State v. Rogers

• Decision Date: 05 November 1996
• Docket Number: No. COA96-8,COA96-8
• Citation: 477 S.E.2d 221,124 N.C.App. 364
• Parties: STATE of North Carolina v. John Michael ROGERS, Defendant-Appellant.
• Court: North Carolina Court of Appeals

Page 221

477 S.E.2d 221

124 N.C.App. 364

STATE of North Carolina v. John Michael ROGERS, Defendant-Appellant.

No. COA96-8.

Court of Appeals of North Carolina.

Nov. 5, 1996.

Knox, Knox, Freeman & Brotherton by Allen C. Brotherton, Charlotte, for defendant-appellant.

Attorney General Michael F. Easley by Associate Attorney General Reuben F. Young, for the State.

JOHNSON, Judge.

On 25 August 1994, defendant was arrested and charged with driving while impaired (DWI) in violation of section 20-138.1 of the North Carolina General Statutes. On 9 November 1994, defendant pled guilty to DWI in Iredell County District Court. Thereafter, on 18 November 1994, defendant gave notice of appeal to superior court for trial de novo. On 16 January 1995, defendant filed and served a motion to suppress all of the evidence obtained subsequent to his allegedly illegal seizure and arrest. This motion came on for hearing at the 11 September 1995 criminal session of Iredell County Superior Court before Judge Peter McHugh.

The evidence presented at the hearing on defendant's motion to suppress was as follows: On 25 August 1994, Trooper J.S. Fox of the North Carolina Highway Patrol was directing traffic at the intersection of Brawley School Road and Stutts Road in Iredell County. Trooper Fox and other officers were diverting traffic from the area of a hostage situation. Using hand signals, the trooper was directing traffic to turn left onto Stutts Road from Brawley School Road. During this time, several drivers stopped their vehicles to speak to the officers as they did not know the direction in which they needed to travel.

At approximately 10:10 p.m., Trooper Fox observed defendant's 1993 Buick vehicle approaching the intersection where the trooper was stationed. Instead of turning left as directed by Trooper Fox, defendant stopped his vehicle in the intersection. Consequently, the trooper approached defendant's vehicle and noticed that defendant was its sole occupant. Notably, defendant contends that he stopped in the intersection to speak with Trooper Fox about the direction in which he needed to travel. Trooper Fox approached defendant's vehicle, and engaged in short conversation with defendant, during which he noted a strong odor of alcohol on defendant's breath. As a result, the trooper directed defendant to drive to the shoulder of the roadway and defendant complied. Subsequently, the trooper administered an Alco-sensor test, arrested defendant, and transported him to the Iredell County Jail, where an Intoxilyzer test indicated that defendant's alcohol concentration was .11. After hearing the evidence and arguments of counsel, the trial court found that Trooper Fox had lawfully detained and searched defendant, and denied defendant's motion to suppress.

Immediately thereafter, this case came on for trial before a duly empaneled jury. At the close of all of the evidence, defendant made a motion to dismiss the charge, contending that the criminal prosecution was a violation of the constitutional prohibitions against double jeopardy. This motion was also denied. The trial court, in giving its instruction to the jury, instructed the jury on the issue of whether defendant had an alcohol concentration over the legal limit, since the trial court found that evidence was insufficient as a matter of law to find him mentally or physically impaired. The jury found defendant guilty and the trial court imposed a Level 5 impaired driving sentence with a twelve month sentence of probation. Defendant appeals.

On appeal, defendant assigns as error the trial court's denial of his motion to suppress on two grounds: (1) the evidence was the product of an illegal seizure made without reasonable, articulable suspicion; and (2) the evidence was a product of an illegal arrest made without probable cause. We cannot agree.

The Fourth Amendment to the United States Constitution guarantees citizens the right to be secure from unreasonable searches and seizures. The Fourth Amendment is applicable to the states through the Due Process Clause of the Fourteenth Amendment. State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 69 (1994). The protections of the Fourth and Fourteenth Amendments extend to investigatory detentions of vehicles. Id. at 441, 446 S.E.2d at 69-70. A law enforcement officer may, however, make a brief, investigative stop of a vehicle if he is led to do so by specific, articulable facts giving rise to a reasonable suspicion of illegal activity. Id. at 441, 446 S.E.2d at 70; United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The United States Supreme Court explained the "reasonable suspicion" standard in Alabama v. White:

Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.... Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors- --quantity and quality--are considered in the "totality of the circumstances--the whole picture," that must be taken into account when evaluating whether there is reasonable suspicion.

496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301, 309 (1990) (citations omitted).

North Carolina General Statutes section 15A-977(f) requires that the trial court make findings of fact and conclusions of law when ruling upon a motion to suppress. N.C. Gen.Stat. § 15A-977(f)(1988). These findings of fact are conclusive and binding upon appellate courts if supported by competent evidence. State v. Jordan, 120 N.C.App. 364, 462 S.E.2d 234, disc. review denied, 342 N.C. 416, 465 S.E.2d 546 (1995).

In the instant case, the trial court made the following pertinent findings of fact:

(1) That defendant was seized "at the time that Trooper Fox requested him to pull off of the shoulder of the road after the initial confrontation between the two of them." Until that point the trooper was engaged in a public safety function. "He had no intention and no purpose to stop [defendant's] vehicle, no purpose to confront [him]."

(2) That at the point that the trooper requested defendant to pull onto the shoulder of the road, the trooper had both an articulable suspicion and probable cause to believe that a misdemeanor offense was being committed in his presence.

(3) That defendant was the sole occupant of a vehicle that was in operation on a public highway in this State.

(4) That the evidence is "uncontroverted of a strong odor of alcohol, and ... in and of itself, under these circumstances, is grounds for probable cause."

Looking at the totality of the circumstances, we find adequate evidence to support the trial court's findings of fact that Trooper Fox had a reasonable, articulable suspicion to believe that defendant was committing a crime in his presence--driving while impaired.

We must now address defendant's contention that Trooper Fox did not possess probable cause to arrest him. "To be lawful, a warrantless arrest must be supported by probable cause." State v. Zuniga, 312 N.C. 251, 259, 322 S.E.2d 140, 145 (1984). " 'Probable cause for an arrest has been defined to be a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty....' " Id. (citations omitted)(quoting State v. Shore, 285 N.C. 328, 335, 204 S.E.2d 682, 687 ...