State v. Parisi , 372 N.C. 639 ( 2019 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 65A17-2
Filed 16 August 2019
STATE OF NORTH CAROLINA
v.
JEFFREY ROBERT PARISI
Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of
the Court of Appeals, 817 S.E.2d 228 (N.C. Ct. App. 2018), reversing and remanding
orders entered on 13 January 2016 by Judge Michael D. Duncan in Superior Court,
Wilkes County, and on 11 March 2016 by Judge Robert J. Crumpton in District Court,
Wilkes County. Heard in the Supreme Court on 4 April 2019.
Joshua H. Stein, Attorney General, by John W. Congleton, Assistant Attorney
General, for the State.
Glenn Gerding, Appellate Defender, by Michele A. Goldman, Assistant
Appellate Defender, for defendant-appellant.
ERVIN, Justice.
The issue before the Court in this case is whether the trial courts properly
determined that a motion to suppress filed by defendant Jeffrey Robert Parisi should
be allowed on the grounds that the investigating officer lacked probable cause to place
defendant under arrest for driving while impaired. After careful consideration of the
record in light of the applicable law, we hold that the trial courts’ findings of fact
failed to support their legal conclusion that the investigating officer lacked the
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Opinion of the Court
probable cause needed to place defendant under arrest for impaired driving. As a
result, we affirm the Court of Appeals’ decision to reverse the trial courts’ suppression
orders and remand this case to the trial courts for further proceedings.
At approximately 11:30 p.m. on 1 April 2014, Officer Greg Anderson of the
Wilkesboro Police Department was operating a checkpoint on Old 421 Road. At that
time, Officer Anderson observed defendant drive up to the checkpoint and heard what
he believed to be an argument among the vehicle’s occupants. Upon approaching the
driver’s side window and shining his flashlight into the vehicle, Officer Anderson
observed an open box of beer on the passenger’s side floorboard. However, Officer
Anderson did not observe any open container of alcohol in the vehicle. In addition,
Officer Anderson detected an odor of alcohol and noticed that defendant’s eyes were
glassy and watery. At that point, Officer Anderson asked defendant to pull to the
side of the road and step out of the vehicle. After defendant complied with this
instruction, Officer Anderson confirmed that a moderate odor of alcohol emanated
from defendant’s person rather than from the interior of the vehicle. When Officer
Anderson asked defendant if he had consumed any alcohol, defendant replied that he
had drunk three beers earlier in the evening.
At that point, Officer Anderson requested that defendant submit to several
field sobriety tests. First, Officer Anderson administered the horizontal gaze
nystagmus test to defendant. In the course of administering the horizontal gaze
nystagmus test, Officer Anderson observed that defendant exhibited six clues
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indicating impairment. Secondly, Officer Anderson had defendant perform a walk
and turn test, during which defendant was required to take nine heel-to-toe steps
down a line, turn around, and take nine similar steps in the opposite direction. In
performing the walk and turn test, defendant missed the fourth and fifth steps while
walking in the first direction and the third and fourth steps while returning. In
Officer Anderson’s view, these missed steps, taken collectively, constituted an
additional clue indicating impairment. Finally, Officer Anderson administered the
one leg stand test to defendant. As defendant performed this test, Officer Anderson
noticed that he used his arms for balance and swayed, which Officer Anderson treated
as tantamount to two clues indicating impairment. At that point, Officer Anderson
formed an opinion that defendant had consumed a sufficient amount of alcohol to
appreciably impair his mental and physical faculties.
Subsequently, Officer Anderson issued a citation charging defendant with
driving while subject to an impairing substance in violation of N.C.G.S. § 20-138.1.
The charge against defendant came on for trial before Judge Robert J. Crumpton at
the 17 June 2015 criminal session of the District Court, Wilkes County. Prior to trial,
defendant made a motion to suppress the evidence obtained as a result of his arrest
on the grounds that Officer Anderson lacked the necessary probable cause to take
him into custody. On 23 September 2015, Judge Crumpton entered a Preliminary
Order of Dismissal in which he determined that defendant’s suppression motion
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should be granted.1 On 23 September 2015, the State noted an appeal from Judge
Crumpton’s preliminary order to the Superior Court, Wilkes County.
The State’s appeal came on for hearing before Judge Michael D. Duncan at the
9 November 2015 criminal session of the Superior Court, Wilkes County. On 13
January 2016, Judge Duncan entered an Order Granting Motion to Suppress and
Motion to Dismiss2 in which he granted defendant’s suppression motion and ordered
that the charge that had been lodged against defendant be dismissed. On 11 March
2016, Judge Crumpton entered a Final Order Granting Motion to Suppress and
Motion to Dismiss in which he granted defendant’s motion to suppress the evidence
obtained as a result of his arrest and ordered “that the charge against [d]efendant be
dismissed.” On the same date, the State noted an appeal from Judge Crumpton’s
final order to the Superior Court, Wilkes County. On 6 April 2016, Judge Duncan
entered an Order of Dismissal Affirmation affirming Judge Crumpton’s “final order
suppressing the arrest of the defendant and dismissing the charge of driving while
impaired.” The State noted an appeal to the Court of Appeals from Judge Duncan’s
order affirming Judge Crumpton’s final order granting defendant’s suppression
1 Judge Crumpton’s preliminary order did not dismiss the driving while impaired
charge that had been lodged against defendant.
