State v. Veal

NO. COA13-1407

NORTH CAROLINA COURT OF APPEALS

Filed: 1 July 2014

STATE OF NORTH CAROLINA

v. Buncombe County
Nos. 11 CRS 57859, 12 CRS 160
DOUGLAS EUGENE VEAL

Appeal by defendant from judgment entered 6 August 2013 by

Judge Alan Z. Thornburg in Buncombe County Superior Court.

Heard in the Court of Appeals 23 April 2014.

Attorney General Roy Cooper, by Assistant Attorney General
David Shick, for the State.

Cheshire Parker Schneider & Bryan, PLLC, by John Keating
Wiles, for defendant-appellant.

McCULLOUGH, Judge.

Douglas Eugene Veal (“defendant”) appeals the order of the

trial court, denying his motion to suppress evidence. For the

following reasons, we affirm the order of the trial court.

I. Background

On 4 July 2011, Officer Rodney Cloer of the Asheville

Police Department (“Officer Cloer”) was dispatched to a report

of an intoxicated driver in a green Chevy truck at the Citistop

gas station located at 760 Haywood Road. The report of an
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intoxicated person came through dispatch from an employee at the

Citistop gas station. Dispatch reported that there was a very

intoxicated male subject trying to leave the gas station in a

green Chevy truck with a bed cover. Dispatch also identified

the subject as an elderly white male in a white hat. Officer

Cloer responded to the call and drove to the gas station and

parked his car in the parking lot. He then observed defendant

driving his green truck in the parking lot. Officer Cloer

approached defendant on foot and asked to speak with him. While

speaking with defendant, Officer Cloer noticed an odor of

alcohol coming from defendant and observed an unopened can of

beer in the truck. Defendant told Officer Cloer that he was

going to a funeral in Alabama. Officer Cloer noted that

defendant had slurred speech. Due to his observations, Officer

Cloer asked defendant to get out of his vehicle. While

attempting to get out of his truck, defendant stumbled and

nearly fell and used the side of the vehicle to maintain his

balance.

Officer Cloer, certified in standardized field sobriety

testing, instructed defendant to perform the “Horizontal Gaze

Nystagmus” test. While Officer Cloer was performing the test,

Officer Cloer observed six out of the six signs indicating

impairment. He also asked defendant to perform the “Walk and
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Turn” test. While attempting to administer the test, defendant

continued to ask questions during the instructional phase, lost

his footing three times, used his arms for balance, and started

the test without being asked. Due to these actions, Officer

Cloer terminated the test and placed defendant under arrest for

Driving While Impaired.

During the process of his arrest, defendant asked to be let

go if he told Officer Cloer a location where drugs and stolen

guns could be found. Officer Cloer explained that defendant was

under arrest and he was not able to make any deals with

defendant. Defendant was then transported to the jail where he

subsequently refused to take the Intoxilyzer breath test to

determine his blood alcohol level. Officer Cloer obtained a

search warrant from the magistrate in order to perform a blood

test on defendant. Defendant was transported to Memorial

Mission Hospital where his blood was drawn in an ambulance in

the parking lot.

On 3 October 2011, defendant was indicted for habitual

impaired driving and operating a motor vehicle without an

operator’s license. On 5 March 2012, defendant was indicted on

attaining habitual felon status and failure to appear on the

charge of habitual impaired driving after being released. On 5

July 2013, defendant filed a motion to suppress all evidence
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obtained from the alleged illegal seizure, arguing that Officer

Cloer lacked reasonable articulable suspicion of criminal

wrongdoing. The same day, defendant also filed a motion to

suppress blood seized from defendant, and a motion to suppress

evidence of statements made by defendant. On 29 July 2013,

defendant filed a motion to exclude and objection to evidence of

his alleged refusal of the Intoxilyzer test.

Defendant’s trial came on for hearing on the 29 July 2013

criminal session of Buncombe County Superior Court. At the

hearing, Aaron Wakenhut, the employee who called in the report

of an intoxicated person, testified to his observations in the

store. He could not remember the incident at the time of the

trial, but testified by reading his witness statement aloud. In

his statement he said that “the man was stumply [sic] walking,

made a slight mess with hot water for his soup. Hard time

talking and slurred. Took a very long time to respond.” By

order entered 1 August 2013, the trial court denied the motions

to suppress. The order made the following pertinent findings of

fact:

1. During the late evening hours of July the
4th, 2011, while on duty, Officer Cloer
from the Asheville Police Department was
dispatched to a gas station on Haywood
Road to investigate an impaired person,
and that he went there and that he parked
his vehicle, got out, and observed the
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Defendant driving a truck in the parking
lot.

