State v. Veal ( 2014 )

NO. COA13-1407
NORTH CAROLINA COURT OF APPEALS
Filed: 1 July 2014
STATE OF NORTH CAROLINA
v. Buncombe County
Nos. 11 CRS 57859, 12 CRS 160
DOUGLAS EUGENE VEAL
Appeal by defendant from judgment entered 6 August 2013 by
Judge Alan Z. Thornburg in Buncombe County Superior Court.
Heard in the Court of Appeals 23 April 2014.
Attorney General Roy Cooper, by Assistant Attorney General
David Shick, for the State.
Cheshire Parker Schneider & Bryan, PLLC, by John Keating
Wiles, for defendant-appellant.
McCULLOUGH, Judge.
Douglas Eugene Veal (“defendant”) appeals the order of the
trial court, denying his motion to suppress evidence. For the
following reasons, we affirm the order of the trial court.
I. Background
On 4 July 2011, Officer Rodney Cloer of the Asheville
Police Department (“Officer Cloer”) was dispatched to a report
of an intoxicated driver in a green Chevy truck at the Citistop
gas station located at 760 Haywood Road. The report of an
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intoxicated person came through dispatch from an employee at the
Citistop gas station. Dispatch reported that there was a very
intoxicated male subject trying to leave the gas station in a
green Chevy truck with a bed cover. Dispatch also identified
the subject as an elderly white male in a white hat. Officer
Cloer responded to the call and drove to the gas station and
parked his car in the parking lot. He then observed defendant
driving his green truck in the parking lot. Officer Cloer
approached defendant on foot and asked to speak with him. While
speaking with defendant, Officer Cloer noticed an odor of
alcohol coming from defendant and observed an unopened can of
beer in the truck. Defendant told Officer Cloer that he was
going to a funeral in Alabama. Officer Cloer noted that
defendant had slurred speech. Due to his observations, Officer
Cloer asked defendant to get out of his vehicle. While
attempting to get out of his truck, defendant stumbled and
nearly fell and used the side of the vehicle to maintain his
balance.
Officer Cloer, certified in standardized field sobriety
testing, instructed defendant to perform the “Horizontal Gaze
Nystagmus” test. While Officer Cloer was performing the test,
Officer Cloer observed six out of the six signs indicating
impairment. He also asked defendant to perform the “Walk and
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Turn” test. While attempting to administer the test, defendant
continued to ask questions during the instructional phase, lost
his footing three times, used his arms for balance, and started
the test without being asked. Due to these actions, Officer
Cloer terminated the test and placed defendant under arrest for
Driving While Impaired.
During the process of his arrest, defendant asked to be let
go if he told Officer Cloer a location where drugs and stolen
guns could be found. Officer Cloer explained that defendant was
under arrest and he was not able to make any deals with
defendant. Defendant was then transported to the jail where he
subsequently refused to take the Intoxilyzer breath test to
determine his blood alcohol level. Officer Cloer obtained a
search warrant from the magistrate in order to perform a blood
test on defendant. Defendant was transported to Memorial
Mission Hospital where his blood was drawn in an ambulance in
the parking lot.
On 3 October 2011, defendant was indicted for habitual
impaired driving and operating a motor vehicle without an
operator’s license. On 5 March 2012, defendant was indicted on
attaining habitual felon status and failure to appear on the
charge of habitual impaired driving after being released. On 5
July 2013, defendant filed a motion to suppress all evidence
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obtained from the alleged illegal seizure, arguing that Officer
Cloer lacked reasonable articulable suspicion of criminal
wrongdoing. The same day, defendant also filed a motion to
suppress blood seized from defendant, and a motion to suppress
evidence of statements made by defendant. On 29 July 2013,
defendant filed a motion to exclude and objection to evidence of
his alleged refusal of the Intoxilyzer test.
Defendant’s trial came on for hearing on the 29 July 2013
criminal session of Buncombe County Superior Court. At the
hearing, Aaron Wakenhut, the employee who called in the report
of an intoxicated person, testified to his observations in the
store. He could not remember the incident at the time of the
trial, but testified by reading his witness statement aloud. In
his statement he said that “the man was stumply [sic] walking,
made a slight mess with hot water for his soup. Hard time
talking and slurred. Took a very long time to respond.” By
order entered 1 August 2013, the trial court denied the motions
to suppress. The order made the following pertinent findings of
fact:
1. During the late evening hours of July the
4th, 2011, while on duty, Officer Cloer
from the Asheville Police Department was
dispatched to a gas station on Haywood
Road to investigate an impaired person,
and that he went there and that he parked
his vehicle, got out, and observed the
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Defendant driving a truck in the parking
lot.