2 Judge Duncan “[g]rant[ed defendant’s m]otion to [s]uppress and [m]otion to
[d]ismiss” even though defendant had never moved that the case be dismissed and even
though Judge Crumpton did not order that the driving while impaired charge that had been
lodged against defendant be dismissed.
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motion and dismissing the driving while impaired charge that had been lodged
against defendant.
In seeking relief from the orders entered by Judge Crumpton and Judge
Duncan before the Court of Appeals, the State argued that the trial courts had erred
by finding that Officer Anderson lacked probable cause to arrest defendant for driving
while impaired and ordering that the driving while impaired charge that had been
lodged against defendant be dismissed. On 7 February 2017, the Court of Appeals
filed an opinion dismissing the State’s appeal from Judge Crumpton’s order granting
defendant’s suppression motion on the grounds that the State had no right to appeal
the final order granting defendant’s suppression motion, vacating the trial court
orders requiring that the driving while impaired charge that had been lodged against
defendant be dismissed, and remanding this case to the Superior Court for further
remand to the District Court for further proceedings. State v. Parisi, 796 S.E.2d 524,
529 (N.C. Ct. App. 2017), disc. review denied, 369 N.C. 751, 799 S.E.2d 873 (2017).
On 28 July 2017, the State filed a petition requesting the Court of Appeals to
issue a writ of certiorari authorizing review of Judge Duncan’s Order Granting
Motion to Suppress and Motion to Dismiss and Judge Crumpton’s Final Order
Granting Motion to Suppress and Motion to Dismiss. State v. Parisi, 817 S.E.2d 228,
229 (N.C. Ct. App. 2018). On 16 August 2017, the Court of Appeals granted the
State’s certiorari petition. Id., 817 S.E.2d at 229. In seeking relief from the trial
courts’ orders before the Court of Appeals on this occasion, the State argued that
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Judge Crumpton and Judge Duncan had erred by granting defendant’s suppression
motion on the grounds that, in the State’s view, Officer Anderson had probable cause
to arrest defendant for impaired driving.
In a divided opinion reversing the trial courts’ orders and remanding this case
to the trial courts for further proceedings, the Court of Appeals majority determined
that the facts at issue in this case resembled those at issue in State v. Townsend, 236
N.C. App. 456, 762 S.E.2d 898 (2014), in which the Court of Appeals had held that an
officer had probable cause to arrest a defendant for impaired driving given that the
defendant, who had been stopped at a checkpoint, “had bloodshot eyes and a moderate
odor of alcohol about his breath,” exhibited multiple clues indicating impairment
during the performance of three field sobriety tests, and produced positive results on
two alco-sensor tests. Parisi, 817 S.E.2d at 230 (citing Townsend, 236 N.C. App. at
465, 762 S.E.2d at 905. Although the Court of Appeals noted that “no alco-sensor test
[had been] administered in the instant case, defendant himself volunteered the
statement that he had been drinking earlier in the evening.” Parisi, 817 S.E.2d at
230. In addition, the Court of Appeals pointed out that, “while the odor of alcohol,
standing alone, is not evidence of impairment, the ‘[f]act that a motorist has been
drinking, when considered in connection with . . . other conduct indicating an
impairment of physical or mental faculties, is sufficient prima facie to show a
violation of [N.C.]G.S. [§] 20-138.1.’ ” Parisi, 817 S.E.2d at 230–31 (quoting Atkins v.
Moye, 277 N.C. 179, 185, 176 S.E.2d 789, 794 (1970)). On the other hand, the Court
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of Appeals was not persuaded by the trial courts’ reliance upon the Court of Appeals’
own unpublished opinion in State v. Sewell, 239 N.C. App. 132, 768 S.E.2d 650 (2015),
given that “it is not binding upon the courts of this State” and is “easily distinguished
from the instant case.” Id., 817 S.E.2d at 231 (citing Sewell, 239 N.C. App. 132, 768
S.E.2d 650). As a result, the Court of Appeals concluded that “the facts, as supported
by the evidence and as found by the district and superior courts, supported a
conclusion that Officer Anderson had probable cause to stop and cite defendant for
driving while impaired,” so that “the trial court erred in granting defendant’s motion
to suppress the stop.” Id., 817 S.E.2d at 231
In dissenting from the Court of Appeals’ decision, Judge Robert N. Hunter, Jr.,
expressed the belief that the uncontested facts supported the legal conclusion that
Officer Anderson lacked the probable cause necessary to support his decision to place
defendant under arrest. Id., 817 S.E.2d at 231–32. More specifically, the dissenting
judge asserted that the trial courts’ findings in this case, while “analogous to some of
the findings of fact in Townsend,” differed from those findings in certain critical ways.
Id., 817 S.E.2d at 231. For example, the dissenting judge pointed out that, in this
case, Officer Anderson “did not administer an alco-sensor test” and that the trial
courts made no “findings [about] exactly when [d]efendant drank in the night.” Id.,
817 S.E.2d at 232. In addition, unlike the situation at issue in Townsend, “the trial
courts found no facts about Officer Anderson’s experience” and merely stated that
Officer Anderson “found clues of impairment” rather than making specific findings
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concerning the number of clues indicating impairment that the officer detected in
administering the horizontal gaze nystagmus test. Id., 817 S.E.2d at 232. The
dissenting judge further noted that the “trial courts found that [d]efendant did not
slur his speech, did not drive unlawfully or ‘bad[ly,]’ or appear ‘unsteady’ on his feet.”
