An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA14-269 NORTH CAROLINA COURT OF APPEALS
Filed: 6 January 2015
STATE OF NORTH CAROLINA
v. Durham County No. 12 CRS 61669 MARGARET K. SEWELL
Appeal by the State from order entered 3 October 2013 by
Judge Carl R. Fox in Durham County Superior Court. Heard in the
Court of Appeals 27 August 2014.
Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde, for the State.
Kimberly P. Hoppin, for defendant-appellee.
CALABRIA, Judge.
The State appeals, pursuant to N.C. Gen. Stat. § 15A-979
and § 15A-1445, from an order granting Margaret K. Sewell’s
(“defendant”) motion to suppress evidence gathered after her
arrest and dismissing the offense of driving while impaired
(“DWI”). We affirm in part and reverse in part.
I. Background
On the evening of 16 November 2012, the North Carolina -2- State Highway Patrol (“NCSHP”) conducted a checkpoint on
University Drive at the entrance to Forest Hills Park in Durham,
North Carolina. The checkpoint’s primary purpose was to check
for DWI offenses. Sergeant Maurice Devalle (“Sgt. Devalle”)
supervised the checkpoint, which was conducted pursuant to a
written authorization form and NCSHP policy. In addition, the
checkpoint was marked by patrol vehicles with their blue lights
activated, troopers participating in the checkpoint wore
reflective vests and held flashlights, and every car that
approached the checkpoint was checked.
Shortly after midnight on 17 November 2012, defendant,
driving a Toyota sport utility vehicle with one passenger,
approached the checkpoint. When NCSHP Trooper Jeremy Doston
(“Trooper Doston”) requested defendant’s license and
registration, he detected a strong odor of alcohol emanating
from defendant’s vehicle. Although Trooper Doston observed that
defendant’s eyes were red and glassy, her speech was not
slurred, and she retrieved her license and registration without
difficulty. Defendant initially denied drinking alcohol that
evening, but later admitted to drinking a glass of wine.
Trooper Doston requested that defendant exit her vehicle
and perform a series of field sobriety tests. Trooper Doston
observed that defendant exhibited no clues of intoxication on -3- either the “One-Leg Stand” test or the “Walk and Turn” test.
However, defendant displayed six out of six clues on the
horizontal gaze nystagmus test (“HGN test”). In addition,
defendant performed two Alco-sensor breath tests, both of which
indicated that defendant’s breath tested positive for the
presence of alcohol. As a result, defendant was arrested and
charged with DWI.
Defendant subsequently pled guilty to DWI in Durham County
District Court. On 16 May 2013, the trial court sentenced
defendant to sixty days in the custody of the Sheriff of Durham
County, suspended defendant’s sentence, and placed her on
unsupervised probation for twelve months. Defendant appealed to
Durham County Superior Court for a trial de novo.
On 11 August 2013, defendant filed a pretrial motion to
suppress all evidence gathered after the stop of her vehicle and
after her arrest. After a hearing, where both Trooper Doston
and Sgt. Devalle testified, the trial court entered an order on
3 October 2013 granting defendant’s motion to suppress and
dismissed defendant’s DWI offense. The State appeals.
II. Motion to Suppress
“In evaluating a trial court’s ruling on a motion to
suppress . . . the trial court’s findings of fact are conclusive
on appeal if supported by competent evidence, even if the -4- evidence is conflicting.” State v. Allen, 197 N.C. App. 208,
210, 676 S.E.2d 519, 521 (2009) (citation omitted). Findings
not challenged on appeal are deemed supported by competent
evidence and are binding on appeal. State v. Biber, 365 N.C.
162, 168, 712 S.E.2d 874, 878 (2011). “Conclusions of law are
reviewed de novo[.]” Id.
As an initial matter, since the State does not challenge
the trial court’s findings, they are binding on appeal. Id.
Neither party contests the validity of the checkpoint on appeal.
Rather, the State argues that the trial court erred in granting
defendant’s motion to suppress because the totality of the
circumstances indicate that Trooper Doston had probable cause to
arrest defendant for DWI. Therefore, we must determine whether
Trooper Doston lacked probable cause to arrest defendant, and
whether the trial court properly granted defendant’s motion to
suppress.
