant, did not notice any odor of alcohol on Defendant.

Following this testimony, the trial court granted Defendant’s motion. The State appeals.


The issues presented on appeal by the State are (1) whether the trial court erred in its written findings of fact, (2) whether the trial court erred in concluding as a matter of law that Defendant was seized within the meaning of the Fourth Amendment to the United States Constitution, and (3) even if Defendant was seized, whether the trial court erred in concluding that the seizure was unsupported by a reasonable suspicion.


The State first argues that portions of findings of fact numbers eight, nine, and twelve in the trial court’s 14 June 2012 order are erroneous. The scope of review of a suppression order is “strictly limited to determining whether the trial judge’s underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge’s ultimate conclusions of law.” State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982) (citations omitted).

We accord great deference to a trial court’s findings of fact, as it is entrusted with the duty to “hear testimony, weigh and resolve any conflicts in the evidence, find the facts, and, then based upon those findings, render a legal decision, in the first instance, as to whether or not a constitutional violation of some kind has occurred.” Id. at 134, 291 S.E.2d at 619-20. The findings of fact that are not challenged by the State on appeal are binding and deemed to be supported by competent evidence. State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011). For the portions that are challenged, this Court looks to discern whether competent evidence exists to support the finding made by the trial court. If there is competent evidence to support the trial court’s finding, then it is similarly binding on appeal, “even if the evidence is conflicting.” State v. Blackstock, 165 N.C.App. 50, 55, 598 S.E.2d 412, 416 (2004) (citing State v. Braxton, 344 N.C. 702, 709, 477 S.E.2d 172, 176 (1996)). It is with this deference in mind that we analyze the State’s contentions.

The trial court made the following findings of fact relevant to this appeal:

1. On July 28, 2011, at approximately 10:00 p.m. to 10:30 p.m.[,] Officer B.L. Williams was on routine patrol within the city limits of Winston-Salem, N.C. He was working the evening shift in the downtown district of Winston-Salem between the 500 and 600 blocks of North Trade Street. On the date and time in question, Officer Williams was operating a police issued bicycle.

2. While on patrol, Officer Williams met Corporal Necessary who was also on routine patrol. Corporal Necessary was operating a marked patrol vehicle and was working as a member of the Forsyth County Driving While Impaired Task Force.

3. Corporal Necessary told Officer Williams that he thought he had seen an individual walking downtown with a clear cup in his hand and get into his car. Corporal Necessary gave a description of the car and its location and asked Officer Williams to check on this individual. Corporal Necessary did not tell Officer Williams that he believed the Defendant to be impaired. There was nothing about the manner in which the Defendant was walking that gave Corporal Necessary reason to believe that Defendant was impaired. There was nothing about the Defendant’s physical appearance or his dress that gave 646*646 Corporal Necessary reason to believe that the Defendant was impaired.

4. There are a number of bars and eating establishments that serve alcohol in the area where Corporal Necessary observed the Defendant, but Corporal Necessary did not see the Defendant leaving any such establishment.

5. Based on the information supplied by Corporal Necessary, Officer Williams turned his bicycle around and drove against traffic so he could check on the individual and the vehicle described by Corporal Necessary. Officer Williams drove slowly by the vehicle and peered into the inside of the targeted vehicle. The vehicle was occupied by the Defendant who was seated on the driver’s side behind the wheel…. There was conflicting testimony as to whether Officer Williams saw anything in the Defendant’s hand as he drove by. Officer Williams testified he saw a cup in the Defendant’s hand as he was sitting in the car. However, Corporal Necessary testified that Officer Williams told him he did not see anything in the Defendant’s hand as he passed by the vehicle. As Officer Williams looked inside the vehicle, he noted that the Defendant had a cup in his hand. The lights of the vehicle were on and the engine was running.

6. After Officer Williams passed by the Defendant on his police bicycle, the Defendant and the passenger exited the vehicle and began walking down the sidewalk. According to Officer Williams, the Defendant did not have a cup in his hand as he was walking down the street. According to Corporal Necessary, the Defendant did have a cup in his hand as he was walking down the street. Although Officer Williams gave conflicting testimony as to whether he observed the Defendant’s vehicle parked illegally, the Defendant never moved his vehicle and there were no readily observable motor vehicle law violations that occurred in the presence of either Officer.

7. On the question of whether the Defendant has a cup in his hand as he was walking down the street after exiting the vehicle, the Court is of the view that the defendant did have a cup in his hand after he exited the vehicle.

8. After observing the Defendant walk down the sidewalk, Officer Williams moved his police bicycle from the roadway to the pedestrian sidewalk in an effort to initiate contact with the Defendant. The Officer positioned his bicycle in such a way as to block the Defendant’s normal path of travel as a pedestrian on the sidewalk. At the time Officer Williams initiated contact with the Defendant, he was wearing a police uniform with the word, “Police” in reflective tape on the back. On the front of the uniform is a badge with Officer Williams[`] name and the words “Bike Patrol”. The Officer was wearing a helmet with the word “Police” in white decals. The officer was carrying a velcro bag with all the equipment, citations, accident book and other paperwork that an officer would need. The velcro bag also had the word “Police” on it. The officer was dressed for court just as he was dressed on the date and time in question and part of the officer’s dress included a police issued firearm….

