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State v. Shaw

Court of Appeals of North Carolina

December 16, 2014

STATE OF NORTH CAROLINA
v.
SUSAN DENISE SHAW

Heard in the Court of Appeals 13 August 2014.

Appeal by defendant from judgment entered 25 February 2013 by Judge Sharon Tracey Barrett in Mecklenburg County Superior Court No. 10 CRS 230339.

Roy Cooper, Attorney General, by J. Rick Brown, Associate Attorney General, for the State.

Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse Jr., for defendant-appellant.

DAVIS, JUDGE.

Susan Denise Shaw ("Defendant") appeals from her conviction of driving while impaired ("DWI"). On appeal, she contends that the trial court erred by denying her motion to suppress. After careful review, we affirm.

Factual Background

At approximately 12:30 a.m. on 26 June 2010, Officer Robert Gormican ("Officer Gormican") of the Charlotte-Mecklenburg Police Department ("CMPD") was on patrol and participating in a "DWI saturation operation." This operation involved multiple CMPD officers working together to patrol areas where impaired driving was known to be prevalent. The operation called for two officers driving an undercover car to patrol a stretch of road near Freedom Drive and Morehead Street in Mecklenburg County. The undercover officers were tasked with identifying potentially intoxicated drivers and radioing officers in both marked and unmarked patrol cars to intercept them.

Officers E. Morales ("Officer Morales") and M. Wallin ("Officer Wallin") were operating one of the undercover CMPD vehicles as part of this operation when, at approximately 12:28 a.m., they radioed Officer Gormican and informed him that they "were behind a blue Mitsubishi on Freedom Drive coming up Morehead, and it was weaving outside its lane of travel several times." Officer Gormican was in an unmarked patrol car approximately one mile away and responded by traveling eastbound down Morehead Street toward Freedom Drive in order to locate the Mitsubishi. Upon approaching the traffic light at the intersection of Morehead Street and Freedom Drive, Officer Gormican spotted the Mitsubishi and the trailing undercover vehicle pass in front of him and continue traveling down Freedom Drive. From the far left lane on Morehead Street, Officer Gormican observed both vehicles to his right and noticed that the Mitsubishi's tail lights were not illuminated. He activated his blue lights and initiated a traffic stop of the Mitsubishi.

After the Mitsubishi had pulled off the road into an empty parking lot, Officer Gormican approached the vehicle, which was occupied solely by Defendant. Upon asking Defendant for her driver's license and registration, Officer Gormican detected a strong odor of alcohol and ordered her out of her vehicle. Officer Gormican performed several field sobriety tests as well as two Alco-Sensor Breathalyzer tests and then placed Defendant under arrest for DWI.

Defendant was convicted of DWI on 28 April 2011 in Mecklenburg County District Court by the Honorable Theo X. Nixon. She appealed the district court's judgment to Mecklenburg County Superior Court. Defendant filed a pretrial motion seeking to suppress all evidence stemming from the traffic stop that ultimately led to her arrest on the ground that Officer Gormican lacked reasonable suspicion to stop her vehicle. A hearing on the motion to suppress was held on 22 February 2013.

During the hearing, Defendant entered into evidence Officer Gormican's Digital Motor Vehicle Recording, which showed that contrary to Officer Gormican's testimony, Defendant's tail lights were in fact operational and illuminated prior to the traffic stop.

On 28 February 2013, the trial court entered an order denying her motion that contained the following pertinent findings of fact:

1. On June 26, 2010 at approximately 12:30AM, Officer R. Gormican of the Charlotte Mecklenburg Police Department ("CMPD") was participating in a Driving While Impaired "saturation operation" in the vicinity of Freedom Drive and W. Morehead Street in ...

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