Heard in the Court of Appeals August 28, 2014.
Durham County. No. 12 CRS 60313.
Attorney General Roy Cooper, by Assistant Attorney General Christopher W. Brooks, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Kathleen M. Joyce, for defendant-appellee.
GEER, Judge. Judge STEELMAN concurs. Judge ROBERT N. HUNTER, JR. concurred in this opinion prior to 6 September 2014.
Appeal by the State from order entered 4 October
2013 by Judge Carl R. Fox in Durham County Superior Court.
The State appeals the trial court's order granting defendant Joseph Overocker's motion to suppress and dismissing the charges against him based on a lack of probable cause to arrest defendant for impaired driving and unsafe movement. We hold that the trial court's findings of fact are supported by the evidence and in turn support the court's conclusion of law that the reasons relied upon by the officer for the arrest did not provide the officer with probable cause that defendant was either impaired or had engaged in unsafe movement. We, therefore, affirm the order to the extent it grants the motion to suppress. Because, however, defendant did not make a written or oral motion to dismiss, controlling precedent requires that we reverse the trial court's dismissal of the charges.
On 11 October 2012, defendant arrived at about 4:00 p.m. at a sports bar called Time Out Bar & Grill in Durham, North Carolina. Defendant parked his Porsche Cayenne SUV directly in front of the bar and met up with several friends, including Claude " Chip" Teeter. While defendant was inside the bar, a group of motorcyclists pulled into the Time Out parking lot, and one of them parked her motorcycle behind defendant's SUV. When defendant left the bar and started backing out of his parking spot, he collided with the motorcycle.
Officer Everette Jefferies, an off-duty police officer with the Durham Police Department, had ridden his motorcycle to Time Out and noticed defendant when he first arrived. Officer Jefferies was outside in the parking lot when defendant was leaving, and he witnessed the collision.
Officer Mark Lalumiere, who was on duty with the Durham Police Department, was dispatched to the scene. After talking with defendant and Officer Jefferies, Officer Lalumiere had defendant perform standardized field sobriety tests (" FSTs" ). Another Durham Police Department officer, Officer Marvin Hembrick, performed two portable breath tests (" PBTs" ) on defendant. Officer Lalumiere then arrested defendant for impaired driving and unsafe movement.
On 11 April 2013, a district court judge found defendant guilty of both charges, and defendant timely appealed to superior court. On 11 July 2013, defendant filed a motion to suppress, asking the superior court to suppress (1) all evidence gathered after the stop of defendant's vehicle or the first interview of defendant for lack of reasonable suspicion and (2) all evidence based on a lack of probable cause to arrest defendant. After hearing testimony from defendant, Mr. Teeter, and Officers Jefferies, Lalumiere, and Hembrick, the superior court entered an order granting defendant's motion to suppress. Additionally, in the same order, the court dismissed the charges against defendant.
In the suppression order, the court made the following findings of fact. Defendant and Mr. Teeter arrived at Time Out at around
4:00 or 4:30 p.m. Mr. Teeter testified that he and defendant were sitting at a table outside on Time Out's patio. Defendant and Mr. Teeter left Time Out at around 8:00 or 8:30 p.m. Over the course of the evening, Mr. Teeter consumed four beers, and defendant consumed four bourbons on the rocks.
Officer Jefferies noticed defendant and Mr. Teeter and because " they were talking loudly, . . . Officer Jeffries [sic] believed the Defendant was impaired." Apart from talking loudly, " there was nothing unusual about the Defendant's behavior or conversation in the bar."
While defendant and Mr. Teeter were in the restaurant, a group of motorcyclists parked their vehicles in Time Out's parking lot. One of these, " a pink, ninja sport motorcycle," parked " three to four feet behind the Defendant's Porsche sport utility vehicle on the passenger side." The trial court found that the pink motorcycle was " illegally parked."
At around 8:15 p.m., when it was dark outside, Officer Jefferies saw defendant and Mr. Teeter walk out of the restaurant, and he noticed that defendant and Mr. Teeter were still talking loudly. The trial court found that " [w]hen the Defendant left with his friend, [Officer Jefferies] saw the Defendant and thought the Defendant should not be driving because he continued to talk loudly. He did not observe anything unusual about the Defendant's appearance, smell, walking, balance, eyes, or speech, other than he was talking loudly, upon which he based his opinion that the Defendant was impaired and should not be driving."
Defendant got into his vehicle with the radio playing and the air conditioning on. When defendant began to back up, a motorcyclist ran toward the illegally parked motorcycle, and, together with other motorcyclists, started yelling at defendant's SUV. One motorcyclist got onto the motorcycle, but was unable to move it in time. He jumped off, and defendant's SUV " backed over it, or struck it." The motorcycle fell over and it was dragged along the pavement for a short distance.
When defendant " heard something," he stopped and got out of his vehicle. One person was slapping his vehicle, while two others were holding the motorcycle he had struck. Defendant's SUV had a small scratch on the bumper.
The trial court found that " [b]ecause the motorcycle stood lower than the rear window of the Defendant's vehicle and there were other motorcycles parked in the parking space next to the passenger side of the Defendant's vehicle, there is no evidence the Defendant saw, or could even see the pink motorcycle parked behind his vehicle which was in a parking space, or was otherwise aware of its presence."
After defendant's collision with the pink motorcycle, the police were called, and Officer Lalumiere was dispatched to Time Out at around 8:15 p.m. When he arrived, Officer Lalumiere " found a Porsche Cayenne sport utility vehicle and a pink motorcycle behind the parking spaces in the lane between parking spaces in the parking lot of the establishment. The motorcycle had scratches on it and there were gouge marks in the pavement from the kick stand of the motorcycle."
Officer Lalumiere spoke with defendant, and defendant said that " he came out of the restaurant and backed up striking the motorcycle." Defendant told the officer that he " had been at the bar for four hours" and initially claimed he had two drinks. When Officer Lalumiere asked him again about the drinks, defendant said he might have had three. The trial court found that " [t]he Defendant had an odor of alcohol which Officer Lalumiere described as 'not real strong, light.'"
Defendant then consented to Officer Lalumiere's conducting two FSTs. The first test Officer Lalumiere asked defendant to perform was the " Walk and Turn Test." After Officer Lalumiere instructed him how to perform the test, defendant " took nine steps heel-to-toe down one of the lines for a parking space while counting aloud without a problem." Defendant then asked Officer Lalumiere what he was supposed to do next. ...