IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-238
Filed: 21 March 2017
Cabarrus County, No. 12 CRS 051930
STATE OF NORTH CAROLINA,
v.
DEVRIE LERAN BURRIS, Defendant.
Appeal by defendant from judgment entered on or about 7 October 2015 by
Judge Martin B. McGee in Superior Court, Cabarrus County. Heard in the Court of
Appeals 22 August 2016.
Attorney General Joshua H. Stein, by Assistant Attorney General Kathryne E.
Hathcock, for the State.
Andrew Yu for defendant-appellant.
STROUD, Judge.
Defendant Devrie Leran Burris (“defendant”) appeals from the trial court’s
judgment finding him guilty of impaired driving. On appeal, defendant raises several
issues, including that the trial court erred in denying his motion to suppress self-
incriminating statements made after his driver’s license was retained and without
Miranda warnings. Because we find that defendant was not free to leave at the time
his license was retained, we agree and remand to the trial court for a new trial.
Facts
STATE V. BURRIS
Opinion of the Court
On 13 April 2012, Christopher Hill of the Kannapolis Police Department
(“Detective Hill”) responded to a suspicious person call at a Fairfield Inn in Cabarrus
County. After pulling in to the hotel parking lot, Detective Hill observed a red Ford
Explorer “parked in front of the hotel kind of in the unloading area under the
overhang.” A woman was standing outside of the Explorer and defendant was sitting
in the driver’s seat. Detective Hill spoke to the woman standing outside of the car
and to defendant through the passenger side window, which was rolled down. The
vehicle’s engine was not running.
Detective Hill asked “what they were doing there” and “for their
identifications.” Defendant and the woman responded that they were trying to get a
room, and defendant got out of the driver’s seat to walk around the car to Detective
Hill to hand him his identification. Detective Hill noticed a “strong odor of alcohol
beverage” from defendant when he handed over his driver’s license. He told
defendant and the woman to “hang tight there in the parking lot area” while he went
inside to talk to the hotel clerk. He learned that the clerk had called because of a
concern that the actions of defendant and the woman were similar to “a robbery that
happened in a neighboring hotel a night or two before.” 1
1 Detective Hill did not say what the clerk told him, if anything, regarding the specifics of any
“actions” of defendant or the woman which aroused his suspicions of a potential robbery. As relevant
to the issues in this case, there is no evidence that the hotel clerk reported anything about when the
Explorer arrived at the hotel or who had been driving it.
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Opinion of the Court
Based on his conversation with the hotel clerk, Detective Hill went back
outside to ask defendant if he was the one driving the vehicle, to which he responded
“yes.” He then began asking defendant questions about where he was traveling and
the route he had taken to the hotel. At some point, Detective Hill checked the
registration on the vehicle and determined that it was registered in defendant’s
name. Detective Hill asked defendant whether he had anything to drink that night,
and defendant responded that he had “a couple drinks.” Defendant told Detective
Hill that he had not had anything to drink since arriving at the hotel. Detective Hill
did not observe any open or unopened containers in or around the red Ford Explorer.
Detective Hill asked defendant “to submit to field sobriety testing,” and
performed those tests in the parking lot. Defendant “showed some signs of
impairment on them.” Detective Hill then asked defendant to submit to a portable
breath sample test, and he obliged, resulting in a reading of .10. At that point,
Detective Hill placed defendant under arrest for driving while impaired and
transported him to the Kannapolis Police Department.
After arriving at the police station, Detective Hill attempted to perform a
breath test on defendant, but he refused. Since defendant refused a breath test,
Detective Hill took defendant to the hospital to request a blood draw for analysis.
Detective Hill did not seek a warrant for the blood draw. After arriving at the
hospital, Detective Hill informed defendant of his implied consent rights. Defendant
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Opinion of the Court
exercised his right to contact a witness, but 30 minutes later, the witness still had
not arrived. After defendant refused to submit to a blood draw, Detective Hill
directed a nurse to draw blood samples from defendant’s arm. After the blood draw,
Detective Hill transported defendant to the magistrate’s office, where he was
processed and placed in jail.
