The State appeals from a 14 March 2011 order entered by Judge W. Russell Duke, Jr. in Pitt County Superior Court affirming the district court’s pretrial indication that granted defendant Donald Osterhoudt’s (“defendant’s”) motion to suppress the stop of defendant (“motion to suppress”).
Background
The evidence tended to establish the following: On 14 January 2010 at approximately 1:10 a.m., North Carolina State Highway Patrol Trooper Nathaniel Monroe (“Trooper Monroe”) was on-duty and stopped at a stoplight on Fifth Street in Greenville, N.C. Trooper Monroe was traveling east on Fifth Street and observed defendant make a “wide right turn” onto Fifth Street whereby half of defendant’s car went over the double yellow line into the turning lane for traffic coming in the opposite direction. Fifth Street is a three-lane road with two lanes for westbound traffic (consisting of a regular lane and a left hand turn lane) and one lane for eastbound traffic. Trooper Monroe turned on his blue lights and stopped defendant. Defendant pulled over on Fifth Street but only pulled his car halfway into a parking spot. Trooper Monroe charged defendant with and arrested defendant for driving while impaired (“DWI”) pursuant to N.C. Gen. Stat. § 20-138.1 (2009).
On 12 November 2010, defendant filed a motion to suppress in district court pursuant to N.C. Gen. Stat. § 20-38.6 (2010). After a pretrial hearing on 17 November 2010, the district court issued its pretrial indication and included the following pertinent conclusions of law:
3. That it is not a violation of the N.C. General Statutes for a vehicle to cross a double yellow line separating a turn lane from a straight travel lane at an intersection while making a right turn so long as such movement is made in safety and no traffic is affected;
4. That [Trooper Monroe’s] observations do not constitute a reasonable articulable suspicion that any crime has occurred or is occurring;
5. The stop of the vehicle which the [defendant was operating was unreasonable.
The district court ordered all evidence obtained as a result of the stop suppressed. The State gave oral notice of its appeal to superior court pursuant to N.C. Gen. Stat. § 20-38.7 (2010) and filed its notice of appeal on 30 November 2010.
On 3 December 2010, the superior court held a hearing on the State’s appeal of the district court’s pretrial indication. After taking the matter under advisement, the superior court made the following findings of fact in its 14 March 2011 order, nunc pro tunc to 3 December 2010:
8. That [defendant’s car], during the turn, veered over the double yellow line to the extent that approximately half of the car was over the line before coming back into its eastbound lane of travel;
9. That, although the car cross [sic] the yellow lines . . . the car never crossed over the middle halfway point of Fifth Street[.]
Based on its findings of fact, the superior court issued the following pertinent conclusions of law:
3. That it is not a violation of the General Statutes for a vehicle to cross the double yellow line separating the turn lane from the straight lane at this particular intersection while making a right turn so long as the vehicle does not cross the centerpoint of the roadway, and such turn is made in safety and no traffic is affected;
4. That this driving falls within a normal pattern of driving behavior, and the Trooper’s observations do not constitute a reasonable articulable suspicion that any crime has occurred or is occurring;
5. The stop of the vehicle which the [defendant was operating was unreasonable.
The superior court affirmed the district court’s pretrial indication and ordered “all evidence obtained as a result of the stop and detention of [defendant” suppressed.
On 21 March 2011, the State filed its notice of appeal to this Court.
. Discussion
I. Grounds for Appellate Review
Initially, the Court must determine whether this appeal is properly before it. The State “concedes that, ordinarily, it has no statutory right of appeal from a superior court order entered pursuant to N.C.G.S. § 20-38.7(a).” However, because the superior court failed to remand the matter back to the district court to enter a final order and it included language specifically ordering a suppression of all the evidence obtained as a result of the stop, the State asserts it is, in effect, a final order that gives the State a statutory right of appeal pursuant to N.C. Gen. Stat. §§ 15A-979(c) and 15A-1445(b). However, if we find the State has no statutory right of appeal, the State requests this Court grant its petition for writ of certiorari and review the merits of its appeal.
