State v. Terrell, COA18-237

Docket NºNo. COA18-237
Citation822 S.E.2d 324, 263 N.C.App. 595
Case DateJanuary 15, 2019
CourtCourt of Appeal of North Carolina (US)

263 N.C.App. 595
822 S.E.2d 324 (Table)

STATE of North Carolina
Sergio Dasuan TERRELL

No. COA18-237

Court of Appeals of North Carolina.

Filed: January 15, 2019

Attorney General Joshua H. Stein, by Assistant Attorney General Oliver G. Wheeler IV, for the State.

Sean P. Vitrano, Wake Forest, for defendant-appellant.

DAVIS, Judge.

Sergio Dasuan Terrell ("Defendant") appeals from his conviction for driving while impaired. On appeal, Defendant contends that the trial court erred by denying his motion to suppress where his detention by a law enforcement officer constituted a warrantless arrest that was not supported by probable cause. After a thorough review of the record and applicable law, we reverse the trial court's denial of Defendant's motion to suppress and vacate the judgment entered upon his guilty plea.

Factual and Procedural Background

On the night of 10 October 2015, Officer David Artieri of the Charlotte-Mecklenburg Police Department was off duty and working as a security guard for a Charlotte nightclub. As part of his duties for that position, Officer Artieri — along with another off-duty police officer also working at the nightclub that evening — was monitoring the exterior of the establishment as well as its private parking lot.

During the course of his shift, Officer Artieri saw Defendant "back out of a parking space and strike another vehicle in the parking lot." The collision occurred at a low speed and Officer Artieri did not "observe any noticeable damage" to the vehicle that was struck. He stopped Defendant from exiting the parking lot and approached his vehicle.

Officer Artieri asked Defendant for his driver's license and noticed "a strong odor of an alcoholic beverage emitting from his breath and person." Defendant took "several minutes" to produce his driver's license. At that point, Officer Artieri formed the opinion that Defendant was impaired and subsequently placed a call for an on-duty officer to "come and assist in further investigation [of] Defendant's impairment level." Although Officer Artieri did not place him under arrest, he testified that Defendant was not "free to leave."

According to Charlotte-Mecklenburg Police Department's dispatch records, a call was placed requesting that an officer respond to Officer Artieri's location at 12:15 a.m. on 11 October 2015. Officer J.S. Cerdan responded to the call immediately and activated his body camera upon arriving at the scene at 12:21 a.m. After speaking with Officer Artieri about what he had observed, Officer Cerdan "looked at the vehicles, took pictures, did [his] sobriety test[s] with [Defendant], ... placed him under arrest at 12:39, and then transported him to intox for the breath test, and then to the magistrate."

Following Defendant's arrest for driving while impaired, Officer Artieri memorialized the incident in a report he prepared at approximately 1:30 a.m. In his report, he wrote that his interaction with Defendant began at 11:20 p.m. on 10 October 2015.

Defendant was subsequently tried and convicted of driving while impaired in Mecklenburg County District Court. At Defendant's district court trial, Officer Artieri's testimony was consistent with his report in that he stated that he initially encountered Defendant at 11:20 p.m.

Defendant appealed his conviction to Mecklenburg County Superior Court. On 13 February 2017, he filed a motion to suppress "any evidence obtained as a result of the prolonged stop and arrest by Officer Artieri." Defendant's motion to suppress was heard in superior court before the Honorable Yvonne Mims Evans on 5 September 2017. During the hearing, Officer Artieri testified that he actually made contact with Defendant not at 11:20 p.m. on 10 October but rather at 12:20 a.m. on 11 October and that Officer Cerdan "came somewhere in the range of ten minutes later."

On 6 September 2017, the trial court orally denied Defendant's motion to suppress. In denying his motion, the trial court made the following pertinent oral findings:

That the defendant left the club at 304 East Stonewall Street at approximately 11:20 on October the 10th, 2015.


When [Officer Artieri] stopped the defendant he smelled a strong odor of alcohol about his person. That gave Officer Artieri probable cause, both seeing him hit the vehicle and the strong odor of alcohol, to detain the defendant until an on-duty officer could arrive at the scene. When the on-duty officer arrived at approximately 12:21 he then performed the field sobriety tests or did the other things that were necessary to make the arrest.

At the trial of the defendant in District Court Officer Artieri, prior to the trial, had written in his report that he stopped the defendant at 11:20 p.m., and he testified to that same time at the trial. The defendant was convicted in District Court of driving while impaired.

The second officer, [Cerdan], became aware that there was a time discrepancy, and conducted his own independent research. And verified, to the extent possible, through other records of the Charlotte-Mecklenburg Police Department, the time that he received the call for service, which was at 12:15 a.m. on October the 11th. And the time that he arrived at 304 East Stonewall Street, which was at 12:21 a.m. on October the 11th. And he ultimately placed the defendant under arrest at 12:39 a.m.

So through Officer [Cerdan's] records we can determine that it took him less than ten minutes, once the call for service was put out, to arrive at the scene. Therefore it appears that, and the Court finds, that the defendant was held between 11:20 and at least 12:21 a.m.

However, I do not find that this period of time was unreasonable, given the fact that Officer Artieri had observed the defendant hit a vehicle and that he smelled a strong odor of alcohol about his person. So he certainly had probable cause to hold him, and therefore the motion is denied.


Oh, and I need to add this as well. At this hearing yesterday Officer Artieri testified that he made an error in his report and his testimony when he said that he observed the defendant at 11:20. He said in fact it was 12:20, which is also consistent with Officer [Cerdan's] report.

And the Court, the Court believes that he actually stopped the defendant at around 11:20 p.m. Can't explain why it took him so long to put in a call for service.

(Emphasis added.)

Following the trial court's denial of his motion to suppress, Defendant gave notice in open court of his intent to appeal the court's ruling. He then pled guilty to the charge of driving while impaired. The trial court sentenced Defendant to sixty days in the custody of the Misdemeanant Confinement Program, suspended the sentence, and placed him on unsupervised probation for twelve months. At that point, Defendant formally gave notice of appeal.

Later that same day, the trial court entered a written order denying Defendant's motion to suppress. In the written order, the trial court made the following pertinent findings of fact:


4. There was no evidence that Officer Artieri questioned Defendant; had any conversation with him from the time that he stopped Defendant until he made the decision to contact dispatch or that Defendant made any unsolicited statements to Officer Artieri.

5. A call for service went out at 12:15 am on October 11, 2015. Officer Cerdan responded to the call, arriving at the Stonewall address at 12:21 am. Defendant was placed under arrest by Officer Cerdan at 12:39 am and transported to the Mecklenburg County jail.

6. Officer Artieri completed his incident report later that morning at approximately 1:30 am. In the report, he wrote that he stopped the Defendant at 11:20 pm.

7. Artieri testified in the Defendant's District Court trial that he stopped defendant at 11:20 pm.

8. Defendant stated that he left the club at approximately 11:20 pm. He says that Officer Artieri made him stand outside of his car until Officer Cerdan arrived.


10. At the September 5, 2017 hearing, Officer Artieri testified that the 11:20 pm time was incorrect, both in his report and in his previous testimony. He said that he actually stopped the Defendant at approximately 12:20 am on October 11, 2015 and that Officer Cerdan arrived in less than ten minutes from the time that Defendant was stopped.

11. The Court recognizes the inconsistency in Officer Artieri's time references and concludes because he and Cerdan agree that Cerdan arrived within ten minutes of the call for service that Artieri erred initially when he wrote that he initially stopped Defendant at 11:20 pm.

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