2. That Officer Cloer went up to the
Defendant’s truck, at which time it was
stopped, asked if he could speak to the
Defendant, then detected the odor of
alcohol, and at that same time observed an
unopened container of beer in the truck,
and then upon observing that and smelling
that and opining that the Defendant had
slurred speech, he was unsteady on his
feet, he had him submit to field sobriety
tests.

. . . .

6. The officer did not observe the Defendant
driving, except in the lot; however, he
was dispatched there for the purpose of
investigating the potential of that
illegal activity, and that the Defendant
was under the wheel of a truck that was
moving and the motor was on and it was in
a public vehicular area.

On 6 August 2013, defendant pled guilty to the charge of

habitual driving while impaired and attaining habitual felon

status, while preserving his right to appeal his motion to

suppress. The charges of no operator’s license and failure to

appear on the charge of habitual impaired driving after being

released were dismissed. Defendant was sentenced to a term of

66 to 89 months imprisonment. Defendant entered notice of

appeal on 6 August 2013.

II. Standard of Review

Our review of a trial court’s motion to suppress is
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“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). Any unchallenged findings of

fact are “deemed to be supported by competent evidence and are

binding on appeal.” State v. Roberson, 163 N.C. App. 129, 132,

592 S.E.2d 733, 735-36 (2004). The trial court’s conclusions of

law are fully reviewable de novo on appeal. State v. Hughes,

353 N.C. 200, 208, 539 S.E.2d 625, 631 (2000). “[T]he trial

court’s conclusions of law must be legally correct, reflecting a

correct application of applicable legal principles to the facts

found.” State v. Buchanan, 353 N.C. 332, 336, 543 S.E.2d 823,

826 (2001) (alteration in original) (internal quotation marks

and citations omitted).

III. Discussion

Defendant’s sole argument on appeal is that the trial court

erred when it denied his motion to suppress all evidence

stemming from the initial stop because Officer Cloer made an

illegal stop of defendant’s vehicle. Defendant contends that

the initial stop was illegal because it was not warranted by a

reasonable and articulable suspicion of criminal activity.
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The Fourth Amendment of the Constitution provides the right

of people to be secure in their persons and protects citizens

from unreasonable searches and seizures. U.S. Const. amend. IV.

However, the United States Supreme Court has held that “[n]o one

is protected by the Constitution against the mere approach of

police officers in a public place.” State v. Brooks, 337 N.C.

132, 141, 446 S.E.2d 579, 585 (1994) (quoting State v. Streeter,

283 N.C. 203, 208, 195 S.E.2d 502, 506 (1973)). The Supreme

Court has also held that “a seizure does not occur simply

because a police officer approaches an individual and asks a few

questions.” Florida v. Bostick, 501 U.S. 428, 434, 115 L. Ed.

2d 389, 398 (1991).

Our Supreme Court held in State v. Brooks, 337 N.C. 132,

446 S.E.2d 579 (1994), that neither reasonable suspicion nor

probable cause were required for an agent to approach the

defendant and engage in conversation. In Brooks, the officer

approached the vehicle while the defendant was sitting in the

driver’s seat. Id. at 137, 446 S.E.2d at 583. The officer

shined a flashlight on the defendant and noticed an empty

holster within the reach of the defendant. Id. The officer

asked where his gun was located and the defendant responded that

he was sitting on the gun. Id. The officer asked the defendant

to “ease it out real slow” and the defendant reached under his
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right thigh and handed the gun to the officer. Id. The