We note that the State is correct in its concession that it has no statutory right of appeal from a superior court order entered pursuant to N.C. Gen. Stat. § 20-38.7. See State v. Fowler,
Here, while acknowledging the fact that it may not appeal a superior court order issued pursuant to N.C. Gen. Stat. § 20-38.7, the State attempts to side step this procedural bar by arguing that the superior court order is no longer interlocutory, as designated in Fowler,
However, as the State requests, this Court may grant a writ of certiorari “when no right of appeal from an interlocutory order exists.” N.C.R. App. P. 21(a)(1) (2012). The State argues this Court should grant certiorari for two reasons. First, the State contends that the superior court exceeded its jurisdiction by: (1) failing to remand the matter back to the district court with instructions to enter a final order granting or denying the motion to suppress in violation of N.C. Gen. Stat. § 20-38.7(a), and (2) failing to “give[] effect” to Fowler and Palmer. Second, the State alleges that review is “vitally important because of the manifest errors of law committed by the superior court and the very real potential for those errors to be repeated in Pitt County and elsewhere.” In support of its petition for certiorari, the State cites Fowler and Palmer where we granted certiorari to address issues pertaining to the appeal of a district court’s pretrial indication. Fowler,
Having determined that the State has no right of appeal from the superior court’s interlocutory order and recognizing that this Court has granted certiorari in similar circumstances, we exercise our discretion to grant the State’s petition for writ of certiorari.
II. Standard of Review
On appeal, we will apply the same standard of review we would use as if the superior court order was a final order even though it was entered pursuant to N.C. Gen. Stat. § 20-38.7. Our review of a superior court’s order granting a motion to suppress is limited to “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,
III. Finding of Fact No. 9
First, we address the State’s argument that the superior court’s finding' of fact that defendant’s car “never crossed over the middle halfway point of Fifth Street” was not supported by competent evidence. In support of its argument, the State claims that
While the State is correct that on cross-examination, Trooper Monroe did testify that defendant’s car was “about halfway” into the turning lane, he stated in direct examination that “[h]alf of [defendant’s] vehicle went over the double yellow line[.]” Since Trooper Monroe’s initial statement is unequivocal and corresponds with the superior court’s finding of fact, the State’s argument is without merit.
Additionally, although the State is correct in its assertion that no testimony was offered to conclusively establish where the double yellow line was in relation to the middle point of the road, it was reasonable for the superior court to assume that the double yellow line on a three-lane road, as Fifth Street is, would not be close enough to the middle of the road whereby the two lanes on one side and the one lane on the other side would essentially have the same total width. Thus, the superior court’s finding of fact that “[defendant’s] car did not cross over the middle halfway point of Fifth Street” was supported by the court’s rational assumption. Therefore, because we find that there was competent evidence to support the superior court’s finding of fact, the State’s argument is overruled. Since the State did not challenge any other findings of fact, the remaining findings are deemed competent and are binding on appeal. See Roberson,
IV. Conclusion of Law No. 3
Next, the State argues that the superior court erred in its conclusion of law that crossing a double yellow line separating the turning lane from a motorist’s lane of traffic at this particular intersection is not a violation of law if: (1) the motorist “does not cross the center-point of the roadway”; (2) the turn is “made in safety”; and (3) “no traffic is affected[.]” Specifically, the State contends that the superior court’s conclusion is not supported by law or evidence and that defendant’s act of driving over the “centerpoint” of the road violates N.C. Gen. Stat. §§ 20-146 and 20-153. We agree that defendant violated N.C. Gen. Stat. §§ 20446(d) and 20-153, but we do not find a violation of N.C. Gen. Stat. § 20446(a).