9. At the same time that Officer Williams initiated contact with the Defendant, Corporal Necessary pulled his patrol car directly behind Officer Williams. Officer Williams purpose in initiating contact with the Defendant was to make a determination as to whether there was any alcohol in the cup that the Defendant was holding. As the Defendant and his companion were approaching a parking lot, which would have been their normal path of travel, the entrance to the parking lot was blocked by Officer Williams who had dismounted his bicycle. Likewise, Corporal Necessary positioned his marked patrol vehicle at an angle so as to block the entrance to the parking lot.

10. As the Defendant and the passenger approached the parking lot, Officer Williams dismounted his bicycle and initiated contact with Defendant. The contact consisted of asking the Defendant “what is in the cup?” At the time Officer Williams asked the Defendant what is in the cup, he was within arms’ length of the Defendant. At the time Officer Williams asked the 647*647 Defendant what was in the cup, he did not detect any odor of alcohol coming from the cup, nor did he notice an order of alcohol coming from the Defendant. The Defendant handed the cup to Officer Williams and told him it was water. Officer Williams smelled the liquid, and discovered the cup, in fact, contained water.

11. Corporal Necessary pulled in behind the Defendant’s car and did not detect any signs of impairment as the Defendant was walking towards Officer Williams. Corporal Necessary has investigated over 1400 driving while impaired cases since 1989.

12. The Defendant was stopped only because he was walking on the sidewalk with a cup in his hand with clear liquid in it and the officers wanted to know what was in the cup.[1] (original footnotes omitted).

The first challenged finding of fact is a portion of finding of fact number eight, which states in relevant part: “[Officer Williams] positioned his bicycle in such a way as to block … Defendant’s normal path of travel as a pedestrian on the sidewalk.” The testimony presented at the motion hearing regarding the position of Officer Williams and his bicycle on the sidewalk consisted of the following:

Officer Williams testified that, after riding past the Defendant’s vehicle and looking inside, “I turned around and straddled my bicycle, right at the entrance to the parking lot.” Officer Williams testified that he stopped at the entrance to the parking lot to “be able to contact Officer Necessary to let him know I did see the vehicle he had in question and I could see the two individuals in it.” Officer Williams then testified: “While all that was transpiring, [Defendant and his companion] exited the vehicle and started walking north on Trade Street towards my direction. I dismounted my bicycle, had my bicycle on the sidewalk.” As Officer Williams was clarifying his testimony, he stated further:

When I got down to the parking lot … and stopped my bicycle, they got out of the [vehicle] then, when I stopped down at the parking lot. They got out of the vehicle, got on the sidewalk, and walked towards me, down towards my location. And when they got to my location, I asked [Defendant], “What do you have in your cup?” And he said, “Water.”

Officer Williams also stated: “I was astraddle of my bicycle when they walked down the street towards me.”

Regarding the positioning of the bicycle on the sidewalk, Corporal Necessary testified that “Officer Williams … was straddling his bicycle at some distance behind … [Defendant’s vehicle], probably two or three car lengths behind the [vehicle], next to the sidewalk at an entrance to the parking lot.”

This testimony serves as competent evidence to support finding of fact number eight. Both officers testified that Officer Williams and his bicycle were on the sidewalk and at the entrance to the parking lot. Both officers testified that Defendant and the other male walked on the sidewalk, toward Officer Williams, until they reached Officer Williams, who then questioned Defendant. While there is conflicting evidence concerning whether Officer Williams and his bicycle were next to the sidewalk, or on the sidewalk, at a suppression hearing the trial court is tasked with weighing the testimony and deciding the facts. The trial court enjoys the benefit of live testimony, and we hold that its characterization of the incident, embodied in its findings of fact, represents a fair weighing of the testimony. The State’s contention that there exists no competent evidence to support finding of fact number eight is without merit; thus, we hold that finding of fact number eight is binding on appeal.

The State next challenges finding of fact number nine, which reads in relevant part:

As the Defendant and his companion were approaching a parking lot, which would have been their normal path of travel, the entrance to the parking lot was blocked by 648*648 Officer Williams who had dismounted his bicycle. Likewise, Corporal Necessary positioned his marked patrol vehicle at an angle so as to block the entrance to the parking lot.

We hold that the wording of the first portion of finding of fact number nine is unclear. It is uncertain whether the trial court meant to find that Defendant’s normal path of travel was on the sidewalk and in the direction of the parking lot, or whether the trial court meant to find that the parking lot itself was Defendant’s normal path of travel. To the extent that finding of fact number nine states that Defendant was walking on the sidewalk in the direction of the parking lot, this finding is clearly supported by the evidence and testimony. To the extent, if at all, the trial court intended to find that Defendant’s normal path of travel was the parking lot itself, it is unsupported by competent evidence and is not binding on appeal.

However, we hold that the remaining challenged portions of finding of fact number nine are both clear and supported by competent evidence. Officer Williams testified that he stopped his bicycle at the entrance to the parking lot to be able to contact Corporal Necessary. Corporal Necessary, in stating that he observed Officer Williams straddling his bicycle next to the sidewalk and at the entrance to the parking lot, corroborated this testimony. This testimony is competent evidence that supports the finding that the entrance to the parking lot was blocked by Officer Williams. Likewise, Corporal Necessary testified that, when he saw Defendant get out of the vehicle and begin to walk towards Officer Williams, Corporal Necessary “drove down, faced towards the entrance to the parking lot, at an angle, and stopped and got out.” Corporal Necessary stated that he parked his cruiser “[n]ot in the parking lot,” but rather that his cruiser “was turned at an angle, facing southwest at an angle, with the front of [the cruiser] at the entrance to the parking lot.” This is competent evidence that Corporal Necessary parked his patrol vehicle at an angle and blocked access to the parking lot.

