State v. FieldsÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-38
Filed: 3 December 2019
Durham County, No. 17CRS51421
STATE OF NORTH CAROLINA
v.
BENJAMIN FIELDS
Appeal by the State from order entered 12 September 2018 by Judge Keith
Gregory in Durham County Superior Court. Heard in the Court of Appeals 9 May
2019.
Attorney General Joshua H. Stein, by Assistant Attorney General Joseph L.
Hyde, and Durham County Assistant District Attorney, by Adam Williamson,
for the State-Appellant.
Office of the Appellate Defender, by Assistant Appellate Defender Sterling P.
Rozear, for the Defendant-Appellee.
COLLINS, Judge.
The State appeals from an order granting Defendant’s motion to suppress,
heard at a pretrial hearing on Defendant’s charge of driving while impaired. On
appeal, the State’s overarching argument is that the trial court erred in allowing the
motion because the State had probable cause to arrest Defendant. We find no merit
in the State’s arguments and affirm the trial court’s order.
I. Procedural History
STATE V. FIELDS
Opinion of the Court
On 24 February 2017, Defendant was issued a North Carolina Uniform
Citation for, inter alia, driving while impaired. On 18 April 2018, following a bench
trial in district court, Defendant was found guilty of driving while impaired. The trial
court entered judgment and sentenced Defendant to 36 months’ imprisonment.
Defendant appealed to superior court.
On 5 June 2018, Defendant filed a motion to suppress evidence derived from
his arrest, arguing there was no probable cause to support the arrest. At a hearing
on 20 August 2018, the trial court orally allowed Defendant’s motion. The State
immediately gave oral notice of appeal in open court. The trial court entered a written
order on 12 September 2018 reflecting its ruling from the bench. The State filed
written notice of appeal from the 12 September 2018 order on 3 October 2018.1
II. Factual Background
On 24 February 2017, Officer Daryl Macaluso of the Durham Police
Department responded to a disturbance call near the 800 block of Briggs Avenue.
The caller reported a green pickup truck driving erratically and “attempting to hit
people.”
Macaluso’s Testimony
Macaluso testified that as he approached the area, he was flagged down by an
“extremely intoxicated” man who was telling him about the vehicle trying to run
1 We note that while the Notice of Appeal was signed and served on 3 October 2018, the clerk
of court’s file stamp indicates 3 September 2018.
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Opinion of the Court
people over. Macaluso further testified, “I saw a vehicle that fit the description
passing me . . . . And that vehicle was driven by the defendant. I clearly took a look
at him while he was driving by.” The intoxicated man did not react to the green
pickup truck, nor did he “make references to the vehicle passing” them. The green
pickup truck was not driving erratically or committing any traffic violations, and
Macaluso did not follow the truck.
Macaluso drove his car around the block. Upon his return to the Briggs Avenue
area, he was approached by “a lot more intoxicated people” who attempted to explain
what had occurred. About two minutes later, as Macaluso was speaking with the
group, Defendant approached on foot from about a half-block away. Macaluso noticed
that Defendant was unsteady on his feet and slurred his speech. Defendant appeared
angry and complained that he had been sold “fake crack.” Macaluso asked Defendant
to wait in the back of the patrol car while he investigated, and eventually called for
backup in conducting an impaired driving investigation.
Munter’s Testimony
Investigator Gabriel Munter responded to the call to investigate. When he
arrived at the scene, he found Defendant sitting in the backseat of Macaluso’s patrol
car. Because Munter had not seen Defendant drive, Munter told Macaluso, “I would
need you to put him behind the wheel.” Munter testified, “I’m not going to pick up an
impaired driving investigation unless that’s been established by another officer
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Opinion of the Court
because I wasn’t there and I didn’t see the driving. So if [Macaluso] can put him
behind the wheel, yes, I’ll pick up the investigation from that point.” Munter testified
that Macaluso “said that he saw [Defendant] driving. [Macaluso] said, He passed me,
I believe were his words.”
Munter proceeded to investigate a green pickup truck parked at the Big Apple
Mini-mart. Munter found an empty liquor container in the back of the truck, but
testified that it appeared to have been there a while. Munter did not check the
temperature of the truck, exhaust pipe, or hood while he conducted his investigation.