The State argues on appeal, as it did at the superior court hearing, that defendant violated N.C. Gen. Stat. § 20446(a) which requires drivers to drive on the “right half of the highway[.]” In fact, defendant was charged with violating this statute. However, N.C. Gen. Stat. § 20446(a) contains several exceptions. Specifically, the statute does not apply to “highway[s] divided into three marked lanes for trafñcf.]” N.C. Gen. Stat. § 20446(a)(3). Here, Fifth Street is a three-lane road; therefore, N.C. Gen. Stat. § 20446(a) and its requirement that drivers stay on the right half of the road would not apply. Therefore, we find the State’s assertion that defendant violated this statute is without merit.
In contrast, we do find defendant violated N.C. Gen. Stat. §§ 20446(d) and 20-153. Pursuant to N.C. Gen. Stat. § 20446(d), on streets that are two or more lanes and clearly marked:
(1) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such laneuntil the driver has first ascertained that such movement can be made with safety.
(3) Official traffic-control devices may be erected directing specified traffic to use a designated lane or designating those lanes to be used by traffic moving in a particular direction regardless of the center of the street and drivers of vehicles shall obey the direction of every such device.
(4) Official traffic-control devices may be installed prohibiting the changing of lanes on sections of streets, and drivers of vehicles shall obey the directions of every such device.
As for a definition for “traffic-control devices,” N.C. Gen. Stat. § 136-30 (2011) requires any traffic-control devices to comply with the Manual on Uniform Traffic-Control Devices for Streets and Highways (“the Manual”) published by the United States Department of Transportation; therefore, we look to the Manual to find a definition of a traffic-control device. According to the Manual, a traffic control device is “a sign, signal, marking, or other device used to regulate, warn, or guide traffic, placed on, over, or adjacent to a street, highway, private road open to public travel, pedestrian facility, or shared-use path by authority of a public agency or official .having jurisdiction[.]” Manual on Uniform Traffic-Control Devices for Streets and Highways § 1A.13 (2009 ed.). Therefore, the double yellow line at issue in this case is a “marking” used to guide traffic and, thus, a traffic-control device.
When defendant crossed the double yellow line on Fifth Street, he failed to stay in his lane and violated N.C. Gen. Stat. § 20-146(d)(1). Additionally, defendant failed to obey the double yellow line marker and, therefore, violated N.C. Gen. Stat. § 20-146(d)(3-4). Thus, we find that defendant violated § 20-146(d)(1), (3-4).
Pursuant to N.C. Gen. Stat. § 20-153(a) (2011), “a right turn shall be made as close as practicable to the right-hand curb or edge of the roadway.” At the superior court hearing, Trooper Monroe testified that there was nothing in the roadway that would cause defendant to make a wide turn to avoid hitting something. Thus, as the State asserts and we agree, there was no practical reason why defendant would need to veer over the double yellow line. Therefore, we find defendant also violated N.C. Gen. Stat. § 20-153 by failing to stay close to the right-hand curb when making the turn onto Fifth Street.
Because we find that defendant violated N.C. Gen. Stat. §§ 20-146(d) and 20-153, we hold that the superior court’s conclusion of law no. 3 does not reflect a correct interpretation of applicable legal principles. Furthermore, we note that the superior court’s conclusion that defendant did not violate the law because he did not cross the “centerpoint” of the road, he made the turn safely, and no traffic was affected is not an accurate reflection of our traffic laws. Therefore, we hold that the superior court erred in concluding defendant did not violate any traffic laws in crossing the double yellow line.
V. Test to Determine Whether the Traffic Stop was Valid Under the Fourth Amendment
Next, the State argues that the superior court erred by considering in its analysis whether defendant’s driving fell within a normal driving pattern when determining if the stop was valid under the Fourth Amendment. Specifically, the State alleges that the superior court’s analysis has the potential to make our traffic laws unenforceable since it is normal for people to violate them and warns that a formal adoption of this analysis would necessitate the need for expert witness testimony in all traffic cases. Finally, the State contends that the superior court erred by “overlook[ing] or discount[ing]” other objective factors that established reasonable articulable suspicion because it only focused on whether defendant’s driving was normal. We agree.
