The North Carolina Court of Appeals agreed with the defendant. In the case at bar, there was a very detailed transcript and a DVD recording of the traffic stop. The record in this case sufficiently establishes that the defendant’s attorney failed to file a motion to suppress and that the search or stop that led to the discovery of the evidence was clearly unlawful. A “motion to suppress the evidence” would have been granted had it been filed and argued properly.
A passenger has standing under the 4th Amendment to challenge the constitutionality of a traffic stop. In the case at bar, the defendant Canty challenges the constitutionality of the stop that led to the search, not the search itself. In accordance with the United States Supreme Court, we hold today that a defendant has standing to contest the stop of the vehicle where he was a passenger.
In State vs Styles, the North Carolina Supreme Court held that reasonable suspicion is the standard for all traffic stops. A traffic stop is a seizure for the purposes of the 4th Amendment. “A traffic stop must be based on specific and articulable facts, as well as the rational inferences from those facts as viewed through the eyes of a reasonable and cautious officer being guided by his experience and training. And unparticularized suspicion or hunch” does not pass constitutional muster for the basis of a traffic stop.
“Nervousness, like all other factors, must be taken in light of the totality of the circumstances present. Nervousness can be an appropriate factor to consider when determining whether a basis for reasonable suspicion exists.” Critically, nervousness has been considered a factor in prolonging the seizure after the traffic stop has been initiated, but nervousness has not been held to be a factor in initiating the traffic stop. “Ordinary nervousness” does not amount to reasonable suspicion.
Refusal to make eye contact has not been considered in the past in the context of initiating a traffic stop; again, only prolonging a lawful one.
Based on the totality of the circumstances present in the case at bar, these factors fall short of reasonable suspicion to justify the initial traffic stop. A motion to suppress this evidence in the case against Canty would have been granted by the Court.
Summarily, the record shows that there was no underlying traffic violation, the officer’s beliefs amounted to nothing more than “unparticularized suspicion”, nervousness, slowing down and not making eye contact is nothing unusual when passing a law enforcement vehicle stationed on the side of the highway. While a vehicle’s slow speed can be a factor in initiating a traffic stop, the officer’s reports in this case state that the vehicle was going 65 miles per hour and slowed to 59 miles per hour which is insignificant in comparison to cases justifying a traffic stop based on excessively slow speed. Accordingly, and based on the totality of the circumstances, these officers lacked reasonable suspicion to initiate the traffic stop that resulted in the search and seizure of the weapons in this case. The verdict of the lower court is reversed; and the matter remanded to the lower court with its specific instructions that any reference to the weapons be suppressed from any future proceedings.