Defendant was charged with impaired driving. He was convicted and
sentenced in district court on 15 April 2014. Defendant appealed to the superior
court. Defendant filed a motion to dismiss on 23 July 2015, and in the motion asked
for suppression of
any statements made by Defendant as the officer engaged
in a custodial interrogation of the Defendant without
advising the Defendant of his right to refrain from
answering any questions or advising the Defendant of his
constitutional right to counsel during questioning or any
other federal, state or statutory rights of an accused in
police custody regarding the effect of any statement on
future proceedings.
On 17 August 2015, a hearing was held on defendant’s motion and the trial court
orally denied the motion to suppress statements in open court.
Following the 17 August 2015 hearing, the trial court entered an order and a
subsequent amended order denying defendant’s motion. In the amended order, the
court concluded in relevant part:
2. Miranda warnings and a waiver of those rights
apply only before officers begin a custodial
interrogation Miranda v. Arizona, 384 U.S. 436.
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Opinion of the Court
Without facts showing both “custody” and
“interrogation,” the Miranda rule is inapplicable.
3. The U.S. Supreme Court has ruled that a person is
in custody under the Miranda rule when officer [sic]
have formally arrested the person or have restrained
a person’s movement to a degree associated with a
formal arrest. Berkemer v. McCarty, 468 U.S. 420.
4. The North Carolina Supreme Court has made clear
that it follows the U.S. Supreme Court on the
meaning of custody. State v. Buchanan, 353 [N.C.]
332.
5. In the present case, the Defendant falls short of the
test for custody, therefore the statements made
before arrest should not be suppressed.
6. Under the totality of the above-referenced
circumstances, the Defendant’s Motion to Suppress
should be denied.
An additional order denying defendant’s motion to suppress was entered regarding
the warrantless blood draw, finding “exigent circumstances to support a warrantless
blood draw.” A jury trial was held from 5 October to 7 October 2015, with the jury
finding defendant guilty of driving while impaired. Defendant timely appealed to
this Court.
Discussion
On appeal, defendant argues (1) that his motion to suppress self-incriminating
statements should have been granted because he was seized and in custody at the
time the statements were made yet he received no Miranda warnings; (2) that his
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Opinion of the Court
motion to suppress the blood draw should have been granted because the warrantless
blood draw was completed outside of any exigent circumstances; and (3) that the trial
court erred in denying his motion to dismiss the charges because there was
insufficient evidence to support a conviction.
I. Motion to Suppress Self-Incriminating Statements
Defendant first argues on appeal that the trial court erred in denying his
motion to suppress self-incriminating statements made without Miranda warnings.
Specifically, defendant argues that he was seized and in custody when Detective Hill
engaged in a “custodial interrogation” and that he was “entitled to Miranda warnings
before [Detective] Hill’s ensuing questions.” We agree.
The standard of review in evaluating the denial of 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. However,
when . . . the trial court’s findings of fact are not challenged
on appeal, they are deemed to be supported by competent
evidence and are binding on appeal. Conclusions of law are
reviewed de novo and are subject to full review. Under a
de novo review, the court considers the matter anew and
freely substitutes its own judgment for that of the lower
tribunal.
State v. Biber, 365 N.C. 162, 167-68, 712 S.E.2d 874, 878 (2011) (citations and
quotation marks omitted).
Defendant does not frame his argument as a challenge to any particular
findings of fact but rather simply argues that he should have received Miranda
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Opinion of the Court
warnings after his license was retained and before Detective Hill asked questions,
because he was seized and under custodial interrogation at that time. Defendant’s
argument does, however, direct us to a portion of the findings of fact as unsupported
by the evidence, so we will briefly address those relevant findings.
The trial court found in part that:
4. Detective Hill asked the Defendant and the female
for identification. The Defendant got out of the
vehicle and gave identification to Detective Hill.
5. During this interaction, Detective Hill noticed that
the Defendant had a strong odor of alcohol about his
person and the Defendant admitted to driving.
6. Detective Hill directed both subjects to remain
where they were while he went into the hotel to
speak with the desk clerk. Detective Hill could not
specifically recall, but believes he retained
possession of the Defendant’s identification (driver’s
license) when he left to enter the hotel.
(Emphasis added). Although the timing of events is not entirely clear from the
wording of Finding No. 5, it could be understood to mean that defendant admitted to
driving the vehicle before Detective Hill went inside the hotel to speak to the clerk.