“Probable cause requires only a probability or substantial
chance of criminal activity, not an actual showing of such
activity.” State v. Teate, 180 N.C. App. 601, 606-07, 638
S.E.2d 29, 33 (2006) (quoting Illinois v. Gates, 462 U.S. 213,
244 n.13, 76 L.Ed.2d 527, 552 n.13 (1983)). “Probable cause for
an arrest has been defined to be a reasonable ground of
suspicion, supported by circumstances strong in themselves to -5- warrant a cautious man in believing the accused to be guilty.”
Id. at 607, 638 S.E.2d at 33 (citation omitted). “Whether
probable cause exists to justify an arrest depends on the
‘totality of the circumstances’ present in each case.” State v.
Sanders, 327 N.C. 319, 339, 395 S.E.2d 412, 425 (1990), cert.
denied, 498 U.S. 1051, 112 L.Ed.2d 782 (1991).
The State relies in part upon State v. Rogers, 124 N.C.
App. 364, 477 S.E.2d 221 (1996), superseded by statute as stated
in State v. Overocker, ___ N.C. App. ___, 762 S.E.2d 921,
(2014), to support its argument that Trooper Doston had probable
cause to arrest defendant for DWI. In Rogers, the defendant
stopped his vehicle in the middle of an intersection to ask the
trooper directing traffic for directions. Id. at 366, 477
S.E.2d at 222. The trooper detected a strong odor of alcohol on
the defendant’s breath, and administered one Alco-sensor test
before arresting the defendant. Id. The trial court denied the
defendant’s motion to suppress. Id. On appeal from his DWI
judgment, this Court held that while the trooper failed to
administer the Alco-sensor test twice, as required by statute,
the trooper did not rely solely on the odor of alcohol. Id. at
369-70, 477 S.E.2d at 224. This Court concluded there was
adequate evidence to support a finding of probable cause to
arrest the defendant. Id. The trooper not only had the -6- opportunity to consider the defendant’s .13 Alco-sensor test
result,1 but also to observe and speak with the defendant. Id. at
370, 477 S.E.2d at 224. Therefore, the trial court properly
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA14-269 NORTH CAROLINA COURT OF APPEALS
Filed: 6 January 2015
STATE OF NORTH CAROLINA
v. Durham County No. 12 CRS 61669 MARGARET K. SEWELL
Appeal by the State from order entered 3 October 2013 by
Judge Carl R. Fox in Durham County Superior Court. Heard in the
Court of Appeals 27 August 2014.
Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde, for the State.
Kimberly P. Hoppin, for defendant-appellee.
CALABRIA, Judge.
The State appeals, pursuant to N.C. Gen. Stat. § 15A-979
and § 15A-1445, from an order granting Margaret K. Sewell’s
(“defendant”) motion to suppress evidence gathered after her
arrest and dismissing the offense of driving while impaired
(“DWI”). We affirm in part and reverse in part.
I. Background
On the evening of 16 November 2012, the North Carolina -2- State Highway Patrol (“NCSHP”) conducted a checkpoint on
University Drive at the entrance to Forest Hills Park in Durham,
North Carolina. The checkpoint’s primary purpose was to check
for DWI offenses. Sergeant Maurice Devalle (“Sgt. Devalle”)
supervised the checkpoint, which was conducted pursuant to a
written authorization form and NCSHP policy. In addition, the
checkpoint was marked by patrol vehicles with their blue lights
activated, troopers participating in the checkpoint wore
reflective vests and held flashlights, and every car that
approached the checkpoint was checked.
Shortly after midnight on 17 November 2012, defendant,
driving a Toyota sport utility vehicle with one passenger,
approached the checkpoint. When NCSHP Trooper Jeremy Doston
(“Trooper Doston”) requested defendant’s license and
registration, he detected a strong odor of alcohol emanating
from defendant’s vehicle. Although Trooper Doston observed that
defendant’s eyes were red and glassy, her speech was not
slurred, and she retrieved her license and registration without
difficulty. Defendant initially denied drinking alcohol that
evening, but later admitted to drinking a glass of wine.