Id., 817 S.E.2d at 232. As a result, the dissenting judge concluded that the
“uncontested findings of fact support the trial court’s conclusions that Officer
Anderson lacked probable cause to arrest [d]efendant” for driving while impaired.
Id., 817 S.E.2d at 232. Defendant noted an appeal to this Court based upon the
dissenting judge’s opinion.
In seeking to persuade us to overturn the Court of Appeals’ decision, defendant
begins by asserting that the Court of Appeals had erroneously “reweighed the
evidence” instead of “determining whether the competent, unchallenged factual
findings supported the trial courts’ legal conclusions.” According to defendant, the
Court of Appeals’ “misapplication of the standard of review” led it to reach a different
conclusion than the trial courts despite the fact that “the trial courts’ competent
factual findings supported their legal conclusions” and even though “there was no
identified error of law committed by the trial courts in reaching their conclusions.”
According to defendant, this Court’s decision in State v. Nicholson establishes that
“the de novo portion of an appellate court’s review of an order granting or denying a
motion to suppress relates to the assessment of whether the trial court’s factual
findings support its legal conclusions and whether the trial court employed the
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correct legal standard,” citing State v. Nicholson, 371 N.C. 284, 288, 813 S.E.2d 840,
843 (2018). Although the Court of Appeals “acknowledged the correct standard of
review,” defendant contends that it “applied a non-deferential sufficiency test,” with
this alleged error being reflected in its statement that, “[w]here the State presented
sufficient evidence that a law enforcement officer had probable cause to stop
defendant, the trial court erred in granting defendant’s motion to suppress the stop,”
citing Parisi, 817 S.E.2d at 299.
In addition, defendant contends that the Court of Appeals erroneously relied
upon Atkins, 277 N.C. at 184, 176 S.E.2d at 793, and State v. Hewitt, 263 N.C. 759,
140 S.E.2d 241 (1965), in addressing the validity of the State’s challenge to the trial
courts’ suppression orders. Although “Atkins and Hewitt assessed whether evidence,
viewed in a light most favorable to the proponent, warranted an issue being put to
the jury,” defendant points out that a trial judge is required “to make credibility
determinations and to weigh evidence” in determining whether to grant or deny a
suppression motion and that an appellate court is obligated “to address . . . whether
the trial court’s competent factual findings supported its legal conclusions.” The
dissenting judge, in defendant’s view, correctly applied the applicable standard of
review by focusing upon the issue of whether trial courts’ findings of fact supported
its conclusions. (citing Parisi, 817 S.E.2d at 232).
Moreover, defendant claims that the Court of Appeals erred by overturning the
trial courts’ “unchallenged and supported factual determination” concerning whether
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defendant’s performance during the administration of the field sobriety tests
indicated impairment. In defendant’s view, “[t]he trial courts implicitly found that
[defendant’s] imperfect but passing performance on the field sobriety tests alone did
not indicate impairment,” effectively rejecting Officer Anderson’s testimony to the
contrary. In support of this assertion, defendant relies upon our decision in State v.
Bartlett, 368 N.C. 309, 311–12, 776 S.E.2d 672, 673–74 (2015), in which the testimony
of the defendant’s expert witness directly contradicted the testimony of the arresting
officer’s testimony that the defendant’s performance on a variety of field sobriety tests
indicated that the defendant was appreciably impaired. In addressing the validity of
the State’s challenge to the validity of a suppression order entered by one Superior
Court judge following a hearing held before another, this Court stated that
Expert opinion testimony is evidence, and the two expert
opinions in this case differed from one another on a fact
that is essential to the probable cause determination—
defendant’s apparent degree of impairment. Thus, a
finding of fact, whether written or oral, was required to
resolve this conflict.
Id. at 312, 776 S.E.2d at 674. According to defendant, Officer Anderson’s testimony
that defendant’s performance on the field sobriety tests indicated impairment was
not binding upon the trial court, which “was charged with deciding the credibility of
and weight to be given to [Officer] Anderson’s opinion testimony.” Defendant asserts
that, rather than finding that defendant was appreciably impaired, the trial court
concluded that Officer Anderson lacked probable cause and that this determination
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“implicitly incorporat[es] a factual finding that [Officer] Anderson’s opinion was not
supported by his observations and testing of [defendant].”
In defendant’s view, the trial courts both determined that
[t]he fact[s] and circumstances known to [Officer]
Anderson as a result of his observations and testing of
[d]efendant are insufficient, under the totality of the
circumstances, to form an opinion in the mind of a
reasonable and prudent man/officer that there was
probable cause to believe [d]efendant had committed the
offense of driving while impaired. 3
After acknowledging that the trial courts had labeled their respective assessments of
Officer Anderson’s testimony as conclusions of law rather than as findings of fact,
defendant contends that these conclusions were, “in effect,” factual findings “and
should be treated accordingly,” citing State ex rel. Utilities Comm. v. Eddleman, 320
N.C. 344, 352, 358 S.E.2d 339, 346 (1987). In view of the fact that Officer Anderson
merely testified that, in his opinion, defendant was appreciably impaired rather than
expressing an opinion concerning the “ultimate issue of whether probable cause
existed” and the fact that the issue of whether defendant was driving was not
contested, defendant argues that the trial court “necessarily rejected” Officer
Anderson’s testimony concerning the extent to which defendant was appreciably
impaired, quoting Bartlett at 312, 776 S.E.2d at 674 (stating that defendant’s
apparent impairment “is essential to the probable cause determination”). In
3 This language, which appears in the District Court’s 23 September 2015
“Preliminary Order of Dismissal,” is virtually identical to the corresponding language in the
Superior Court’s 13 January 2016 order.
