State v. Myers-McNeilÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-1404
Filed: 20 November 2018
Wake County, No. 16 CRS 210115
STATE OF NORTH CAROLINA
v.
BARBARA JEAN MYERS MCNEIL
Appeal by defendant from judgment entered 17 August 2017 by Judge Elaine
M. O’Neal in Wake County Superior Court. Heard in the Court of Appeals 5
September 2018.
Attorney General Joshua H. Stein, by Assistant Attorney General Christine
Wright, for the State.
Morgan & Carter PLLC, by Michelle F. Lynch, for defendant-appellant.
ZACHARY, Judge.
Defendant Barbara Jean Myers McNeil argues that the superior court erred in
denying her Motion to Suppress the evidence of her Driving While Impaired offense
because it was obtained as a result of an officer’s unlawful extension of the initial
traffic stop, in violation of the Fourth Amendment. Because the record is devoid of
the initial Driving While Impaired judgment in the district court and the notice of
appeal to the superior court, the record fails to establish that the superior court had
jurisdiction in the instant case. Nevertheless, we elect to treat Defendant’s appeal as
a petition for writ of certiorari, and affirm.
STATE V. MYERS MCNEIL
Opinion of the Court
Background
On 18 May 2016, Officer Shaun Henry and Officer Lane of the Raleigh Police
Department were on duty “in a stationary position in a marked patrol vehicle”
running license tags of vehicles that passed. At one point, a vehicle drove past the
officers and when they ran the vehicle’s tag information through the DCI program,
they learned that the registered owner of the vehicle was a male with a suspended
license. The officers then stopped the vehicle based on their suspicion that it was
being driven without a valid license. Officer Henry stated that he only intended to
“[i]dentify the driver of the vehicle to see first if the owner was in the car, if they were
driving, who the driver of the vehicle was.”
As Officer Henry approached the vehicle, he “immediately” saw that
Defendant, a female, was in the driver’s seat and that there was a female passenger
next to her. When Officer Henry reached the driver’s window, Defendant did “not
acknowledge [his] presence” or roll the window down, but was instead “fumbling
through what appeared to be a wallet or a small clutch.” Officer Henry testified that
“[i]ndicators of impaired driving are inability to locate information pertinent to a
traffic stop, looking through a wallet, passing over her driver’s license or using—
producing a debit card or credit card in place of a driver’s license.” Officer Henry
“tapped on the window and asked if [Defendant] could roll the window down.”
-2-
STATE V. MYERS MCNEIL
Opinion of the Court
Defendant eventually rolled her window down, but only about two inches.
Officer Henry testified that “it’s kind of a red flag if a window is rolled down very
minimally to the point where either words cannot be exchanged, you can barely hear
what anyone is saying, or that someone is attempting to mask an odor coming from
the vehicle.” Officer Henry testified that he
asked [Defendant] if she could roll [the window] down all
the way. She stated she could hear me just fine. I
introduced myself[.] I explained to her that the registered
owner of the vehicle did have a suspended driver’s license.
And she admitted that the car was not hers and made
reference to it being . . . her husband’s and [that] she gets
pulled over all the time for that same reason.
Officer Henry then asked Defendant “if she had her driver’s license on her[,]” to which
Defendant replied that she did. However, Officer Henry noticed that Defendant “kept
fumbling through the same amount of cards over and over again inside that small
wallet, mumbling that she did have a license and it was active.”
In addition, Officer Henry “had to get inside th[e] [two inch window] crack in
order to hear [Defendant] talking because she was looking down and mumbling down
into, I guess, her lap where she was—so I could barely hear what she was saying.” In
doing so, he “began to observe the odor of alcohol coming from the vehicle” as well as
“[a] slight slur to her speech.” At that point, Officer Henry testified that his
investigation changed “from a Chapter 20, or driving, to an impaired driving
investigation based on that odor of alcohol and the slurred speech.”
