On 25 August 1994, defendant was arrested and charged with driving while impaired (DWI) in violation of section 20-138.1 of the North Carolina General Statutes. On 9 November 1994, defendant pled guilty to DWI in Iredell County District Court. Thereafter, on 18 November 1994, defendant gave notice of appeal to superior court for trial de novo. On 16 January 1995, defendant filed and served a motion to suppress all of the evidence obtained subsequent to his allegedly illegal seizure and arrest. This motion came on for hearing at the 11 September 1995 criminal session of Iredell County Superior Court before Judge Peter McHugh.
At approximately 10:10 p.m., Trooper Fox observed defendant’s 1993 Buick vehicle approaching the intersection where the trooper was stationed. Instead of turning left as directed by Trooper Fox, defendant stopped his vehicle in the intersection. Consequently, the trooper approached defendant’s vehicle and noticed that defendant was its sole occupant. Notably, defendant contends that he stopped in the intersection to speak with Trooper Fox about the direction in which he needed to travel. Trooper Fox approached defendant’s vehicle, and engaged in short conversation with defendant, during which he noted a strong odor of alcohol on defendant’s breath. As a result, the trooper directed defendant to drive to the shoulder of the roadway and defendant complied. Subsequently, the trooper administered an Alco-sensor test, arrested defendant, and transported him to the Iredell County Jail, where an Intoxilyzer test indicated that defendant’s alcohol concentration was .11. After hearing the evidence and arguments of counsel, the trial court found that Trooper Fox had lawfully detained and searched defendant, and denied defendant’s motion to suppress.
Immediately thereafter, this case came on for trial before a duly empaneled jury. At the close of all of the evidence, defendant made a motion to dismiss the charge, contending that the criminal prosecution was a violation of the constitutional prohibitions against double jeopardy. This motion was also denied. The trial court, in giving its instruction to the jury, instructed the jury on the issue of whether defendant had an alcohol concentration over the legal limit, since the trial court found that evidence was insufficient as a matter of law to find him mentally ór physically impaired. The jury found defendant guilty and the trial court imposed a Level 5 impaired driving sentence with a twelve month sentence of probation. Defendant appeals.
On appeal, defendant assigns as error the trial court’s denial of his motion to suppress on two grounds: (1) the evidence was the product of an illegal seizure made without reasonable, articulable suspicion; and (2) the evidence was a product of an illegal arrest made without probable cause. We cannot agree.
The Fourth Amendment to the United States Constitution guarantees citizens the right to be secure from unreasonable searches and
seizures. The Fourth Amendment is applicable to the states through the Due Process Clause of the Fourteenth Amendment.
State v. Watkins,
Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause. . . . Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors— quantity and quality — are considered in the “totality of the circumstances — the whole picture,” that must be taken into account when evaluating whether there is reasonable suspicion.
North Carolina General Statutes section 15A-977(f) requires that the trial court make findings of fact and conclusions of law when ruling upon a motion to suppress. N.C. Gen. Stat. § 15A-977(f) (1988). These findings of fact are conclusive and binding upon appellate courts if supported by competent evidence.
State v. Jordan,
In the instant case, the trial court made the following pertinent findings of fact:
(1) That defendant was seized “at the time that Trooper Fox requested him to pull off of the shoulder of the road after the initial confrontation between the two of them.” Until that point the trooper was engaged in a public safety function. “He had no intention and no purpose to stop [defendant’s] vehicle, no purpose to confront [him].”
(2) That at the point that the trooper requested defendant to pull onto the shoulder of the road, the trooper had both an articulable suspicion and probable cause to believe that a misdemeanor offense was being committed in his presence.
(3) That defendant was the sole occupant of a vehicle that was in operation on a public highway in this State.
(4) That the evidence is “uncontroverted of a strong odor of alcohol, and ... in and of itself, under these circumstances, is grounds for probable cause.”
Looking at the totality of the circumstances, we find adequate evidence to support the trial court’s findings of fact that Trooper Fox had a reasonable, articulable suspicion to believe that defendant was committing a crime in his presence — driving while impaired.
We must now address defendant’s contention that Trooper Fox did not possess probable cause to arrest him. “To be lawful, a warrantless arrest must be supported by probable cause.”
State v. Zuniga,
In determining whether probable cause exists in any particular case, it is the function of the trial court, if there be conflicting evidence, to find the relevant facts. Such factual findings, if supported by competent evidence, are binding on appeal. However, whether the facts so found by the trial court or shown by uncon-tradicted evidence are such as to establish probable cause in a particular case, is a question of law as to which the trial court’s ruling may be reviewed on appeal.
In the instant case, the facts were uncontroverted that defendant was operating a motor vehicle on a public highway in North Carolina on 25 August 1994, when he encountered a traffic diversion at the intersection of Brawley School Road and Stutts Road; that he stopped his vehicle in the middle of that intersection to speak with Trooper Fox as he was uncertain as to which direction he needed to go; that he held a brief conversation with the trooper, during which the trooper detected a strong odor of alcohol about defendant’s person; that the trooper directed defendant to pull over to the shoulder of the roadway; that the trooper administered but one Alco-sensor test before arresting defendant;
After hearing the evidence and arguments of all of the parties involved, the trial court found and concluded that not only did the trooper have a reasonable, articulable suspicion to detain defendant, but that the trooper also had probable cause to arrest defendant. The trial court found that under the circumstances presented herein, the strong odor of alcohol alone was sufficient to furnish the trooper with probable cause. The trial court particularly noted, “it is a rare case where that sole manifestation of impairment is presented as purported grounds to support probable cause,” but stated that the reason for his finding in this case hinged upon the fact that defendant initiated the contact with'the trooper while driving while impaired in the instant case. Significantly, the trial court declined to include any findings as to the Alco-sensor test given to defendant before defendant’s arrest, as such was rendered invalid under section 20-16.3 of the General Statutes which requires that two sequential screening tests be administered, and Trooper Fox only administered the Alco-sensor test once at the scene.
We find that the trial court properly denied defendant’s motion to suppress as there was adequate evidence to support the trial court’s finding that the trooper had probable cause to believe that defendant was driving while impaired. While defendant references
Atkins v. Moye,
Finally, defendant assigns as error the trial court’s denial of his motion to dismiss because his prosecution violated the prohibition against double jeopardy. Notably, defendant failed to include the order revoking his driver’s license entered by the magistrate in the Record on Appeal, but asks that we exercise our discretion and allow this order to be appended to the record. However, assuming
arguendo
we do as defendant requests, defendant is still without relief, as our Supreme Court found in
State v. Oliver,
In light of the foregoing, we find that defendant received a fair trial, free from prejudicial error.
No error.