MOTION TO SUPPRESS AND ACCOMPANYING MEMORANDUM OF LAW. COMES NOW, Defendant, TJB, by and through his undersigned counsel and pursuant to

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1 STATE OF NORTH CAROLINA COUNTY OF WAKE IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION FILE NO. XXCRSXXXXX STATE OF NORTH CAROLINA vs. TJB MOTION TO SUPPRESS AND ACCOMPANYING MEMORANDUM OF LAW COMES NOW, Defendant, TJB, by and through his undersigned counsel and pursuant to N.C. Gen. Stat 15A-972 moves this Court to issue an order suppressing certain evidence that may be used in this case. The specific evidence sought to be suppressed is as follows: 1. One twenty-five (.25) caliber <BRAND> semi-automatic pistol model number <MODEL #>, serial number XXXXX retrieved in Defendant's vehicle in between the front driver and passenger seats. 2. All statements made by the Defendant to Officer BS of the Raleigh Police Department made in conjunction with the stop of Defendant's vehicle on June 16, 2xxx. The grounds for this motion are that all of the aforementioned evidence was illegally seized without a warrant by virtue of an unlawful seizure and detention of the Defendant in violation of the Fourth Amendment of the United States Constitution made applicable to the States through the Fourteenth Amendment of the United States Constitution. BACKGROUND FACTS On April 11, 2008 at approximately 3:00am, Raleigh Police Officer BS was patrolling the area known as the "Gorman Street Corridor." While on patrol, Officer BS noticed the

2 Defendant's teal colored 1993 Chevy Lumina. Officer BS had seen the vehicle earlier in the night at the Walnut Creek Apartment complex. Officer BS followed the Defendant's car south on Gorman Street until the Defendant's vehicle made a left turn on Aileen Dr. Officer BS continued to drive south on Gorman Street to the Gorman St./Thistledown Rd. intersection at which point Officer BS turned his vehicle around to travel north on Gorman St. As the officer was driving north on Gorman St., he observed the Defendant's vehicle on Gorman Street, headed south. In order to follow the Defendant's vehicle, Officer BS turned his vehicle around to travel South on Gorman Street as the Defendant's vehicle turned onto Walnut Creek Parkway. Based on information obtained by the officer pursuant to a BOLO and the driving pattern of the Defendant, Officer BS followed the Defendant onto Walnut Creek Parkway and executed a traffic stop. Officer BS approached the Defendant's vehicle subsequent to the traffic stop and informed the Defendant that he was conducting "robbery suppression" in the area. The Defendant informed the Officer that he had no involvement in any robberies. The Officer then asked the Defendant if there were any weapons in the vehicle to which the Defendant responded in the affirmative. All passengers were requested to exit the vehicle and in a subsequent search the Officer located a.25 caliber handgun in between the front driver and passenger side seats. It should be noted that the gun was not loaded and had no clip. After finding the handgun, while conducting warrant/background checks on the passengers, Officer BS discovered that the Defendant had been convicted of a felony in The Defendant was arrested for a violation of N.C. Gen. Stat (a). LEGAL ANALYSIS "An investigatory stop of a vehicle must be justified by a reasonable suspicion, based on

3 objective facts, that the individual is involved in criminal activity." State v. Edwards, 164 N.C.App. 130, 135, 595 S.E.2d 213, 217 (N.C. App, 2004) citing State v. Watkins, 337 N.C.App. 437, 441, 446 S.E.2d 67, (1994); see also State v. Blackstock, 165 N.C.App. 50, 56, 598 S.E.2d 412, 416 (2004). The court is to consider the totality of the circumstances in making the determination as to whether the officer possessed a reasonable and articulable suspicion as to justify an investigatory stop. See State v. Robinson, 658 S.E.2d 501, 505 (2008) citing State v. Watkins, 337 N.C. 437, 44142, 446 S.E.2d 67, 70 (1994); see also U.S. v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1, 10(1989). Factors to be considered by the court, inter alia, are factors such as (1) activity at an unusual hour; (2) nervousness of an individual; (3) an area's disposition toward criminal activity; (4) unprovoked flight. It is important for the court to note that none of these factors, standing alone, is sufficient to justify an investigatory stop based upon reasonable suspicion. See Blackstock at 56, 598 S.E.2d 416. Once the purpose of an investigatory stop has been addressed, there must be grounds which provide a reasonable and articulable suspicion in order to justify a further delay. See State v. Myles, 654 S.E.2d 752, 754(2008). When conducting an investigatory stop, the officer must employ the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time. See State v. Roberts, 142 N.C.App. 424, 429, 524 S.E.2d 703, 707(2001) citing Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, , 75 L.Ed.2d 229, 238(1983). BOLO In the instant matter, the basis for the reasonable suspicion was in two parts. The first is a "BOLO" issued by the Raleigh Police Department. A copy of Officer BS's statement regarding the BOLO as the basis of the reasonable suspicion for the traffic stop is attached and made a part hereof as Exhibit "A." A copy of the relevant BOLO is attached and made a part hereof as Exhibit "B." The Defense does not contest that a BOLO can be part of the basis for reasonable suspicion provided,