While we acknowledge that this Court has classified a defendant’s driving as normal when looking at the totality of the circumstances, that classification has never been the only objective factor we have examined to determine whether a police officer has reasonable articulable suspicion. See State v. Peele,
VI. Conclusions of Law Nos. 4 and 5
Finally, the State argues that the superior court erred in its conclusions of law that Trooper Monroe did not have reasonable articulable suspicion to stop defendant and that the stop was unreasonable. Specifically, the State asserts that because Trooper Monroe- observed defendant violate several traffic statutes when defendant crossed the double yellow line, he was justified in stopping defendant. We agree that Trooper Monroe had reasonable articulable suspicion to stop defendant based on the observed traffic violations notwithstanding his mistaken belief that defendant had violated N.C. Gen. Stat. § 20-146(a) and that the stop was reasonable under the Fourth Amendment.
The Fourth Amendment protects “[t]he right of the people to be secure . . . against unreasonable searches and seizures[.]” U.S. Const, amend. IV. “An investigatory stop must be justified by a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity.” State v. Watkins,
Here, Trooper Monroe testified that he initiated the stop of defendant after he observed “half of [defendant’s] vehicle” go over the double yellow line when defendant turned right onto Fifth Street. Even though he charged defendant with “driving left of center” and issued defendant a ticket for violating N.C. Gen. Stat. § 20-146(a) for failing to keep his “vehicle on the right half of the highway,” Trooper Monroe did not testify that he stopped defendant for violating N.C. Gen. Stat. § 20-146(a) but based for defendant’s crossing the double yellow line.
Since we have held that defendant did not violate N.C. Gen. Stat. § 20-146(a) because Fifth Street is a three-lane road, the issue becomes whether there is objective criteria to justify stopping defendant other than Trooper Monroe’s mistaken belief that defendant violated N.C. Gen. Stat. § 20446(a) when he crossed the double yellow line. To decide this issue, we must determine whether Trooper Monroe’s proffered justification for stopping defendant is sufficient to establish an objectively reasonable basis for the stop.
We note that because Trooper Monroe’s reason for stopping defendant was not based solely on his mistaken belief that defendant violated N.C. Gen. Stat. § 20446(a) but because defendant crossed the double yellow line, we find the present case distinguishable from other cases where our Court has held that an officer’s mistaken belief a defendant has committed a traffic violation is not objectively reasonable and, thus, violates a defendant’s Fourth Amendment rights. See Heien,_N.C. App. at_,
Accordingly, we remand and reverse the superior court’s order affirming the district court’s pretrial indication. On remand, the superior court must remand the matter back down to the district court with instructions to enter a final order denying defendant’s motion to suppress in accordance with this opinion.
Conclusion
Based on our holding that defendant’s driving violated N.C. Gen. Stat. §§ 20446(d) and 20-153 and Trooper Monroe’s reason for initiating the stop was objectively reasonable, we find that the superior court erred in affirming the district court’s pretrial indication. We, therefore, reverse and remand the superior court’s order affirming the district court’s pretrial indication. On remand, the superior court must remand the matter back down to the district court with instructions to enter a final order denying defendant’s motion to suppress in accordance with this opinion.
Reversed and Remanded.
Notes
. We note that the phrase “motion to suppress the stop” was used by defendant, and the record shows that the actual name of defendant’s motion was “Motion to Suppress Stop Pursuant to N.C.G.S. § 20-38.6.” However, for clarity, we refer to it as a motion to suppress the evidence obtained as a result of the stop.
. Defendant was also charged with violating N.C. Gen. Stat. § 20-146(a) for failing to stay within the right half of the road.
. We note that the superior court seems to base its conclusion of law that defendant did not violate any traffic law because he did not cross the “centerpoint” of the road on a misapplication of this statute to the facts of this case. Since we have found that N.C. Gen. Stat. § 20-146(a) does not apply to the facts here, whether defendant crossed the “centerpoint” of Fifth Street is irrelevant, and we do not address the State’s assertions on this point.