2. That Officer Cloer went up to the
Defendant’s truck, at which time it was
stopped, asked if he could speak to the
Defendant, then detected the odor of
alcohol, and at that same time observed an
unopened container of beer in the truck,
and then upon observing that and smelling
that and opining that the Defendant had
slurred speech, he was unsteady on his
feet, he had him submit to field sobriety
tests.
. . . .
6. The officer did not observe the Defendant
driving, except in the lot; however, he
was dispatched there for the purpose of
investigating the potential of that
illegal activity, and that the Defendant
was under the wheel of a truck that was
moving and the motor was on and it was in
a public vehicular area.
On 6 August 2013, defendant pled guilty to the charge of
habitual driving while impaired and attaining habitual felon
status, while preserving his right to appeal his motion to
suppress. The charges of no operator’s license and failure to
appear on the charge of habitual impaired driving after being
released were dismissed. Defendant was sentenced to a term of
66 to 89 months imprisonment. Defendant entered notice of
appeal on 6 August 2013.
II. Standard of Review
Our review of a trial court’s motion to suppress is
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“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). Any unchallenged findings of
fact are “deemed to be supported by competent evidence and are
binding on appeal.” State v. Roberson, 163 N.C. App. 129, 132,
592 S.E.2d 733, 735-36 (2004). The trial court’s conclusions of
law are fully reviewable de novo on appeal. State v. Hughes,
353 N.C. 200, 208, 539 S.E.2d 625, 631 (2000). “[T]he trial
court’s conclusions of law must be legally correct, reflecting a
correct application of applicable legal principles to the facts
found.” State v. Buchanan, 353 N.C. 332, 336, 543 S.E.2d 823,
826 (2001) (alteration in original) (internal quotation marks
and citations omitted).
III. Discussion
Defendant’s sole argument on appeal is that the trial court
erred when it denied his motion to suppress all evidence
stemming from the initial stop because Officer Cloer made an
illegal stop of defendant’s vehicle. Defendant contends that
the initial stop was illegal because it was not warranted by a
reasonable and articulable suspicion of criminal activity.
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The Fourth Amendment of the Constitution provides the right
of people to be secure in their persons and protects citizens
from unreasonable searches and seizures. U.S. Const. amend. IV.
However, the United States Supreme Court has held that “[n]o one
is protected by the Constitution against the mere approach of
police officers in a public place.” State v. Brooks, 337 N.C.
132, 141, 446 S.E.2d 579, 585 (1994) (quoting State v. Streeter,
283 N.C. 203, 208, 195 S.E.2d 502, 506 (1973)). The Supreme
Court has also held that “a seizure does not occur simply
because a police officer approaches an individual and asks a few
questions.” Florida v. Bostick, 501 U.S. 428, 434, 115 L. Ed.
2d 389, 398 (1991).
Our Supreme Court held in State v. Brooks, 337 N.C. 132,
446 S.E.2d 579 (1994), that neither reasonable suspicion nor
probable cause were required for an agent to approach the
defendant and engage in conversation. In Brooks, the officer
approached the vehicle while the defendant was sitting in the
driver’s seat. Id. at 137, 446 S.E.2d at 583. The officer
shined a flashlight on the defendant and noticed an empty
holster within the reach of the defendant. Id. The officer
asked where his gun was located and the defendant responded that
he was sitting on the gun. Id. The officer asked the defendant
to “ease it out real slow” and the defendant reached under his
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right thigh and handed the gun to the officer. Id. The
defendant was allowed to exit and enter the vehicle multiple
times during the interaction. Without putting the defendant
under arrest, the officer asked him if he had any “dope” in the
car. The defendant replied in the negative and asked if the
officer would like to search the vehicle. Brooks at 137-38, 446
S.E.2d at 583. Upon searching the vehicle, with the defendant’s
help, the officer discovered a bag of cocaine and arrested the
defendant for possession of cocaine and carrying a concealed
weapon. Id. at 138, 446 S.E.2d at 583-84. The defendant filed
a motion to suppress the search and seizure of drugs from his
vehicle, arguing that the officer lacked probable cause. Id. at
136, 446 S.E.2d at 582-83. The Court found that there was no
evidence that the officer “made a physical application of force
or that the defendant submitted to any show of force.” Id. at
142, 446 S.E.2d at 586. Our Supreme Court held that “[o]fficers
who lawfully approach a car and look inside with a flashlight do
not conduct a ‘search’ within the meaning of the Fourth
Amendment. If, as a result, the officers see some evidence of a
crime, this may establish probable cause to arrest the
occupants.” Brooks at 144, 446 S.E.2d at 587 (internal
citations omitted).
