State v. Sewell

Decision Date06 January 2015
Docket NumberNo. COA14–269.,COA14–269.
Citation768 S.E.2d 650 (Table)
CourtNorth Carolina Court of Appeals
PartiesSTATE of North Carolina v. Margaret K. SEWELL.

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 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 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 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 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 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 Rogersinitiated 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 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...

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6 cases
  • State v. Parisi
    • United States
    • North Carolina Supreme Court
    • August 16, 2019
    ...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.,......
  • State v. Lindsey, COA15–1188
    • United States
    • North Carolina Court of Appeals
    • September 20, 2016
    ...rise to the level of the evidence in other cases. Defendant analogizes the facts in the present case to the facts in State v. Sewell , 239 N.C.App. 132, 768 S.E.2d 650 (available at 2015 WL 67193), disc. rev. denied , 368 N.C. 239, 768 S.E.2d 851 (2015), in which this Court affirmed the tri......
  • State v. Finney
    • United States
    • North Carolina Court of Appeals
    • June 1, 2021
    ...arrested for possession of drug paraphernalia). 2 Defendant also relies on an unpublished decision, State v. Sewell , 239 N.C. App. 132, 768 S.E.2d 650, 2015 WL 67193 (2015) (unpublished), for support. That case is not binding on this court and is distinguishable given that Officer Torres s......
  • State v. Parisi
    • United States
    • North Carolina Court of Appeals
    • June 5, 2018
    ...demonstrating impairment.The superior court, in the Superior Court Order, cited the unpublished case of State v. Sewell , 239 N.C. App. 132, 768 S.E.2d 650 (2015) (unpublished), as part of its reasoning in finding a lack of probable cause. We note first that, as an unpublished decision, Sew......
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