Opinion
No. COA16-277
11-01-2016
STATE OF NORTH CAROLINA v. PRENTICE LILLY
Attorney General Roy Cooper, by Special Deputy Attorney General Elizabeth Leonard McKay, for the State. Edward Eldred, Attorney at Law, PLLC, by Edward Eldred, for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. Guilford County, No. 10 CRS 96049 Appeal by defendant from judgment entered 2 November 2015 by Judge John O. Craig, III in Guilford County Superior Court. Heard in the Court of Appeals 24 October 2016. Attorney General Roy Cooper, by Special Deputy Attorney General Elizabeth Leonard McKay, for the State. Edward Eldred, Attorney at Law, PLLC, by Edward Eldred, for defendant-appellant. TYSON, Judge.
I. Background
Prentice Lilly ("Defendant") appeals from a judgment entered upon his Alford plea to driving while impaired ("DWI"). Defendant specifically reserved his right to appeal the denial of his motion to suppress as part of his plea arrangement. We affirm.
At approximately 2:30 a.m. on 3 December 2010, Defendant entered a DWI checkpoint operated by multiple law enforcement agencies in High Point, North Carolina. High Point Police Department ("HPPD") Officer Brian Myers ("Officer Myers") approached Defendant's vehicle and asked Defendant for his driver's license. While Defendant retrieved his license, Officer Myers walked to the rear of the vehicle to check its registration. Upon returning to the driver-side window, Officer Myers witnessed Defendant holding a holstered handgun. Officer Myers yelled, "Gun!" and supporting officers came running to assist. Officer Myers drew his own weapon and ordered Defendant to drop his gun. Defendant eventually complied, and he was placed in handcuffs while officers cleared the scene.
Officer Myers informed Defendant he was under arrest for carrying a concealed weapon. HPPD Lieutenant Walter Heaviland ("Lt. Heaviland"), the commander of the checkpoint, came over to secure Defendant while Officer Myers continued to investigate. Lt. Heaviland tried to engage Defendant in a discussion regarding firearm safety. Defendant was initially very agitated, and Lt. Heaviland had to repeat himself because Defendant appeared to not comprehend what he was being told. Defendant eventually calmed down and had an amicable conversation with Lt. Heaviland. Lt. Heaviland noticed an odor of alcohol emanating from Defendant. Defendant told Lt. Heaviland he had been drinking. Lt. Heaviland formed the opinion that Defendant was intoxicated.
When Officer Myers returned, Lt. Heaviland instructed him to investigate Defendant's possible impairment. Officer Myers complied and also observed a strong odor of alcohol emanating from Defendant. Lt. Heaviland administered two alco-sensor tests to Defendant. Both tests were positive for the presence of alcohol. Based on these results, his own observations, and Lt. Heaviland's observations, Officer Myers arrested Defendant for DWI. Defendant was transported to the checkpoint's "BATMobile" for a more extensive test, where he registered a .08 blood alcohol concentration on an intoximeter test.
On 7 January 2014, Defendant was found guilty of DWI in Guilford County District Court. Defendant appealed to superior court for a trial de novo. Prior to trial, Defendant filed a motion to suppress all evidence seized as a result of the officers' seizure of Defendant. After a hearing, Judge Susan E. Bray entered an order denying the motion on 2 July 2015.
On 29 October 2015, Defendant entered an Alford plea pursuant to a plea arrangement. As part of the arrangement, Defendant "expressly reserve[d] the right to appeal the court's denial of his motion to suppress." Defendant was sentenced to 30 days in the custody of the Misdemeanor Confinement Program. This sentence was suspended and Defendant was placed on probation for 18 months. Defendant appeals.
II. Issues
Defendant asserts the trial court erred by denying his motion to suppress. Defendant argues the trial court's findings of fact do not support its conclusion that law enforcement had probable cause to arrest Defendant for DWI.
III. Standard of Review
Our 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." State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). "The trial court's conclusions of law . . . are fully reviewable on appeal [de novo]." State v. Hughes, 353 N.C. 200, 208, 539 S.E.2d 625, 631 (2000).
