State v. Nunez ( 2020 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-1169
Filed: 20 October 2020
Wake County, No. 15 CRS 210571
STATE OF NORTH CAROLINA
v.
ENRIQUE AMAURIS NUNEZ, Defendant.
Appeal by defendant from judgement entered 10 July 2019 by Judge Craig
Croom in Wake County Superior Court. Heard in the Court of Appeals 12 August
2020.
Attorney General Joshua H. Stein, by Assistant Attorney General Mary L.
Maloney, for the State.
Michael E. Casterline, P.A., by Michael E. Casterline, for the defendant-
appellant.
BERGER, Judge.
On January 4, 2017, Enrique Nunez’s (“Defendant”) motion to suppress was
denied by the trial court, and Defendant was subsequently convicted of driving while
impaired (“DWI”). Defendant appeals, arguing that the trial court erred when it
denied his motion to suppress. We disagree.
Factual and Procedural Background
In the early morning on May 11, 2015, Officer Crawford of the Raleigh Police
Department was dispatched to check the status of a single car accident in a
STATE V. NUNEZ
Opinion of the Court
Biscuitville parking lot. While en route to the parking lot, Officer Norton asked
Officer Crawford to take the lead on scene because Officer Norton’s shift was almost
over. Around 1:48 a.m., Officer Crawford arrived at the parking lot. When Officer
Crawford arrived, Officer Norton “was some distance from the disabled vehicle but
had her police unit there with the blue lights activated.” Officer Crawford observed
that the vehicle was in the center of a public vehicular area with two flat tires and a
missing mirror, and that Defendant was seated “in the driver’s seat of the vehicle.”
Officer Crawford then approached the vehicle and requested Defendant’s driver’s
license and vehicle registration through the already open driver’s side window.
Officer Crawford noticed “a very strong odor of alcohol coming from the
vehicle.” Defendant admitted that he had “five or six beers” earlier that night. Officer
Crawford then administered standardized field sobriety tests and two subsequent
breath tests. Based on his experience, Officer Crawford determined that Defendant
“consumed a sufficient quantity of . . . alcohol . . . to impair his physical and mental
faculties.” As a result, Officer Crawford arrested Defendant for DWI.
On January 3, 2017, Defendant filed a motion to suppress the evidence
obtained by Officer Crawford. At the hearing, Defendant argued that Officer Norton
initiated a seizure when she arrived on the scene and activated the blue lights on her
patrol vehicle. Specifically, Defendant argued that Officer Norton did not have
reasonable suspicion at that time to seize him.
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On January 4, 2017, the trial court denied Defendant’s motion to suppress.
The trial court’s order included the following relevant findings of fact:
5. Officer Crawford arrived within five minutes of the
call to service.
6. When Officer Crawford arrived, Officer Norton, with
the Raleigh Police Department, was already on scene.
7. Officer Norton did not testify and was not present at
this hearing.
8. Officer Norton was some distance from the disabled
vehicle but had her police unit there with the blue lights
activated.
...
12. The vehicle was in the middle of the parking lot and
not in a parking space.
13. Officer Crawford observed that the vehicle had two
flat tires and the mirror on one side was missing.
14. The keys were in the ignition and the Defendant was
in the driver’s seat.
15. At the time he approached the vehicle, Officer
Crawford noticed a strong odor of alcohol emanating from
the vehicle.
16. Officer Crawford asked the Defendant whether he
had been drinking, and he responded affirmatively.
Based on these findings of fact, the trial court made the following relevant
conclusions of law:
4. The parking lot of the Biscuitville is a public
vehicular area.
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Opinion of the Court
5. The officers were not dispatched due to any alleged
criminal activity.
6. They were dispatched for a disabled vehicle, which
could be for a lot of things, including issues involving the
health of the driver.
7. Officers turn on their blue lights for a number of
reasons, including for the safety of the individual that
might be inside of a vehicle.
8. The Defendant was not seized by Officer Norton.
9. The nature of the call to service authorized Officer
Crawford to approach the vehicle and check on the welfare
of the person or persons inside the vehicle.