If that was the intended meaning -- and it may not have been -- it is not supported by
the evidence. Detective Hill’s testimony at the suppression hearing sets forth the
correct order of events. At the hearing, Detective Hill testified on direct examination
by the State:
Q And what did you observe once you arrived on
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Opinion of the Court
the scene?
A. When I pulled into the parking lot, I observed
a red Ford Explorer. . . .
Q What did you do at that point?
A At that point I exited my patrol vehicle. I
walked over to where the female was standing. I made
contact with her, and the window was down in the
passenger side so I was speaking to both her and the male
and just asked what they were doing there and asked for
their identifications.
Q What was the nature of the conversation with
the defendant?
A At that point it was just when I asked what
they were doing there, they said they were trying to get a
room.
Q And what happened next?
A When I asked for the identifications . . .
[defendant] got out of the driver seat of the vehicle and
walked around to me and handed me his identification as
well.
....
Q Did you make any observations about him at
that time?
A At that time when he walked around to me
and while we were just engaging in some short
conversation, I detected a strong odor of alcoholic beverage
coming from him.
....
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Opinion of the Court
Q What did you do at that point?
A At that point I just asked him to kind of hang
tight there in the parking lot area while I went inside to
speak with the hotel clerk. I went inside, spoke with her.
Q And what did you do based on that
conversation?
A Based on that conversation, I went back
outside to speak to [defendant] and I asked him if he was
the one who was driving the vehicle, and he responded to
me yes.
(Emphasis added). Detective Hill testified that it was not until after he went inside
to speak to the hotel clerk and came back out that he asked defendant whether he
had been driving. There is no evidence of any other order of events. Accordingly, we
conclude that to the extent that Finding No. 5 could be understood as finding that
Detective Hill asked defendant about driving before he took his driver’s license and
told him to “hang tight,” the trial court’s finding is not supported by competent
evidence.
The crux of defendant’s argument on appeal deals with the trial court’s
conclusion that defendant “falls short of the test for custody[.]” In Miranda v.
Arizona, the United States Supreme Court held that statements stemming from a
custodial interrogation of the defendant may not be used unless the prosecution
“demonstrates the use of procedural safeguards effective to secure the privilege
against self-incrimination.” 384 U.S. 436, 444, 16 L. Ed 2d 694, 706, 86 S. Ct. 1602,
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Opinion of the Court
1612 (1966). Our Supreme Court has since clarified that “[t]he rule of Miranda
requiring that suspects be informed of their constitutional rights before being
questioned by police only applies to custodial interrogation.” State v. Brooks, 337
N.C. 132, 143, 446 S.E.2d 579, 586 (1994).
As this Court has previously noted in other Fourth Amendment cases:
The seizure of an individual can take place through
the application of physical force or without the officer ever
laying his hands on the person seized. An individual is
seized by an officer and falls within the protection of the
Fourth Amendment when officer conduct would have
communicated to a reasonable person that he was not at
liberty to ignore the police presence and go about his
business. In determining whether a reasonable person
would feel free to decline an officer’s request to
communicate, a reviewing court must examine the totality
of the circumstances. This test focuses on the coercive
effect of police conduct, taken as a whole.
State v. Marrero, __ N.C. App. __, __, 789 S.E.2d 560, 564 (2016) (citations and
quotation marks omitted). “[O]ur Supreme Court has held the definitive inquiry in
determining whether an individual is in custody for purposes of Miranda is, based on
the totality of the circumstances, whether there was a formal arrest or restraint on
freedom of movement of the degree associated with a formal arrest.” State v. Portillo,
__ N.C. App. __, __, 787 S.E.2d 822, 828 (2016) (citation, quotation marks, and
brackets omitted).
In this case, Detective Hill asked for defendant’s driver’s license, retained it,
and told defendant to “hang tight there in the parking lot area while [he] went inside
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Opinion of the Court
to speak with the hotel clerk.” According to Detective Hill’s own testimony at the
suppression hearing, as well as the trial court’s findings of fact in this regard,
defendant was not free to leave. He did not return the driver’s license to defendant
before beginning to question him. A reasonable person would not feel free to leave
when he is in a hotel parking lot in his car but a police officer has taken his driver’s
license -- so he could not legally drive away -- and directed him not to leave. See, e.g.,
State v. Jackson, 199 N.C. App. 236, 243, 681 S.E.2d 492, 497 (2009) (“As a reasonable
person under the circumstances would certainly not believe he was free to leave
without his driver’s license and registration, [the officer’s] continued detention and
questioning of [the driver] after determining that [the driver] had a valid driver’s
license was not a consensual encounter. Accordingly, the extended detention of
Defendant was unconstitutional and [the driver’s] eventual consent to search the
vehicle was tainted by the illegality of the extended detention, thus rendering [the
driver’s] consent ineffective to justify the search.”). Since defendant was not free to
leave when he was questioned, it was a custodial interrogation and thus Detective
Hill should have read defendant his Miranda rights before engaging in the
questioning.
