in the Court of Appeals on 25 April 2019.
by defendant from judgment entered on 11 April 2018 by Judge
Claire V. Hill in Robeson County No. 17CRS050416 Superior
Attorney General Joshua H. Stein, by Assistant Attorney
General James D. Concepción, for the State.
D. Hynson for Defendant-Appellant.
O. Cabbagestalk ("Defendant") appeals from the
trial court's judgment entered following a jury trial.
Defendant argues the trial court erred in denying her motion
to suppress, because the police officer who stopped
Defendant's car lacked reasonable suspicion. We agree. We
therefore reverse the trial court's judgment.
January 2017, Hoke County Sheriff's Officer Perry
Thompson ("Officer Thompson"), who was then a
sergeant with the Rowland Police Department, stopped
Defendant and charged her with driving while impaired
("D.W.I.") in violation of N.C. Gen. Stat. §
20-138.1. In a bench trial held on 22 September 2017 in
Robeson County District Court, the Honorable William J. Moore
found Defendant guilty of driving while impaired. Following
judgment entered in the district court, Defendant gave notice
of appeal in open court for a trial de novo in the
Robeson County Superior Court.
March 2018, Defendant filed a motion to suppress in Robeson
County Superior Court. On 10 April 2018, the Honorable Claire
V. Hill conducted an evidentiary hearing in open court
without a jury, and heard arguments from the State and
Defendant on Defendant's motion to suppress. Officer
Thompson provided the sole testimony at the hearing.
the trial court's denial of the motion to suppress, the
Honorable Gale M. Adams presided over a jury trial during the
criminal session of the Robeson County Superior Court.
Officer Thompson was again the State's sole witness at
trial. Defense counsel did not object to the disputed
evidence. Defendant moved to dismiss at the close of the
State's evidence, which the trial court denied. The jury
found Defendant guilty of driving while impaired, in
violation of N.C. Gen. Stat. § 20-138.1. Judge Adams
imposed a Level Four punishment, sentencing Defendant to 120
days imprisonment, suspended upon 12 months of supervised
probation, and ordering Defendant to complete 48 hours of
community service and to complete a substance abuse program.
She was also ordered to pay a community service fee of $250,
and her license was revoked.
on the prior motion to suppress that was filed and on the
judgment entered, Defendant gave notice of appeal in open
court. Defendant further expressly argued in her appellate
brief that the denial of the motion to suppress constituted
January 2018, at "[a]pproximately" 9:00 p.m.,
Officer Thompson was on "routine patrol" with the
Rowland Police Department when he observed Defendant
"sitting on the porch" of a local residence where
"everyone hangs out at," drinking a "Natural
Ice . . . tall can" of beer. He had known Defendant for
"approximately two years," because he had
previously stopped her for driving while her license was
revoked, and for an open container violation. Officer
Thompson was confident it was the Defendant he observed that
evening drinking beer on the porch, based on prior
interactions. Although it was night, he could see her because
a porch light and a street light were illuminating the area,
and he was only approximately ten feet away.
the suppression hearing, Officer Thompson testified that he
saw Defendant at the BP store in Rowland "maybe 30
minutes to an hour later." Upon reviewing the citation
he issued on cross-examination, however, he clarified that
the citation reflected a stop time of "at or about 11:00
p.m." On redirect he confirmed that he saw her drinking
at 9:00 p.m. and saw her an hour and a half later at the gas
station, "[b]uying more beer."
BP store, Defendant went to the beer cooler, purchased
another beer, paid for it, and returned to her vehicle. Prior
to being placed in a brown bag, the beverage in her hand
looked to Officer Thompson like a "Natural Ice, the
Ice." Officer Thompson admitted that he did not observe
Defendant stumbling or otherwise walking as though she was
intoxicated. Moreover, Officer Thompson did not speak to
Defendant at this point, or any point prior to the traffic
Defendant got back into her truck and left the gas station,
Officer Thompson followed her. Defendant "took East Main
Street all the way up to North MLK Street, and she made a
right turn on North MLK Street." Officer Thompson
admitted that Defendant drove "normal[ly]"; that
is, she was not speeding, going too slowly, weaving, or
swerving. Defendant also appeared to be wearing her seatbelt,
and her lights were working. Officer Thompson did not observe