State v. Parisi

• Citation: 831 S.E.2d 236,372 N.C. 639
• Decision Date: 16 August 2019
• Docket Number: No. 65A17-2,65A17-2
• Parties: STATE of North Carolina v. Jeffrey Robert PARISI
• Court: United States State Supreme Court of North Carolina

372 N.C. 639

831 S.E.2d 236

STATE of North Carolina

v.Jeffrey Robert PARISI

No. 65A17-2

Supreme Court of North Carolina.

Filed August 16, 2019

Joshua H. Stein, Attorney General, by John W. Congleton, Assistant Attorney General, for the State.

Glenn Gerding, Appellate Defender, by Michele A. Goldman, Assistant Appellate Defender, for defendant-appellant.

ERVIN, Justice.

The issue before the Court in this case is whether the trial courts properly determined that a motion to suppress filed by defendant Jeffrey Robert Parisi should be allowed on the grounds that the investigating officer lacked probable cause to place defendant under arrest for driving while impaired. After careful consideration of the record in light of the applicable law, we hold that the trial courts’ findings of fact failed to support their legal conclusion that the investigating officer lacked the probable cause needed to place defendant under arrest for impaired driving. As a result, we affirm the Court of Appeals’ decision to reverse the trial courts’ suppression orders and remand this case to the trial courts for further proceedings.

At approximately 11:30 p.m. on 1 April 2014, Officer Greg Anderson of the Wilkesboro Police Department was operating a checkpoint on Old 421 Road. At that time, Officer Anderson observed defendant drive up to the checkpoint and heard what he believed to be an argument among the vehicle's occupants. Upon approaching the driver's side window and shining his flashlight into the vehicle, Officer Anderson observed an open box of beer on the passenger's side floorboard. However, Officer Anderson did not observe any open container of alcohol in the vehicle. In addition, Officer Anderson detected an odor of alcohol and noticed that defendant's eyes were glassy and watery. At that point, Officer Anderson asked defendant to pull to the side of the road and step out of the vehicle. After defendant complied with this instruction, Officer Anderson confirmed that a moderate odor of alcohol emanated from defendant's person rather than from the interior of the vehicle. When Officer Anderson asked defendant if he had consumed any alcohol, defendant replied that he had drunk three beers earlier in the evening.

At that point, Officer Anderson requested that defendant submit to several field sobriety tests. First, Officer Anderson administered the horizontal gaze nystagmus test

to defendant. In the course of administering the horizontal gaze nystagmus test

, Officer Anderson observed that defendant exhibited six clues indicating impairment. Secondly, Officer Anderson had defendant perform a walk and turn test, during which defendant was required to take nine heel-to-toe steps down a line, turn around, and take nine similar steps in the opposite direction. In performing the walk and turn test, defendant missed the fourth and fifth steps while walking in the first direction and the third and fourth steps while returning. In Officer Anderson's view, these missed steps, taken collectively, constituted an additional clue indicating impairment. Finally, Officer Anderson administered the one leg stand test to defendant. As defendant performed this test, Officer Anderson noticed that he used his arms for balance and swayed, which Officer Anderson treated as tantamount to two clues indicating impairment. At that point, Officer Anderson formed an opinion that defendant had consumed a sufficient amount of alcohol to appreciably impair his mental and physical faculties.

Subsequently, Officer Anderson issued a citation charging defendant with driving while subject to an impairing substance in violation of N.C.G.S. § 20-138.1. The charge against defendant came on for trial before Judge Robert J. Crumpton at the 17 June 2015 criminal session of the District Court, Wilkes County. Prior to trial, defendant made a motion to suppress the evidence obtained as a result of his arrest on the grounds that Officer Anderson lacked the necessary probable cause to take him into custody. On 23 September 2015, Judge Crumpton entered a Preliminary Order of Dismissal in which he determined that defendant's suppression motion should be granted.¹ On 23 September 2015, the State noted an appeal from Judge Crumpton's preliminary order to the Superior Court, Wilkes County.

The State's appeal came on for hearing before Judge Michael D. Duncan at the 9 November 2015 criminal session of the Superior Court, Wilkes County. On 13 January 2016, Judge Duncan entered an Order Granting Motion to Suppress and Motion to Dismiss² in which he granted defendant's suppression motion and ordered that the charge that had been lodged against defendant be dismissed. On 11 March 2016, Judge Crumpton entered a Final Order Granting Motion to Suppress and Motion to Dismiss in which he granted defendant's motion to suppress the evidence obtained as a result of his arrest and ordered "that the charge against [d]efendant be dismissed." On the same date, the State noted an appeal from Judge Crumpton's final order to the Superior Court, Wilkes County. On 6 April 2016, Judge Duncan entered an Order of Dismissal Affirmation affirming Judge Crumpton's "final order suppressing the arrest of the defendant and dismissing the charge of driving while impaired." The State noted an appeal to the Court of Appeals from Judge Duncan's order affirming Judge Crumpton's final order granting defendant's suppression motion and dismissing the driving while impaired charge that had been lodged against defendant.