Furthermore, the only evidence of defendant’s operation of a motor vehicle was
defendant’s admission, which we have concluded should have been suppressed. This
Court has previously found that “one ‘drives’ within the meaning of [N.C. Gen. Stat.
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Opinion of the Court
§ 20-138.1] if he is in actual physical control of a vehicle which is in motion or which
has the engine running.” State v. Fields, 77 N.C. App. 404, 406, 335 S.E.2d 69, 70
(1985). Although defendant was sitting in the driver’s seat of the car in the hotel
parking lot, Detective Hill testified that the vehicle’s engine was not running at the
time he approached the vehicle. There was no circumstantial evidence that defendant
had recently driven the Explorer to the spot where Detective Hill found him. Many
cases have recognized that circumstantial evidence can support an inference that the
defendant had been driving a particular vehicle. For example, in State v. Foreman,
133 N.C. App. 292, 298, 515 S.E.2d 488, 493 (1999), aff’d as modified, 351 N.C. 627,
527 S.E.2d 921 (2000), the officer observed the vehicle on public roads and in a
residential driveway, and after pulling in behind the vehicle and shining its lights,
the officer saw the defendant “sitting in the driver’s seat and the keys to the vehicle
were in the ignition.” In State v. Crawford, 125 N.C. App. 279, 282, 480 S.E.2d 422,
424 (1997), this Court found probable cause to arrest the defendant where
the deputy found defendant alone in a car parked on the
shoulder of a rural side road. Defendant was in the driver’s
seat in a semiconscious state, his pants were undone, and
he had been drooling. Defendant had a strong odor of
alcohol about him, had difficulty speaking, and admitted to
the deputy he had been drinking . . . On a night when the
temperature was 26 degrees, the hood felt warm,
indicating the car had been recently driven. There were no
other passengers in the car . . . . Defendant had possession
and control of the ignition key.
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Opinion of the Court
In State v. Mack, 81 N.C. App. 578, 583, 345 S.E.2d 223, 226 (1986), this Court found
sufficient circumstantial evidence for the jury to infer that the defendant drove on a
public street where the officer observed “the headlights of the car on, the key in the
ignition, the warm hood, [and] the defendant asleep in the driver’s seat[.]”
Here, the only evidence prior to defendant’s admission was that Detective Hill
observed defendant sitting in the driver’s seat. There was no other evidence of when
the Explorer had arrived at the hotel parking lot. The engine was not running and
the car was parked at the time Detective Hill arrived. There was no evidence that
the car’s lights were on or that the engine was warm and no evidence regarding who
had the keys to the car or where they were. The woman who was with defendant
could possibly have driven to the hotel. Without his admission that he had driven to
the hotel, there was no evidence that defendant had driven the Explorer at any
relevant time. Thus, defendant “has established he was prejudiced by the trial court’s
error in refusing to exclude his statement.” State v. Crook, __ N.C. App. __, __, 785
S.E.2d 771, 778 (2016). Accordingly, we hold that the trial court erred when it denied
defendant’s motion to suppress his statements.
II. Motion to Suppress Blood Test Evidence
Next, defendant argues that the trial court erred in denying his motion to
suppress the blood test evidence because Detective Hill obtained a warrantless blood
draw outside of exigent circumstances.
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Opinion of the Court
The United States Supreme Court held in Schmerber v. California, 384 U.S.
