IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-980
Filed: 7 June 2016
Mecklenburg County, No. 11 CRS 250553
STATE OF NORTH CAROLINA
v.
ERIC PRESTON SAWYERS
Appeal by defendant from order and judgment entered 15 October 2014 by
Judge Lucy N. Inman in Mecklenburg County Superior Court. Heard in the Court of
Appeals 23 February 2016.
Attorney General Roy Cooper, by Assistant Attorney General Christopher R.
McLennan, for the State.
Tarlton Law PLLC, by Raymond C. Tarlton, for defendant-appellant.
McCULLOUGH, Judge.
Eric Preston Sawyers (“defendant”) appeals from judgment entered upon his
plea of guilty to driving while impaired. Defendant argues that the trial court erred
by denying his motion to suppress. For the reasons stated herein, we affirm the order
of the trial court.
I. Background
On 12 November 2011, defendant was arrested and issued a citation for driving
while impaired in violation of N.C. Gen. Stat. § 20-138.1.
STATE V. SAWYERS
Opinion of the Court
On 29 April 2013, defendant filed a “Motion to Dismiss” charges against him
alleging statutory and constitutional violations regarding his right to pre-trial
release, his right to obtain additional chemical analysis, and his right to have an
opportunity to obtain evidence. On the same date, defendant filed a “Motion to
Suppress Evidence Obtained without Reasonable Suspicion to Stop and Seize
Defendant” and a “Motion to Suppress EC/IR II Test Results.”
Following a hearing held on 27 September 2013, the trial court entered an
order on 15 October 2013 denying defendant’s motion to dismiss. The trial court made
the following pertinent findings of fact:
3. That Trooper Keller . . . assisted Sergeant Dorty
with the DWI investigation and thereafter arrested the
defendant at 2:26am for Driving While Impaired[.]
....
5. That Trooper Keller then transported the defendant
to the Charlotte Mecklenburg detention facility for an
EC/IR II test of his breath for alcohol, arriving at
approximately 3:05am.
6. That the defendant was taken to the nurse,
fingerprinting, and image capturing until 3:34am.
7. That Trooper Keller advised the defendant of his
rights to a chemical analysis of his breath and the
defendant reviewed and acknowledged the rights form
regarding chemical analysis at 3:45am, but refused to
sign. . . .
8. That the defendant was allowed to retrieve phone
numbers from his phone and make phone calls. He called
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Opinion of the Court
his mother Christine Sawyers at approximately 4:00am to
let her know he was in jail and she needed to come get him,
but there was no mention of observing the EC/IR II testing
procedures.
9. That Christine Sawyers lives in South Charlotte and
arrived within approximately 30 minutes of receiving the
defendant’s phone call.
10. That a witness did not appear for the defendant
within the requisite 30 minutes, so Trooper Keller
requested the defendant submit to a test of his breath for
alcohol at 4:19am and 4:22 am. The lower of the two
readings was .15 g/210L. . . .
(emphasis added). The trial court concluded:
1. That there was no substantial violation of the United
States Constitution, the North Carolina Constitution,
or any statutory violation.
2. That the defendant was informed of his right to have a
witness present and was allowed a witness, Christine
Sawyers, at the Mecklenburg County Jail, who was able
to communicate and speak to the defendant for 30
minutes and assist in forming his defense.
3. That there was no evidence that anyone who came to
the Mecklenburg County Jail to see or speak with
defendant was denied that right.
A hearing on defendant’s motions to suppress was held during the
15 October 2014 criminal session of Mecklenburg County Superior Court.
In regards to defendant’s “Motion to Suppress Evidence Obtained without
Reasonable Suspicion to Stop and Seize Defendant,” the State offered the testimony
of Sergeant Henry Hill Dorty, Jr. (“Sergeant Dorty”) with the North Carolina
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STATE V. SAWYERS
Opinion of the Court
Highway Patrol. Sergeant Dorty testified that on 12 November 2011 at 2:26 a.m., he
was on patrol on Tryon Street in downtown Charlotte. He was sitting stationary in
his vehicle at a stoplight. Sergeant Dorty observed defendant walking down the
sidewalk and noticed that he had a slight limp. Sergeant Dorty testified that directly
behind defendant was what appeared to be a homeless male dragging a female. The
female “appeared to either be very intoxicated or drugged.” Defendant stopped at a
car on the side of the road and opened the back door behind the driver’s seat.
