               IN THE SUPREME COURT OF NORTH CAROLINA

                                     No. 65A17-2

                                Filed 16 August 2019

 STATE OF NORTH CAROLINA

              v.
 JEFFREY ROBERT PARISI



      Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of

the Court of Appeals, 817 S.E.2d 228 (N.C. Ct. App. 2018), reversing and remanding

orders entered on 13 January 2016 by Judge Michael D. Duncan in Superior Court,

Wilkes County, and on 11 March 2016 by Judge Robert J. Crumpton in District Court,

Wilkes County. Heard in the Supreme Court on 4 April 2019.


      Joshua H. Stein, Attorney General, by John W. Congleton, Assistant Attorney
      General, for the State.

      Glenn Gerding, Appellate Defender, by Michele A. Goldman, Assistant
      Appellate Defender, for defendant-appellant.


      ERVIN, Justice.


      The issue before the Court in this case is whether the trial courts properly

determined that a motion to suppress filed by defendant Jeffrey Robert Parisi should

be allowed on the grounds that the investigating officer lacked probable cause to place

defendant under arrest for driving while impaired. After careful consideration of the

record in light of the applicable law, we hold that the trial courts’ findings of fact

failed to support their legal conclusion that the investigating officer lacked the
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                                   Opinion of the Court



probable cause needed to place defendant under arrest for impaired driving. As a

result, we affirm the Court of Appeals’ decision to reverse the trial courts’ suppression

orders and remand this case to the trial courts for further proceedings.

      At approximately 11:30 p.m. on 1 April 2014, Officer Greg Anderson of the

Wilkesboro Police Department was operating a checkpoint on Old 421 Road. At that

time, Officer Anderson observed defendant drive up to the checkpoint and heard what

he believed to be an argument among the vehicle’s occupants. Upon approaching the

driver’s side window and shining his flashlight into the vehicle, Officer Anderson

observed an open box of beer on the passenger’s side floorboard. However, Officer

Anderson did not observe any open container of alcohol in the vehicle. In addition,

Officer Anderson detected an odor of alcohol and noticed that defendant’s eyes were

glassy and watery. At that point, Officer Anderson asked defendant to pull to the

side of the road and step out of the vehicle. After defendant complied with this

instruction, Officer Anderson confirmed that a moderate odor of alcohol emanated

from defendant’s person rather than from the interior of the vehicle. When Officer

Anderson asked defendant if he had consumed any alcohol, defendant replied that he

had drunk three beers earlier in the evening.

      At that point, Officer Anderson requested that defendant submit to several

field sobriety tests.   First, Officer Anderson administered the horizontal gaze

nystagmus test to defendant. In the course of administering the horizontal gaze

nystagmus test, Officer Anderson observed that defendant exhibited six clues


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indicating impairment. Secondly, Officer Anderson had defendant perform a walk

and turn test, during which defendant was required to take nine heel-to-toe steps

down a line, turn around, and take nine similar steps in the opposite direction. In

performing the walk and turn test, defendant missed the fourth and fifth steps while

walking in the first direction and the third and fourth steps while returning. In

Officer Anderson’s view, these missed steps, taken collectively, constituted an

additional clue indicating impairment. Finally, Officer Anderson administered the

one leg stand test to defendant. As defendant performed this test, Officer Anderson

noticed that he used his arms for balance and swayed, which Officer Anderson treated

as tantamount to two clues indicating impairment. At that point, Officer Anderson

formed an opinion that defendant had consumed a sufficient amount of alcohol to

appreciably impair his mental and physical faculties.

      Subsequently, Officer Anderson issued a citation charging defendant with

driving while subject to an impairing substance in violation of N.C.G.S. § 20-138.1.

The charge against defendant came on for trial before Judge Robert J. Crumpton at

the 17 June 2015 criminal session of the District Court, Wilkes County. Prior to trial,

defendant made a motion to suppress the evidence obtained as a result of his arrest

on the grounds that Officer Anderson lacked the necessary probable cause to take

him into custody. On 23 September 2015, Judge Crumpton entered a Preliminary

Order of Dismissal in which he determined that defendant’s suppression motion




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should be granted.1 On 23 September 2015, the State noted an appeal from Judge

Crumpton’s preliminary order to the Superior Court, Wilkes County.

