IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-1221
Filed: 5 June 2018
Wilkes County, No. 14 CRS 50858
STATE OF NORTH CAROLINA
v.
JEFFREY ROBERT PARISI
Appeal by the State from orders entered 13 January 2016 by Judge Michael D.
Duncan in Wilkes County Superior Court and 11 March 2016 by Judge Robert J.
Crumpton in Wilkes County District Court. Heard in the Court of Appeals 1 May
2018.
Attorney General Joshua H. Stein, by Assistant Attorney General John W.
Congleton, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Michele A.
Goldman, for defendant-appellee.
CALABRIA, Judge.
Where the State presented sufficient evidence that a law enforcement officer
had probable cause to stop defendant, the trial court erred in granting defendant’s
motion to suppress the stop. We reverse and remand.
I. Factual and Procedural Background
On 1 April 2014, Jeffrey Parisi (“defendant”) was cited for driving while
impaired by Officer Gregory Anderson (“Officer Anderson”) of the Wilkesboro Police
STATE V. PARISI
Opinion of the Court
Department. At a 17 June 2015 hearing in Wilkes County District Court, defendant
made an oral pretrial motion to suppress the stop that resulted in the citation,
alleging a lack of probable cause, and a motion to dismiss. The district court granted
defendant’s motions, and the State provided oral and written notice of appeal. The
court subsequently entered its written “Preliminary Order of Dismissal” (“the
Preliminary Order”), which, despite its caption, only granted defendant’s motion to
suppress. Again, the State provided written notice of appeal.
The appeal was heard in Wilkes County Superior Court on 13 November 2015.
Following the hearing, the court entered an order on 11 January 2016 affirming the
decision of the district court to grant defendant’s motions (“the Superior Court
Order”). The matter was remanded, and on 11 March 2016, the district court entered
a “Final Order Granting Motion to Suppress and Motion to Dismiss” (“the Final
Order”), granting defendant’s motions. The State once more appealed to superior
court. On 6 April 2016, the superior court affirmed the Final Order.
The State appealed the matter to this Court. On 7 February 2017, this Court
entered its opinion, dismissing in part, vacating in part, and remanding the matter.
State v. Parisi, ___ N.C. App. ___, ___ S.E.2d ___, COA16-635 (2017). In this decision,
we held that “the superior court erred in its review of the district court’s preliminary
determination to suppress, when it remanded the case to the district court with
instructions to dismiss the case.” We further held, however, that the State had no
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STATE V. PARISI
Opinion of the Court
right to appeal the district court’s final order granting defendant’s motion to
suppress, which remained undisturbed. We noted that the suppression of the stop
did not mandate the dismissal of the case, vacated the orders of dismissal, and
remanded for further proceedings.
On 28 July 2017, the State filed a petition for writ of certiorari, seeking this
Court’s review of the Superior Court Order and the Final Order. We granted this
petition on 16 August 2017.
II. Motion to Suppress
In its sole argument on appeal, the State contends that the trial court erred in
concluding that Officer Anderson lacked probable cause to stop defendant, and in
granting defendant’s motion to suppress. We agree.
A. 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.” State v. Hughes,
353 N.C. 200,
208,
539 S.E.2d 625, 631 (2000).
B. Analysis
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Opinion of the Court
At trial, Officer Anderson testified that, on 1 April 2014, he was operating a
check point on a public street. Defendant was driving the vehicle and, as it
approached, Officer Anderson “kind of heard a disturbance between the occupants of
the vehicle.” He said that he could not hear what they were saying, but it sounded
like they were arguing. After the vehicle stopped at the check point, Officer Anderson
approached the driver’s door and saw “an open box of alcoholic beverage[]” on the
passenger floorboard. He did not see any open individual containers. Officer
Anderson testified that defendant had “glassy, watery eyes[,]” and emitted “an odor
of alcohol[.]” When asked whether he had consumed alcohol, defendant told Officer
Anderson that he had consumed three beers earlier in the evening.
Officer Anderson administered the horizontal gaze nystagmus test (“HGN”), a
test of impairment, and found that defendant demonstrated six “clues” indicating
impairment. Officer Anderson also administered a “walk and turn” test, and
defendant missed multiple steps, also an indicator of impairment. Lastly, Officer
Anderson administered a “one leg stand” test, and defendant used his arms and
swayed, also indicators of impairment. As a result, Officer Anderson concluded that
defendant was impaired.