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reversing the trial courts, defendant argues that “the Court of Appeals majority
necessarily gave weight and credit to [Officer] Anderson’s opinion testimony on
impairment that both of the trial courts had rejected.”
Furthermore, defendant contends that the Court of Appeals erred by
referencing Officer Anderson’s testimony that defendant “demonstrated six ‘clues’
indicating impairment” in light of the fact that neither trial court made a finding
concerning the number of clues indicating impairment that Officer Anderson
observed in their findings of fact. In defendant’s view, the Court of Appeals “adopted
without question [Officer] Anderson’s testimony about the number and significance
of [Horizontal Gaze Nystagmus] clues,” erroneously “engaging in its own fact finding,”
and “rejecting the trial courts’ unchallenged and amply supported factual findings as
to whether [defendant] appeared appreciably impaired.”
Finally, defendant contends that “[t]he trial courts’ unchallenged and
supported findings amply supported the courts’ legal conclusion that [Officer]
Anderson lacked probable cause to arrest [defendant] for driving while impaired.” In
support of this contention, defendant points to the trial courts’ findings that
defendant was steady on his feet, cooperative, respectful, able to listen, able to follow
instructions and answer questions, and exhibited no signs of bad driving or slurred
speech. According to defendant, his own “slightly imperfect, but passing performance
on the walk-and-turn and one-leg-stand field sobriety tests,” in conjunction with the
clues indicating impairment that Officer Anderson had noted while administering the
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horizontal gaze nystagmus test, provided the only evidence of defendant’s
impairment. According to defendant, this “minimal evidence” of impairment, when
compared to the “substantial evidence” contained in the record tending to show that
defendant was not impaired, establishes that the State had failed to show that the
challenged suppression orders were not supported by the trial courts’ “competent and
unchallenged factual findings.”
Defendant notes that “[p]robable cause for an arrest has been defined to be a
reasonable ground of suspicion, supported by circumstances sufficiently strong in
themselves to warrant a cautious man in believing the accused to be guilty,” quoting
State v. Streeter, 283 N.C. 203, 207, 195 S.E.2d 502, 505 (1973). According to
defendant, “mere alcohol consumption and minimal impairment” did not suffice to
establish defendant’s guilt of driving while impaired, quoting State v. Harrington, 78
N.C. App. 39, 45, 336 S.E.2d 852, 855 (1985).
According to defendant, the Court of Appeals’ reliance upon its own opinion in
Townsend was misplaced given “the limited role that precedent plays in a totality-of-
the-circumstances test,” citing State v. Williams, 366 N.C. 110, 118, 726 S.E.2d 161,
168, 201 (2012), and that Townsend involved an appeal from the denial, rather than
the allowance, of a motion to suppress. On the contrary, defendant insists that other
recent Court of Appeals’ opinions are more factually and procedurally instructive for
purposes of deciding this case, citing State v. Overocker, 236 N.C. App. 423, 762 S.E.2d
921 (2014); and then, State v. Lindsey, 249 N.C. App. 416, 791 S.E.2d 496 (2016); and
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then, State v. Sewell, 239 N.C. App. 132, 768 S.E.2d 650 (2015)). In defendant’s view,
Overocker should guide our analysis in this case given the “deference” that the Court
of Appeals afforded to the trial court’s suppression order by declining to “weigh the
evidence and assess its credibility in a manner different from that of the trial court,”
quoting Overocker, 236 N.C. App. at 433–34, 762 S.E.2d at 928. As a result, since
“the Court of Appeals abandoned the restraint required by the standard of review and
demonstrated in its decisions in Townsend, Overocker, Lindsey, and Sewell,” its
decision in this case should be reversed.
In urging us to uphold the Court of Appeals’ decision in this case, the State
argues that the Court of Appeals’ determination that the probable cause necessary to
support defendant’s arrest was present in this case did not rest solely upon the trial
courts’ findings that Officer Anderson detected an odor of alcohol emanating from
defendant. Instead, the State contends that the Court of Appeals’ decision rested
upon findings of fact about
[d]efendant driving the vehicle, a disturbance inside the
vehicle as it approached the checkpoint, an odor of alcohol
coming from the vehicle, an open box of alcoholic beverages
in the vehicle, a moderate odor of alcohol coming from
defendant’s person, an admission by defendant of drinking
three [ ] beers previously in the evening, defendant missing
steps on the walk and turn test, defendant swaying and
using his arms for balance on the one leg stand test and
Officer Anderson observing multiple additional clues of
impairment during the Horizontal Gaze Nystagmus test.
Although the State acknowledges that this Court has held that an odor of alcohol,
“standing alone, is not evidence that [a driver] is under the influence of an intoxicant,”
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citing Atkins, 277 N.C. at 185, 176 S.E.2d at 793, the State also notes that “the ‘[f]act
that a motorist has been drinking, when considered in connection with faulty driving
. . . or other conduct indicating an impairment of physical or mental faculties, is
sufficient prima facie to show a violation of [N.C.]G.S. § 20–138.1,’ ” quoting Atkins,
at 185, 176 S.E.2d at 794. In addition to the presence of a moderate odor of alcohol,
the trial courts found the existence of multiple signs of impairment in this case,
including the fact that defendant admitted to having consumed three beers, that
defendant missed steps on the walk and turn test, that defendant swayed during the
one leg stand test, and that defendant displayed multiple clues indicating
impairment while performing the horizontal gaze nystagmus test.