The State next contends that finding of fact number twelve is unsupported by competent evidence. Finding of fact number twelve states that Defendant was only stopped “because he was walking on the sidewalk with a cup in his hand with clear liquid in it and the officers wanted to know what was in the cup.” We hold that, while there was conflicting testimony suggesting that the officers may have taken other factors into account, there was competent evidence to support finding of fact number twelve.

On cross-examination by Defendant’s counsel, Officer Williams answered in the affirmative when asked if “[t]he only thing” he knew about Defendant was “that he had a cup in his hand that [Defendant] said contained water.” Although Officer Williams testified that Defendant’s face appeared flushed, Officer Williams admitted that he did not know why Defendant’s face appeared flushed, did not know where Defendant had been, and did not know where Defendant was going. Similarly, Corporal Necessary admitted that, before Officer Williams asked Defendant what was in the cup, Corporal Necessary did not know where Defendant had come from, where he was going, what he was doing downtown, whether he worked downtown, what was in the cup, or why he had gotten into the vehicle. This testimony was competent evidence upon which the trial court made finding of fact number twelve. This finding is therefore binding on appeal.


The State next argues that the trial court erred by concluding that Defendant was seized within the meaning of the Fourth Amendment. Based on the findings of fact, the following conclusions of law relevant to this appeal were entered by the trial court:

3. On July 28, 2011, … Defendant was unlawfully seized and detained under the 4th Amendment to the United States Constitution because Officer Williams and Corporal Necessary lacked reasonable suspicion to block … Defendant’s normal path of travel as a pedestrian.

6. Based upon the totality of the circumstances faced by … Defendant on the date and time in question, a reasonable person would not have felt free to go about his business and ignore two officers who 649*649 had every intention of stopping … Defendant and making an inquiry as to whether the clear plastic cup containing clear liquid was something other than water.

7. There was no reasonable suspicion to stop … Defendant from traveling down the road as a pedestrian to make inquiry about what may or may not have been in… Defendant’s cup. For purposes of fourth amendment analysis, the action of Officer Williams and Corporal Necessary constituted a show of force and a restraint on … Defendant’s movement such that that [sic] a reasonable person would not feel free to ignore Officer Williams[`] question. The encounter between the two officers and … Defendant was not a voluntary consensual encounter between the police and a citizen. Instead, the encounter in question constitutes a violation of… Defendant’s 4th Amendment right to be free from an unreasonable seizure and subsequent interrogation.

A trial court’s conclusions of law on a motion to suppress are reviewed de novo and are subject to a full review, under which this Court considers the matter anew and freely substitutes its own judgment for that of the trial court. State v. Royster, ___ N.C.App. ___, ___, 737 S.E.2d 400, 403 (2012) (citing State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011)). The conclusions of law “must be legally correct, reflecting a correct application of applicable legal principles to the facts found.” State v. Fernandez, 346 N.C. 1, 11, 484 S.E.2d 350, 357 (1997) (citing State v. Payne, 327 N.C. 194, 208-09, 394 S.E.2d 158, 166 (1990)). We hold that the relevant binding findings of fact support the trial court’s relevant conclusions of law.

The United States Supreme Court has held that a law enforcement officer does not offend the Fourth Amendment merely by approaching an individual in a public place and by putting questions to him. Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229, 236 (1983). However, a person is seized under the Fourth Amendment when, “by means of physical force or a show of authority,” the defendant’s freedom of movement is restrained. State v. Farmer, 333 N.C. 172, 187, 424 S.E.2d 120, 129 (1993) (quoting United States v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870, 64 L.Ed.2d 497, 509 (1980)).

As there was no physical force employed by Officer Williams or Corporal Necessary to restrain Defendant in this case, a seizure occurred if, “taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.” State v. Williams, 201 N.C.App. 566, 569, 686 S.E.2d 905, 907 (2009) (quoting Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389, 400 (1991)) (internal quotation marks omitted).

When there has been no physical force or attempt to leave, examples of circumstances that might indicate a seizure include “the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” Kaupp v. Texas, 538 U.S. 626, 630, 123 S.Ct. 1843, 155 L.Ed.2d 814, 820 (2003) (citing Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877, 64 L.Ed.2d at 509). Several North Carolina Supreme Court opinions have also found the fact that an officer was in uniform to be a significant factor to consider when determining whether a seizure has occurred. See, e.g., State v. Icard, 363 N.C. 303, 310, 677 S.E.2d 822, 827 (2009) (noting that an officer was in uniform while conducting a seizure analysis).

We are mindful of the United States Supreme Court’s holding that an encounter between police and a defendant “will not trigger Fourth Amendment scrutiny unless it loses its consensual nature.” Bostick, 501 U.S. at 434, 111 S.Ct. at 2386, 115 L.Ed.2d at 398. In the present case, the encounter began with Corporal Necessary slowly passing by Defendant’s vehicle, stopping just over a car length beyond, and talking with another officer. Both officers were wearing police uniforms and wore weapons as part of those uniforms. After Corporal Necessary passed by Defendant for a second time, Officer 650*650 Williams, at Corporal Necessary’s request, rode past Defendant’s vehicle against traffic and “made it obvious” that he was looking into Defendant’s vehicle. T10. After observing Defendant walk down the sidewalk towards him and, in an effort to initiate contact with Defendant, Officer Williams rode his bicycle a short distance away, and then moved his bicycle from the street onto the sidewalk. When Officer Williams took this action, he was a short “two or three car lengths away” from Defendant’s vehicle. Upon noticing Defendant get out of the vehicle and start walking towards Officer Williams, Corporal Necessary pulled his police cruiser onto the sidewalk and at an angle to the entrance to the parking lot and, by doing so, blocked the entrance to the parking lot.