Munter returned to the Briggs Avenue area, where he conducted various field
sobriety tests on Defendant, including a horizontal gaze nystagmus test. Defendant
showed six out of six clues of impairment on the horizontal gaze nystagmus test.
Munter arrested Defendant and charged him with driving while impaired.
Body Camera Video
Munter’s body camera captured video of the events on that day, and Munter
narrated the video while the jury watched it. At the beginning of the video, Munter
walked up to Macaluso and asked questions about the original phone call tip
regarding an erratic driver trying to hit people. The video then captured Macaluso
telling Munter, “I didn’t know that was [Defendant’s] car until someone else pointed
it out.”
Mini-mart Video
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STATE V. FIELDS
Opinion of the Court
Macaluso testified that he “continued to control the crowd” until Munter
arrested Defendant and left the scene. Following Munter’s departure, Macaluso went
to the Big Apple Mini-mart to see if they had video of the area. Macaluso obtained
video which “showed [Defendant] coming out of the truck and [he] got the video on a
flash drive.” However, Macaluso testified that the flash drive containing the video
was lost when Macaluso brought his patrol car in for repairs. Macaluso testified,
“The flash drive is gone. There’s no video.” The State did not present the video at
the hearing.
III. Discussion
The State argues on appeal that the trial court erred by granting Defendant’s
motion to suppress because (1) the trial court lacked jurisdiction to enter the written
order after notice of appeal to this Court had been given, (2) the trial court’s findings
are not supported by the evidence, and (3) the trial court erred in finding no probable
cause to arrest Defendant. We address each argument in turn.
1. Trial Court’s Jurisdiction
The State first argues that the trial court lacked jurisdiction to enter the
written order on 12 September 2018 because the State had given oral notice of appeal
immediately after the trial court announced its ruling from the bench on 20 August
2018. The State claims that once it gave notice of appeal, the trial court was without
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STATE V. FIELDS
Opinion of the Court
jurisdiction to enter any additional findings of fact or orders. The State’s argument
is meritless.
This Court reviews jurisdictional issues de novo. State v. Oates, 366 N.C. 264,
266, 732 S.E.2d 571, 573 (2012). Generally, when appeal entries are noted, the appeal
becomes effective immediately, and the trial court is without authority to enter orders
affecting the merits of the case. State v. Grundler, 251 N.C. 177, 185, 111 S.E.2d 1,
7 (1959) (citation omitted). However, the trial court maintains jurisdiction to enter a
written order after notice of appeal has been given where the order does not “affect[]
the merits, but, rather, is a chronicle of the findings and conclusions” decided at a
prior hearing. State v. Walker, 255 N.C. App. 828, 830, 806 S.E.2d 326, 329 (2017)
(emphasis in original) (citation omitted).
In this case, the trial court announced from the bench that Defendant’s motion
was allowed. In response to the State’s request for “findings of the facts[,]” the trial
court announced:
I’ll reserve the right to find appropriate findings of fact.
I’ve already indicated in open court that the State cannot
make the nexus between the person that the officer saw
driving, there were no traffic or Chapter 20 violations[,] to
the person that came up two minutes later. I reserve the
right to find further findings of fact. [Counsel for
Defendant], you will prepare that order.
The State then gave notice of appeal. The written order contains 21 findings
of fact, including the following:
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STATE V. FIELDS
Opinion of the Court
Throughout the duration of the hearing the State’s
evidence did not establish a nexus between the driver of
the green pickup truck observed by Officer Macaluso,
which was not observed violating any Chapter 20 offense,
and the individual who later walked upon the raucous
scene on Briggs Avenue.