      The State’s appeal came on for hearing before Judge Michael D. Duncan at the

9 November 2015 criminal session of the Superior Court, Wilkes County. On 13

January 2016, Judge Duncan entered an Order Granting Motion to Suppress and

Motion to Dismiss2 in which he granted defendant’s suppression motion and ordered

that the charge that had been lodged against defendant be dismissed. On 11 March

2016, Judge Crumpton entered a Final Order Granting Motion to Suppress and

Motion to Dismiss in which he granted defendant’s motion to suppress the evidence

obtained as a result of his arrest and ordered “that the charge against [d]efendant be

dismissed.” On the same date, the State noted an appeal from Judge Crumpton’s

final order to the Superior Court, Wilkes County. On 6 April 2016, Judge Duncan

entered an Order of Dismissal Affirmation affirming Judge Crumpton’s “final order

suppressing the arrest of the defendant and dismissing the charge of driving while

impaired.” The State noted an appeal to the Court of Appeals from Judge Duncan’s

order affirming Judge Crumpton’s final order granting defendant’s suppression




      1 Judge Crumpton’s preliminary order did not dismiss the driving while impaired
charge that had been lodged against defendant.

      2  Judge Duncan “[g]rant[ed defendant’s m]otion to [s]uppress and [m]otion to
[d]ismiss” even though defendant had never moved that the case be dismissed and even
though Judge Crumpton did not order that the driving while impaired charge that had been
lodged against defendant be dismissed.

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motion and dismissing the driving while impaired charge that had been lodged

against defendant.

      In seeking relief from the orders entered by Judge Crumpton and Judge

Duncan before the Court of Appeals, the State argued that the trial courts had erred

by finding that Officer Anderson lacked probable cause to arrest defendant for driving

while impaired and ordering that the driving while impaired charge that had been

lodged against defendant be dismissed. On 7 February 2017, the Court of Appeals

filed an opinion dismissing the State’s appeal from Judge Crumpton’s order granting

defendant’s suppression motion on the grounds that the State had no right to appeal

the final order granting defendant’s suppression motion, vacating the trial court

orders requiring that the driving while impaired charge that had been lodged against

defendant be dismissed, and remanding this case to the Superior Court for further

remand to the District Court for further proceedings. State v. Parisi, 796 S.E.2d 524,

529 (N.C. Ct. App. 2017), disc. review denied, 369 N.C. 751, 799 S.E.2d 873 (2017).

      On 28 July 2017, the State filed a petition requesting the Court of Appeals to

issue a writ of certiorari authorizing review of Judge Duncan’s Order Granting

Motion to Suppress and Motion to Dismiss and Judge Crumpton’s Final Order

Granting Motion to Suppress and Motion to Dismiss. State v. Parisi, 817 S.E.2d 228,

229 (N.C. Ct. App. 2018). On 16 August 2017, the Court of Appeals granted the

State’s certiorari petition. Id., 817 S.E.2d at 229. In seeking relief from the trial

courts’ orders before the Court of Appeals on this occasion, the State argued that


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Judge Crumpton and Judge Duncan had erred by granting defendant’s suppression

motion on the grounds that, in the State’s view, Officer Anderson had probable cause

to arrest defendant for impaired driving.

      In a divided opinion reversing the trial courts’ orders and remanding this case

to the trial courts for further proceedings, the Court of Appeals majority determined

that the facts at issue in this case resembled those at issue in State v. Townsend, 236

N.C. App. 456, 762 S.E.2d 898 (2014), in which the Court of Appeals had held that an

officer had probable cause to arrest a defendant for impaired driving given that the

defendant, who had been stopped at a checkpoint, “had bloodshot eyes and a moderate

odor of alcohol about his breath,” exhibited multiple clues indicating impairment

during the performance of three field sobriety tests, and produced positive results on

two alco-sensor tests. Parisi, 817 S.E.2d at 230 (citing Townsend, 236 N.C. App. at

465, 762 S.E.2d at 905. Although the Court of Appeals noted that “no alco-sensor test

[had been] administered in the instant case, defendant himself volunteered the

statement that he had been drinking earlier in the evening.” Parisi, 817 S.E.2d at

230. In addition, the Court of Appeals pointed out that, “while the odor of alcohol,

standing alone, is not evidence of impairment, the ‘[f]act that a motorist has been

drinking, when considered in connection with . . . other conduct indicating an

impairment of physical or mental faculties, is sufficient prima facie to show a

violation of [N.C.]G.S. [§] 20-138.1.’ ” Parisi, 817 S.E.2d at 230–31 (quoting Atkins v.