Officer Williams was on the sidewalk, with his bicycle, impeding Defendant’s continued movement along the sidewalk. Corporal Necessary, by parking his cruiser behind Officer Williams, with the front of the cruiser at the entrance of the parking lot, he necessarily blocked the sidewalk with his cruiser. Corporal Necessary exited the cruiser and joined Officer Williams on the sidewalk, directly in Defendant’s path of travel. Officer Williams then demanded of Defendant, “what do you have in the cup,” which in the context of the entire encounter constituted “police conduct [which] would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.” Williams, 201 N.C.App. at 569, 686 S.E.2d at 907 (citation omitted).

We also note that, along with the great deference we give to the trial court to hear testimony and find facts, in the present case, the trial court was in a better position to review evidence that is not accessible and reviewable by this Court on appeal; namely, whatever demonstration was given by Corporal Necessary as to the positioning of himself and his police cruiser on the sidewalk.[2] “[I]t is the appellant who has the burden in the first instance of demonstrating error from the record on appeal.” State v. Adams, 335 N.C. 401, 409, 439 S.E.2d 760, 764 (1994) (emphasis in original); see also State v. Milby and State v. Boyd, 302 N.C. 137, 141, 273 S.E.2d 716, 719 (1981) (holding that the appellant must “make the irregularity manifest” before it can be considered a basis for prejudicial error). It is the State, as appellant, who has the burden to make any alleged errors by the trial court part of the record on appeal and thus reviewable by this Court. In absence of such evidence, an appeal will fail “to overcome the presumption of correctness at trial.” State v. Ali, 329 N.C. 394, 412, 407 S.E.2d 183, 194 (1991).

We hold that the totality of the circumstances, discernible from the record on appeal, shows no error by the trial court in concluding that Defendant was seized within the meaning of the Fourth Amendment to the United States Constitution.


In its final contention, the State asserts that the trial court erred in granting Defendant’s motion to suppress because even if a seizure of Defendant occurred, the seizure was supported by a reasonable articulable suspicion that criminal activity was being committed, and Defendant’s Fourth Amendment rights were therefore not violated. We disagree.

A reasonable suspicion has been defined by the United States Supreme Court as “some minimal level of objective justification.” INS v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 1763, 80 L.Ed.2d 247, 255 (1984). In order to meet the reasonable suspicion threshold, “[t]he officer, of course, must be able to articulate something more than an inchoate and unparticularized suspicion or hunch.” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1, 10 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889, 909 (1968)) (internal quotation marks omitted). “The concept of reasonable suspicion … is 651*651 not `readily, or even usefully, reduced to a neat set of legal rules.'” Sokolow, 490 U.S. at 7, 109 S.Ct. at 1585, 104 L.Ed.2d at 10 (citation omitted). Rather, in determining if reasonable suspicion existed, the Court must account for “the totality of the circumstances — the whole picture.” United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621, 629 (1981).

We hold that the totality of the circumstances of this case does not rise to the minimal level of objective justification required for a reasonable articulable suspicion under the Fourth Amendment. Officer Williams and Corporal Necessary observed Defendant walking down the sidewalk with a clear plastic cup in his hands filled with a clear liquid. Defendant entered his vehicle, remained in it for a period of time, and then exited his vehicle, and began walking down the sidewalk, where he was stopped by the officers. Finding of fact twelve, which we deemed to be supported by competent evidence and therefore binding on appeal, states that Officer Williams and Corporal Necessary stopped and questioned Defendant “only because he was walking on the sidewalk with a cup in his hand with clear liquid in it” and the officers wanted to know what was in the cup.

We hold that the officers had, at most, an inchoate and unparticularized hunch that Defendant was involved in some form of criminal activity. Defendant’s actions did not give rise to the minimal level of objective justification required by the Fourth Amendment; therefore, the trial court did not err in granting Defendant’s suppression motion.


Judges STEELMAN and ERVIN concur.

[1] We have omitted some portions of the findings of fact in the trial court’s 11 January 2013 order, including some specifically challenged by the State. The omitted portions are irrelevant to our analysis of the issues on appeal and, due to their irrelevancy, we express no opinion as to their validity.

[2] As noted supra, when Corporal Necessary testified at the motion hearing concerning his movements, he stated: “It’s kind of hard to explain. I’ll show you. This is the entrance to the parking lot. I’m in this lane. I drove down, faced towards the entrance to the parking lot, at an angle, and stopped and got out” (emphasis added). Whatever demonstration Corporal Necessary did as part of his testimony is not part of the record on appeal.


Ah, the North Carolina legislature. How do I hate thee.  Let me count the ways.  North Carolina’s law-makers (amid all the typical right-wing drivel, passing corporate welfare laws, cutting taxes for the rich and sticking it to the little guy, deregulating clean air and water rules while regulating vaginas, and generally restricting the things ordinary people want to do like getting married) decided to re-write the statute that governs infractions – 15A-1111 through 1118.  In particular, they repealed 15A-1115(a), the statute that previously allowed Defendants to appeal infractions from District Court to Superior Court.  This repeal has been interpreted to mean that infractions can no longer be appealed to Superior Court.

