in the Court of Appeals 9 May 2019.
by the State from order entered 12 September 2018 by Judge
Keith Gregory in Durham County No. 17CRS51421 Superior Court.
Attorney General Joshua H. Stein, by Assistant Attorney
General Joseph L. Hyde, and Durham County Assistant District
Attorney, by Adam Williamson, for the State-Appellant.
of the Appellate Defender, by Assistant Appellate Defender
Sterling P. Rozear, for the Defendant-Appellee.
State appeals from an order granting Defendant's motion
to suppress, heard at a pretrial hearing on Defendant's
charge of driving while impaired. On appeal, the State's
overarching argument is that the trial court erred in
allowing the motion because the State had probable cause to
arrest Defendant. We find no merit in the State's
arguments and affirm the trial court's order.
February 2017, Defendant was issued a North Carolina Uniform
Citation for, inter alia, driving while impaired. On
18 April 2018, following a bench trial in district court,
Defendant was found guilty of driving while impaired. The
trial court entered judgment and sentenced Defendant to 36
months' imprisonment. Defendant appealed to superior
June 2018, Defendant filed a motion to suppress evidence
derived from his arrest, arguing there was no probable cause
to support the arrest. At a hearing on 20 August 2018, the
trial court orally allowed Defendant's motion. The State
immediately gave oral notice of appeal in open court. The
trial court entered a written order on 12 September 2018
reflecting its ruling from the bench. The State filed written
notice of appeal from the 12 September 2018 order on 3
February 2017, Officer Daryl Macaluso of the Durham Police
Department responded to a disturbance call near the 800 block
of Briggs Avenue. The caller reported a green pickup truck
driving erratically and "attempting to hit people."
testified that as he approached the area, he was flagged down
by an "extremely intoxicated" man who was telling
him about the vehicle trying to run people over. Macaluso
further testified, "I saw a vehicle that fit the
description passing me . . . . And that vehicle was driven by
the defendant. I clearly took a look at him while he was
driving by." The intoxicated man did not react to the
green pickup truck, nor did he "make references to the
vehicle passing" them. The green pickup truck was not
driving erratically or committing any traffic violations, and
Macaluso did not follow the truck.
drove his car around the block. Upon his return to the Briggs
Avenue area, he was approached by "a lot more
intoxicated people" who attempted to explain what had
occurred. About two minutes later, as Macaluso was speaking
with the group, Defendant approached on foot from about a
half-block away. Macaluso noticed that Defendant was unsteady
on his feet and slurred his speech. Defendant appeared angry
and complained that he had been sold "fake crack."
Macaluso asked Defendant to wait in the back of the patrol
car while he investigated, and eventually called for backup
in conducting an impaired driving investigation.
Gabriel Munter responded to the call to investigate. When he
arrived at the scene, he found Defendant sitting in the
backseat of Macaluso's patrol car. Because Munter had not
seen Defendant drive, Munter told Macaluso, "I would
need you to put him behind the wheel." Munter testified,
"I'm not going to pick up an impaired driving
investigation unless that's been established by another
officer because I wasn't there and I didn't see the
driving. So if [Macaluso] can put him behind the wheel, yes,
I'll pick up the investigation from that point."
Munter testified that Macaluso "said that he saw
[Defendant] driving. [Macaluso] said, He passed me, I believe
were his words."
proceeded to investigate a green pickup truck parked at the
Big Apple Mini-mart. Munter found an empty liquor container
in the back of the truck, but testified that it appeared to
have been there a while. Munter did not check the temperature
of the truck, exhaust pipe, or hood while he conducted his
investigation. Munter returned to the Briggs Avenue area,
where he conducted various field sobriety tests on Defendant,
including a horizontal gaze nystagmus test. Defendant showed
six out of six clues of impairment on the horizontal gaze
nystagmus test. Munter arrested Defendant and charged him
with driving while impaired.
body camera captured video of the events on that day, and
Munter narrated the video while the jury watched it. At the
beginning of the video, Munter walked up to Macaluso and
asked questions about the original phone call tip regarding
an erratic driver trying to hit people. The video then
captured Macaluso telling Munter, "I didn't know
that was [Defendant's] car until someone else pointed it
testified that he "continued to control the crowd"
until Munter arrested Defendant and left the scene. Following
Munter's departure, Macaluso went to the Big Apple
Mini-mart to see if they had video of the area. Macaluso
obtained video which "showed [Defendant] coming out of
the truck and [he] got the video on a flash drive."
However, Macaluso testified that the flash drive containing
the video was lost when Macaluso brought his patrol car in
for repairs. Macaluso testified, "The flash drive is
gone. There's no video." The State did not present
the video at the hearing.
State argues on appeal that the trial court erred by granting
Defendant's motion to suppress because (1) the trial
court lacked jurisdiction to enter the written order after
notice of appeal to this Court had been given, (2) the trial
court's findings are not supported by the evidence, and
(3) the trial court erred in finding no probable cause to
arrest Defendant. We address each argument in turn.
Trial Court's Jurisdiction
State first argues that the trial court lacked jurisdiction
to enter the written order on 12 September 2018 because the
State had given oral notice of appeal immediately after the
trial court announced its ruling from the bench on 20 August
2018. The State claims that once it gave notice of appeal,
the trial court was without jurisdiction to enter any
additional findings of fact or orders. The State's
argument is meritless.
Court reviews jurisdictional issues de novo. State v.
Oates, 366 N.C. 264, 266, 732 S.E.2d 571, 573 (2012).
Generally, when appeal entries are noted, the appeal becomes
effective immediately, and the trial court is without
authority to enter orders affecting the merits of the case.
State v. Grundler, 251 N.C. 177, 185, 111 S.E.2d 1,
7 (1959) (citation omitted). However, the trial court
maintains jurisdiction to enter a written order after notice
of appeal has been given where the order does not
"affect the merits, but, rather, is
a chronicle of the findings and conclusions" decided at
a prior hearing. State v. Walker, 255 N.C.App. 828,
830, 806 S.E.2d 326, 329 (2017) (emphasis in original)
case, the trial court announced from the bench that
Defendant's motion was allowed. In response to the
State's request for "findings of the ...