In State v. Isenhour, 194 N.C. App. 539, 670 S.E.2d 264-9-
(2008), officers were patrolling in a high crime area when they
observed the defendant and a passenger parked in the back corner
of a fast food restaurant parking lot. The officers parked the
patrol car eight feet away from the defendant’s vehicle and
approached on foot. Id. at 540, 670 S.E.2d at 266. The
defendant’s window would not roll down so he opened the car door
to speak with the officers. Due to the inconsistency between
the defendant’s and passenger’s reason for being in the parking
lot, the defendant was asked to exit his vehicle. Id. at 541,
670 S.E.2d at 266. The officer patted down the defendant and
asked for consent to search his vehicle. The defendant
consented, and while searching the vehicle, the officers found a
pill bottle containing methadone pills. Id. This Court found
that the officer did not create “any real ‘psychological
barriers’ to defendant’s leaving such as using his police siren,
turning on his blue strobe lights, taking his gun out of his
holster, or using threatening language.” Id. at 544, 670 S.E.2d
at 268. Our Court held that the officer’s actions did not
constitute a seizure of the defendant, so “no reasonable
suspicion was required for [the officer] to approach defendant’s
car and ask him questions.” Id.In this case, similar to Brooks, there is no evidence that
Officer Cloer used any physical force when approaching
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defendant. Officer Cloer approached defendant’s vehicle and
engaged in conversation with him, as the officer did in Brooks.
He testified that he walked up to defendant’s car on foot and
asked to speak with him. During that conversation, Officer
Cloer observed signs of intoxication (the odor of alcohol on
defendant, an unopened can of beer, and slurred speech) leading
him to investigate defendant further. Similar to Isenhour,
Officer Cloer also did not use any “psychological barriers”
while initiating contact with defendant. He testified that he
did not activate his blue lights and there is no evidence that
he removed his gun from his holster or used a threatening tone
initiating contact with defendant. Thus, as found in Brooks and
Isenhour, Officer Cloer engaged in a voluntary encounter with
defendant.
The test for determining whether a seizure has occurred “is
whether, taking into account all of the circumstances
surrounding the encounter, the police conduct would ‘have
communicated to a reasonable person that he was not at liberty
to ignore the police presence and go about his business.’”
Florida at 437, 115 L. Ed. 2d at 400 (quoting Michigan v.
Chesternut, 486 U.S. 567, 569, 100 L. Ed. 2d 565 (1988)). In
the present case, Officer Cloer pulled into the parking lot of
the gas station and parked his vehicle. He testified that he
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did not pull his vehicle in behind defendant’s car, he did not
activate his blue lights, and there is no evidence that he spoke
in a threatening tone. He further testified that he got out of
his vehicle and approached defendant’s truck on foot and asked
to speak with defendant. Our Supreme Court has held that these
actions do not constitute a “seizure” of defendant. See State
v. Brooks, 337 N.C. 132, 446 S.E.2d 579 (1994). Because
defendant was not “seized” by Officer Cloer’s approach and
initial questioning, reasonable suspicion of criminal activity
is not required.
Unlike a voluntary encounter, “[a]n investigatory stop must
be justified by ‘a reasonable suspicion, based on objective
facts, that the individual is involved in criminal activity.’”
State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 70 (1994)
(quoting Brown v. Texas, 443 U.S. 47, 51, 61 L. Ed. 2d 357, 362
(1979)). Reasonable suspicion requires that
[t]he stop . . . be based on specific and
articulable facts, as well as the rational
inferences from those facts, as viewed
through the eyes of a reasonable, cautious
officer, guided by [the officer’s]
experience and training. The only
requirement is a minimal level of objective
justification, something more than an
‘unparticularized suspicion or hunch.’