Never mind the constitutional implications of such a law, let’s look at a possible and actually very common scenario. A person is charged with Driving While Impaired (DWI) and a traffic infraction.  The issue in this person’s case is driving – was he the driver?  He pleads not guilty to the DWI and not responsible to the infraction in District Court.  He is found guilty of both the DWI and the traffic infraction, and enters notice of appeal.  The appeal of his DWI is allowed; the appeal of his traffic infraction is not.

The effect of this situation is this: The inability of this person to appeal the traffic infraction means that a court has already determined – with finality – that he was the driver in the matter that led to this person’s being charged with the  DWI in which the issue is whether he was the driver.   This person’s ability to appeal his DWI has been dealt the death-blow by the fact that all the State would need to do in the Superior Court trial of the DWI is introduce into evidence the infraction conviction that found as a fact that the defendant was the driver.  In this scenario, hasn’t the legislature’s disallowing this person to appeal the traffic infraction effectively denied him his (now we’ll talk about it) constitutionally protected right to have a jury determine all of the elements of the crime that he has been charged with?

Stupid legislature.

Chemical Analysis Evidence and Chain of Custody in North Carolina DWI Cases

This was the subject of my Continuing Legal Education Class before the Wake County Academy of Criminal Trial Lawyers on March 9, 2015 in Raleigh.

NCGS 20-139.1

Procedures Governing Chemical Analyses; Admissibility; Evidentiary Provisions; Controlled-drinking Programs.


“The results of a chemical analysis shall be deemed sufficient evidence to prove a person’s alcohol concentration.”

This is the language at issue in the case of State v. Narron, 193 N.C. App. 83 (2008), as well as where the terrible jury instruction comes from – an instruction that so obviously makes a presumption about whether a fact has been proven or not (which, as we all know, is the function of the jury and the jury’s alone) that the ultimate result in Narron beggars belief. But despite this language (and the Narron Court’s ultimate decision), Narron is actually good for us. Narron makes clear that evidence of a particular breath or blood result (.08 for example) does not actually create the legal presumption that the jury must find that that piece of evidence has been proven; rather, Narron instructs, it is treated as simply some evidence of the fact – to be treated like any other piece of evidence; it is nothing more than prima facie evidence of the fact that must be proven. (Try explaining that to a jury when they’ve just been told by the judge, whose law they’ve all repeatedly promised to follow, that the results of a chemical analysis shall be deemed sufficient evidence to prove a person’s alcohol concentration!).


Note the horrible “judicial notice” language in this section (and the burden-shifting in (b2)(2)). But what exactly is the judge taking judicial notice of? The preventive maintenance records? What about them? That they are in a green leather-bound book? That they contain lots of pages with writing on them? That they exist? I can understand a judge taking judicial notice of something like the fact that on July 3, 2014 the high was 89 degrees (we’re not going to require Greg Fishel to come in and tell us that), but I just don’t understand what this provision in the statute is telling me (“Your Honor, I ask the Court to take judicial notice of my closet”). And we know that if the legislature wants to turn a piece of evidence into a proven fact before anyone can say otherwise, it’ll do it. See the paragraph above.


I wonder what the penalty is for someone who refuses to draw blood. Reading this statute really makes me question how these things become law.


Admissibility. This is the notice and demand statute that exists for the purpose of curing the confrontation clause problem facing the State when it wants to put something in evidence without producing the witness to testify about it. Specifically, this statute provides the method for the State to introduce the evidence of a person’s alcohol concentration without the necessity of the chemical analyst being present and testifying. In order to do this, the State must notify the Defendant at least 15 business days before the proceeding of its intent to introduce the evidence through a report and must provide a copy of the report to the Defendant. If the Defendant fails to object in writing at least five business days before the proceeding, then the State will be permitted to introduce the report, and the chemical analyst will not be required to appear and testify. If the Defendant objects in time, then the State must bring in the chemical analyst to testify (or try to get the evidence in under the rules of evidence – more on that below). The Defendant’s failure to object is a waiver of his confrontation clause rights. And there may be times that the Defendant wants the evidence to come in – a low alcohol concentration, the lack of impairing substances, for example.

When the Defendant wants the evidence contained in the report to be introduced into evidence, the Defendant is not bound by the rules in this statute. The Defendant can get the report, which fortunately is always an affidavit, into evidence through one of the State’s other witnesses on cross-examination. This is so because the notice and demand statute applies only to the State, and this is so because the State doesn’t have a confrontation clause right. The way to introduce an affidavit into evidence is easy; the foundation is simply that it is an affidavit relating to this case; it is an affidavit of whoever the affiant is; the affidavit is properly notarized or certified.


This section of the statute is titled “Procedure for Establishing Chain of Custody Without Calling Unnecessary Witnesses.” How interesting that the legislature thinks that chain of custody witnesses are unnecessary (I wonder what George Orwell would have to say about this particular piece of newspeak). In order for the State to avoid bringing in all of the chain of custody witnesses, it must comply with the same notice provisions as in (c1) and the defendant fails to object as in (c1).

For some reason, the State feels, and Judges of course accept, that it need only comply with (c1) but not (c3). Invariably, Defendants file their objections, show up in court, and the State has their chemical analyst but not a single chain of custody witness between the policeman who received the evidence from the nurse and the chemical analyst who received the evidence from someone else. The State has a piece of paper identifying who all the “unnecessary” witnesses are; so the State knows who these people are; they all work for the State government in some capacity; yet, upon the Defendant’s timely objection, the State brings into Court only the witness referred to in (c1) but none of the witnesses referred to in (c3). And yet the rules under (c1) are identical to those under (c3). And, invariably, the State gets away with it; the State gets to introduce the evidence without bringing into court their chain of custody witnesses. If the State knows it can get way with ignoring (c3), why does it even bother bringing in the chemical analyst under (c1)? Why doesn’t the State ignore this rule too?