Defendant and the other male put the female in the backseat of the vehicle. Dorty
testified that “I didn’t know whether she was being kidnapped, if she was in danger
or what the situation was.” Thereafter, defendant got into the driver’s seat and the
other male got into the front passenger seat of the car. Defendant got into traffic two
car lengths in front of Sergeant Dorty. Sergeant Dorty testified that he stayed behind
defendant and planned to stop defendant’s vehicle “[t]o investigate to see if the female
in the vehicle was okay, what was going on.” After defendant made two turns,
Sergeant Dorty activated his blue lights and pulled defendant over.
The trial court denied defendant’s motion to suppress for lack of reasonable
suspicion by stating as follows:
THE COURT: . . . I am persuaded, based on the evidence
presented and the very eloquent arguments of counsel for
both sides, the authorities cited, that Trooper Dorty had a
reasonable and articulable suspicion to initiate the stop
and that the stop falls within the community caretaker
exception to the Fourth Amendment.
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STATE V. SAWYERS
Opinion of the Court
In regards to defendant’s “Motion to Suppress EC/IR II Test Results,” Trooper
Robert B. Keller (“Trooper Keller”) and defendant testified. Trooper Keller with the
North Carolina State Highway Patrol testified that he came into contact with
defendant during the early hours of 12 November 2011. Trooper Keller was contacted
by Sergeant Dorty. Subsequent to arriving on the scene, Trooper Keller formed the
opinion that defendant was impaired and arrested defendant for driving while
impaired at 2:26 a.m. Defendant was taken to “Mecklenburg County intake
downtown” and entered the room containing the Intoximeter ECIR/II machines.
Defendant’s rights were read to him at 3:45 a.m. and defendant refused to sign the
form acknowledging his rights. Defendant called for a witness using the landline
provided by the sheriff’s department and spoke with his mother at 3:59 a.m. When
asked whether Trooper Keller had a disagreement with defendant over defendant’s
access to his cell phone, Trooper Keller testified that he did not “recall communication
a whole lot about the cell phone.” Trooper Keller further testified that he could not
recall whether he heard defendant asking his mother to come down to the jail or
whether he asked his mother to serve as a witness for the breath test. Trooper Keller
testified that to his recollection, defendant failed to indicate to him at 3:45 a.m. that
he had a witness coming to view the testing procedures and that if defendant had so
indicated, Trooper Keller would have waited thirty minutes for the witness to arrive.
Defendant provided two samples at 4:19 a.m. and 4:22 a.m. Trooper Keller testified
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Opinion of the Court
that between 3:45 a.m. and 4:19 a.m., he was not notified that anyone had arrived to
view the testing procedures.
Defendant testified that he and Trooper Keller had disagreements regarding
signing paperwork and accessing his cell phone so that he could access his attorney’s
phone number. Defendant recalled Trooper Keller reading him his rights as it
pertained to submitting to a test of his breath but testified that he refused to sign the
rights form. At 3:59 a.m. defendant made a phone call to his mother. Defendant
testified that the purpose of calling his mother was because he “wanted a witness to
watch the Breathalyzer test.” It would have taken ten to fifteen minutes for his
mother to arrive at the jail. Defendant testified that to his knowledge, his mother
arrived within thirty minutes of his phone call.
The trial court adopted the findings of fact made in the 15 October 2013 order
denying defendant’s motion to dismiss. The trial court denied defendant’s motion to
suppress evidence from defendant’s breath test and stated as follows:
THE COURT: . . . And I do find that the State has met the
burden of producing evidence, which hasn’t been
impeached, that Trooper Keller observed the defendant.
The standard is not -- as I understand it, there’s not any
authority that says the standard is that you’re not allowed
to fill out paperwork or talk on the phone or do anything
else during that observation period. So I’m going to find
that the State’s met its burden on that. And for all those
reasons, I’m going to deny the motion to suppress[.]
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STATE V. SAWYERS
Opinion of the Court
On 15 October 2014, the trial court entered an order, denying both of
defendant’s motions to suppress. Thereafter, defendant pled guilty to driving while
impaired while reserving his right to appeal the denial of his motions to suppress.
On the same date, the trial court entered judgment, sentencing defendant to a DWI
Level Five punishment. Defendant was sentenced to 30 days in jail. This sentence
was suspended and defendant was placed on supervised probation for a term of 12
months. On 16 October 2014, defendant entered notice of appeal.