Moye, 277 N.C. 179, 185, 176 S.E.2d 789, 794 (1970)). On the other hand, the Court


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of Appeals was not persuaded by the trial courts’ reliance upon the Court of Appeals’

own unpublished opinion in State v. Sewell, 239 N.C. App. 132, 768 S.E.2d 650 (2015),

given that “it is not binding upon the courts of this State” and is “easily distinguished

from the instant case.” Id., 817 S.E.2d at 231 (citing Sewell, 239 N.C. App. 132, 768

S.E.2d 650). As a result, the Court of Appeals concluded that “the facts, as supported

by the evidence and as found by the district and superior courts, supported a

conclusion that Officer Anderson had probable cause to stop and cite defendant for

driving while impaired,” so that “the trial court erred in granting defendant’s motion

to suppress the stop.” Id., 817 S.E.2d at 231

      In dissenting from the Court of Appeals’ decision, Judge Robert N. Hunter, Jr.,

expressed the belief that the uncontested facts supported the legal conclusion that

Officer Anderson lacked the probable cause necessary to support his decision to place

defendant under arrest. Id., 817 S.E.2d at 231–32. More specifically, the dissenting

judge asserted that the trial courts’ findings in this case, while “analogous to some of

the findings of fact in Townsend,” differed from those findings in certain critical ways.

Id., 817 S.E.2d at 231. For example, the dissenting judge pointed out that, in this

case, Officer Anderson “did not administer an alco-sensor test” and that the trial

courts made no “findings [about] exactly when [d]efendant drank in the night.” Id.,

817 S.E.2d at 232. In addition, unlike the situation at issue in Townsend, “the trial

courts found no facts about Officer Anderson’s experience” and merely stated that

Officer Anderson “found clues of impairment” rather than making specific findings


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concerning the number of clues indicating impairment that the officer detected in

administering the horizontal gaze nystagmus test. Id., 817 S.E.2d at 232. The

dissenting judge further noted that the “trial courts found that [d]efendant did not

slur his speech, did not drive unlawfully or ‘bad[ly,]’ or appear ‘unsteady’ on his feet.”

Id., 817 S.E.2d at 232.       As a result, the dissenting judge concluded that the

“uncontested findings of fact support the trial court’s conclusions that Officer

Anderson lacked probable cause to arrest [d]efendant” for driving while impaired.

Id., 817 S.E.2d at 232. Defendant noted an appeal to this Court based upon the

dissenting judge’s opinion.

      In seeking to persuade us to overturn the Court of Appeals’ decision, defendant

begins by asserting that the Court of Appeals had erroneously “reweighed the

evidence” instead of “determining whether the competent, unchallenged factual

findings supported the trial courts’ legal conclusions.” According to defendant, the

Court of Appeals’ “misapplication of the standard of review” led it to reach a different

conclusion than the trial courts despite the fact that “the trial courts’ competent

factual findings supported their legal conclusions” and even though “there was no

identified error of law committed by the trial courts in reaching their conclusions.”

According to defendant, this Court’s decision in State v. Nicholson establishes that

“the de novo portion of an appellate court’s review of an order granting or denying a

motion to suppress relates to the assessment of whether the trial court’s factual

findings support its legal conclusions and whether the trial court employed the


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correct legal standard,” citing State v. Nicholson, 371 N.C. 284, 288, 813 S.E.2d 840,

843 (2018). Although the Court of Appeals “acknowledged the correct standard of

review,” defendant contends that it “applied a non-deferential sufficiency test,” with

this alleged error being reflected in its statement that, “[w]here the State presented

sufficient evidence that a law enforcement officer had probable cause to stop

defendant, the trial court erred in granting defendant’s motion to suppress the stop,”

citing Parisi, 817 S.E.2d at 299.