4 inter alia, that suspect s information matches the description of the perpetrators as set forth in the BOLO. The BOLO cited by Officer BS can in no way give rise to a reasonable suspicion that the Defendant was involved in criminal activity. As such, there is no possible basis for the relevant BOLO to justify an investigatory stop. The differences between the description of the suspects described in the BOLO and the Defendant are so vast as to render any argument for reasonable suspicion based on the BOLO as absurd. In order to assist the Court, a brief summary of the variations are cited below: Identifying Information BOLO Description Defendant Description Vehicle Make Hyundai Accent 1993 Chevy Lumina Vehicle Color Royal Blue(possibly a second black vehicle) Teal Doors 2 door 4 door Vehicle Size Compact Full Size Suspects 1 to 2 black males, possibly 1 black female driver. Information is unclear and is compiled from various police reports. 2 black males and one white female. Black male driver. The information above was compiled from the suspect descriptions in the BOLO attached as Exhibit "B." By reference, the BOLO indicates that the individuals were suspects in case numbers Pxx-xxxxxx & Pxx-xxxxxx. A copy of the investigation report of Pxx-xxxxxx is attached and made a part hereof as Exhibit "C." A copy of the investigation report of Pxx-xxxxxx is attached and made a part hereof as Exhibit "D." As applied to the facts of this case, the BOLO does not give rise to reasonable suspicion for a traffic stop. Initially, the BOLO was created on May xx, 2xxx one day subsequent to the robbery

5 of the Pick Up Food Mart on Morgan St. Not only does the description of the suspects in the BOLO not match the description of the Defendant in this matter, but Officer BS knew at the time of the traffic stop that it did not match as Officer BS was directly involved in the investigation in case number Pxx-xxxxxx. 1 Furthermore, in the event that the BOLO did somehow support a reasonable suspension for the traffic stop, Officer BS's continued detention of the Defendant was illegal as the information necessary to dispel Officer BS's suspicions of involvement in robberies was immediately available to him. Notwithstanding Officer BS's personal knowledge of the descriptions in the BOLO, simply radioing in to dispatch to confirm the suspect description would have immediately given him the necessary information to dispel his suspicions. As such any detention in excess of the amount of time necessary to confirm or dispel Officer BS's suspicions would be illegal. DRIVING PATTERN "To justify an investigatory stop, the officer must have more than an inchoate and unparticularized suspicion or hunch of criminal activity; the officer must have some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." State v. Roberts, 142 N.C. App. 424, 429, 542 S.E.2d 703, 707(2001) citing Terry v. Ohio(internal citations omitted). The second basis, as set forth by Officer BS, as a basis for reasonable suspicion justifying the traffic stop is the Defendant's alleged suspicious driving pattern. As set forth above, this suspicious driving pattern consisted of turning off of Gorman St. onto Aileen Dr. and subsequently turning off of Gorman St. onto Walnut Creek Parkway. I See page 3 of investigation report in exhibit "C" entitled "Officer Narrative: BS"

6 Applying the factors as set forth in Blackstock, there is no indication from the Officer that traffic is unusual on Gorman Street and the surrounding areas at the time of the traffic stop. There is no indication that the Defendant in this matter was nervous, i.e. turning his face away from the officer or quickly turning to face the officer's vehicle. There was no unprovoked flight. Although the Gorman Street Corridor had recently been subject to a string of robberies, pursuant to the holdings in Blackstock and I R.T, without the BOLO, this one issue alone is not sufficient to support an investigatory stop. CONCLUSION The basis for Officer BS's traffic stop was the Defendant's suspicious driving pattern as well as the Defendant matching the description in the BOLO issued on March 31, The vehicle which the Defendant was driving did not match the description of the suspects in the BOLO by any stretch of the imagination. Furthermore, at the time of the traffic stop, Officer BS had personal knowledge that the Defendant and the passengers in the vehicle did not match the description of the suspects in the BOLO by virtue of his personal participation in the investigation which gave rise to the BOLO. The Defendant's driving pattern was entirely consistent with innocent behavior. The Defendant violated no traffic laws giving rise to probable cause for a traffic stop. Additionally, there were no other factors present which would have given Officer BS reason to believe that the Defendant was participating in or about to participate in criminal activity. Assuming arguendo, that Officer BS did not have personal knowledge of the BOLO, the continued detention and questioning of the Defendant by Officer BS was still in violation of the Defendant's Constitutional Rights as Officer BS failed to use the least intrusive means possible to dispel or confirm his suspicions regarding the Defendant's involvement in the recent string of

7 robberies. Any continued detention past the point in which it would have taken Officer BS to radio dispatch in order to confirm the description of the suspect vehicle in the BOLO was in violation of the Defendant's Fourth Amendment rights. WHEREFORE, Defendant, TJB, respectfully requests this Honorable Court to issue an order finding that the stop and detention by Officer BS were illegal and suppressing all of the aforementioned evidence. Certificate of Service I certify that a copy hereof has been furnished to the State's Attorney by hand delivery on Oct. xx, 2xxx. Respectfully submitted, Michael A. Dye, P.A. Attorney for TJB

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