In the Preliminary Order, the district court found that defendant arrived at
the check point, that Officer Anderson noticed defendant’s glassy eyes and an open
container of alcohol, and that Officer Anderson administered multiple field sobriety
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Opinion of the Court
tests. However, the court went on to find that Officer Anderson “did not observe any
other indicators of impairment during his encounter with Defendant, including any
evidence from Defendant’s speech[,]” and concluded that “[t]he fact[s] and
circumstances known to Anderson as a result of his observations and testing of
Defendant are insufficient, under the totality of the circumstances, to form an opinion
in the mind of a reasonable and prudent man/officer that there was probable cause to
believe Defendant had committed the offense of driving while impaired.” Likewise,
the Superior Court Order noted Anderson’s observations, but concluded that they
were insufficient. The Final Order incorporated the findings and conclusions of the
Superior Court Order by reference.
The State offers ample case law to suggest that the findings of the lower courts
did not support an ultimate conclusion that Officer Anderson lacked probable cause.
Particularly relevant is the case of State v. Townsend, 236 N.C. App. 456,
762 S.E.2d
898 (2014). In Townsend, the officer stopped the defendant at a check point, and
immediately noticed the defendant’s bloodshot eyes and odor of alcohol. Two alco-
sensor tests yielded positive results, and the defendant exhibited clues indicating
impairment on three field sobriety tests. We held that this was sufficient to establish
probable cause.
Id. at 465,
762 S.E.2d at 905. In the instant case, as in Townsend,
Officer Anderson noticed defendant’s glassy eyes and odor of alcohol, and defendant
exhibited clues indicating impairment on three field sobriety tests. And while no
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Opinion of the Court
alco-sensor test was administered in the instant case, defendant himself volunteered
the statement that he had been drinking earlier in the evening.
Our Supreme Court has held that while the odor of alcohol, standing alone, is
not evidence of impairment, the “[f]act that a motorist has been drinking, when
considered in connection with . . . other conduct indicating an impairment of physical
or mental faculties, is sufficient prima facie to show a violation of G.S. 20-138.” Atkins
v. Moye, 277 N.C. 179, 185,
176 S.E.2d 789, 794 (1970) (quoting State v. Hewitt,
263
N.C. 759, 764,
140 S.E.2d 241, 244 (1965)). Once again, in the instant cast, Officer
Anderson was presented with the odor of alcohol, defendant’s own admission of
drinking, and multiple indicators on field sobriety tests demonstrating impairment.
The superior court, in the Superior Court Order, cited the unpublished case of
State v. Sewell, 239 N.C. App. 132,
768 S.E.2d 650 (2015) (unpublished), as part of its
reasoning in finding a lack of probable cause. We note first that, as an unpublished
decision, Sewell is not binding upon the courts of this State. Additionally, while many
such cases are extremely fact-specific, it is crucial to note that Sewell is easily
distinguished from the instant case. The officer in Sewell did not identify the
defendant as the source of the odor of alcohol. The defendant in Sewell exhibited no
clues of impairment during the “one leg stand” and “walk and turn” tests. In the
instant case, by contrast, Officer Anderson clearly identified defendant as the source
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Opinion of the Court
of the odor of alcohol, and defendant exhibited clues of impairment during all three
field sobriety tests. Further, in each of their orders, the lower courts found as much.
Upon our review, it seems clear that the facts, as supported by the evidence
and as found by the district and superior courts, supported a conclusion that Officer
Anderson had probable cause to stop and cite defendant for driving while impaired.
Accordingly, we hold that the trial court erred in granting defendant’s motion to
suppress the stop. We reverse the lower courts’ orders and remand for further
proceedings.
REVERSED AND REMANDED.
Judge BRYANT concurs.
Judge HUNTER dissents in a separate opinion.
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No. COA17-1221 - State v. Parisi
HUNTER, JR., Robert N., Judge, Dissenting.
I respectfully dissent from the majority reversing the trial courts’ grants of
Defendant’s motion to suppress. Instead, I would affirm the trial courts’ orders.