-3-
STATE V. MYERS MCNEIL
Opinion of the Court
When Officer Henry confronted Defendant about the smell of alcohol, “her
passenger interjected stating that she was drinking the alcohol and that was what I
smelled.” He asked Defendant to roll the window all the way down so that he could
hear her. Defendant “muttered something else under her breath” and Officer Henry
asked her to step out of the vehicle. Officer Henry instructed Defendant to exit the
vehicle in order “to separate her from the odor of alcohol her passenger had admitted
to consuming. I wanted to see if having her step out would separate her from that
odor that I was detecting.” Defendant was then subjected to sobriety tests and
subsequently charged with Driving While Impaired. Dash-cam video shows that
roughly two minutes and forty-six seconds had passed between the time Officer
Henry initially approached the vehicle and the time that he asked Defendant to exit
the vehicle.
Defendant filed a Motion to Suppress the evidence of the Driving While
Impaired offense on the grounds that Officer Henry had unlawfully extended her
roadside detention in violation of the Fourth Amendment. At the hearing, Defendant
argued that Officer Henry was required to cease his investigation once he saw that
the driver of the vehicle was Defendant—a woman—in that the sole “purpose for the
stop [was] to address a male driver with a revoked license.” The State countered that
Officer Henry developed “reasonable articulable suspicion” to believe that Defendant
-4-
STATE V. MYERS MCNEIL
Opinion of the Court
was intoxicated during the initial stop, and that he was therefore permitted to extend
the stop in order to investigate that suspicion.
The trial court orally denied Defendant’s Motion to Suppress from the bench
without making specific findings on the matter, or entering a written order.
Defendant properly renewed her Fourth Amendment objection at the time the
evidence was presented at trial, which the trial court again overruled. The jury
thereafter found Defendant guilty of Driving While Impaired. Defendant timely
appealed.
On appeal, Defendant argues that the trial court erred in denying her Motion
to Suppress because “[o]nce the underlying reason for the stop of [Defendant] had
been satisfied, the stop should not have been prolonged and became unlawful at that
point.” Accordingly, Defendant maintains that “all evidence obtained after that point
should have been suppressed.” We disagree.
Jurisdiction
We initially address whether this Court has jurisdiction over Defendant’s
appeal from the superior court’s judgment of misdemeanor Driving While Impaired.
“The superior court has no jurisdiction to try a defendant on a warrant for a
misdemeanor charge unless [she] is first tried, convicted and sentenced in district
court and then appeals that judgment for a trial de novo in superior court.” State v.
Felmet, 302 N.C. 173, 175, 273 S.E.2d 708, 710 (1981) (citing State v. Hall, 240 N.C.
-5-
STATE V. MYERS MCNEIL
Opinion of the Court
109, 81 S.E.2d 189 (1954)). In the event that “the record is silent and the appellate
court is unable to determine whether the [superior court] had jurisdiction, the appeal
should be dismissed.” Id. at 176, 273 S.E.2d at 711 (citing State v. Hunter, 245 N.C.
607, 96 S.E.2d 840 (1957); State v. Banks, 241 N.C. 572, 86 S.E.2d 76 (1955); and
State v. Patterson, 222 N.C. 179, 22 S.E.2d 267 (1942)).
In the instant case, the district court’s Driving While Impaired judgment, if
there was one, is not included in the record on appeal. Nor is there any record of notice
of appeal from the district court to the superior court. Therefore, the record is silent
as to whether Defendant was indeed first convicted in district court and thereafter
properly appealed that judgment to superior court. We are thus unable to determine
whether the superior court had jurisdiction when it entered judgment against
Defendant. See Felmet, 302 N.C. at 176, 273 S.E.2d at 711; State v. Phillips, 149
N.C. App. 310, 313-14, 560 S.E.2d 852, 855, appeal dismissed, 355 N.C. 499, 564
S.E.2d 230 (2002).
Nevertheless, this Court has the option “to exercise our discretion to treat
[D]efendant’s appeal as a petition for certiorari” in order to reach the merits of her
arguments. Phillips, 149 N.C. App. at 314, 560 S.E.2d at 855 (citing N.C. Gen. Stat.