defendant was allowed to exit and enter the vehicle multiple

times during the interaction. Without putting the defendant

under arrest, the officer asked him if he had any “dope” in the

car. The defendant replied in the negative and asked if the

officer would like to search the vehicle. Brooks at 137-38, 446

S.E.2d at 583. Upon searching the vehicle, with the defendant’s

help, the officer discovered a bag of cocaine and arrested the

defendant for possession of cocaine and carrying a concealed

weapon. Id. at 138, 446 S.E.2d at 583-84. The defendant filed

a motion to suppress the search and seizure of drugs from his

vehicle, arguing that the officer lacked probable cause. Id. at

136, 446 S.E.2d at 582-83. The Court found that there was no

evidence that the officer “made a physical application of force

or that the defendant submitted to any show of force.” Id. at

142, 446 S.E.2d at 586. Our Supreme Court held that “[o]fficers

who lawfully approach a car and look inside with a flashlight do

not conduct a ‘search’ within the meaning of the Fourth

Amendment. If, as a result, the officers see some evidence of a

crime, this may establish probable cause to arrest the

occupants.” Brooks at 144, 446 S.E.2d at 587 (internal

citations omitted).

In State v. Isenhour, 194 N.C. App. 539, 670 S.E.2d 264
 -9-

(2008), officers were patrolling in a high crime area when they

observed the defendant and a passenger parked in the back corner

of a fast food restaurant parking lot. The officers parked the

patrol car eight feet away from the defendant’s vehicle and

approached on foot. Id. at 540, 670 S.E.2d at 266. The

defendant’s window would not roll down so he opened the car door

to speak with the officers. Due to the inconsistency between

the defendant’s and passenger’s reason for being in the parking

lot, the defendant was asked to exit his vehicle. Id. at 541,

670 S.E.2d at 266. The officer patted down the defendant and

asked for consent to search his vehicle. The defendant

consented, and while searching the vehicle, the officers found a

pill bottle containing methadone pills. Id. This Court found

that the officer did not create “any real ‘psychological

barriers’ to defendant’s leaving such as using his police siren,

turning on his blue strobe lights, taking his gun out of his

holster, or using threatening language.” Id. at 544, 670 S.E.2d

at 268. Our Court held that the officer’s actions did not

constitute a seizure of the defendant, so “no reasonable

suspicion was required for [the officer] to approach defendant’s

car and ask him questions.” Id.

In this case, similar to Brooks, there is no evidence that

Officer Cloer used any physical force when approaching
 -10-

defendant. Officer Cloer approached defendant’s vehicle and

engaged in conversation with him, as the officer did in Brooks.

He testified that he walked up to defendant’s car on foot and

asked to speak with him. During that conversation, Officer

Cloer observed signs of intoxication (the odor of alcohol on

defendant, an unopened can of beer, and slurred speech) leading

him to investigate defendant further. Similar to Isenhour,

Officer Cloer also did not use any “psychological barriers”

while initiating contact with defendant. He testified that he

did not activate his blue lights and there is no evidence that

he removed his gun from his holster or used a threatening tone

initiating contact with defendant. Thus, as found in Brooks and

Isenhour, Officer Cloer engaged in a voluntary encounter with

defendant.

The test for determining whether a seizure has occurred “is

whether, taking into account all of the circumstances

surrounding the encounter, the police conduct would ‘have

communicated to a reasonable person that he was not at liberty

to ignore the police presence and go about his business.’”

Florida at 437, 115 L. Ed. 2d at 400 (quoting Michigan v.

Chesternut, 486 U.S. 567, 569, 100 L. Ed. 2d 565 (1988)). In

the present case, Officer Cloer pulled into the parking lot of

the gas station and parked his vehicle. He testified that he
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did not pull his vehicle in behind defendant’s car, he did not

activate his blue lights, and there is no evidence that he spoke

in a threatening tone. He further testified that he got out of

his vehicle and approached defendant’s truck on foot and asked

to speak with defendant. Our Supreme Court has held that these

actions do not constitute a “seizure” of defendant. See State

v. Brooks, 337 N.C. 132, 446 S.E.2d 579 (1994). Because

defendant was not “seized” by Officer Cloer’s approach and

initial questioning, reasonable suspicion of criminal activity

is not required.

Unlike a voluntary encounter, “[a]n 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)). Reasonable suspicion requires that

[t]he stop . . . be based on specific and
articulable facts, as well as the rational
inferences from those facts, as viewed
through the eyes of a reasonable, cautious
officer, guided by [the officer’s]
experience and training. The only
requirement is a minimal level of objective
justification, something more than an
‘unparticularized suspicion or hunch.’

Id. at 441-42, 446 S.E.2d at 70 (quoting United States v.