Trooper Doston requested that defendant exit her vehicle
and perform a series of field sobriety tests. Trooper Doston
observed that defendant exhibited no clues of intoxication on -3- either the “One-Leg Stand” test or the “Walk and Turn” test.
However, defendant displayed six out of six clues on the
horizontal gaze nystagmus test (“HGN test”). In addition,
defendant performed two Alco-sensor breath tests, both of which
indicated that defendant’s breath tested positive for the
presence of alcohol. As a result, defendant was arrested and
charged with DWI.
Defendant subsequently pled guilty to DWI in Durham County
District Court. On 16 May 2013, the trial court sentenced
defendant to sixty days in the custody of the Sheriff of Durham
County, suspended defendant’s sentence, and placed her on
unsupervised probation for twelve months. Defendant appealed to
Durham County Superior Court for a trial de novo.
On 11 August 2013, defendant filed a pretrial motion to
suppress all evidence gathered after the stop of her vehicle and
after her arrest. After a hearing, where both Trooper Doston
and Sgt. Devalle testified, the trial court entered an order on
3 October 2013 granting defendant’s motion to suppress and
dismissed defendant’s DWI offense. The State appeals.
II. Motion to Suppress
“In evaluating a trial court’s ruling on a motion to
suppress . . . the trial court’s findings of fact are conclusive
on appeal if supported by competent evidence, even if the -4- evidence is conflicting.” State v. Allen, 197 N.C. App. 208,
210, 676 S.E.2d 519, 521 (2009) (citation omitted). Findings
not challenged on appeal are deemed supported by competent
evidence and are binding on appeal. State v. Biber, 365 N.C.
162, 168, 712 S.E.2d 874, 878 (2011). “Conclusions of law are
reviewed de novo[.]” Id.
As an initial matter, since the State does not challenge
the trial court’s findings, they are binding on appeal. Id.
Neither party contests the validity of the checkpoint on appeal.
Rather, the State argues that the trial court erred in granting
defendant’s motion to suppress because the totality of the
circumstances indicate that Trooper Doston had probable cause to
arrest defendant for DWI. Therefore, we must determine whether
Trooper Doston lacked probable cause to arrest defendant, and
whether the trial court properly granted defendant’s motion to
suppress.
“Probable cause requires only a probability or substantial
chance of criminal activity, not an actual showing of such
activity.” State v. Teate, 180 N.C. App. 601, 606-07, 638
S.E.2d 29, 33 (2006) (quoting Illinois v. Gates, 462 U.S. 213,
244 n.13, 76 L.Ed.2d 527, 552 n.13 (1983)). “Probable cause for
an arrest has been defined to be a reasonable ground of
suspicion, supported by circumstances strong in themselves to -5- warrant a cautious man in believing the accused to be guilty.”
Id. at 607, 638 S.E.2d at 33 (citation omitted). “Whether
probable cause exists to justify an arrest depends on the
‘totality of the circumstances’ present in each case.” State v.
Sanders, 327 N.C. 319, 339, 395 S.E.2d 412, 425 (1990), cert.
denied, 498 U.S. 1051, 112 L.Ed.2d 782 (1991).
The State relies in part upon State v. Rogers, 124 N.C.
App. 364, 477 S.E.2d 221 (1996), superseded by statute as stated
in State v. Overocker, ___ N.C. App. ___, 762 S.E.2d 921,
(2014), to support its argument that Trooper Doston had probable
cause to arrest defendant for DWI. In Rogers, the defendant
stopped his vehicle in the middle of an intersection to ask the
trooper directing traffic for directions. Id. at 366, 477
S.E.2d at 222. The trooper detected a strong odor of alcohol on
the defendant’s breath, and administered one Alco-sensor test
before arresting the defendant. Id. The trial court denied the
defendant’s motion to suppress. Id. On appeal from his DWI
judgment, this Court held that while the trooper failed to
administer the Alco-sensor test twice, as required by statute,
the trooper did not rely solely on the odor of alcohol. Id. at
369-70, 477 S.E.2d at 224. This Court concluded there was
adequate evidence to support a finding of probable cause to
arrest the defendant. Id. The trooper not only had the -6- opportunity to consider the defendant’s .13 Alco-sensor test
result,1 but also to observe and speak with the defendant. Id. at
370, 477 S.E.2d at 224. Therefore, the trial court properly
denied the defendant’s motion to suppress. Id.