II. Standard of Review
Review of a trial court’s denial of a motion to suppress is “strictly limited to
determining whether the trial [court]’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 [court]’s ultimate conclusions of
law.” State v. Salinas, 366 N.C. 119, 123, 729 S.E.2d 63, 66 (2012) (citation omitted).
“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).
III. Discussion
Defendant presents two issues on appeal. Defendant argues that the trial
court erred by: (A) denying defendant’s motion to suppress where the facts
demonstrated that Sergeant Dorty did not have the reasonable articulable suspicion
needed to justify an investigatory stop and (B) denying defendant’s motion to
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Opinion of the Court
suppress the breath test results where the seizure of defendant’s cell phone prevented
defendant from obtaining a witness in time to observe the test. Before we reach the
merits of defendant’s appeal, we first address a preliminary issue.
Notice of Appeal
Defendant has filed a petition for writ of certiorari in which defendant concedes
that while he intended to appeal “from all adverse decisions against him,” through
miscommunication or inadvertent error, his “trial counsel inadvertently failed to
specifically state that the appeal was from both the denial of the suppression motions
and also from the Judgment entered on October 15, 2014.” Accordingly, defendant
requests that our Court issue a writ of certiorari pursuant to the North Carolina
Rules of Appellate Procedure Rule 21(a)(1). Rule 21(a)(1) provides that:
[t]he writ of certiorari may be issued in appropriate
circumstances by either appellate court to permit review of
the judgments and orders of trial tribunals when the right
to prosecute an appeal has been lost by failure to take
timely action, or when no right of appeal from an
interlocutory order exists, or for review pursuant to
N.C.G.S. § 15A-1422(c)(3) of an order of the trial court
ruling on a motion for appropriate relief.
N.C. R. App. P. Rule 21(a)(1) (2016). Our Court has previously ruled that
“ ‘[a]ppropriate circumstances’ may include when a defendant’s right to appeal has
been lost because of a failure of his or her trial counsel to give proper notice of appeal.”
State v. Gordon, 228 N.C. App. 335, 337, 745 S.E.2d 361, 363 (2013). Because
defendant’s right to appeal from the 15 October 2014 judgment was lost as a result of
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Opinion of the Court
no fault of his own, we exercise our discretion and allow defendant’s petition for writ
of certiorari pursuant to Rule 21(a)(1).
A. Motion to Suppress for Lack of Reasonable Suspicion
In his first argument on appeal, defendant contends that the trial court erred
in denying his motion to suppress where the facts demonstrated that Sergeant Dorty
did not have the reasonable articulable suspicion necessary to justify an investigatory
stop, thereby violating his rights under the Fourth Amendment to the United States
Constitution and Article I, § 20 of the North Carolina Constitution to be free from
unreasonable seizures. Defendant also argues that the trial court erred by applying
the community caretaking doctrine as an exception to the warrant requirement of the
Fourth Amendment. We disagree.
The Fourth Amendment protects individuals
against unreasonable searches and seizures and the North
Carolina Constitution provides similar protection. A traffic
stop is a seizure even though the purpose of the stop is
limited and the resulting detention quite brief. Traffic
stops have been historically reviewed under the
investigatory detention framework first articulated in
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L. Ed. 2d 889
(1968). Under Terry and subsequent cases, a traffic stop is
permitted if the officer has a reasonable, articulable
suspicion that criminal activity is afoot.
State v. Smith, 192 N.C. App. 690, 693, 666 S.E.2d 191, 193 (2008) (citations omitted).
“Reasonable suspicion requires that the stop be based on specific and articulable
facts, as well as the rational inferences from those facts, as viewed through the eyes
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Opinion of the Court
of a reasonable, cautious officer, guided by his experience and training.” State v.
Lopez, 219 N.C. App. 139, 145, 723 S.E.2d 164, 169 (2012) (citation omitted). “All the
State is required to show is a minimal level of objective justification, something more
than an unparticularized suspicion or hunch. A court must consider the totality of
the circumstances in determining whether the officer possessed a reasonable and
articulable suspicion to make an investigatory stop.” State v. Brown, 213 N.C. App.
617, 619, 713 S.E.2d 246, 248 (2011) (citations and quotation marks omitted).
After thoroughly reviewing the record, we hold that Sergeant Dorty had
specific and articulable facts sufficient to support an investigatory stop of defendant.