Sokolow, 490 U.S. 1, 7, 104 L. Ed. 2d 1, 10 (1989)) (quotation
 -12-

marks and internal citations omitted). “The Fourth Amendment

requires that police have an articulable and reasonable

suspicion of criminal conduct before making an investigative

stop of an automobile.” United States v. Arzaga, 9 F.3d 91, 93

(10th Cir. 1993) (emphasis added).

Since we have determined that Officer Cloer’s initial

interaction with defendant was a voluntary encounter, his

personal observations during that time may be used to determine

reasonable suspicion for the subsequent investigatory stop.

When he approached defendant’s vehicle, Officer Cloer noticed

the odor of alcohol coming from defendant and observed an

unopened container of beer in defendant’s truck. This Court has

previously held that similar observations observed during a

consensual encounter establish reasonable suspicion to further

detain and investigate defendant. State v. Veazey, 191 N.C.

App. 181, 195, 662 S.E.2d 683, 692 (2008) (stating that during

the initial lawful checkpoint detention, the officer’s

observations of “a strong odor of alcohol in the vehicle and . .

. that Defendant’s eyes were red and glassy . . . provided a

sufficient basis for reasonable suspicion permitting Trooper

Carroll to pursue further investigation and detention of

Defendant”).

Officer Cloer initiated an investigatory stop when,
 -13-

suspecting that defendant was impaired, he asked defendant to

step out of his vehicle to further investigate. We find that

his personal observations of the odor of alcohol and an unopened

container of beer made during the voluntary encounter are a

sufficient basis for reasonable suspicion to support the stop.

Defendant also argues that the basis of his stop was from

an anonymous tip. The report of an impaired driver came from

information given by an unnamed employee. Since the caller was

not identified by name, defendant argues that these facts

constitute a stop based on an anonymous tip.

It is well established that “[a]n anonymous tip can provide

reasonable suspicion as long as it exhibits sufficient indicia

of reliability.” State v. Hughes, 353 N.C. 200, 207, 539 S.E.2d

625, 630 (2000). Even if a tip lacks sufficient indicia of

reliability, it “may still provide a basis for reasonable

suspicion if it is buttressed by sufficient police

corroboration.” Id. “In sum, to provide the justification for

a warrantless stop, an anonymous tip ‘must have sufficient

indicia of reliability, and if it does not, then there must be

sufficient police corroboration of the tip before the stop may

be made.’” State v. Peele, Jr., 196 N.C. App. 668, 672, 675

S.E.2d 682, 685 (2009) (quoting Hughes at 207, 539 S.E.2d at

630).
 -14-

In United States v. Quarles, 330 F.3d 650 (4th Cir. 2003),

an individual called 911 and reported that the defendant was

walking down Nash Street and was wanted by the U.S. Attorney’s

Office. The caller provided a description, including that the

defendant was a black male with dreadlocks, and an accurate

description of what the defendant was currently wearing. Id. at

652. The 911 operator asked the caller why the U.S. Attorney’s

office was interested in the defendant. The caller stated that

he was wanted for carrying a gun and that the defendant had

killed the caller’s brother, but had “beat the case.” Id. The

caller was kept on the phone with the operator and continued to

follow the defendant, keeping the operator updated until the

caller saw officers arrive and put the defendant on the ground.

Id. The court stated that “the caller here gave enough

information to be identified later, and therefore, was not

totally anonymous at any time.” Quarles at 654. It also held

that the caller “provided sufficient information to the police

that he could have been held accountable for his statements.”

Id. at 656.

Similarly, in the present case, the caller was identified

as an employee of the Citistop gas station where defendant’s car

was located. This information was sufficient to ascertain his

identity when police arrived. The second officer on the scene,
 -15-

Officer McCullough, was able to identify the caller as Aaron

Wakenhut and obtain a statement from him. Thus, Wakenhut was

“bound to have felt as though he was being held accountable for

what he was saying.” Quarles at 656. Wakenhut also gave

information based off his personal observations of defendant’s

behavior inside the store. He testified that defendant was

stumbling, made a mess with the hot water for his soup, had

slurred speech, a hard time talking, and took a very long time

to respond. Accordingly, the tip in this case would be a more

reliable tip than a true anonymous caller case where the caller

gives no identifying information.

