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State v. Tabor9/7/2004
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Defendant appeals pursuant to N.C. Gen. Stat. § 15A- 979(b)(2003) from an order denying a motion to suppress. He was charged by citation with driving while impaired. From a conviction of the charge in district court, he appealed to superior court. After the court denied the motion to suppress, defendant pled guilty to the offense. The court imposed an active sentence of 120 days. The court suspended the sentence and placed defendant on probation. The plea agreement reflects that he reserved his right of appeal.
At issue is whether the arresting officer had probable cause to arrest defendant. The court's findings of fact show thefollowing: On 28 October 2000, Officer William W. Eubank of the Charlotte-Mecklenburg Police Department observed a vehicle headed southbound on Providence Road in Charlotte at a higher rate of speed than other traffic headed in that direction. The posted speed limit in that area of Providence Road is 35 miles per hour. Estimating that the speed of the vehicle was 53 miles per hour, Officer Eubank decided to stop the vehicle. As Officer Eubank approached the vehicle, he observed that it was occupied by two persons. Defendant was seated in the driver's seat. Officer Eubank asked to see defendant's driver's license and vehicle registration. Officer Eubank observed that defendant had difficulty retrieving his license. He also smelled a strong odor of alcohol emanating from the vehicle. Noticing that defendant's eyes were glassy and his movements were slow and deliberate, Officer Eubank asked defendant to step outside of the vehicle. When defendant complied with this request, Officer Eubank observed that defendant was unsteady on his feet and was leaning against the vehicle for support. Officer Eubank also smelled an odor of alcohol on defendant's person. Defendant stated that he had been drinking beer at the Carolina Panthers professional football game. Officer Eubank formed the opinion that defendant had consumed a sufficient quantity of an impairing substance which had impaired his mental and physical faculties. He arrested defendant and charged him with driving while impaired.
Based upon these findings of fact, the court concluded that Officer Eubank had reasonable suspicion to stop the vehicle andprobable cause to arrest defendant for driving while impaired in violation of N.C. Gen. Stat. § 20-138.1(2003).
Findings of fact made by a trial judge in ruling upon a motion to suppress are binding upon the appellate court if they are supported by competent evidence. State v. Brewington, 352 N.C. 489, 498, 532 S.E.2d 496, 501 (2000), cert. denied, 531 U.S. 1165, 148 S.E.2d 992 (2001). Whether these facts establish probable cause is a question of law fully reviewable on appeal. In re Gardner, 39 N.C. App. 567, 571, 251 S.E.2d 723, 726 (1979). An officer has probable cause to arrest a person if he has "'a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty[.]'" State v. Zuniga, 312 N.C. 251, 259, 322 S.E.2d 140, 145 (1984) quoting State v. Shore, 285 N.C. 328, 335, 204 S.E.2d 682, 686 (1974). This determination is based on "the practical and factual considerations of everyday life on which reasonable and prudent people act." State v. Thomas, 127 N.C. App. 431, 433, 492 S.E.2d 41, 42 (1997). It is not necessary that the offense be shown to actually have been committed, only that the officer had rea
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