in the Court of Appeals 20 February 2018.
by the State from order entered 8 June 2017 by Judge Patrice
Hinnant in Wilkes County No. 16 CRS 51594, 703543 Superior
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Christopher W. Brooks, for the State.
Vannoy, Colvard, Triplett & Vannoy, PLLC, by Jay Vannoy,
for the Defendant-Appellee.
State appeals from an order granting Defendant's motion
to suppress evidence obtained subsequent to his arrest for
driving while impaired. For the reasons stated below, we
reverse and remand for further proceedings consistent with
morning of 11 June 2016, a trooper stopped Defendant's
vehicle for speeding in Wilkes County. Based on his
observations of Defendant, the trooper formed a belief that
Defendant had consumed a sufficient quantity of alcohol to
impair Defendant's faculties or his ability to safely
drive a vehicle. Accordingly, the trooper placed Defendant
under arrest for driving while impaired. The trooper also
cited Defendant for speeding and for driving with an open
container of alcohol.
was convicted in district court, but he appealed to superior
court for a trial de novo. In superior court,
Defendant filed a motion to suppress, contending that the
trooper lacked probable cause to arrest him. Following a
hearing on the matter, the superior court granted
Defendant's motion. The State timely appealed.
appeal, the State contends that the superior court's
findings do support a conclusion that the trooper
had probable cause to arrest Defendant for driving while
State does not challenge any of the superior court's
findings of fact; therefore, these findings are binding on
appeal. State v. Biber, 365 N.C. 162, 168, 712
S.E.2d 874, 878 (2011). Accordingly, our standard of review
is whether the superior court's findings support its
conclusion that the trooper lacked probable cause to arrest
Our Supreme Court has defined "probable cause for an
. . . a reasonable ground of suspicion, supported by
circumstances sufficiently strong in themselves to warrant a
cautious [person] in believing the accused to be guilty[.]
[T]he evidence need not amount to proof of guilt, or even to
prima facie evidence of guilt, but it must be such as would
actuate a reasonable [person] acting in good faith.
State v. Bone, 354 N.C. 1, 10, 550 S.E.2d 482, 488
for the reasons stated below, we conclude that the findings
made by the superior court support a conclusion that the
trooper did have probable cause to arrest Defendant.
the superior court found as follows: The trooper clocked
Defendant traveling at a speed of 80 miles per hour in a 65
mile per hour zone on a multiple-lane highway. As the trooper
approached Defendant, Defendant was traveling in the
left-hand lane (on the correct side of the road). As the
trooper drew close to Defendant, Defendant abruptly moved
into the right-hand lane and nearly struck another vehicle
before stopping on the shoulder of the highway. During the
stop, the trooper noticed a moderate odor of alcohol
emanating from Defendant and observed an open 24-ounce
container of beer in the cup-holder next to the driver's
seat. Defendant told the trooper that he had just purchased
the beer, and was drinking it while driving down the highway.
Defendant admitted that he had been drinking heavily several
hours before the encounter with the trooper. The trooper did
not have Defendant perform any field sobriety tests; but the
trooper did request that Defendant submit to two Alco-sensor
tests, both of which yielded positive results for alcohol.
the trial court also made many findings tending to show that
Defendant was not driving under the influence of alcohol: He
did not have glassy eyes, exhibit slurred speech, or have any
issues with balancing or walking. Further, Defendant was
cooperative and responsive.
be that the superior court's findings are not sufficient
to prove Defendant's guilt or to make out a prima
facie case of Defendant's guilt. But we conclude
that the findings are sufficient for a "cautious"
police officer to believe that Defendant was driving under
the influence. Defendant admitted to drinking, had an open
container in his vehicle, had alcohol on his breath, was
driving fifteen (15) miles per hour over the speed limit, and
made an unsafe movement almost causing an car accident when
he pulled across a lane of traffic while pulling over. True,
Defendant's unsafe movement across a lane of traffic may
have been caused by some factor unrelated to being under the
influence of alcohol, such as the nervousness inherent in
being pulled over by a police officer. But a
"cautious" trooper could also reasonably believe
that Defendant's abrupt change of lanes, nearly resulting
in a collision, was caused, at least in part, by Defendant
being under the influence of alcohol. Swerving alone does not
give rise to probable cause, but additional factors creating
dangerous circumstances may. See State v.
Wainwright, 240 N.C.App. 77, 85, 770 S.E.2d 99, 105
though the findings might not make out a prima facie
case of Defendant's guilt, the findings were sufficient
to justify the trooper, acting cautiously, to arrest
Defendant rather than take a chance by allowing Defendant to
continue driving in his condition. See State v.
Harris, 279 N.C. 307, 311, 182 S.E.2d 364, 367 (1971)
("The existence of 'probable cause' . . . is
determined by factual and practical considerations of
everyday life on which reasonable and prudent men, not legal
conclusion, the trial court's findings regarding
Defendant's excessive speed, his abrupt unsafe movement
almost resulting in a collision with another vehicle, the
alcohol on his breath, the two positive readings on the
portable alcohol screening test, the open container in his
car, and his admission to heavy drinking just hours before -
though maybe not enough to clear the "guilty beyond a
reasonable doubt" hurdle necessary for a conviction
where other findings tend to show that Defendant was sober -
does clear the lower "probable cause" hurdle
necessary for an arrest as established by our Supreme Court.
Bone, 354 N.C. at 10, 550 S.E.2d at 488.
findings of the superior court support a conclusion that the
trooper did have probable cause to arrest Defendant for
driving while impaired. Accordingly, we reverse the order of
the superior court suppressing evidence obtained as a result
of the stop ...