The State contends that the Court of Appeals properly applied this Court’s
decisions in Atkins and Hewitt in conducting a de novo review of the trial courts’
conclusions of law. In the State’s view, the Court of Appeals’ reliance upon Townsend
was appropriate given that, “in this case[,] there existed almost all of the same facts
and circumstances that the Court of Appeals found sufficient to support a finding of
probable cause in Townsend,” citing Townsend, 236 N.C. App. 456, 762 S.E.2d 898.
On the other hand, the State asserts that the trial courts’ reliance upon the Court of
Appeals’ unpublished decision in Sewell was “misplaced” given that opinion’s
unpublished status and the existence of material factual distinctions between the two
cases, citing Sewell, 239 N.C. App. 132, 768 S.E.2d 650.
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The State challenges the validity of defendant’s assertion that the trial courts
failed to find Officer Anderson’s testimony credible. According to the State, the trial
courts’ findings of fact were “completely consistent with Officer Anderson’s testimony
and observations.” For that reason, the State contends that the Court of Appeals
correctly held that the trial courts’ uncontested findings of fact failed to support their
legal conclusion that Officer Anderson lacked probable cause to arrest defendant for
impaired driving.
Finally, the State argues that the Court of Appeals applied the correct
standard of review in overturning the trial courts’ orders. Instead of utilizing a
sufficiency of the evidence standard, the State asserts that the Court of Appeals
“expressly cited the correct standard of review in its opinion.” According to the State,
the Court of Appeals properly cited Atkins and Hewitt in determining whether the
trial courts’ legal conclusions were both supported by the findings of fact and legally
correct. The State argues that, in conducting de novo review, an appellate court must
analyze a trial court’s probable cause determination in light of the totality of the
circumstances and that determining whether the trial court had applied the proper
legal principles to the relevant facts would be impossible if appellate courts were
precluded from considering all of the circumstances upon which the trial court relied
in coming to its legal conclusion. For that reason, the State contends that the Court
of Appeals correctly analyzed the validity of the trial courts’ probable cause
determination using a de novo standard of review that considered the totality of the
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circumstances reflected in the trial courts’ findings of fact. As a result, the State
urges this Court to affirm the Court of Appeals’ decision.
As we have stated on many occasions, this Court reviews a trial court’s order
granting or denying a defendant’s suppression motion by determining “whether the
trial court’s ‘underlying findings of fact are supported by competent evidence . . . and
whether those factual findings in turn support the [trial court’s] ultimate conclusions
of law.’ ” State v. Bullock, 370 N.C. 256, 258, 805 S.E.2d 671, 674 (2017) (alterations
in original) (quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982));
see also, e.g., State v. Biber, 365 N.C. 162, 167–68, 712 S.E.2d 874, 878 (2011) (citing
State v. Brooks, 337 N.C. 132, 140–41, 446 S.E.2d 579, 585 (1994)). In accordance
with the applicable standard of review, the trial court’s findings of fact “are conclusive
on appeal if supported by competent evidence, even if the evidence is conflicting.”
State v. Eason, 336 N.C. 730, 745, 445 S.E.2d 917, 926 (1994); see also Cooke, 306
N.C. at 134, 291 S.E.2d at 619; State v. Saldierna, 371 N.C. 407. 421, 817 S.E.2d 174,
183 (N.C. 2018), cert. denied, 139 S. Ct. 1279, 203 L. Ed. 2d 290 (2019). On the other
hand, however, “[c]onclusions of law are reviewed de novo and are subject to full
review,” Biber, 365 N.C. at 168, 712 S.E.2d at 878 (citing State v. McCollum, 334 N.C.
208, 237, 433 S.E.2d 144, 160 (1993) (citation omitted)), with an appellate court being
allowed to “consider[ ] the matter anew and freely substitute[ ] its own judgment’ for
that of the lower tribunal.” Id. at 168, 712 S.E.2d at 878 (quoting State v. Williams,
362 N.C. 628, 632–33, 669 S.E.2d 290, 294 (2008)). After carefully reviewing the trial
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courts’ suppression orders, we hold that the trial courts’ factual findings fail to
support their legal conclusion that Officer Anderson lacked probable cause to arrest
defendant for driving while impaired in violation of N.C.G.S. § 20-138.1.
As the parties agree, the ultimate issue raised by defendant’s suppression
motion is whether Officer Anderson had probable cause to place defendant under
arrest for driving while subject to an impairing substance in violation of N.C.G.S.