The facts in the instant case are distinguishable from
Rogers. The defendant in Rogers initiated contact with the
arresting officer by stopping the vehicle he was driving in the
middle of the intersection, and the trooper detected a strong
odor of alcohol emanating from the defendant, who was the sole
occupant of the vehicle. In the instant case, defendant was
stopped at a checkpoint, had not displayed any bad driving or
violated any motor vehicle laws, and the strong odor of alcohol
that Trooper Doston detected was emanating from defendant’s
vehicle, not from defendant, who was accompanied by a passenger.
According to the trial court’s findings in the order
regarding defendant’s motion to suppress, Trooper Doston
observed defendant’s red, glassy eyes and defendant exhibited
six of six clues on the HGN test, as well as positive results
for the presence of alcohol on defendant’s two Alco-sensor
breath tests. However, Trooper Doston did not testify that
1 The statutory language that allowed the arresting officer in Rogers to consider the numerical reading of the Alco-sensor test was superseded by statute as noted in State v. Overocker, ___ N.C. App. ___, ___, 762 S.E.2d 921, 929 (2014). See N.C. Gen. Stat. § 20-16.3(d) (2013). -7- defendant herself was the source of the odor of alcohol. The
trial court also found that defendant’s speech was not slurred,
she retrieved and provided Trooper Doston with her driver’s
license and registration without any difficulty or delay, and
she was steady on her feet when Trooper Doston requested that
she exit her vehicle. In addition, defendant followed Trooper
Doston’s instructions at all times, and was polite, cooperative,
and respectful to him during their encounter. The trial court
further found that defendant exhibited no clues of intoxication
on the “One-Leg Stand” and “Walk and Turn” tests. The trial
court concluded, “[t]he facts and circumstances known to Trooper
Dotson [sic] as a result of his observations and testing of the
Defendant were insufficient, under the totality of the
circumstances, to form an opinion in the mind of a reasonable
and prudent man/officer that there was probable cause” to
believe defendant had committed the offense of DWI, and granted
defendant’s motion to suppress.
The trial court’s unchallenged findings, based upon the
totality of the circumstances, show that the circumstances were
not strong enough in themselves to warrant probable cause.
Since there was no probable cause to support defendant’s arrest,
and the trial court’s findings support its conclusions of law, -8- we therefore hold that the trial court properly granted
III. Motion to Dismiss
The State also argues that the trial court erred in
granting a motion to dismiss. We agree.
The granting of a motion to suppress does not mandate a pretrial dismissal of the underlying indictments. The district attorney may elect to dismiss or proceed to trial without the suppressed evidence and attempt to establish a prima facie case. If so, a defendant may move to dismiss at the close of the State’s evidence and renew his motion at the close of all evidence.
State v. Edwards, 185 N.C. App. 701, 706, 649 S.E.2d 646, 650
(2007) (citing N.C. Gen. Stat. § 15-173 (2005)).
In the instant case, defendant moved to suppress the
evidence obtained subsequent to her arrest, and the trial court
granted her motion. However, defendant’s appellate counsel
concedes that the record does not indicate that defendant made a
motion to dismiss, and her case was still in the pretrial stage.
Therefore, pursuant to Edwards, the State, not the trial court,
had the option to either dismiss the DWI offense or proceed to
trial without the suppressed evidence and attempt to establish a
prima facie case. Therefore, the trial court erred in
dismissing defendant’s DWI offense.
IV. Conclusion -9- Under the totality of the circumstances, the trial court
properly concluded that Trooper Doston lacked sufficient
probable cause to arrest defendant for the offense of DWI, and
therefore correctly granted defendant’s motion to suppress.
However, the trial court erred in dismissing the DWI offense as
a result of the pretrial motion to suppress. Therefore, we
affirm the portion of the trial court’s order granting the
motion to suppress, but reverse the portion of the order
dismissing the matter.
Affirmed in part, reversed in part.
Judges ELMORE and STEPHENS concur.
Report per Rule 30(e).