in the Court of Appeals 9 April 2019
by defendant from judgment entered 23 April 2018 by Judge
Wayland J. Sermons, Jr. in Beaufort County No. 16 CRS 50043
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Douglas W. Corkhill, for the State.
S. Robinson for defendant-appellant.
Leroy Carver ("Defendant") appeals from an order
denying his motion to suppress. We reverse and remand.
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.
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.
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.
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."
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.
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.
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."
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
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
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.
appeal of right lies to this Court pursuant to N.C. Gen.