IV. Analysis
Defendant first challenges the italicized portion of the following finding of fact:
During Lt Heaviland's 5-8 minute security watch of Defendant Lilly (at the rear of Defendant's car), he put Defendant's backside against the car. Defendant was initially very agitated and high strung as Lt. Heaviland tried to talk to him about the gun. Lt. Heaviland told Defendant Lilly he made a mistake when he touched the gun and raised it. He talked to Defendant Lilly about gun laws and carrying concealed weapons and such. Lt. Heaviland had to repeat himself over and over because Defendant Lilly was not understanding/comprehending what he told him.Defendant acknowledges that Lt. Heaviland testified consistent with this finding at the suppression hearing: "I would have noted in there the type of discussion that we had in terms of the conceal carry laws because a lot of the discussion was over and over and over again because he just wasn't kind of catching and comprehending the things we were talking about." (Emphasis supplied). Defendant argues the trial court's paraphrasing of Lt. Heaviland's testimony improperly "suggests Defendant could not understand what Heaviland 'told him' because he was impaired." Contrary to Defendant's argument, we do not perceive any improper inference in the trial court's finding and conclude it is entirely supported by Lt. Heaviland's testimony.
N.C. Gen. Stat. § 20-16.2 states that "[a]ny law enforcement officer who has reasonable grounds to believe that the person charged has committed the implied-consent offense may obtain a chemical analysis of the person." N.C. Gen. Stat. § 20-16.2(a) (2015).
In determining whether a charging officer had reasonable grounds to believe a petitioner committed an implied consent offense within the meaning of N.C. Gen. Stat. § 20-16.2 (1993), the term "reasonable grounds" should be viewed as synonymous with "probable cause." Probable cause exists if the facts and circumstances at that moment within the charging officer's knowledge and of which the officer had reasonably trustworthy information are such that a prudent man would believe that the suspect had committed or was committing an offense.Moore v. Hodges, 116 N.C. App. 727, 729-30, 449 S.E.2d 218, 220 (1994) (citations omitted). "This does not mean, however, that the information which justifies a warrantless arrest must all be known to the arresting officer or officers; it is sufficient if the various officers who participate in an investigation and arrest have the probable cause information between them." State v. Coffey, 65 N.C. App. 751, 756-57, 310 S.E.2d 123, 127 (1984).
"[T]he odor of alcohol on a defendant's breath, coupled with a positive alco-sensor result, is sufficient for probable cause to arrest a defendant for driving while impaired." State v. Townsend, 236 N.C. App. 456, 465, 762 S.E.2d 898, 905 (2014).
In this case, the trial court made findings that (1) Defendant was initially very agitated and high strung, (2) Lt. Heaviland had to repeat himself because Defendant was not comprehending what he was saying, (3) Lt. Heaviland noticed an obvious odor of alcohol upon Defendant's person, (4) Defendant admitted to Lt. Heaviland he had been drinking, (5) Officer Myers also noticed a strong odor of alcohol emanating from Defendant, and (6) Defendant submitted to two alco-sensor tests, both of which were positive for alcohol.
These findings were sufficient to demonstrate that, between the observations of Lt. Heaviland and Officer Myers, "a prudent man would believe that [Defendant] had committed" the offense of DWI. Moore, 116 N.C. App. at 730, 449 S.E.2d at 220; see also Townsend, 236 N.C. App. at 465, 762 S.E.25 at 905 (Upholding a probable cause determination when the arresting officer noted that the defendant had bloodshot eyes, emitted an odor of alcohol, exhibited clues as to intoxication on three field sobriety tests, and gave positive results on two alco-sensor tests). Defendant's arguments are overruled.
V. Conclusion
The trial court properly denied Defendant's motion to suppress. The trial court's judgment, entered upon Defendant's guilty plea, is affirmed.
AFFIRMED.
Judges STROUD and INMAN concur.
Report per Rule 30(e).