§ 7A-32(c) (additional citations omitted)). In the instant case, while the district
court’s judgment and the notice of appeal to the superior court therefrom are not
included in the record on appeal, we note that a district court proceeding is in fact
-6-
STATE V. MYERS MCNEIL
Opinion of the Court
alluded to in the record. The district court’s order indicates that Defendant was found
guilty of Driving While Impaired, but references an unattached “DWI judgment,”
which is not included in the record. Moreover, the State has not disputed that the
superior court had jurisdiction in the instant case. Under these circumstances, we
elect to treat Defendant’s appeal as a petition for certiorari, and grant the same. See
id.
Merits of Defendant’s Appeal
I. Standard of Review
Our review of a trial court’s order denying a defendant’s 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)
(citations omitted). Whether those facts are sufficient to support the conclusion that
an “officer had reasonable suspicion to detain a defendant is reviewable de novo.”
State v. Kincaid, 147 N.C. App. 94, 97, 555 S.E.2d 294, 297 (2001) (citing State v.
Munoz, 141 N.C. App. 675, 682, 541 S.E.2d 218, 222, cert. denied, 353 N.C. 454, 548
S.E.2d 534 (2001)). However, where the trial court has not made findings of fact, “[i]f
there is no conflict in the evidence on a fact, failure to find that fact is not error.”
State v. Smith, 135 N.C. App. 377, 380, 520 S.E.2d 310, 312 (1999). “A finding may
-7-
STATE V. MYERS MCNEIL
Opinion of the Court
be implied by the trial court’s denial of [a] defendant’s motion to suppress where the
evidence is uncontradicted.” Id. (citing State v. Cobb, 295 N.C. 1, 18-19, 243 S.E.2d
759, 769 (1978)).
II. Discussion
The Fourth Amendment to the United States Constitution requires that an
officer’s “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)). The reasonable suspicion standard requires that “an
officer simply must ‘reasonably conclude in light of his experience that criminal
activity may be afoot.’ The officer ‘must be able to point to specific and articulable
facts,’ and to ‘rational inferences from those facts,’ that justify the . . . seizure.” State
v. Bullock, ___ N.C. ___, ___, 805 S.E.2d 671, 674 (2017) (quoting Terry v. Ohio, 392
U.S. 1, 30, 21, 20 L. Ed. 2d 889, 911, 906 (1968)) (ellipses omitted). We have held that
“when a police officer becomes aware that a vehicle being operated is registered to an
owner with a suspended or revoked driver’s license, and there is no evidence
appearing to the officer that the owner is not the individual driving the automobile,
reasonable suspicion exists to warrant an investigatory stop.” State v. Hess, 185 N.C.
App. 530, 534, 648 S.E.2d 913, 917 (2007).
-8-
STATE V. MYERS MCNEIL
Opinion of the Court
That a traffic stop is justified at its inception, however, does not afford the
officer an unrestrained encounter with the individual. It is well established that “the
duration of a traffic stop must be limited to the length of time that is reasonably
necessary to accomplish the mission of the stop[.]” Bullock, ___ N.C. at ___, 805
S.E.2d at 673 (citing Rodriguez v. United States, 575 U.S. ___, ___, 191 L. Ed. 2d 492,
499 (2015)). “Because addressing the infraction is the purpose of the stop, it may last
no longer than is necessary to effectuate that purpose.” Rodriguez, 575 U.S. at ___,
191 L. Ed. 2d at 498 (citations, quotation marks, and alteration omitted). “Authority
for [a] seizure thus ends when tasks tied to the traffic infraction are—or reasonably
should have been—completed.” Id. at ___, 191 L. Ed. 2d at 498 (citation omitted).
Nevertheless, it is entirely permissible for an officer to “conduct certain
unrelated checks during an otherwise lawful traffic stop” so long as the “unrelated
investigations” do not prolong “the time reasonably required to complete the mission”
of the stop. Id. at ___, 191 L. Ed. 2d at 499 (brackets omitted). Otherwise, the only
event in which an officer will be permitted to prolong his detention of an individual
is where “reasonable suspicion of another crime arose before that mission was
completed[.]” Bullock, ___ N.C. at ___, 805 S.E.2d at 673 (citing Rodriguez, 575 U.S.
at ___, 191 L. Ed. 2d at 499).