10. The seizure of the Defendant did not occur until
Officer Crawford approached the Defendant’s vehicle
smelled the odor of alcohol, and began questioning the
Defendant.
11. The evidence here is adequate to support a finding
that Officer Crawford had reasonable articulable suspicion
to seize the Defendant. Therefore, the Defendant’s seizure
did not violate his rights under the Fourth Amendment to
the United States Constitution and Article I, Sections 10,
20 and 23 of the North Carolina Constitution.
On July 10, 2019, a Wake County jury found Defendant guilty of DWI.
Defendant appeals, arguing that the trial court erred when it denied his motion to
suppress. We disagree.
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
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Opinion of the Court
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) (citations omitted).
A defendant’s failure to challenge findings of fact renders them binding on appeal.
State v. Styles, 362 N.C. 412, 417, 665 S.E.2d 438, 441 (2008). “Conclusions of law
are reviewed de novo.” State v. Gerard, 249 N.C. App 500, 502, 790 S.E.2d 592, 594
(2016) (citation and quotation marks omitted).
Analysis
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall
issue but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
U.S. Const. amend. IV.
“Article I, Section 20 of the Constitution of North Carolina likewise prohibits
unreasonable searches and seizures and requires that warrants be issued only on
probable cause.” State v. Allman, 369 N.C. 292, 293, 794 S.E.2d 301, 303 (2016)
(citation omitted). A seizure occurs when the officer, “by means of physical force or
show of authority, has in some way restrained the liberty of a citizen.” Terry v. Ohio,
392 U.S. 1, 19 n.16 (1968). There must be “a physical application of force or
submission to a show of authority.” State v. Cuevas, 121 N.C. App. 553, 563, 468
S.E.2d 425, 431 (1996) (citation omitted).
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“The activation of blue lights on a police vehicle has been included among
factors for consideration to determine when a seizure occurs.” State v. Baker, 208
N.C. App. 376, 386, 702 S.E.2d 825, 832 (2010) (citation omitted). However, the mere
activation of an officer’s blue lights does not constitute a seizure under the Fourth
Amendment. See State v. Turnage, 259 N.C. App. 719, 726, 817 S.E.2d 1, 6, writ
denied, temporary stay dissolved, 371 N.C. 786, 821 S.E.2d 438 (2018) (“[T]he mere
activation of the vehicle’s blue lights did not constitute a seizure as Defendant did not
yield to the show of authority.”); see also State v. Mangum, 250 N.C. App. 714, 726,
795 S.E.2d 106, 116-17 (2016) (specifying that for a defendant to be seized under the
Fourth Amendment he must submit, or yield, to an officer’s activation of blue lights
or siren).
Here, Officer Norton was dispatched to check the status of a single car accident
in a public vehicular area. When Officer Norton arrived and activated her blue lights,
Defendant was sitting in the driver’s seat of his disabled vehicle, which had two flat
tires and a broken side mirror. While the activation of her blue lights is a factor in
determining whether a seizure has occurred, there was no action on the part of Officer
Norton that caused Defendant’s vehicle to stop moving, or otherwise impede
Defendant’s movement. Rather, Officer Norton may have activated her blue lights to
signal to Officer Crawford, or to even signal to Defendant that police assistance was
available. See Turnage, 259 N.C. App. at 725-26, 817 S.E.2d at 5 (“A vehicle
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inexplicably stopped in the middle of a public roadway is a circumstance sufficient,
by itself, to indicate someone in the vehicle may need assistance, or that mischief is
afoot. At the very least, . . . it is not the role of this, or any other court, to indulge in
unrealistic second-guessing of a law enforcement officer’s judgment call.”
(purgandum)).
Here, Defendant was not seized by the mere activation of Officer Norton’s blue
lights. Therefore, the trial court did not err when it denied Defendant’s motion to
suppress.
Conclusion
For the foregoing reasons, we affirm the trial court’s denial of Defendant’s
motion to suppress.
NO ERROR.
Judges DIETZ and ARROWOOD concur.
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