Sergeant Dorty testified that in the early morning hours of 12 November 2011 at 2:26
a.m., he was on patrol on Tryon Street in downtown Charlotte. He was sitting
stationary in his vehicle at a stoplight when he observed defendant walking down the
street with a slight limp. Sergeant Dorty observed that directly behind defendant
was another male, who appeared to be homeless, dragging an “either very intoxicated
or drugged” female down the street. Defendant and the other male placed the female
in defendant’s vehicle, defendant and the other male entered the vehicle, and
defendant’s vehicle left the scene. Sergeant Dorty testified that he was unsure
whether the female “was being kidnapped, if she was in danger or what the situation
was.” Sergeant Dorty did not believe that the other male was with defendant and the
female and wanted to investigate “to see if the female in the vehicle was okay, what
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STATE V. SAWYERS
Opinion of the Court
was going on.” Considering the totality of the circumstances, we hold that defendant’s
investigatory stop was justified by Sergeant Dorty’s reasonable suspicion that
defendant was involved in criminal activity. Therefore, we hold that the trial court
did not err by denying defendant’s motion to suppress on this ground.
In addition to holding that there was reasonable articulable suspicion to
conduct an investigatory stop of defendant, the trial court also held that the stop fell
within the community caretaker exception to the Fourth Amendment. In State v.
Smathers, 232 N.C. App. 120, 753 S.E.2d 380 (2014), our Court formally recognized
the community caretaking doctrine as an exception to the warrant requirement under
the Fourth Amendment to the United States Constitution. Id. at 122, 753 S.E.2d at
382. In reference to a large majority of state courts recognizing this doctrine as an
exception, our Court noted that:
[t]he overarching public policy behind this widespread
adoption is the desire to give police officers the flexibility
to help citizens in need or protect the public even if the
prerequisite suspicion of criminal activity which would
otherwise be necessary for a constitutional intrusion is
nonexistent. The doctrine recognizes that, in our
communities, law enforcement personnel are expected to
engage in activities and interact with citizens in a number
of ways beyond the investigation of criminal conduct. Such
activities include a general safety and welfare role for
police officers in helping citizens who may be in peril or
who may otherwise be in need of some form of assistance.
Id. at 125, 753 S.E.2d at 384 (citation omitted). Our Court adopted a three-pronged
test in applying the community caretaking exception:
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Opinion of the Court
the State has the burden of proving that: (1) a search or
seizure within the meaning of the Fourth Amendment has
occurred; (2) if so, that under the totality of the
circumstances an objectively reasonable basis for a
community caretaking function is shown; and (3) if so, that
the public need or interest outweighs the intrusion upon
the privacy of the individual. Relevant considerations in
assessing the weight of public need against the intrusion of
privacy include, but are not limited to: (1) the degree of the
public interest and the exigency of the situation; (2) the
attendant circumstances surrounding the seizure,
including time, location, the degree of overt authority and
force displayed; (3) whether an automobile is involved; and
(4) the availability, feasibility and effectiveness of
alternatives to the type of intrusion actually accomplished.
Id. at 128-29, 753 S.E.2d at 386 (citations omitted). “[T]his exception should be
applied narrowly and carefully to mitigate the risk of abuse.” Id. at 129, 753 S.E.2d
at 386.
We must now apply the three-pronged test to the circumstances in our present
case. First, it is undisputed that the traffic stop of defendant was a seizure under the
Fourth Amendment of the United States Constitution. Second, given that Sergeant
Dorty observed defendant and what appeared to be a homeless male dragging a
female who seemed to “either be very intoxicated or drugged” into defendant’s vehicle,
there was an objectively reasonable basis under the totality of the circumstances to
conclude that the seizure was based on the community caretaking function of
ensuring the safety of the female. Sergeant Dorty testified that he was unsure
whether the female “was being kidnapped, if she was in danger or what the situation
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Opinion of the Court
was.” Third, the public need or interest in having defendant seized outweighed his
privacy interest in being free from the intrusion. Sergeant Dorty observed the female
who was either intoxicated or drugged being put in the backseat of defendant’s vehicle
by defendant and another male who “appeared to be homeless and didn’t appear to
be with these two people that I saw him with.” Defendant and the other male entered
the vehicle and began driving away from the scene. Therefore, the degree of public
interest in ensuring the safety and well-being of the female was high and the fact
that defendant was driving away in a vehicle with the female as a passenger
contributed to the exigency of the situation. Furthermore, defendant was operating
a vehicle when he was seized rather than enjoying the privacy of his own home,
thereby lessening his expectation of privacy. See Smathers, 232 N.C. App. at 131,
753 S.E.2d at 387 (stating that “[o]ne has a lesser expectation of privacy in a motor
vehicle because its function is transportation and it seldom serves as one’s residence
or as the repository of personal effects. . . . It travels public thoroughfares where both
its occupants and its contents are in plain view”) (citation omitted).