The written order thus concludes “that the State did not meet their statutory burden
that of probable cause to arrest [Defendant] on February 24, 2017 for the offense of
driving while impaired.” The written order does not “affect[] the merits, but, rather,
is a chronicle of the findings and conclusions” decided at the motion to suppress
hearing, and thus, the written order is “not a new order affecting the merits of the
case.” Walker, 255 N.C. App. at 830, 806 S.E.2d at 329 (emphasis in original) (citation
omitted). Accordingly, the trial court had jurisdiction to enter the written order, and
we reject the State’s contention to the contrary. See State v. Smith, 320 N.C. 404,
415-16, 358 S.E.2d 329, 335 (1987) (the trial court had jurisdiction to enter a written
order out of term denying defendant’s motion to suppress where the order was “simply
a revised written version of the verbal order entered in open court which denied
defendant’s motion to suppress”) (quotation marks omitted); State v. Franklin, 224
N.C. App. 337, 345, 736 S.E.2d 218, 223 (2012) (the trial court had jurisdiction to
enter its written order denying defendant’s motion to suppress after defendant had
given notice of appeal as the written order “merely reduced its oral ruling to writing”)
(internal quotation marks, brackets, and citation omitted).
2. Contested Findings of Fact
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STATE V. FIELDS
Opinion of the Court
The State next argues that the trial court’s findings of fact 9, 19, and 21 are
not supported by the evidence.
This Court’s role in reviewing a trial court’s order on a motion to suppress “is
simply to determine whether the trial court’s findings of fact are supported by the
evidence and whether those findings support the court’s conclusions of law.” State v.
Campbell, 188 N.C. App. 701, 706, 656 S.E.2d 721, 725 (2008). “Our review is limited
to those facts found by the trial court and the conclusions reached in reliance on those
facts . . . .” State v. Derbyshire, 228 N.C. App. 670, 679, 745 S.E.2d 886, 893 (2013).
Unchallenged findings are deemed supported by competent evidence and are binding
on appeal. State v. Biber, 365 N.C. 162, 167, 712 S.E.2d 874, 878 (2011). Conclusions
of law are reviewed de novo. Id. at 168, 712 S.E.2d at 878.
Finding 9
Finding 9 states, “Officer Macaluso testified as to not seeing the green pickup
truck park or any individual get in or out of the vehicle.”
At the hearing, the following exchange took place:
[Defense Counsel]: And since this individual didn’t react
to the car, you never pulled behind it?
[Macaluso]: No.
[Defense Counsel]: You never followed it down the road?
[Macaluso]: I did not.
[Defense Counsel]: You never mentioned in your report
seeing it park?
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STATE V. FIELDS
Opinion of the Court
[Macaluso]: No. I pulled around Holloway Street and it
was parked at a Big Apple.
[Defense Counsel]: You never mentioned seeing the car
park -- sorry. The pick-up truck park?
[Macaluso]: I did not mention seeing it park.
[Defense Counsel]: In your report you didn’t put down
seeing the pick-up truck park?
[Macaluso]: Correct. I didn’t write that on my report.
[Defense Counsel]: And in your report you never
mentioned seeing anyone get in or out of this truck?
[Macaluso]: Correct.
This exchange supports the challenged finding of fact. The State argues this
finding is not supported by the evidence because “Macaluso testified he observed a
video at the mini-mart which showed Defendant getting out of his green pickup
truck.”2 Macaluso did testify that after Munter left with Defendant, Macaluso “went
to the Big Apple Mini-Mart to view a video” and “got the video on flash drive.”
However, Macaluso also testified that “[t]he video was lost” because he left the flash
drive in his patrol car when he brought the car to the mechanic. The State did not
introduce the video into evidence at the hearing. It is well-settled that the trial court
determines the credibility of the witnesses, the weight to be given to the testimony,
and “the reasonable inferences to be drawn therefrom.” State v. Icard, 363 N.C. 303,
312, 677 S.E.2d 822, 828 (2009). If different inferences may be drawn from the
evidence, the trial court determines which inferences shall be drawn and which shall
2 The State makes no further legal argument regarding the sufficiency of this finding.
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Opinion of the Court
be rejected. Knutton v. Cofield, 273 N.C. 355, 359, 160 S.E.2d 29, 33 (1968). The trial
court was free to give no weight to Macaluso’s testimony regarding viewing the Mini-
mart video.
