Heard in the Court of Appeals February 20, 2014
Attorney General Roy A. Cooper, III, by Assistant Attorney General Catherine F. Jordan, for the State.
Wait Law, P.L.L.C., by John L. Wait for defendant-appellant.
STROUD, Judge. Judge DAVIS concurs. Judge CALABRIA dissents in a separate opinion.
Appeal by defendant from judgment entered on or
about 21 March 2013 by Judge W. Osmond Smith in Chatham County Superior Court,
Nos. 10CRS052754, 10CRS052755.
Ronald Michael McCrary (" defendant" ) appeals from a judgment entered upon jury verdicts finding him guilty of driving while impaired (" DWI" ) and communicating threats. Defendant argues that the trial court erred by (1) denying his motion to suppress the evidence that resulted from a warrantless blood test; and (2) denying his motion to dismiss. We affirm the trial court's order denying defendant's motion to dismiss, but, as to defendant's motion to suppress, we remand for additional findings of fact.
We will summarize the relevant facts based upon the trial court's findings of fact, which are not challenged by defendant. At 6:34 p.m. on 28 December 2010, Deputy Justin Fyle of the Chatham County Sheriff's Office responded to a report of suspicious activity at the home of Marshall Lindsey. Upon his arrival at 7:01 p.m., Deputy Fyle observed a red Isuzu Trooper parked in a driveway near Lindsey's garage.
Deputy Fyle approached the vehicle and discovered defendant seated in the driver's seat. The vehicle's engine was not operating, and defendant appeared to be asleep. Deputy Fyle attempted to get defendant's attention, but defendant did not respond. Shortly thereafter, defendant began looking at his cell phone, which was upside down, but he continued to ignore Deputy Fyle.
Deputy Fyle then opened the vehicle's door to investigate further. When he opened the door, Deputy Fyle detected a strong odor of alcohol and noticed that defendant's eyes were red and glassy. There was a nearly empty vodka bottle in the vehicle. Deputy Fyle administered an Alcosensor test, and the results were " so high that Deputy Fyle determined that there may be a need for medical attention for the defendant."
Deputy Fyle also spoke to Lindsey, who stated that he had witnessed defendant make multiple attempts to turn into his driveway from the road. When defendant finally was able to enter the driveway, he ran over one of Lindsey's potted plants and a landscape light. Deputy Fyle observed tracks in the snow at the end of Lindsey's driveway that were consistent with Lindsey's statement.
Deputy Fyle returned to defendant and attempted to administer several field sobriety tests, but defendant was unable to stand up to perform them. Deputy Fyle arrested defendant for DWI at 7:34 p.m. Upon his arrest, defendant began complaining of chest pains and requested to be taken to the hospital. Deputy Fyle contacted emergency medical services (EMS) personnel, who arrived at 7:39 p.m. While EMS personnel examined defendant, Deputy Fyle determined that he would bring defendant to the Sheriff's Office for processing after he was released by EMS personnel. However, Deputy Fyle also decided that if defendant needed to be taken to the hospital, he would obtain a blood sample without a warrant.
While the EMS personnel tried to evaluate defendant's medical condition, defendant was " continually yelling and uncooperative" and would not permit them to properly examine him. Instead, defendant requested transport to the hospital. At the direction of his sergeant, Deputy Fyle directed EMS personnel to comply with defendant's request. Deputy Barry Ryser, a police officer assisting Deputy Fyle, accompanied defendant inside the EMS vehicle, and Deputy Fyle followed them in his patrol car.
Defendant arrived at the hospital emergency room at 8:39 p.m. Deputy Fyle removed defendant's handcuffs so that he could be examined, but defendant refused to cooperate with the medical staff and did not consent to any medical treatment. He was " extremely belligerent, yelling at officers and medical personnel" and he insulted the officers
as well as others. " The defendant's continued uncooperative conduct . . . led Deputy Fyle to conclude that the defendant was intentionally delaying the investigation." Prior to defendant's discharge from medical care, Deputy Fyle asked defendant to submit to a blood test and informed defendant of his rights regarding a blood test at 8:51 p.m. Defendant refused to consent to a blood test, and his " belligerent conduct accelerated." " He issued vile insults and threats to Deputy Fyle and others, including threatening to spit on Deputy Fyle and others." After emergency room personnel concluded their examination of defendant, he was discharged at 9:13 p.m. Therefore, Deputy Fyle decided to have defendant's blood drawn without a warrant.
Deputy Fyle requested that hospital personnel assist him with obtaining defendant's blood sample. Deputy Fyle required the assistance of the other officers and used restraints to protect both the officers and hospital staff from defendant while his blood was drawn at 9:16 p.m., almost 3 hours after Lindsey's call. Deputy Fyle and defendant subsequently left the hospital at 9:29 p.m. and arrived at the magistrate's office for further processing at 9:43 p.m.
Defendant was charged with DWI, possession of an open container, assault on a government official, communicating threats, resisting a public officer, and injury to personal property. After a bench trial in Chatham County District Court, defendant was found not guilty of possession of an open container and injury to personal property and guilty of all other charges. Defendant appealed to the Chatham County Superior Court for a trial de novo.
On 12 September 2012, defendant filed a motion to dismiss the charges against him, contending that the warrantless blood draw was flagrantly unconstitutional. At a hearing in which the trial court treated defendant's motion as both a motion to dismiss and a motion to suppress, Deputy Fyle testified that he called Magistrate Tyson at 7:15 p.m., before he arrested defendant, to seek his opinion about the situation. Deputy Fyle also testified that he called the magistrate after defendant's blood draw. Deputy Fyle further testified that he waited at the magistrate's office less than thirty minutes before meeting with the magistrate. Deputy Fyle finally testified that, at the time, he determined that it would be unreasonable to seek a warrant before conducting a blood draw given the circumstances. The trial court denied defendant's motion to dismiss. Beginning 18 March 2013, defendant was tried by a jury in superior court.
On 21 March 2013, the jury returned verdicts finding defendant guilty of DWI and communicating threats and not guilty of all other charges. For the DWI offense, the trial court sentenced defendant to an active term of six months. For the communicating threats offense, the trial court sentenced defendant to an active term of 120 days. The sentences were to be served consecutively in the North Carolina Division of Adult Correction. Defendant gave notice of appeal in open court.
II. Exigent Circumstances for a Warrantless Blood Test
Defendant argues that the trial court erred by denying his motion to suppress the evidence that resulted from the warrantless blood test because, under Missouri v. McNeely, Deputy Fyle " had ample time and ability to secure a search warrant" while defendant was in custody. See
__ U.S. __, 133 S.Ct. 1552, 185 L.Ed.2d 696, 702 (2013). We remand for additional findings of fact on this issue.
In ruling upon a motion to suppress evidence, " the [trial court] must set forth in the record [its] findings of fact and conclusions of law." N.C. Gen. Stat. § 15A-977(f) (2013). " [T]he general rule is that [the trial court] should make findings of fact to show the bases of [its] ruling." State v. Phillips, 300 N.C. 678, 685, 268 S.E.2d 452, 457 (1980); see also State v. Salinas, 366 N.C. 119, 123, 729 S.E.2d 63, 66 (2012). " The standard of review in evaluating the denial of a motion to suppress is whether competent evidence supports the trial court's findings of fact and whether the ...