North Carolina v. Watkins9/7/1993
hours of the morning with its headlights off. See White, 496 U.S. at 330-31, 110 L. Ed. 2d. at 309 (corroboration of anonymous tip can furnish reasonable suspicion); United States v. Cutchin, 956 F.2d 1216 (D.C. Cir. 1992). Additionally, common sense dictates that driving an automobile at night without illuminated headlights, even in a parking lot as here, places pedestrians at risk, and Officer Harbor was walking in the parking lot on foot when defendant's unlighted vehicle drove by him. See generally, Reeves v. Campbell, 264 N.C. 224, 227, 141 S.E.2d 296, 298 (1965). While we need not decide whether these circumstances are sufficient for the higher standard of probable cause for an arrest, it is alarming that the majority suggests that a "reasonable and cautious police officer on the scene, guided by his experience and training," State v. Thompson, 296 N.C. 703, 706, 252 S.E.2d 776, 779, cert. denied, 444 U.S. 907, 62 L. Ed. 2d. 143 (1979) (citation omitted), in this factual setting would not have a reasonable suspicion of criminal activity sufficient to justify a brief investigatory stop. Although Officer Harbor testified that defendant's weaving was not the cause of his decision for the investigatory stop, it is noteworthy that other cases have held that merely weaving within one's own lane
of traffic can present a reasonable articulable suspicion for an investigatory stop. State v. Jones, 96 N.C. App. 389, 395, 386 S.E.2d 217, 221 (1989), disc. review denied, appeal dismissed, 326 N.C. 366, 389 S.E.2d 809 (1990).
Fleming, 106 N.C. App. 165, 415 S.E.2d 782 (1992), relied upon by the majority, is readily distinguishable. The defendants in Fleming were on foot the entire time and merely "chose to walk in a direction which led away from the group of officers." Id. at 170-71, 415 S.E.2d at 785. Here, defendant was driving late at night with his headlights off in a parking lot behind and next to closed business premises. Under the requisite "totality of the circumstances" test, the circumstances here created a reasonable suspicion of criminal activity and sufficient justification for a brief investigatory stop. See United States v. Kreimes, 649 F.2d 1185 (5th Cir. 1981) (upon issuance of bulletin describing a plane which had landed nearby, post-midnight seizure of truck travelling with headlights off on a rural road was based on reasonable suspicion; no description of any vehicle was given in the bulletin); State v. Fox, 58 N.C. App. 692, 695, 294 S.E.2d 410, 412-13 (1982), aff'd, 307 N.C. 460, 298 S.E.2d 388 (1983) (seizure of defendant who was driving slowly down a dead-end street of locked businesses at 12:50 a.m. and where the officer did not observe any traffic or equipment violations); State v. Tillet and State v. Smith, 50 N.C. App. 520, 274 S.E.2d 361, appeal dismissed, 302 N.C. 633, 280 S.E.2d 448 (1981).
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