§ 20-38.1. Section 20-138.1 provides, in pertinent part, that “[a] person commits the
offense of impaired driving if he drives any vehicle upon any highway, any street, or
any public vehicular area within this State . . . [w]hile under the influence of an
impairing substance.” N.C.G.S. § 20-138.1(a)(1). “[A] person is under the influence
of intoxicating liquor or narcotic drugs, within the meaning and intent of the statute,
when he has drunk a sufficient quantity of intoxicating beverages or taken a
sufficient amount of narcotic drugs to cause him to lose the normal control of his
bodily or mental faculties, or both, to such an extent that there is an appreciable
impairment of either or both of those faculties.” State v. Carroll, 226 N.C. 237, 241,
37 S.E.2d 688, 691 (1946). According to well-established federal and state law,
probable cause is defined as “those facts and circumstances within an officer’s
knowledge and of which he had reasonably trustworthy information which are
sufficient to warrant a prudent man in believing that the suspect had committed or
was committing an offense.” State v. Williams, 314 N.C. 337, 343, 333 S.E.2d 708,
713 (1985) (citing, first, Beck v. Ohio, 379 U.S. 89, 85 S. Ct. 223, 13 L. Ed. 2d 142-18-
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(1964); then, State v. Zuniga, 312 N.C. 251, 322 S.E.2d 140 (1984)). “Whether
probable cause exists to justify an arrest depends on the ‘totality of the circumstances’
present in each case.” State v. Sanders, 327 N.C. 319, 339, 395 S.E.2d 412, 425 (1990)
(citations omitted). Thus, Officer Anderson had probable cause to arrest defendant
for impaired driving in the event that a prudent officer in his position would
reasonably have believed defendant’s mental or physical faculties to have been
appreciably impaired as the result of the consumption of an intoxicant.
“The fact that a motorist has been drinking, when considered in connection
with faulty driving such as following an irregular course on the highway or other
conduct indicating an impairment of physical or mental faculties, is sufficient prima
facie to show [the offense of impaired driving].” Hewitt, 263 N.C. at 764, 140 S.E.2d
at 244 (citing State v. Gurley, 257 N.C. 270, 125 S.E.2d 445 (1962)). In Atkins, for
example, we held that evidence tending to show that a broken pint container had
been found in the driver’s vehicle, that an odor of alcohol could be detected on both
the driver’s breath and in his vehicle, and that the driver had failed to take any action
to avoid a collision with another vehicle sufficed to support a conclusion that
plaintiff’s faculties had been appreciably impaired by the consumption of an alcoholic
beverage. Atkins, 365 N.C. at 185, 176 S.E.2d at 794; see State v. Rich, 351 N.C. 386,
399, 527 S.E.2d 299, 306 (2000). The Court of Appeals has reached similar results in
numerous decisions, including Townsend, 236 N.C. App. at 465, 762 S.E.2d at 905
(upholding the denial of a defendant’s suppression motion based upon the fact that
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the defendant had bloodshot eyes, emitted an odor of alcohol, exhibited clues
indicating intoxication on three field sobriety tests, and produced positive results on
two alco-sensor tests); Steinkrause v. Tatum, 201 N.C. App. 289, 295, 689 S.E.2d 379,
383 (2009), (holding that probable cause to believe that a driver was guilty of impaired
driving existed in light of fact that an odor of alcohol was detected on the driver’s
person and the driver was involved in a one-vehicle accident), aff’d per curiam, 364
N.C. 419, 700 S.E.2d 222 (2010); State v. Tappe, 139 N.C. App. 33, 38, 533 S.E.2d 262,
265 (2000) (holding that the probable cause needed to support the defendant’s arrest
existed when an officer detected a strong odor of alcohol on the defendant’s breath,
when the defendant’s eyes were glassy and watery, and when the vehicle being
operated by the defendant crossed the center line of the street or highway upon which
it was travelling); and Rock v. Hiatt, 103 N.C. App. 578, 584–85, 406 S.E.2d 638, 642–
43 (1991) (holding that an officer had reasonable grounds to believe that an individual
was guilty of impaired driving based upon the fact that the officer observed the
driver’s vehicle leave a hotel parking lot at an excessive rate of speed at the
approximate time at which the hotel’s lounge closed, detected a strong odor of an
intoxicating beverage on the driver’s breath after pulling him over, and noticed that
the driver’s speech was slurred, his eyes were glassy, and he was swaying unsteadily
on his feet). As a result, Officer Anderson would have had probable cause to place
defendant under arrest for driving while impaired in the event that, based upon an
analysis of the totality of the circumstances, he reasonably believed that defendant
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had consumed alcoholic beverages and that defendant had driven in a faulty manner
or provided other indicia of impairment.
In his preliminary order, Judge Crumpton found as fact that
1. Defendant was driving a motor vehicle in
Wilkesboro on April 1, 2014, when he entered a checking
station being worked by Wilkesboro Police Department.
2. [Officer] Anderson approached the driver after he
entered the checkpoint.
3. [Officer] Anderson did not observe any unlawful or
bad driving by the defendant.
4. [Officer] Anderson asked to see [d]efendant’s driver’s
license and [d]efendant provided the license to him.
5. [Officer] Anderson noticed [d]efendant’s eyes
appeared glassy.
6. [Officer] Anderson noticed an open container of
alcohol in the passenger area of the motor vehicle.
7. [Officer] Anderson asked [d]efendant to exit the
vehicle, which [d]efendant did.
8. [Officer] Anderson inquired if [d]efendant had
anything to drink, and [d]efendant stated that he had
drunk three beers earlier in the evening.
9. [Officer] Anderson administered the walk-and-turn
field sobriety test.
10. Defendant missed one step on the way down and one
step on the way back while performing the test.
11. [Officer] Anderson administered the one-leg stand
field sobriety test.
12. Defendant swayed and used his arms for balance
during the performance of the test.
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13. [Officer] Anderson did not observe any other
indicators of impairment during his encounter with
[d]efendant, including any evidence from [d]efendant’s
speech.
14. [Officer] Anderson formed the opinion that
[d]efendant has consumed a sufficient amount of
impairing substance so as to appreciably impair
[d]efendant’s physical and/or mental faculties.