In seeking relief from the orders entered by Judge Crumpton and Judge Duncan before the Court of Appeals, the State argued that the trial courts had erred by finding that Officer Anderson lacked probable cause to arrest defendant for driving while impaired and ordering that the driving while impaired charge that had been lodged against defendant be dismissed. On 7 February 2017, the Court of Appeals filed an opinion dismissing the State's appeal from Judge Crumpton's order granting defendant's suppression motion on the grounds that the State had no right to appeal the final order granting defendant's suppression motion, vacating the trial court orders requiring that the driving while impaired charge that had been lodged against defendant be dismissed, and remanding this case to the Superior Court for further remand to the District Court for further proceedings. State v. Parisi , 796 S.E.2d 524, 529 (N.C. Ct. App. 2017), disc. review denied , 369 N.C. 751, 799 S.E.2d 873 (2017).

On 28 July 2017, the State filed a petition requesting the Court of Appeals to issue a writ of certiorari authorizing review of Judge Duncan's Order Granting Motion to Suppress and Motion to Dismiss and Judge Crumpton's Final Order Granting Motion to Suppress and Motion to Dismiss. State v. Parisi , 817 S.E.2d 228, 229 (N.C. Ct. App. 2018). On 16 August 2017, the Court of Appeals granted the State's certiorari petition. Id. , 817 S.E.2d at 229. In seeking relief from the trial courts’ orders before the Court of Appeals on this occasion, the State argued that Judge Crumpton and Judge Duncan had erred by granting defendant's suppression motion on the grounds that, in the State's view, Officer Anderson had probable cause to arrest defendant for impaired driving.

In a divided opinion reversing the trial courts’ orders and remanding this case to the trial courts for further proceedings, the Court of Appeals majority determined that the facts at issue in this case resembled those at issue in State v. Townsend , 236 N.C. App. 456, 762 S.E.2d 898 (2014), in which the Court of Appeals had held that an officer had probable cause to arrest a defendant for impaired driving given that the defendant, who had been stopped at a checkpoint, "had bloodshot eyes and a moderate odor of alcohol about his breath," exhibited multiple clues indicating impairment during the performance of three field sobriety tests, and produced positive results on two alco-sensor tests. Parisi , 817 S.E.2d at 230 (citing Townsend , 236 N.C. App. at 465, 762 S.E.2d at 905. Although the Court of Appeals noted that "no alco-sensor test [had been] administered in the instant case, defendant himself volunteered the statement that he had been drinking earlier in the evening." Parisi , 817 S.E.2d at 230. In addition, the Court of Appeals pointed out that, "while the odor of alcohol, standing alone, is not evidence of impairment, the ‘[f]act that a motorist has been drinking, when considered in connection with ... other conduct indicating an impairment of physical or mental faculties, is sufficient prima facie to show a violation of [N.C.]G.S. [§] 20-138.1.’ " Parisi , 817 S.E.2d at 230–31 (quoting Atkins v. Moye , 277 N.C. 179, 185, 176 S.E.2d 789, 794 (1970) ). On the other hand, the Court of Appeals was not persuaded by the trial courts’ reliance upon the Court of Appeals’ own unpublished opinion in State v. Sewell , 239 N.C. App. 132, 768 S.E.2d 650 (2015), given that "it is not binding upon the courts of this State" and is "easily distinguished from the instant case." Id., 817 S.E.2d at 231 (citing Sewell , 239 N.C. App. 132, 768 S.E.2d 650 ). As a result, the Court of Appeals concluded that "the facts, as supported by the evidence and as found by the district and superior courts, supported a conclusion that Officer Anderson had probable cause to stop and cite defendant for driving while impaired," so that "the trial court erred in granting defendant's motion to suppress the stop." Id. , 817 S.E.2d at 231

In dissenting from the Court of Appeals’ decision, Judge Robert N. Hunter, Jr., expressed the belief that the uncontested facts supported the legal conclusion that Officer Anderson lacked the probable cause necessary to support his decision to place defendant under arrest. Id. , 817 S.E.2d at 231–32. More specifically, the dissenting judge asserted that the trial courts’ findings in this case, while "analogous to some of the findings of fact in Townsend ," differed from those...