Here’s why: Because the State has done a great job of bamboozling the admittedly willingly-bamboozled judiciary into going along with the “chain-of-custody-goes-to-weight-not-admissibilty” argument. This argument, in the context of 20-139.1(c3) is a total red herring. The statute is unambiguous that the only way in which the State can avoid bringing in the chain of custody witnesses is if it provides the statutory notice and the Defendant fails to object; there is nothing in this statute or anywhere else that provides an exception to the rule. While the argument that chain of custody issues may go to weight rather than admissibility has some basis, when a statute like 20-139.1(c3) exists, there can be no argument over weight versus admissibility unless the Defendant has failed to object. This entire statute is about admissibility; the legislature has spoken as clearly as we could ask it to: chain of custody witness-statements can come in through a piece of paper only if the state has notified the Defendant if its intent to do so and the Defendant has failed to object.

As to the argument of weight versus admissibility, which should arise only in the event that either the State has failed to notify the Defendant or the Defendant has failed to object when the State has notified the Defendant, the bold assertion that issues of chain of custody go to weight rather than admissibility is simply false; it is one of many examples of the State mis-characterizing the law, the Defense bar failing to fight, and judges who know which side their bread is buttered on, going along with the misstatement of the law.

Breaks in the chain of custody go to admissibility; weak links in the chain of custody go to weight. See State v. Pennington, 327 N.C. 89 (1990); State v. Fleming, 350 N.C. 109 (1999); State v. Campbell, 317 N.C. 386 (1984); State v. McDonald, 151 N.C. App. 236 (2002); and, crucially, see the two civil cases: Lombroia v. Peek, 107 N.C. App. 745 (1992), and Columbus County, on behalf of Brooks v. Davis, 163 N.C. App. 64 (2004). The civil cases are especially strong for the criminal defendant to argue because civil defendants are not afforded the same constitutional protections as criminal defendants; in particular, civil litigants do not benefit from criminal defendants’ confrontation clause rights. But remember, do not get lured into this argument if, under 20-139.1(c3), the State has notified you and you have objected. This provision of the statute has replaced the weight versus admissibility argument by plainly and clearly laying out the method for admitting into evidence the chain of custody evidence in a blood or urine test case without the appearance of the chain of custody witnesses.

And, as if we need any further certainty as to the statutory intent of both (c1) and (c3), both of these provisions include the following language: “Upon filing a timely objection, the admissibility (my italics) shall be determined and governed by the appropriate rules of evidence.” So the legislature actually emphasizes the only manner in which chain of custody statements come into evidence in the absence of the actual chain of custody witness by including this additional language – that the rules of evidence will then determine and govern the admissibility of the chain of custody statement. What the statute fails to mention (because it need not since the Constitution overrides everything) is that the evidence will not be admitted if it violates the Defendant’s constitutional rights. And in the case of the State providing notice to the Defendant and the Defendant’s objecting, where admissibility will then be governed by the rules of evidence, if the State is able to find a rule of evidence that would allow the piece of evidence to be introduced, the State must do so without violating the Defendant’s constitutional right to be confronted with and to cross-examine the witness against him. See Crawford v. Washington, 541 U.S. 36 (2004) and its progeny.

20-139.1(e1) and (e2)

This provision of the statute allows the State, in District Court, to introduce the chemical analyst’s affidavit without further authentication and without the testimony of the analyst with respect to the five listed matters. Number 5 is interesting in that it seems to disallow the Court from taking judicial notice of the preventive maintenance records that is discussed above under 20-139.1(b2). Under this provision, the affidavit must contain “the date the most recent preventive maintenance procedures were performed on the breath-testing instrument used, as shown (my italics) on the maintenance records for that instrument.” It sounds like, the State, in this scenario, would need to actually produce the preventive maintenance records, and not be allowed to have the Court take judicial notice of them, as is allowed under 20-139.19(b2), discussed above.  And even if the state wins the argument that the Court can take judicial notice of the preventive maintenance records, the affidavit must still contain the date of the most recent preventive maintenance procedures.

The method for admitting this affidavit into evidence (e2) is identical to the methods referred to and discussed above in 20-139.1(c1) and (c3) – notice and demand. What this provision glaringly omits is any reference to a test ticket. If the affidavit doesn’t contain the alcohol concentration (which, for some reason, it rarely if ever does), then, in the absence of any mention of a test ticket or any other piece of paper that might contain the alcohol concentration, the affidavit comes in but the test ticket containing the alcohol concentration does not; only the affidavit comes into evidence. It is well worth noting that the equivalent statute that existed in North Carolina, prior to the changes mandated by Crawford v. Washington, allowed the introduction of the chemical analyst’s affidavit and “attached test ticket” to establish the Defendant’s alcohol concentration. So the argument that the legislature obviously intended for the test ticket to be admissible as well as the affidavit is defeated by the fact that the legislature has previously dealt with this issue in the era prior to Crawford overruling the Ohio v. Roberts, 448 U.S. 56 (1980) hearsay reliability standard, and specifically included the “attached test ticket” language.

Just like sections (c1) and (c3), section (e2) calls for the rules of evidence to govern in the event that the State has provided notice and the Defendant has objected. And, of course, the same confrontation clause analysis applies here as it does under (c1) and (c2).

