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State v. Clapp

Court of Appeals of North Carolina

June 5, 2018

STATE OF NORTH CAROLINA
v.
JOHN CLAPP III, Defendant.

          Heard in the Court of Appeals 16 April 2018.

          Appeal 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.

          BERGER, Judge.

         John 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.

         Factual and Procedural Background

         Defendant's 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.

         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.

         Officer 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 Defendant was then transferred to the magistrate's office where he was notified his license had been revoked because of his arrest.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.

         Thirty 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 person.
[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 lot?" ...

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