In the instant case, Defendant argues that “[w]hile the officers might have had
reasonable suspicion when they stopped the vehicle [D]efendant was driving, the
-9-
STATE V. MYERS MCNEIL
Opinion of the Court
traffic stop became unlawful when it was verified that the male owner was not driving
the vehicle.” We disagree.
We first note that Defendant’s argument is based upon a basic erroneous
assumption: that a police officer can discern the gender of a driver from a distance
based simply upon outward appearance. Not all men wear stereotypical “male”
hairstyles nor do they all wear “male” clothing. The driver’s license includes a
physical description of the driver, including “sex.” Until Officer Henry had seen
Defendant’s driver’s license, he had not confirmed that the person driving the car was
female and not its owner. While he was waiting for her to find her license, he noticed
her difficulty with her wallet, the odor of alcohol, and her slurred speech.
In any event, the time needed to complete an officer’s mission will always
include time for the “ ‘ordinary inquiries incident to the traffic stop.’ ” Id. at ___, 805
S.E.2d at 673 (quoting Rodriguez, 575 U.S. at ___, 191 L. Ed. 2d at 499 (brackets,
citation, and internal quotation marks omitted)). Such ordinary “inquiries include
‘checking the driver’s license, determining whether there are outstanding warrants
against the driver, and inspecting the automobile’s registration and proof of
insurance.’ ” Id. at ___, 805 S.E.2d at 673 (quoting Rodriguez, 575 U.S. at ___, 191
L. Ed. 2d at 499). Regardless of an officer’s precise reason for initially stopping a
vehicle, “database searches of driver’s licenses, warrants, vehicle registrations, and
- 10 -
STATE V. MYERS MCNEIL
Opinion of the Court
proof of insurance all fall within the mission of a traffic stop.” State v. Campola, ___
N.C. App. ___, ___, 812 S.E.2d 681, 688 (2018) (citation omitted).
Defendant cites no authority for her proposition that Officer Henry’s “mission”
in the instant case must have been limited solely to verifying “that the male owner
was not driving the vehicle.” Rather, Officer Henry’s “mission” upon stopping
Defendant’s vehicle appropriately encompassed the two minutes and forty-six
seconds’ worth of “ordinary inquiries” incident to any traffic stop, including
conversing with Defendant in order to inform her of the basis for the stop, asking
Defendant for her driver’s license, and checking that the vehicle’s registration and
insurance had not expired. Rodriguez, 575 U.S. at ___, 191 L. Ed. 2d at 499; cf. State
v. Jackson, 199 N.C. App. 236, 243, 681 S.E.2d 492, 497 (2009) (“[A]n initial traffic
stop concludes and the encounter becomes consensual only after an officer returns
the detainee’s driver’s license and registration.”). Thus, Officer Henry was not, as
Defendant suggests, required to return to his vehicle at the moment he saw that a
female, rather than a male, was driving the vehicle, nor upon approaching Defendant
and learning that her husband was the owner of the car whose license was suspended.
The routine information that Officer Henry sought to obtain from Defendant
“was simply time spent pursuing the mission of the stop.” Bullock, ___ N.C. at ___,
805 S.E.2d at 676. During the course of that mission, Defendant avoided rolling her
window all the way down, and Officer Henry also noticed that Defendant “kept
- 11 -
STATE V. MYERS MCNEIL
Opinion of the Court
fumbling through the same amount of cards over and over again” in an attempt to
find her license. Meanwhile, Officer Henry could barely hear what Defendant was
saying because she was “mumbling” and had “[a] slight slur to her speech.” This
prompted Officer Henry to lean in very closely to the window, at which point he
smelled “the odor of alcohol coming from the vehicle.” Despite Defendant’s passenger
providing an excuse for the smell, such circumstances, along with his training and
experience, provided Officer Henry with reasonable suspicion to believe that
Defendant was intoxicated, warranting further investigation. See, e.g., Farrell v.