Moreover, Macaluso further testified that he observed the Mini-mart video
only after Defendant had been arrested. Whether probable cause exists is analyzed
at the moment of arrest, and “whether at that moment the facts and circumstances
within” an officer’s knowledge are sufficient to warrant arrest. State v. Streeter, 283
N.C. 203, 207, 195 S.E.2d 502, 505 (1973) (brackets and citation omitted). As
Macaluso had not yet viewed the video showing Defendant exit the truck, any
discrepancy in the evidence supporting this finding was irrelevant as the video could
not have contributed to any probable cause to arrest Defendant.
Finding 19
Finding 19 states, “Defendant submitted a single sample of breath on the
Preliminary Breath Test (PBT) before refusing to submit a second sample.” Video
recorded by Munter’s body camera and Munter’s narration of that video during the
hearing established that Defendant submitted a sample of breath. This evidence
supports the challenged finding.
The State’s sole argument is that “Officer Munter testified that when he
attempted to get a breath sample, Defendant barked and bit at him. (T p. 42) No
evidence supports the finding that Defendant submitted a breath sample.” The State
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Opinion of the Court
misrepresents the evidence presented at the hearing and makes no legal argument
concerning the sample submitted.
Finding 21
Finding 21 states, “Throughout the duration of the hearing the State’s evidence
did not establish a nexus between the driver of the green pickup truck observed by
Officer Macaluso, which was not observed violating any Chapter 20 offense, and the
individual who later walked upon the raucous scene on Briggs Avenue.” Macaluso
testified that he did not follow the green truck that passed him; instead, he drove his
car around the block and returned to the Briggs Avenue area. About two minutes
later, Defendant approached on foot from about a half-block away. Macaluso also
testified that he did not see the green pickup truck park or any individual get in or
out of the truck. Moreover, Munter’s body camera video captured Macaluso telling
Munter, “I didn’t know that was [Defendant’s] car until someone else pointed it out.”
This evidence supports the challenged finding.
While the State argues that Macaluso’s testimony established that Defendant
was the driver of the green pickup truck, the trial court “determines the reasonable
inferences to be drawn” from the evidence. Knutton, 273 N.C. at 359, 160 S.E.2d at
33 (internal citations omitted). The trial court appropriately considered the
credibility of Macaluso’s testimony and the weight to afford that testimony when
making its findings of fact. The trial court was not compelled to “accept uncritically”
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Opinion of the Court
the testimony of Macaluso. State v. Salinas, 214 N.C. App. 408, 416-17, 715 S.E.2d
262, 267-68 (2011). Thus, finding 21 is supported by evidence “even though there is
evidence in the record to support a contrary finding.” State v. Phillips, 151 N.C. App.
185, 190, 565 S.E.2d 697, 701 (2002).
3. No Probable Cause to Arrest
The State finally argues that the trial court erred in concluding that there was
no probable cause to arrest Defendant.
This Court reviews conclusions of law de novo. Biber, 365 N.C. at 168, 712
S.E.2d at 878. “To be lawful, a warrantless arrest must be supported by probable
cause.” State v. Zuniga, 312 N.C. 251, 259, 322 S.E.2d 140, 145 (1984). “Probable
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.” Streeter, 283 N.C. at 207, 195 S.E.2d at 505
(internal quotation marks and citation omitted). Whether probable cause exists at
the time of arrest depends on “whether at that moment the facts and circumstances
within their knowledge and of which they had reasonably trustworthy information
were sufficient to warrant a prudent man in believing that the suspect had committed
or was committing an offense.” Id. (emphasis added) (brackets and citation omitted).
A second officer who lacks probable cause to effectuate an arrest may
justifiably arrest a defendant based on a first officer’s request only when the first
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Opinion of the Court
officer has probable cause to arrest the defendant. State v. Tilley, 44 N.C. App. 313,
317, 260 S.E.2d 794, 797 (1979). “A person commits the offense of impaired driving
if he drives any vehicle . . . [w]hile under the influence of an impairing substance[,]
or [a]fter having consumed sufficient alcohol that he has, at any relevant time after
the driving, an alcohol concentration of 0.08 or more.” N.C. Gen. Stat. § 20-138.1(a)
(2018).
In addition to findings 9, 19, and 21, which were supported by competent
evidence, the trial court made the following unchallenged findings of fact:
2. Officer Macaluso was responding to a call for “a vehicle
driving erratic and attempting to hit people.” The vehicle
was described as a green pickup truck.