Since we have determined defendant was not seized when

Officer Cloer approached him and engaged in conversation,

Officer Cloer was able to corroborate the caller’s information

before initiating a stop. Officer Cloer’s personal observations

of the odor of alcohol coming from defendant and an unopened

container of beer on the passenger seat corroborated the

caller’s tip of an impaired person. Officer Cloer’s

observations during the voluntary encounter with defendant,

prior to asking him to get out of his vehicle, along with the

information from the caller’s tip, established reasonable

suspicion for the stop.

Defendant cites to State v. Blankenship, _ N.C. App. _, 748
 -16-

S.E.2d 616 (2013), as his main source of authority for why the

trial court erred. In Blankenship, officers received a “be-on-

the-lookout” message from dispatch. A taxicab driver

anonymously called 911 and reported that he observed a red

Mustang convertible with a black soft top driving erratically,

running over traffic cones, and continuing west on Patton

Avenue. Id. at __, 748 S.E.2d at 617. The caller also provided

the license plate, “XXT-9756”. Id. A few minutes later, the

officers spotted a red Mustang with a black soft top and an “X”

in the license plate heading west on Patton Avenue. Id. When

the officers caught up to the vehicle, it had made a turn and

was approaching a security gate. Id. As the driver attempted

to open the gate, the officers activated their blue lights and

stopped the defendant. Blankenship at __, 748 S.E.2d at 617.

At this time, the officers had not observed the “defendant

violating any traffic laws or see any evidence of improper

driving that would suggest impairment[.]” When one of the

officers spoke to the defendant, he detected a strong odor of

alcohol and asked him to perform field sobriety tests. Id.

Based on his performance, the defendant was arrested for driving

while impaired. This Court found that the officers were unable

to judge the caller’s “credibility and to confirm firsthand that

the tip possessed sufficient indicia of reliability. Since [the
 -17-

caller’s] anonymous tip did not possess sufficient indicia of

reliability, [the officers] did not possess reasonable,

articulable suspicion to stop defendant’s car.” Id. at __, 748

S.E.2d at 620.

This case is distinguishable from Blankenship in two

distinct ways. In Blankenship, the call was a true anonymous

tip because the taxicab driver did not give any information that

would enable the caller to be identified. His identity was only

discovered because the 911 operator was able to go back and

trace the phone number. Id. at __, 748 S.E.2d at 617. By not

identifying himself, the officers could not judge the caller’s

credibility. “Since the officers did not have an opportunity to

assess his credibility,” the caller lacked sufficient indicia of

reliability. Id. at __, 748 S.E.2d at 618. However, in this

case, the caller was identified as an employee of the business

where defendant was located, thus giving enough information that

allowed for his identity to be ascertained at the scene and

making him a more reliable tipster than the one in Blankenship.

In Blankenship, although the officers did not personally

observe the defendant committing any unlawful behavior, they

immediately initiated a stop by activating their blue lights as

the “driver, defendant, attempted to open the gate.” Id. at __,

748 S.E.2d at 617. The initial encounter was not voluntary
 -18-

because the immediate activation of their blue lights acted as a

show of authority that would make a reasonable person feel that

they were not free to leave. Because it was not voluntary,

reasonable suspicion was required to conduct the stop. In the

case at hand, Officer Cloer did not activate his blue lights

when he pulled into the parking lot and parked his car away from

defendant’s vehicle. He approached defendant on foot and

engaged in a conversation in a voluntary encounter allowing

Officer Cloer to make his own personal observations of the odor

of alcohol and an unopened container of beer inside the car.

Thus, unlike in Blankenship, Officer Cloer was able to

personally observe defendant’s behavior to corroborate the

caller’s tip prior to initiating the stop and he was able to

form the necessary reasonable suspicion of criminal activity.

Therefore, defendant’s reliance on Blankenship is misplaced.

IV. Conclusion

We conclude that the initial encounter between Officer

Cloer and the defendant was a voluntary encounter and thus did

not require reasonable suspicion. Accordingly, Officer Cloer’s

observations during the consensual encounter (the odor of

alcohol and an unopened container) established reasonable

suspicion to further detain and investigate the defendant.

Based on the foregoing, we hold the trial court properly denied
 -19-

defendant’s motion to suppress all evidence stemming from the

initial stop.

Affirmed.

Judges ELMORE and DAVIS concur.