in the Court of Appeals 22 August 2016.
by defendant from judgment entered on or about 7 October 2015
by Judge Martin B. McGee in Superior Court, Cabarrus County.
Cabarrus County, No. 12 CRS 051930
Attorney General Joshua H. Stein, by Assistant Attorney
General Kathryne E. Hathcock, for the State.
Yu for defendant-appellant.
Devrie Leran Burris ("defendant") appeals from the
trial court's judgment finding him guilty of impaired
driving. On appeal, defendant raises several issues,
including that the trial court erred in denying his motion to
suppress self-incriminating statements made after his
driver's license was retained and without
Miranda warnings. Because we find that defendant was
not free to leave at the time his license was retained, we
agree and remand to the trial court for a new trial.
April 2012, Christopher Hill of the Kannapolis Police
Department ("Detective Hill") responded to a
suspicious person call at a Fairfield Inn in Cabarrus County.
After pulling in to the hotel parking lot, Detective Hill
observed a red Ford Explorer "parked in front of the
hotel kind of in the unloading area under the overhang."
A woman was standing outside of the Explorer and defendant
was sitting in the driver's seat. Detective Hill spoke to
the woman standing outside of the car and to defendant
through the passenger side window, which was rolled down. The
vehicle's engine was not running.
Hill asked "what they were doing there" and
"for their identifications." Defendant and the
woman responded that they were trying to get a room, and
defendant got out of the driver's seat to walk around the
car to Detective Hill to hand him his identification.
Detective Hill noticed a "strong odor of alcohol
beverage" from defendant when he handed over his
driver's license. He told defendant and the woman to
"hang tight there in the parking lot area" while he
went inside to talk to the hotel clerk. He learned that the
clerk had called because of a concern that the actions of
defendant and the woman were similar to "a robbery that
happened in a neighboring hotel a night or two before."
on his conversation with the hotel clerk, Detective Hill went
back outside to ask defendant if he was the one driving the
vehicle, to which he responded "yes." He then began
asking defendant questions about where he was traveling and
the route he had taken to the hotel. At some point, Detective
Hill checked the registration on the vehicle and determined
that it was registered in defendant's name. Detective
Hill asked defendant whether he had anything to drink that
night, and defendant responded that he had "a couple
drinks." Defendant told Detective Hill that he had not
had anything to drink since arriving at the hotel. Detective
Hill did not observe any open or unopened containers in or
around the red Ford Explorer.
Hill asked defendant "to submit to field sobriety
testing, " and performed those tests in the parking lot.
Defendant "showed some signs of impairment on
them." Detective Hill then asked defendant to submit to
a portable breath sample test, and he obliged, resulting in a
reading of .10. At that point, Detective Hill placed
defendant under arrest for driving while impaired and
transported him to the Kannapolis Police Department.
arriving at the police station, Detective Hill attempted to
perform a breath test on defendant, but he refused. Since
defendant refused a breath test, Detective Hill took
defendant to the hospital to request a blood draw for
analysis. Detective Hill did not seek a warrant for the blood
draw. After arriving at the hospital, Detective Hill informed
defendant of his implied consent rights. Defendant exercised
his right to contact a witness, but 30 minutes later, the
witness still had not arrived. After defendant refused to
submit to a blood draw, Detective Hill directed a nurse to
draw blood samples from defendant's arm. After the blood
draw, Detective Hill transported defendant to the
magistrate's office, where he was processed and placed in
was charged with impaired driving. He was convicted and
sentenced in district court on 15 April 2014. Defendant
appealed to the superior court. Defendant filed a motion to
dismiss on 23 July 2015, and in the motion asked for
any statements made by Defendant as the officer engaged in a
custodial interrogation of the Defendant without advising the
Defendant of his right to refrain from answering any
questions or advising the Defendant of his constitutional
right to counsel during questioning or any other federal,
state or statutory rights of an accused in police custody
regarding the effect of any statement on future proceedings.
August 2015, a hearing was held on defendant's motion and
the trial court orally denied the motion to suppress
statements in open court.
the 17 August 2015 hearing, the trial court entered an order
and a subsequent amended order denying defendant's
motion. In the amended order, the court concluded in relevant
2. Miranda warnings and a waiver of those rights
apply only before officers begin a custodial interrogation
Miranda v. Arizona, 384 U.S. 436. Without facts
showing both "custody" and "interrogation,
" the Miranda rule is inapplicable.
3. The U.S. Supreme Court has ruled that a person is in
custody under the Miranda rule when officer [sic]
have formally arrested the person or have restrained a
person's movement to a degree associated with a formal
arrest. Berkemer v. McCarty, 468 U.S. 420.
4. The North Carolina Supreme Court has made clear that it
follows the U.S. Supreme Court on the meaning of custody.
State v. Buchanan, 353 [ N.C. ] 332.
5. In the present case, the Defendant falls short of the test
for custody, therefore the statements made before arrest
should not be suppressed.
6. Under the totality of the above-referenced circumstances,
the Defendant's Motion to Suppress should be denied.
additional order denying defendant's motion to suppress
was entered regarding the warrantless blood draw, finding
"exigent circumstances to support a warrantless blood
draw." A jury trial was held from 5 October to 7 October
2015, with the jury finding defendant ...