15. [Officer] Anderson formed the opinion that the
impairing substance was alcohol.
16. [Officer] Anderson placed [d]efendant under arrest.
After making many of the same factual findings, Judge Duncan made a number of
additional findings on appeal that were included in Judge Crumpton’s final order,
including the fact that Officer Anderson observed a “disturbance” between the
defendant and other occupants of the vehicle as he approached it; that, although
Officer Anderson noticed an open box of alcoholic beverages in the passenger-side
floorboard, he did not observe any open containers of alcoholic beverages in the
vehicle; that Officer Anderson observed an odor of alcohol emanating from the vehicle
and a moderate odor of alcohol emanating from defendant’s person; that defendant’s
eyes appeared to be red; and that Officer Anderson found clues indicating impairment
while administering the horizontal gaze nystagmus test.
Although the findings of fact made in the trial courts’ orders have adequate
evidentiary support, they do not support the trial courts’ conclusions that Officer
Anderson lacked the probable cause needed to justify defendant’s arrest. As the
Court of Appeals correctly noted, the trial courts’ findings reflect that “Officer
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Anderson was presented with the odor of alcohol, defendant’s own admission of
drinking, and multiple indicators on field sobriety tests demonstrating impairment.”
Parisi, 817 S.E.2d at 230–31. In view of the unchallenged findings that defendant
had been driving, that defendant admitted having consumed three beers, that
defendant’s eyes were red and glassy, that a moderate odor of alcohol emanated from
defendant’s person, and that defendant exhibited multiple indicia of impairment
while performing various sobriety tests, we have no hesitation in concluding that the
Court of Appeals correctly determined that the trial courts’ findings established that
Officer Anderson had probable cause to arrest defendant for impaired driving. See
State v. Harris, 279 N.C. 307, 311, 182 S.E.2d 364, 367 (1971) (citing 5 Am. Jur.2d
Arrest § 44 (1962)). As a result, we hold that the Court of Appeals did not err by
reversing the trial courts’ suppression orders.
In seeking to persuade us to reach a different result, defendant argues that the
Court of Appeals’ decision to reverse the trial courts’ suppression orders relied upon
the erroneous use of a “non-deferential sufficiency test,” with this contention resting
upon the majority’s statement, in the introductory portion of its opinion, that,
“[w]here the State presented sufficient evidence that a law enforcement officer had
probable cause to stop defendant, the trial court erred in granting defendant’s motion
to suppress the stop.” Parisi, 817 S.E.2d at 229. Although the language upon which
defendant relies in support of this contention could have been more artfully drafted,
we do not believe that it enunciates the standard of review that the Court of Appeals
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Opinion of the Court
utilized in reviewing the State’s challenge to the trial courts’ suppression orders. On
the contrary, the Court Appeals correctly stated the applicable standard of review at
the very beginning, Parisi, 817 S.E.2d at 230 (stating that “[o]ur review of a trial
court’s denial of a motion to suppress is ‘strictly limited to determining whether the
trial judge’s underlying findings of fact are supported by competent evidence, in
which event they are conclusively binding on appeal, and whether those factual
findings in turn support the judge’s ultimate conclusions of law’ ” (quoting Cooke, 306
N.C. at 134, 291 S.E.2d at 619 (1982), and that “ [t]he trial court’s conclusions of law
. . . are fully reviewable on appeal,” (quoting State v. Hughes, 353 N.C. 200, 208, 539
S.E.2d 625, 631 (2000))), and in the conclusion of its opinion, Parisi, 817 S.E.2d at
231 (stating that “it seems clear that the facts, as supported by the evidence and as
found by the district and superior courts, supported a conclusion that Officer
Anderson had probable cause to stop and cite defendant for driving while impaired”),
and analyzed the relevant factual findings in accordance with the applicable standard
of review. As a result, we are unable to agree with defendant that the Court of
Appeals failed to apply the applicable statute of review.
In addition, defendant argues that the Court of Appeals misapplied the
applicable standard of review as well. In defendant’s view, the trial courts “implicitly
found” that defendant was not appreciably impaired and that this “unchallenged and
supported factual determination” should be deemed binding for purposes of appellate
review, citing Bartlett, 368 N.C. at 312, 776 S.E.2d at 674. In essence, defendant
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Opinion of the Court
argues that, by determining that Officer Anderson lacked probable cause to place
defendant under arrest, the trial courts implicitly rejected Officer Anderson’s opinion
that defendant was appreciably impaired; that, by making this determination, the
trial courts effectively found as a fact that Officer Anderson lacked probable cause to
place defendant under arrest; and that the Court of Appeals erred by failing to defer
to this implicit finding given that it had the requisite evidentiary support.
As we understand it, defendant’s argument rests upon the assumption that the
trial courts implicitly found that defendant’s mental and physical faculties were not
appreciably impaired and a contention that this implicit finding is binding upon the
appellate courts in the event that it has sufficient evidentiary support. To be sure,
this Court has held that “only a material conflict in the evidence—one that potentially
affects the outcome of the suppression motion—must be resolved by explicit factual
findings that show the basis for the trial court’s ruling,” Bartlett, 368 N.C. at 312, 776
S.E.2d at 674 (citing, first State v. Salinas, 366 N.C. 119, 123–24, 729 S.E.2d 63, 66
(2012); then, State v. Ladd, 308 N.C. 272, 278, 302 S.E.2d 164, 168 (1983)), and that,
“[w]hen there is no conflict in the evidence, the trial court’s findings can be inferred
from its decision,” id. at 312, 776 S.E.2d at 674 (citing State v. Munsey, 342 N.C. 882,
885, 467 S.E.2d 425, 427 (1996)). However, this principle does not justify a decision
in defendant’s favor in the present instance.