Id. at 441-42, 446 S.E.2d at 70 (quoting United States v.
Sokolow, 490 U.S. 1, 7, 104 L. Ed. 2d 1, 10 (1989)) (quotation
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marks and internal citations omitted). “The Fourth Amendment
requires that police have an articulable and reasonable
suspicion of criminal conduct before making an investigative
stop of an automobile.” United States v. Arzaga, 9 F.3d 91, 93
(10th Cir. 1993) (emphasis added).
Since we have determined that Officer Cloer’s initial
interaction with defendant was a voluntary encounter, his
personal observations during that time may be used to determine
reasonable suspicion for the subsequent investigatory stop.
When he approached defendant’s vehicle, Officer Cloer noticed
the odor of alcohol coming from defendant and observed an
unopened container of beer in defendant’s truck. This Court has
previously held that similar observations observed during a
consensual encounter establish reasonable suspicion to further
detain and investigate defendant. State v. Veazey, 191 N.C.
App. 181, 195, 662 S.E.2d 683, 692 (2008) (stating that during
the initial lawful checkpoint detention, the officer’s
observations of “a strong odor of alcohol in the vehicle and . .
. that Defendant’s eyes were red and glassy . . . provided a
sufficient basis for reasonable suspicion permitting Trooper
Carroll to pursue further investigation and detention of
Defendant”).
Officer Cloer initiated an investigatory stop when,
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suspecting that defendant was impaired, he asked defendant to
step out of his vehicle to further investigate. We find that
his personal observations of the odor of alcohol and an unopened
container of beer made during the voluntary encounter are a
sufficient basis for reasonable suspicion to support the stop.
Defendant also argues that the basis of his stop was from
an anonymous tip. The report of an impaired driver came from
information given by an unnamed employee. Since the caller was
not identified by name, defendant argues that these facts
constitute a stop based on an anonymous tip.
It is well established that “[a]n anonymous tip can provide
reasonable suspicion as long as it exhibits sufficient indicia
of reliability.” State v. Hughes, 353 N.C. 200, 207, 539 S.E.2d
625, 630 (2000). Even if a tip lacks sufficient indicia of
reliability, it “may still provide a basis for reasonable
suspicion if it is buttressed by sufficient police
corroboration.” Id. “In sum, to provide the justification for
a warrantless stop, an anonymous tip ‘must have sufficient
indicia of reliability, and if it does not, then there must be
sufficient police corroboration of the tip before the stop may
be made.’” State v. Peele, Jr., 196 N.C. App. 668, 672, 675
S.E.2d 682, 685 (2009) (quoting Hughes at 207, 539 S.E.2d at
630).
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In United States v. Quarles, 330 F.3d 650 (4th Cir. 2003),
an individual called 911 and reported that the defendant was
walking down Nash Street and was wanted by the U.S. Attorney’s
Office. The caller provided a description, including that the
defendant was a black male with dreadlocks, and an accurate
description of what the defendant was currently wearing. Id. at
652. The 911 operator asked the caller why the U.S. Attorney’s
office was interested in the defendant. The caller stated that
he was wanted for carrying a gun and that the defendant had
killed the caller’s brother, but had “beat the case.” Id. The
caller was kept on the phone with the operator and continued to
follow the defendant, keeping the operator updated until the
caller saw officers arrive and put the defendant on the ground.
Id. The court stated that “the caller here gave enough
information to be identified later, and therefore, was not
totally anonymous at any time.” Quarles at 654. It also held
that the caller “provided sufficient information to the police
that he could have been held accountable for his statements.”
Id. at 656.
Similarly, in the present case, the caller was identified
as an employee of the Citistop gas station where defendant’s car
was located. This information was sufficient to ascertain his
identity when police arrived. The second officer on the scene,
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Officer McCullough, was able to identify the caller as Aaron
Wakenhut and obtain a statement from him. Thus, Wakenhut was
“bound to have felt as though he was being held accountable for
what he was saying.” Quarles at 656. Wakenhut also gave
information based off his personal observations of defendant’s
behavior inside the store. He testified that defendant was
stumbling, made a mess with the hot water for his soup, had
slurred speech, a hard time talking, and took a very long time
to respond. Accordingly, the tip in this case would be a more
reliable tip than a true anonymous caller case where the caller
gives no identifying information.