“The standard of review in evaluating a trial court’s ruling on ‘a motion to
suppress is whether competent evidence supports the trial court’s findings of fact and
whether the findings of fact support the conclusions of law.’ ” State v. Hammonds,
370 N.C. 158, ___,
804 S.E.2d 438, 441 (2017) (quoting State v. Jackson,
368 N.C. 75,
78,
772 S.E.2d 847, 849 (2015)). “If no exceptions are taken to findings of fact, such
findings are presumed to be supported by competent evidence and are binding on
appeal.” State v. Baker,
312 N.C. 34, 37,
320 S.E.2d 670, 673 (1984) (internal
quotation marks and citation omitted). “Where the findings of fact support the
conclusions of law, such findings and conclusions are binding upon us on appeal.”
State v. Wynne,
329 N.C. 507, 522,
406 S.E.2d 812, 820 (1991) (citation omitted).
“[T]he trial court’s ruling on a motion to suppress is afforded great deference upon
appellate review as it has the duty to hear testimony and weigh the evidence.” State
v. McClendon,
130 N.C. App. 368, 377,
502 S.E.2d 902, 908 (1998) (citation omitted).
Both Defendant and the State cite to numerous cases addressing probable
cause to arrest for driving while impaired. The State, and the majority, primarily
rely on State v. Townsend, 236 N.C. App. 456,
762 S.E.2d 898 (2014). While the
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HUNTER, JR., Robert N., J., dissenting
findings of fact sub judice are analogous to some of the findings of fact in Townsend,
differences between the orders are critical.
In Townsend, an officer stopped defendant at a checkpoint. Id. at 458,
762
S.E.2d at 901. The officer noticed defendant’s “bloodshot eyes” and smelled a
“moderate odor of alcohol about his breath.”
Id. at 458, 465,
762 S.E.2d at 901, 905.
Defendant told the officer he drank “a couple of beers earlier” and stopped drinking
an hour before the stop.
Id. at 465,
762 S.E.2d at 905. The officer administered two
alco-sensor tests, both which tested position for alcohol.
Id. at 458, 465,
762 S.E.2d
at 901, 905. Additionally, defendant “exhibited clues” of impairment during three
different field sobriety tests.
Id. at 458, 465,
762 S.E.2d at 901, 905.
The trial court denied defendant’s motion to suppress for lack of probable
cause, and defendant appealed. Id. at 459,
762 S.E.2d at 901-02. Our Court cited the
facts stated supra and the trial court’s acknowledgement of the officer’s twenty-two
years’ of experience. Id. at 465,
762 S.E.2d at 905. Accordingly, our Court concluded
the officer had probable cause to arrest defendant.
Id. at 465,
762 S.E.2d at 905.
Here, unlike in Townsend, the trial courts entered several findings weighing
against a conclusion of probable cause.1 First, Officer Anderson did not administer
an alco-sensor test. Regarding Defendant’s admission of drinking the night of the
1 The State does not challenge any of the findings of fact. Thus, the findings are binding on
appeal. Baker, 312 N.C. at 37,
320 S.E.2d at 673 (citation omitted). In his appellee brief, Defendant
challenges two findings of fact. However, Defendant did not cross-appeal.
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HUNTER, JR., Robert N., J., dissenting
checkpoint, the order contains no findings of exactly when Defendant drank in the
night. Cf. id. at 465, 762 S.E.2d at 905 (the trial court found defendant admitted to
drinking “a couple of beers” and stopped drinking an hour before officers stopped
him). Moreover, the trial courts found no facts about Officer Anderson’s experience,
distinguishing this case from Townsend. See
id. at 465,
762 S.E.2d at 905. Of
significant importance, while Officer Anderson testified as to the number of “clues”
indicating impairment during the horizontal gaze nystagmus test, the trial courts
entered no findings on the number of clues. Indeed, the finding regarding the
horizontal gaze nystagmus test states Officer Anderson “found clues of
impairment[,]” without stating the number. In addition to the findings of fact
included in the majority, the trial courts found Defendant did not slur his speech, did
not drive unlawfully or “bad[ly,]” answered Officer Anderson’s questions, and was not
“unsteady” on his feet.
The uncontested findings of fact support the trial courts’ conclusions Officer
Anderson lacked probable cause to arrest Defendant. Additionally, Townsend, as
distinguished from the case sub judice, does not mandate reversal. Affording the trial
courts “great deference” on the ruling on a motion to suppress, I would affirm the trial
courts’ orders. McClendon, 130 N.C. App. at 377,
502 S.E.2d at 908. Accordingly, I
respectfully dissent.
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