757, 768, 16 L. Ed. 2d 908, 918, 86 S. Ct. 1826, 1834 (1966) that the Fourth
Amendment prohibits the warrantless seizure of a blood sample where such intrusion
is “not justified in the circumstances” or is made in an “improper manner.” More
recently, in Missouri v. McNeely, __ U.S. __, __ 185 L. Ed. 2d 696, 715, 133 S. Ct. 1552,
1568 (2013), the Supreme Court held, in the context of a blood draw performed over
a defendant’s objection in impaired driving cases, that the dissipation of alcohol in a
person’s blood stream standing alone “does not constitute an exigency in every case
sufficient to justify conducting a blood test without a warrant.”
This Court addressed McNeely in State v. Dahlquist, 231 N.C. App. 100, 103,
752 S.E.2d 665, 667 (2013), appeal dismissed and disc. review denied, 367 N.C. 331,
755 S.E.2d 614 (2014), noting that “after the Supreme Court’s decision in McNeely,
the question for this Court remains whether, considering the totality of the
circumstances, the facts of this case gave rise to an exigency sufficient to justify a
warrantless search.” In Dahlquist, the trial court found that: (1) the defendant pulled
up to a checkpoint and an officer noticed an odor of alcohol; (2) the defendant admitted
to drinking five beers; (3) field sobriety tests indicated that the defendant was
impaired; and (4) the officer went to the hospital directly because he knew that it was
10 to 15 minutes away and typically not too busy on Saturday mornings, but that on
a weekend night “it would take between four and five hours to obtain a blood sample
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Opinion of the Court
if he first had to travel to the Intake Center at the jail to obtain a warrant.” Id. at
103, 752 S.E.2d at 665. This Court evaluated the totality of the circumstances and
held that “the facts of this case gave rise to an exigency sufficient to justify a
warrantless search.” Id. at 104, 752 S.E.2d at 668. See also State v. Romano, __ N.C.
App. __, __, 785 S.E.2d 168, 174, disc. review allowed, __ N.C. __, 794 S.E.2d 315
(2016) (“Under the totality of the circumstances, considering the alleged exigencies of
the situation, the warrantless blood draw was not objectively reasonable.”).
Although we normally would have to review the totality of the circumstances
in the present case to determine whether the warrantless blood draw was objectively
reasonable, we need not address the issue further in this particular case, because the
warrantless blood draw here is inadmissible as fruit of the poisonous tree.
The fruit of the poisonous tree doctrine, a specific
application of the exclusionary rule, provides that when
evidence is obtained as the result of illegal police conduct,
not only should that evidence be suppressed, but all
evidence that is the fruit of that unlawful conduct should
be suppressed. Only evidence discovered as a result of
unconstitutional conduct constitutes fruit of the poisonous
tree. This limitation on the fruit of the poisonous tree
doctrine is known as the independent source rule, which
applies when a later, lawful seizure is genuinely
independent of an earlier, tainted one. Under such
circumstances, the independent source rule provides that
evidence obtained illegally should not be suppressed if it is
later acquired pursuant to a constitutionally valid search
or seizure.
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Opinion of the Court
State v. McKinney, 361 N.C. 53, 58, 637 S.E.2d 868, 872 (2006) (citations, quotation
marks, and brackets omitted).
Here, Detective Hill noticed the smell of alcohol on defendant’s breath before
he took his license and directed defendant to remain where he was, but he did not yet
have any evidence to indicate probable cause to believe that defendant had driven
while impaired. It was only after defendant’s statement admitting that he had driven
the vehicle that Detective Hill had defendant complete the roadside tests and later
executed the warrantless blood draw. No evidence presented to the trial court
indicates a constitutional independent source for the warrantless blood draw.
Accordingly, we conclude that evidence of the blood test result was fruit of the
poisonous tree and should have been be excluded.
III. Motion to Dismiss
Finally, defendant argues that the trial court erred in denying his motion to
dismiss the impaired driving charge at the close of the State’s evidence and at the
close of all evidence because the State failed to present substantial independent
circumstantial or direct evidence -- other than defendant’s statement -- to establish
that defendant was operating a motor vehicle at any relevant time. Since we remand
this case for a new trial based on the suppression issues, we need not address this
remaining issue further on appeal.
Conclusion
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Opinion of the Court
Accordingly, we hold that the trial court erred by denying defendant’s motions
to suppress his statement and the results of the warrantless blood test. We reverse
and remand for a new trial consistent with this opinion.
REVERSED AND REMANDED FOR NEW TRIAL.
Chief Judge McGEE and Judge INMAN concur.
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