Since we have determined defendant was not seized when
Officer Cloer approached him and engaged in conversation,
Officer Cloer was able to corroborate the caller’s information
before initiating a stop. Officer Cloer’s personal observations
of the odor of alcohol coming from defendant and an unopened
container of beer on the passenger seat corroborated the
caller’s tip of an impaired person. Officer Cloer’s
observations during the voluntary encounter with defendant,
prior to asking him to get out of his vehicle, along with the
information from the caller’s tip, established reasonable
suspicion for the stop.
Defendant cites to State v. Blankenship, _ N.C. App. _, 748
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S.E.2d 616 (2013), as his main source of authority for why the
trial court erred. In Blankenship, officers received a “be-on-
the-lookout” message from dispatch. A taxicab driver
anonymously called 911 and reported that he observed a red
Mustang convertible with a black soft top driving erratically,
running over traffic cones, and continuing west on Patton
Avenue. Id. at __, 748 S.E.2d at 617. The caller also provided
the license plate, “XXT-9756”. Id. A few minutes later, the
officers spotted a red Mustang with a black soft top and an “X”
in the license plate heading west on Patton Avenue. Id. When
the officers caught up to the vehicle, it had made a turn and
was approaching a security gate. Id. As the driver attempted
to open the gate, the officers activated their blue lights and
stopped the defendant. Blankenship at __, 748 S.E.2d at 617.
At this time, the officers had not observed the “defendant
violating any traffic laws or see any evidence of improper
driving that would suggest impairment[.]” When one of the
officers spoke to the defendant, he detected a strong odor of
alcohol and asked him to perform field sobriety tests. Id.
Based on his performance, the defendant was arrested for driving
while impaired. This Court found that the officers were unable
to judge the caller’s “credibility and to confirm firsthand that
the tip possessed sufficient indicia of reliability. Since [the
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caller’s] anonymous tip did not possess sufficient indicia of
reliability, [the officers] did not possess reasonable,
articulable suspicion to stop defendant’s car.” Id. at __, 748
S.E.2d at 620.
This case is distinguishable from Blankenship in two
distinct ways. In Blankenship, the call was a true anonymous
tip because the taxicab driver did not give any information that
would enable the caller to be identified. His identity was only
discovered because the 911 operator was able to go back and
trace the phone number. Id. at __, 748 S.E.2d at 617. By not
identifying himself, the officers could not judge the caller’s
credibility. “Since the officers did not have an opportunity to
assess his credibility,” the caller lacked sufficient indicia of
reliability. Id. at __, 748 S.E.2d at 618. However, in this
case, the caller was identified as an employee of the business
where defendant was located, thus giving enough information that
allowed for his identity to be ascertained at the scene and
making him a more reliable tipster than the one in Blankenship.
In Blankenship, although the officers did not personally
observe the defendant committing any unlawful behavior, they
immediately initiated a stop by activating their blue lights as
the “driver, defendant, attempted to open the gate.” Id. at __,
748 S.E.2d at 617. The initial encounter was not voluntary
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because the immediate activation of their blue lights acted as a
show of authority that would make a reasonable person feel that
they were not free to leave. Because it was not voluntary,
reasonable suspicion was required to conduct the stop. In the
case at hand, Officer Cloer did not activate his blue lights
when he pulled into the parking lot and parked his car away from
defendant’s vehicle. He approached defendant on foot and
engaged in a conversation in a voluntary encounter allowing
Officer Cloer to make his own personal observations of the odor
of alcohol and an unopened container of beer inside the car.
Thus, unlike in Blankenship, Officer Cloer was able to
personally observe defendant’s behavior to corroborate the
caller’s tip prior to initiating the stop and he was able to
form the necessary reasonable suspicion of criminal activity.
Therefore, defendant’s reliance on Blankenship is misplaced.
IV. Conclusion
We conclude that the initial encounter between Officer
Cloer and the defendant was a voluntary encounter and thus did
not require reasonable suspicion. Accordingly, Officer Cloer’s
observations during the consensual encounter (the odor of
alcohol and an unopened container) established reasonable
suspicion to further detain and investigate the defendant.
Based on the foregoing, we hold the trial court properly denied
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defendant’s motion to suppress all evidence stemming from the
initial stop.
Affirmed.
Judges ELMORE and DAVIS concur.