First, and perhaps most importantly, the record evidence in this case was not,
at least in our opinion, in conflict in the manner contemplated by the Court in the
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decisions cited in the preceding paragraph. Instead, as we have already noted, the
evidence contained in the present record, which consisted of testimony from Officer
Anderson concerning his observations of defendant’s condition and his performance
on certain field sobriety tests, showed that defendant had a moderate odor of alcohol
about his person, that defendant’s eyes were red and glassy, that defendant had
admitted having consumed three beers earlier that evening, and that defendant
exhibited a number of clues indicating impairment while performing the walk-and-
turn test, one-leg stand test, and the horizontal gaze nystagmus test.4 As we have
already noted, these facts, all of which are reflected in the trial courts’ findings,
establish, as a matter of law, that defendant had consumed alcohol on the evening in
question and that his faculties were appreciably impaired, albeit not completely
obliterated, on the evening in question. As a result, rather than having made an
implicit factual finding that defendant was not appreciably impaired, the trial courts
made explicit findings of fact establishing that the appreciable impairment needed to
support defendant’s arrest in this case did, in fact, exist before incorrectly concluding
as a matter of law that no probable cause for defendant’s arrest existed.
Secondly, this Court has clearly stated that “[f]indings of fact are statements
of what happened in space and time,” State ex rel. Utilities Comm’n v. Eddleman, 320
N.C. 344, 351, 358 S.E.2d 339, 346 (1987), while conclusions of law “state[ ] the legal
Interestingly, the trial courts, in finding that Officer Anderson had not “observe[d]
4
any other indicators of impairment” aside from these sobriety test results, essentially
acknowledged that these test results constituted “indications of impairment.”
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basis upon which [a] defendant’s liability may be predicated under the applicable
statutes,” Coble v. Coble, 300 N.C. 708, 713, 268 S.E.2d 185, 189 (1980) (holding that
the trial court’s “finding of fact” that the plaintiff needed financial assistance for the
support of her children and that the defendant was capable of providing such
assistance was, in actuality, a conclusion of law). See also State v. McFarland, 234
N.C. App. 274, 284, 758 S.E.2d 457, 465 (2014) (holding that “a conclusion of law
requires ‘the exercise of judgment’ in making a determination, ‘or the application of
legal principles’ to the facts found”) (quoting Sheffer v. Rardin, 208 N.C. App. 620,
624, 704 S.E.2d 32, 35 (2010)); In re Helms, 127 N.C. App. 505, 510, 491 S.E.2d 672,
675 (1997) (noting that “a determination which requires the exercise of judgment or
the application of legal principles is more appropriately a conclusion of law”).
Although the issue of whether an officer had probable cause to support a defendant’s
arrest for impaired driving exists certainly contains a factual component, the proper
resolution of that issue inherently “requires the exercise of judgment or the
application of legal principles,” In re Helms, 127 N.C. App. at 510, 491 S.E.2d at 675,
and constitutes a conclusion of law subject to de novo review rather than a finding of
fact which cannot be disturbed on appeal without a determination that none of the
evidence contained in the record supports that decision.
According to defendant, we are precluded from reaching exactly this result by
our decision in Bartlett, 368 N.C. at 312, 776 S.E.2d at 674. Defendant’s argument,
however, rests upon a misreading of that decision. To be sure, we held in Bartlett
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that a material evidentiary conflict “must be resolved by explicit factual findings that
show the basis for the trial court’s ruling.” Bartlett, 368 N.C. at 312, 776 S.E.2d at
674. However, the material evidentiary conflict that existed in Bartlett, which
involved differing expert opinions concerning the extent, if any, to which a
defendant’s performance on certain field sobriety tests indicated impairment, simply
does not exist in this case. Id. at 312, 776 S.E.2d at 674. Although Bartlett does make
reference to “a fact that is essential to the probable cause determination—defendant’s
apparent degree of impairment,” id. at 312, 776 S.E.2d at 674, the language in
question refers to necessity for the trial court to resolve the factual conflict that
existed between the testimony of the two witnesses rather than to a determination
that the extent to which probable cause exists to support the arrest of a particular
person is a factual, rather than a legal, question. As a result, while the actual
observations made by arresting officers and the extent to which a person suspected
of driving while impaired exhibits indicia of impairment involve questions of fact that
must be resolved by findings that are subject to a sufficiency of the evidence review
on appeal, the extent, if any, to which these factual determinations do or do not
support a finding that an officer had the probable cause needed to make a particular
arrest is a conclusion of law subject to de novo review.
Thus, for the reasons set forth above, we hold that the unchallenged facts found
by the trial courts, including those relating to defendant’s red and glassy eyes, the
presence of a moderate odor of alcohol emanating from defendant’s person,
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defendant’s admission to having consumed three beers prior to driving, and
defendant’s performance on the field sobriety tests that were administered to him by
Officer Anderson suffice, as a matter of law, to support Officer Anderson’s decision to
place defendant under arrest for impaired driving. As a result, we affirm the decision
of the Court of Appeals.
AFFIRMED.
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