Note the awful language that “the case shall (my italics) be continued until the analyst can be present.” Is this true even if the file has been marked “last for the State”? Does this provision allow for an indefinite continuance? It seems to – which, of course, raises a speedy trial issue. Interestingly, the case can be dismissed if the analyst “willfully fails to appear after being ordered to appear by the court.” I would have thought the remedy would be suppression of the evidence (and the analyst being held in contempt of court), but apparently, it’s dismissal of the case.


There is no such thing as a non-statutory aggravating factor. I repeat: There is no such thing as a non-statutory aggravating factor. All together now: There is no such thing as a non-statutory aggravating factor.

NCGS 20-179(d)(9): “Any other factor that aggravates the seriousness of the crime.” This is the catch-all under the DWI sentencing statute. This innocuous-looking language at the bottom of the list of all the specific grossly aggravating and aggravating factors is in fact a hugely dangerous piece of legislation and horribly unconstitutional.

It is dangerous because it allows the prosecutor to make up aggravating factors and it allows a judge to find made-up aggravating factors. More on this later.  Let’s look at some law.

In his concurring opinion in Ring v. Arizona, 536 U.S. 584 (2002), Justice Scalia writes: “I believe that the fundamental meaning of the jury-trial guarantee of the Sixth Amendment is that all facts essential to the imposition of the level of punishment that the defendant receives – whether the statute calls them elements of the offense, sentencing factors, or Mary Jane – must be found by a jury beyond a reasonable doubt.” Ring at ____. Throughout Scalia’s opinion in Blakely v. Washington, 542 U.S. 296 (2004), and his concurring opinions in Ring and Apprendi v. New Jersey, 530 U.S. 466 (2000), as well as Justice Ginsburg’s opinion, in which Scalia joined, in Cunningham v. California, 549 U.S. ____ (2007), the Supreme Court unflinchingly, unwaveringly and repeatedly reminds us that there is no difference between an element of a crime and an aggravating factor.

In Blakely, Scalia responds to Justice O’Connor’s dissent thus: “It bears repeating that the issue between us is not whether the Constitution limits States’ authority to reclassify elements as sentencing factors (we all agree it does)…” Blakely at ___. He goes onto speculate about the absurd consequences that would result in allowing elements to be found by a jury and factors to be found by a judge: “The jury need only find whatever facts the legislature chooses to label elements of the crime, and those it labels sentencing factors – no matter how much they increase the punishment – may be found by a judge. This would mean, for example, that a judge could sentence a man for committing a murder even if the jury convicted him of only illegally possessing the firearm used to commit it – or of making an illegal lane-change while fleeing the death scene.” Blakely at ___.

Justice Scalia’s “greater offense” theory is, in essence, that aggravating factors are simply elements of a greater offense. Throughout Blakely, Scalia refers to “facts legally essential” to the punishment: “Every fact which is legally essential to the punishment must be charged in the indictment and proceed to the jury.” Blakely at ___. In other words, facts that are presented to the judge, post-trial, and the finding of which cause an enhancement of the punishment, are not “legally essential to the punishment” for the crime the defendant has just been convicted of, but become “legally essential” facts to the greater offense of the crime that the defendant has not just been convicted of but which the State seeks to punish the defendant for. Blakely prohibits a jury trial for a lesser offense followed by a bench trial for the greater offense: “The jury could not function as circuitbreaker in the State’s machinery of justice if it were relegated to making a determination that the defendant at some point did something wrong a mere preliminary to a judicial inquisition into facts of the crime the State actually seeks to punish.” Blakely at ___.

Apprendi and Blakely seem to suggest that in order for the State to punish a defendant for a greater offense, it will have to include the aggravating factors in the indictment and prove them to a jury beyond a reasonable doubt. Cunningham allows for the State to indict the defendant on the lesser offense and punish the defendant for the greater offense so long as the State puts the defendant on notice of its intent to use aggravating factors (or elements of the greater offense) to aggravate the lesser offense. This notice requirement eliminates the need to include the aggravating factors in the indictment and allows for a bifurcated hearing; however, the State must still prove to a jury the aggravating factors beyond a reasonable doubt. So a defendant could plead guilty to the lesser offense that he is charged with in the indictment and require a jury to be empaneled to determine whether the elements of the greater offense he has been given notice of are proven beyond a reasonable doubt.

North Carolina has, for the most part, modified its behavior to comply with the Apprendi/Blakely/Ring/Cunningham rule. Other than in District Court (which I disagree with), the State must put the Defendant on notice of its intent to aggravate a DWI; and the Defendant has the right for a jury to decide whether the aggravating factors (elements of the greater offense, or Mary Jane) are proven beyond a reasonable doubt.

Back to non-statutory aggravating factors. None of the Apprendi cases deals with non-statutory aggravating factors. In each case, the factors are known and described by statute. The issue is: whether, when and how those aggravating factors can be used against a defendant. Non-statutory aggravating factors are unconstitutional because they are non-statutory. Since we know aggravating factors are elements of a greater offense, just as no one can create elements of an offense out of thin air, neither can aggravating factors be created out of nothing. Only the legislature has the authority to create crimes and their elements; only the legislature has the authority to create aggravating factors – they are the same thing. If elements of a crime (whether it be the lesser offense or the greater offense) are unknown and cannot be found in a statute book, how on earth are people to be expected to know what behavior is allowed and what behavior is disallowed. If, suddenly, behavior a person engaged in is considered an element of a crime yet it exists in no statute, how could any of us ever know if we’re gong to be punished for it? That’s worse than ex post facto. Also, a prosecutor coming up with some “factor that aggravates the seriousness of the offense” permits the executive branch of government to invade the function of the legislative branch, and clearly violates the principle of separation of powers.