3. Officer Macaluso was then flagged down by an unknown
individual as he approached Briggs Ave. This individual
was described as very intoxicated by Officer Macaluso.
4. While speaking with the unknown intoxicated
individual Officer Macaluso observed a green pickup truck
going west on Holloway Street.
5. Neither the individual who flagged down Officer
Macaluso, nor Officer Macaluso reacted to the green pickup
truck.
6. Officer Macaluso did not observe the green pickup truck
engage in any erratic driving or violate any Chapter 20
offense. The truck was never observed attempting to hit or
swerve at anyone.
7. Officer Macaluso was in the driver’s seat of his patrol
car throughout the entirety of his conversation with the
unknown intoxicated individual.
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Opinion of the Court
8. Officer Macaluso never pulled behind the green pickup
truck or engage[d] in a traffic stop of the vehicle.
....
10. Officer Macaluso then circled the block to locate the
vehicle and returned to 810 Briggs Avenue to speak with
the same unknown individual.
11. Upon arrival at 810 Briggs Avenue Officer Macaluso
encountered several drunken individuals at the location
talking loudly and trying to explain their situation.
12. Officer Macaluso then testified that at a later time
several individuals in the crowd became agitated as
Defendant walked over to Briggs Avenue.
13. He also testified that the Defendant was unsteady on
his feet, leaning on things as he was walking, had slurred
words, appeared angry, and admitted that he bought “fake
crack.”
14. Officer Macaluso then placed Defendant into the back
of his patrol car to investigate further.
15. At that time Officer Macaluso called for “T7” to assist
in his impaired driving investigation.
16. Shortly thereafter Officer Munter of the Durham Police
Department arrived and began to interview Defendant in
the back of Officer Macaluso’s vehicle. Officer Munter did
not observe any driving.
17. Officer Munter then drove up to the green truck
matching the description given to him by Officer Macaluso,
ran the truck’s license plate through a law enforcement
database, and discovered that the truck was registered to
the Defendant.
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Opinion of the Court
18. Officer Munter then performed the Horizontal Gaze
Nystagmus test and observed six out of six clues of
impairment.
....
20. Officer Munter formed the opinion that the Defendant
was appreciably impaired and placed him under arrest for
committing the offense of Driving While Impaired.
These unchallenged findings are presumed to be supported by competent
evidence and are binding on appeal. See Biber, 365 N.C. at 167-68, 712 S.E.2d at 878.
Findings 8, 10, and 11 establish that Macaluso: did not pull behind or stop the green
pickup truck; did not maintain visibility of the green pickup truck but instead circled
the block and returned to Briggs Avenue; and witnessed Defendant walk up to him
on foot. Finding 16 establishes in relevant part, “Officer Munter did not observe any
driving.” These unchallenged findings establish that Macaluso did not observe
Defendant driving and support the trial court’s conclusion of law that Macaluso
lacked probable cause to arrest Defendant. Id. at 168, 712 S.E.2d at 878. In addition,
Finding 21 establishes that there was no probable cause to arrest Defendant, because
the State failed to establish a connection between the driver of the green pickup truck
and Defendant, who later walked up to Macaluso on Briggs Avenue; this finding
supports that Macaluso did not observe Defendant drive and thus did not have
probable cause to arrest Defendant for driving while impaired.
The findings also establish that Munter did not have independent probable
cause to arrest Defendant for driving while impaired. As neither Macaluso nor
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Opinion of the Court
Munter observed Defendant drive, park, or get out of the truck, Munter lacked the
requisite probable cause to arrest Defendant for driving while impaired. See Tilley,
44 N.C. App. at 317, 260 S.E.2d at 797 (explaining that a second officer who lacks
probable cause may justifiably arrest a defendant based on a first officer’s request
only when the first officer has probable cause to arrest the defendant).
IV. Conclusion
For the reasons stated above, we conclude that the trial court did not err by
granting Defendant’s motion to suppress and we affirm the trial court’s order.
AFFIRMED.
Judges DIETZ and MURPHY concur.
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