in the Court of Appeals 16 April 2018.
by the State of North Carolina from an order entered 31 May
2017 by Judge Patrice A. Hinnant in Wilkes County No. 15 CRS
52528 Superior Court.
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Derrick C. Mertz, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate
Defender Michele A. Goldman, for defendant-appellee.
Leonard Clapp III ("Defendant") was arrested on
September 5, 2015 for driving while impaired. Less than three
hours later, Defendant was again arrested for driving while
impaired and, because of his first arrest, driving while
license revoked. Defendant moved to suppress evidence which
the State planned on using to prove his second driving while
impaired arrest, and the trial court granted this motion. The
State appeals, arguing that the uncontroverted evidence was
sufficient to establish probable cause for Defendant's
arrest. We agree, and therefore reverse.
and Procedural Background
motion to suppress was heard in Wilkes County Superior Court
on May 15, 2017. The State's witnesses at the suppression
hearing were Officer Tyler Hall and Officer Craig Greer of
the North Wilkesboro Police Department. Defendant did not
introduce any evidence.
presented by the State tended to show that on September 5,
2015, officers with the North Wilkesboro Police Department
pulled Defendant over at a Wendy's restaurant and
arrested him for driving while impaired at approximately 9:30
p.m. Officer Hall parked Defendant's BMW 750i in the
Wendy's parking lot and locked the vehicle.
Hall transported Defendant to the county jail, where
Defendant provided a breath sample for analysis at 10:25 p.m.
Defendant's blood alcohol concentration based on the
EC/IR II breath analysis was 0.16 grams of alcohol per 210
liters of breath. Defendant was then transferred to the
magistrate's office where he was notified his license had
been revoked because of his arrest. He signed a written
promise to appear for his court date, and was released from
the county jail at 11:35 p.m.
minutes later, at 12:05 a.m. on September 6, 2015, Officer
Hall saw Defendant in the driver's seat of his BMW at a
gas station approximately one-half mile from the Wendy's.
No one else was in the vehicle and the engine was running.
Defendant's fiancée was beside him in a different
vehicle. Officer Hall testified:
[The State:] Can you tell the Court about your observations
of [Defendant's] physical appearance on the second
occasion and what you observed?
[Officer Hall:] [Defendant] had an odor of alcohol coming
from his person, he had slurred speech, red, glassy eyes and
he was unsteady on his feet.
[The State:] You said an odor of alcohol, how strong was the
odor of alcohol?
[Officer Hall:] It was a moderate odor of alcohol.
[The State:] Where did you observe these physical
appearances; was he inside or outside of the car?
[Officer Hall:] He was outside of the car.
[The State:] Where was the odor of alcohol coming from?
[Officer Hall:] From his breath, it was coming from his
[The State:] Prior to arresting [Defendant], did he make any
statements to you?
[Officer Hall:] Yes, he made a few statements.
[The State:] Can you tell the Court what statements he made
to you, Officer Hall?
[Officer Hall:] He repeatedly quoted, "How am I supposed
to leave a $75, 000 car sitting in the Wendy's parking