There is no such thing as a non-statutory aggravating factor. Just as there is no such thing as a non-statutory element of a crime (elements and factors are the same thing). If an element of a crime doesn’t exist in a statute book, it just doesn’t exist; it can’t be just made up – and certainly not by either the lone employee of the State standing at the prosecutor table or the lone employee of the State sitting on the bench. Do not allow a prosecutor to convince a judge to find non-statutory aggravating factors; they simply don’t exist; they are unconstitutional.

The 700 Most Dangerous Days America Has Ever Faced

In Reply to Wayne Lapierre’s article in American Rifleman.
 What absolute drivel.  What journalistic irresponsibility.  Mr. Lapierre makes, by my count, 43 separate and distinct allegations and assertions – 42 of which he fails to substantiate or back up with any evidence whatsoever.  The one allegation he does bother to substantiate is that “only one freedom has grown stronger over the past several decades … your right to own a gun.”  Lapierre goes on to back up this assertion with reference to the right-to-carry “revolution,” the Castle Doctrine and “two landmark Supreme Court decisions.”  So what’s your fear, Mr. Lapierre?  The very right you so dearly want to protect is, in fact, the most well-protected right we have.  According to you.
Mr.Lapierre, “A well-regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.”  And neither should it … a well-regulated militia being necessary to the security of a free State. However, Mr. Lapierre, we neither have nor have need of a well-regulated militia.   Instead, we have the very thing our founders and the authors of the Second Amendment sought to protect against as evil – a standing army.  I urge you, Mr. Lapierre, to read, as I have, the 1789 Congressional debates on the Second Amendment, to acknowledge the true, original purpose of the Second Amendment: the avoidance of European-style standing armies (a belief held even by George Washington himself).  I urge you, Mr. Lapierre, to acknowledge that the true, original purpose to arm citizens in the absence of a standing army was to rely on those citizens to be ready to fight for and  protect the Government’s ends and not, as you revisionists would have people believe, for the purpose of protecting the citizens from their Government (why would the Government of the nascent and most liberal democracy the world had ever seen put in place a mechanism for circumventing democracy in favor of armed rebellion? Stupid).  Finally, Mr.Lapierre, I urge you to be honest with your readers; you are the head of the country’s foremost voluntary gun-control organization.  Be honest.  Be responsible.


In some countries (England, Wales, Scotland – to name three), it’s against the law to refuse to take roadside sobriety tests. Against the law!  It’s a crime to refuse to give the government the evidence they’ll later use against you!  ( I would apologize for the exclamation marks except I need to express my horror in some way).  Fortunately, in the US – or in North Carolina at least – this is not the case.  You can’t be punished for declining to participate in the government’s investigation of a crime it thinks you’ve committed.

Yet, day after day we do participate.  We give the government the very evidence they’ll use against us.  We act as witnesses against ourselves.  It’s madness.  Yet we ovinely go along with it.  Stop!

The sate of the law in NC on the issue of probable cause to arrest for the offense of DWI is absolutely horrible.  And invariably, the difference between probable cause and no probable cause boils down to what the Defendant agrees to do. So stop agreeing to do stuff.  Look at this terrible language: “the odor of alcohol on a defendant’s breath, coupled with a positive alco-sensor result, is sufficient for probable cause to arrest a defendant for driving while impaired.”  Wow! That’s in State v. Rogers, a 1996 Court of Appeals case.  You might not be able to avoid the odor of alcohol but you can certainly avoid the “positive alco-sensor result.”  By not taking it.  By saying “No.”  By exercising your right not to incriminate yourself.

People who work for the government are our servants.  Stop letting your servants boss you around.

In State v Townsend, a 2014 Court of appeals case, the defendant drove without incident into a checkpoint (he should have turned around – more on that in a future blog); he admitted to drinking (don’t do that); he performed the HGN eye test (don’t do that); he performed the walk and turn test (don’t do that); he performed the one leg stand test (don’t do that); he recited a portion of the alphabet (don’t do that); he blew into the “alco-sensor” (don’t do that).  Don’t do anything they’re asking you to do on the side of the road.  And if someone tells you that refusing to do that stuff – any of it – will result in your license  being suspended, he’s lying.  And if someone says, you’ll be arrested if you refuse, turn around and put your hands behind your back.

The only refusal that results in your license being suspended is the refusal to blow into the big breath testing machine at the police station.  So refuse away out there on the side of the road.  Don’t give them their probable cause.  They don’t need bad driving; they don’t need slurred speech; they don’t need red and glassy eyes; they don’t need the HGN; they don’t need the walk and turn, one leg stand, finger dexterity, alphabet test, finger to nose, sway test, or any of those other abnormal acts of stupidity.  All they need is odor of alcohol and a positive result on the alco-sensor.  So don’t give them anything.  It’s us versus them; it’s a contest.  You wouldn’t shoot a basketball into your own goal; you wouldn’t kick the soccer ball into the back of your own net.  You wouldn’t wreck your own country’s economy.  You wouldn’t shut down your own government.  You wouldn’t steal from the poor to give to the rich.  You wouldn’t deny proper heath care to millions of your fellow citizens. You wouldn’t invite a foreign dictator to address Congress in flagrant disregard for the  President’s Constitutional mandate to guide foreign policy….  Ok, you would do those last few things if you’re a Republican.

Stop being a Republican!  Stop playing for the other team!