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State v. Carver

Court of Appeals of North Carolina

May 21, 2019


          Heard in the Court of Appeals 9 April 2019

          Appeal by defendant from judgment entered 23 April 2018 by Judge Wayland J. Sermons, Jr. in Beaufort County No. 16 CRS 50043 Superior Court.

          Attorney General Joshua H. Stein, by Special Deputy Attorney General Douglas W. Corkhill, for the State.

          Leslie S. Robinson for defendant-appellant.

          TYSON, JUDGE.

         David Leroy Carver ("Defendant") appeals from an order denying his motion to suppress. We reverse and remand.

         I. Background

         Beaufort County Sheriff's Deputy Dominic Franks received a dispatch call, which had originated from an anonymous tipster, a little before 11:00 p.m. on 8 January 2016. Deputy Franks was advised of a vehicle being located in a ditch on Woodstock Road, possibly with a "drunk driver, someone intoxicated," and that "a truck was attempting - getting ready to pull them out." Deputy Franks received no information concerning the description of the car, the truck, or the driver. There was also no information regarding the caller or at what time the call was received.

         When Deputy Franks arrived at the rural location approximately ten minutes later, he noticed a white Cadillac "catty-cornered" or "partially in" someone's driveway at an angle. The vehicle had mud on the driver's side, and Deputy Franks opined that from "gouges in the side of the road . . . it appeared the vehicle had ran off the road." Deputy Franks did not stop at the vehicle to determine ownership and kept driving, though he testified he did not observe anyone in or around the vehicle as he passed.

         As Deputy Franks continued driving past, he observed a truck "a couple of hundred feet" from where the Cadillac was parked, traveling away from his location. Deputy Franks testified he followed the truck to check its license plate. When he caught up from behind, he estimated the truck was traveling thirty-five to forty miles an hour, approximately fifteen to twenty miles below the posted 55 m.p.h. speed limit. Deputy Franks testified the truck was the only truck on the highway and "it was big enough to pull the car out." He did not see any chains, straps, or other apparatus that would indicate that the truck had just pulled a vehicle out of a ditch.

         Deputy Franks' sole reason to initiate the traffic stop was "due to what was called out from communications." The truck promptly came to a stop on the highway. The truck was being driven by a Mr. Griekspoor. Defendant was observed sitting in the passenger seat. Deputy Franks explained to Mr. Griekspoor that there was a report of a truck attempting to pull a vehicle out of a ditch. Mr. Griekspoor told Deputy Franks that he had pulled Defendant's car out of the ditch, was giving him a ride home, and he was "trying to help out a friend."

         Deputy Franks observed that Defendant's legs were "covered in mud" from "half his thighs down." Defendant did not answer Deputy Franks' question of why he was so muddy. Deputy Franks' supervisor, Corporal Sheppard, arrived upon the scene as Deputy Franks was collecting Mr. Griekspoor's driver's license and registration.

         Deputy Franks filled his supervisor in on the situation. Corporal Sheppard went to the passenger side to talk with Defendant, a "routine practice" according to Corporal Sheppard. Deputy Franks took Mr. Griekspoor's documents back to his patrol car to get information from communications on the license and registration and found no wants or warrants outstanding. He returned Mr. Griekspoor's documents while Corporal Sheppard was speaking with Defendant.

         Corporal Sheppard asked Defendant to open the door and testified he noticed "a moderate odor of alcohol" from the passenger area. Defendant exited the truck at the officer's request. Corporal Sheppard stated he "continue[d] smelling the alcohol coming from [Defendant]," and observed Defendant was "unsteady on his feet."

         Corporal Sheppard instructed Defendant to perform the Horizontal Gaze Nystagmus test. Corporal Sheppard purportedly detected all of the six clues from the test. By the time the Highway Patrol arrived to "process" Defendant ten to fifteen minutes later, he had been detained "based on [Corporal Sheppard's] suspicion of DWI." Defendant was given a Breathalyzer test by Highway Patrol Trooper Peele, with a result of 0.08. Defendant was charged with driving while impaired.

         Defendant filed a motion to suppress evidence. The district court denied Defendant's motion, found him guilty of impaired driving, and sentenced him to sixty days imprisonment, which was suspended for twelve months of unsupervised probation. Defendant appealed to the superior court, where he filed another motion to suppress evidence. After a hearing, the superior court entered an order denying Defendant's motion.

         Defendant preserved his right to appeal the denial of his motion to suppress and entered a plea of guilty to impaired driving. The superior court sentenced Defendant to thirty days imprisonment, which was suspended for six months of unsupervised probation. Defendant gave oral notice of appeal.

         II. Jurisdiction

         An appeal of right lies to this Court pursuant to N.C. Gen. Stat. ...

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