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State v. Cabbagestalk

Court of Appeals of North Carolina

June 18, 2019

STATE OF NORTH CAROLINA
v.
TANYA O. CABBAGESTALK, Defendant.

          Heard in the Court of Appeals on 25 April 2019.

          Appeal by defendant from judgment entered on 11 April 2018 by Judge Claire V. Hill in Robeson County No. 17CRS050416 Superior Court.

          Attorney General Joshua H. Stein, by Assistant Attorney General James D. Concepción, for the State.

          Warren D. Hynson for Defendant-Appellant.

          BROOK, JUDGE.

         Tanya 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.

         I. Background

         A. Procedural History

         On 20 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.

         On 28 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.

         Following 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.

         Based 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 plain error.

         B. Factual Background

         On 20 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.

         During 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."

         At the 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 stop.

         When 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 ...


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