Thomas, 247 N.C. App. 64, 68, 784 S.E.2d 657, 660, appeal dismissed, 794 S.E.2d 318
(2016) (“[Defendant’s] glassy, bloodshot eyes and slurred speech alone created a
strong suspicion that [defendant] might be impaired.”); State v. Veal, 234 N.C. App.
570, 579, 760 S.E.2d 43, 49 (2014) (“Officer Cloer’s observations during the . . .
encounter (the odor of alcohol and an unopened container) established reasonable
suspicion to further detain and investigate the defendant.”).
Because Officer Henry developed reasonable suspicion of a new offense while
he was in the process of completing his original mission in stopping Defendant’s
vehicle, the Fourth Amendment clock was in essence “re-set” so as to permit him to
extend the detention in order to inquire about that new violation. See Campola, ___
N.C. App. at ___, 812 S.E.2d at 691. Accordingly, the trial court properly denied
Defendant’s Motion to Suppress.
- 12 -
STATE V. MYERS MCNEIL
Opinion of the Court
Conclusion
We elect to treat Defendant’s appeal as a petition for writ of certiorari. Officer
Henry lawfully stopped Defendant’s vehicle based on his reasonable suspicion that
the vehicle was being operated by a driver without a valid license. Before Officer
Henry completed the mission of the stop, he acquired reasonable suspicion that
Defendant was operating the vehicle while impaired. Officer Henry was therefore
permitted to extend his stop of Defendant in order to investigate the potential driving
while impaired offense. The trial court did not err when it denied Defendant’s Motion
to Suppress the evidence obtained from that subsequent lawful detention.
Accordingly, the trial court’s denial of Defendant’s Motion to Suppress is
AFFIRMED.
Judge STROUD concurs.
Judge MURPHY dissents by separate opinion.
- 13 -
No. COA17-1404 – State v. Myers McNeil
MURPHY, Judge, dissenting.
I respectfully dissent from the Majority’s opinion, specifically its decision to
treat Defendant’s appeal as a petition for writ of certiorari and allowing of the same.
I agree with the Majority’s analysis as to the lack of jurisdiction and its recognition
that the district court clearly alludes to the existence of a “DWI judgment” in the
judgment portion of the AOC-CR-500 Form, Rev. 12/13. However, based on the
record before us it is impossible to determine if the superior court had jurisdiction to
conduct a trial de novo.
In order for the superior court to have acquired jurisdiction over this matter,
Defendant was required to give oral notice of appeal or written notice of appeal within
10 days of entry of the judgment:
Any defendant convicted in district court before the judge
may appeal to the superior court for trial de novo. Notice of
appeal may be given orally in open court, or to the clerk in
writing within 10 days of entry of judgment. Upon
expiration of the 10-day period in which an appeal may be
entered, if an appeal has been entered and not withdrawn,
the clerk shall transfer the case to the district or superior
court docket.
N.C.G.S. § 7A-290 (2017) (emphasis added). The otherwise completed and signed
AOC-CR-500 Form containing the phrase “see DWI judgment[,]” contains a box for
the district court judge to check in the event that Defendant has given oral notice of
appeal. The district court judge left that box unchecked, indicating Defendant has
STATE V. MYERS MCNEIL
MURPHY, J., dissenting
not given oral notice of appeal in open court. Therefore, there is no showing that the
superior court obtained jurisdiction over this matter by Defendant giving oral notice
of appeal. As there was no oral notice of appeal, N.C.G.S. § 7A-290 requires a written
notice, but the record lacks any evidence of written notice of appeal to the superior
court. In sum, there is no showing in the record that Defendant filed a notice of
appeal within 10 days of the “DWI judgment.”
Not only is the record lacking the actual district court judgment, which I would
entertain treating as a petition for writ of certiorari in this particular and
individualized circumstance, it lacks a showing that Defendant gave timely notice of
appeal to the superior court. If Defendant’s appeal was not timely, then the superior
court was without jurisdiction. As a result, I do not join the Majority in allowing a
sua sponte petition for writ of certiorari. Defendant’s case should be dismissed
without a discussion of the merits of his appeal. I respectfully dissent.
2