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State v. Armstrong

Court of Appeals of North Carolina

September 2, 2014

STATE OF NORTH CAROLINA
v.
THOMAS ARMSTRONG

Heard in the Court of Appeals June 4, 2014

Editorial Note:

This Decision is not final until expiration of the twenty-one day rehearing period. [North Carolina Rules of Appellate Procedure 32(b)]

Attorney General Roy Cooper, by Assistant Attorney General Mr. Joseph L. Hyde, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defender Ms. Barbara S. Blackman, for defendant-appellee.

Judges BRYANT and GEER concur.

Appeal by the State from order entered 4 December 2013 by Judge Jesse B. Caldwell, III, in Gaston County. Nos. 12 CRS 52075-78 Superior Court.

OPINION

CALABRIA, Judge.

The State appeals, pursuant to N.C. Gen. Stat. § 15A-979 and § 15A-1445(b), an order granting Thomas Armstrong's (" defendant" ) motion to suppress evidence seized by virtue of a search without a search warrant. We reverse and remand.

About 1:45 a.m. on 13 February 2012, Officers Jonathan Scher (" Officer Scher" ) and Bryce Carr (" Officer Carr" ) (collectively " the officers" ) of the Gastonia Police Department observed a black Chevrolet Impala (" the Impala" ) execute a three-point turn in the middle of an intersection, strike a parked vehicle, and continue traveling on the left side of the road. The officers activated their blue lights to initiate a traffic stop. Before the driver stopped the Impala, the officers observed a brown beer bottle thrown from the driver's side window.

The officers approached the Impala. Defendant, the driver, and his passenger complied with the officers' order to exit the Impala. When the officers checked the vacant Impala, they detected an odor of alcohol and marijuana emanating from inside the Impala and discovered a partially consumed bottle of beer was located in the center console. Officer Carr also detected an odor of alcohol on defendant's breath, and observed defendant's eyes, which he described as " red, glassy bloodshot eyes."

Defendant was arrested for hit and run and possession of an open container of an alcoholic beverage. Both defendant and his passenger were restrained in handcuffs and secured in the back of the officers' patrol vehicle. Officer Carr then retrieved the beer bottle that had been thrown from the Impala while Officer Scher searched the vehicle. Officer Scher found the beer bottle in the center console and a grocery bag with three unopened beers on the floorboard of the passenger area. He also found a " plastic baggie containing several white rocks" in the glove compartment of the Impala.

Defendant was subsequently charged with felony possession of cocaine, hit and run with failure to stop when property damage occurred, reckless driving to endanger, driving while license revoked, possession of an open container of an alcoholic beverage in the passenger area of a vehicle while consuming alcohol, and drinking beer while driving. On 7 November 2013, defendant filed a pretrial motion to suppress all the evidence that was obtained as the fruit of an illegal search of defendant's vehicle. After a hearing, the trial court entered an order on 4 December 2013 granting defendant's motion to suppress. The State appeals.

The State argues the trial court erred by granting defendant's motion to suppress. Specifically, the State contends the search of defendant's vehicle was based upon probable cause, therefore the trial court mistakenly concluded that the extensive search went beyond a valid and lawful search incident to arrest, and " is distinguishable from other cases where the vehicles are stopped lawfully but no one is placed under arrest such that the vehicle is not secured, and also from cases in which law enforcement actually ...


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