Based on the foregoing, we hold that the public need and interest outweighed
defendant’s privacy interest in being free from government seizure and that
defendant’s seizure fit within the community caretaking exception as set out in
Smathers. Accordingly, we hold that the trial court did not err by applying the
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Opinion of the Court
community caretaking exception and affirm the trial court’s order denying
defendant’s motion to suppress.
B. Motion to Suppress Breath Test Results
In his second argument on appeal, defendant asserts that the trial court erred
by denying his motion to suppress the results of his breath test where he was deprived
of a reasonable opportunity to arrange to have a witness observe his breath test.
Specifically, defendant argues that officers deprived defendant access to his cell
phone address book, which in turn impeded his ability to contact a witness in a timely
manner.
Defendant directs our attention to North Carolina General Statutes section 20-
16.2(a)(6) regarding his right to call a witness to view the administration of a
chemical breath test. N.C. Gen. Stat. § 20-16.2(a)(6) provides as follows, in pertinent
part:
Any law enforcement officer who has reasonable grounds
to believe that the person charged has committed the
implied-consent offense may obtain a chemical analysis of
the person.
Before any type of chemical analysis is administered the
person charged shall be taken before a chemical analyst
authorized to administer a test of a person’s breath or a law
enforcement officer who is authorized to administer
chemical analysis of the breath, who shall inform the
person orally and also give the person a notice in writing
that:
....
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Opinion of the Court
You may call an attorney for advice and select a witness to
view the testing procedures remaining after the witness
arrives, but the testing may not be delayed for these
purposes longer than 30 minutes from the time you are
notified of these rights. You must take the test at the end
of 30 minutes even if you have not contacted an attorney or
your witness has not arrived.
N.C. Gen. Stat. § 20-16.2(a)(6) (2015).
After careful review, we hold that the record evidence supports the trial court’s
conclusion that police officers complied with the requirements set out in N.C. Gen.
Stat. § 20-16.2(a)(6) as defendant’s first breath test was not administered until more
than thirty minutes after defendant was informed of his rights. Trooper Keller
testified that defendant was arrested at 2:26 a.m. on 12 November 2011 for driving
while impaired. Defendant was taken to “Mecklenburg County intake downtown”
and entered the room containing the Intoximeter ECIR/II machines. Trooper Keller
read defendant’s rights to him at 3:45 a.m., however, defendant refused to sign the
form acknowledging his rights. Trooper Keller testified that between 3:45 a.m. and
3:59 a.m., defendant was not prevented from using the telephone. Defendant called
his mother using a landline provided by the sheriff’s department at 3:59 a.m. Trooper
Keller could not recall whether he heard defendant asking his mother to come down
to the jail or whether he asked his mother to serve as a witness for the breath test.
Defendant failed to indicate to Trooper Keller at 3:45 a.m. that he had a witness
coming to view the testing procedures. Trooper Keller testified that if defendant had
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Opinion of the Court
indicated to him that he had a witness on the way, Trooper Keller would have waited
thirty minutes for the witness to arrive. Defendant provided two breath samples at
4:19 a.m. and 4:22 a.m. Trooper Keller testified that between 3:45 a.m. and 4:19 a.m.,
he was not notified that anyone had arrived to view the testing procedures.
Defendant’s argument that he was denied access to his cell phone in order to
retrieve numbers is without merit. The trial court adopted the findings of fact entered
in the 15 October 2013 order denying defendant’s motion to dismiss and defendant
does not challenge any specific findings on appeal. Finding of fact number 8 indicates
that defendant was “allowed to retrieve phone numbers from his phone and make
phone calls.” This finding is supported by the testimony of Deputy James Ingram, of
the Mecklenburg County Sheriff’s Office, at the hearing held on 27 September 2013:
Q. Looking towards the bottom of the page where the
notes are listed, we’ve gone through some of these. It looks
like at 3:18 the defendant retrieved numbers from his
phone; is that correct?
A. Correct.
Accordingly, we hold that the trial court did not err by denying defendant’s
motion to suppress the results of his breath test.
IV. Conclusion
Based on the foregoing reasons, we affirm the order of the trial court denying
defendant’s motions to suppress.
AFFIRMED.
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Opinion of the Court
Judges BRYANT and STEPHENS concur.
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