      In addition, defendant contends that the Court of Appeals erroneously relied

upon Atkins, 277 N.C. at 184, 176 S.E.2d at 793, and State v. Hewitt, 263 N.C. 759,

140 S.E.2d 241 (1965), in addressing the validity of the State’s challenge to the trial

courts’ suppression orders. Although “Atkins and Hewitt assessed whether evidence,

viewed in a light most favorable to the proponent, warranted an issue being put to

the jury,” defendant points out that a trial judge is required “to make credibility

determinations and to weigh evidence” in determining whether to grant or deny a

suppression motion and that an appellate court is obligated “to address . . . whether

the trial court’s competent factual findings supported its legal conclusions.” The

dissenting judge, in defendant’s view, correctly applied the applicable standard of

review by focusing upon the issue of whether trial courts’ findings of fact supported

its conclusions. (citing Parisi, 817 S.E.2d at 232).

      Moreover, defendant claims that the Court of Appeals erred by overturning the

trial courts’ “unchallenged and supported factual determination” concerning whether


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defendant’s performance during the administration of the field sobriety tests

indicated impairment. In defendant’s view, “[t]he trial courts implicitly found that

[defendant’s] imperfect but passing performance on the field sobriety tests alone did

not indicate impairment,” effectively rejecting Officer Anderson’s testimony to the

contrary. In support of this assertion, defendant relies upon our decision in State v.

Bartlett, 368 N.C. 309, 311–12, 776 S.E.2d 672, 673–74 (2015), in which the testimony

of the defendant’s expert witness directly contradicted the testimony of the arresting

officer’s testimony that the defendant’s performance on a variety of field sobriety tests

indicated that the defendant was appreciably impaired. In addressing the validity of

the State’s challenge to the validity of a suppression order entered by one Superior

Court judge following a hearing held before another, this Court stated that

             Expert opinion testimony is evidence, and the two expert
             opinions in this case differed from one another on a fact
             that is essential to the probable cause determination—
             defendant’s apparent degree of impairment. Thus, a
             finding of fact, whether written or oral, was required to
             resolve this conflict.

Id. at 312, 776 S.E.2d at 674. According to defendant, Officer Anderson’s testimony

that defendant’s performance on the field sobriety tests indicated impairment was

not binding upon the trial court, which “was charged with deciding the credibility of

and weight to be given to [Officer] Anderson’s opinion testimony.” Defendant asserts

that, rather than finding that defendant was appreciably impaired, the trial court

concluded that Officer Anderson lacked probable cause and that this determination



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“implicitly incorporat[es] a factual finding that [Officer] Anderson’s opinion was not

supported by his observations and testing of [defendant].”

       In defendant’s view, the trial courts both determined that

              [t]he fact[s] and circumstances known to [Officer]
              Anderson as a result of his observations and testing of
              [d]efendant are insufficient, under the totality of the
              circumstances, to form an opinion in the mind of a
              reasonable and prudent man/officer that there was
              probable cause to believe [d]efendant had committed the
              offense of driving while impaired. 3

After acknowledging that the trial courts had labeled their respective assessments of

Officer Anderson’s testimony as conclusions of law rather than as findings of fact,

defendant contends that these conclusions were, “in effect,” factual findings “and

should be treated accordingly,” citing State ex rel. Utilities Comm. v. Eddleman, 320

N.C. 344, 352, 358 S.E.2d 339, 346 (1987). In view of the fact that Officer Anderson

merely testified that, in his opinion, defendant was appreciably impaired rather than

expressing an opinion concerning the “ultimate issue of whether probable cause

existed” and the fact that the issue of whether defendant was driving was not

contested, defendant argues that the trial court “necessarily rejected” Officer

Anderson’s testimony concerning the extent to which defendant was appreciably

impaired, quoting Bartlett at 312, 776 S.E.2d at 674 (stating that defendant’s

apparent impairment “is essential to the probable cause determination”).                  In


       3 This language, which appears in the District Court’s 23 September 2015
“Preliminary Order of Dismissal,” is virtually identical to the corresponding language in the
Superior Court’s 13 January 2016 order.

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reversing the trial courts, defendant argues that “the Court of Appeals majority

necessarily gave weight and credit to [Officer] Anderson’s opinion testimony on

impairment that both of the trial courts had rejected.”

      Furthermore, defendant contends that the Court of Appeals erred by

referencing Officer Anderson’s testimony that defendant “demonstrated six ‘clues’

indicating impairment” in light of the fact that neither trial court made a finding

concerning the number of clues indicating impairment that Officer Anderson

observed in their findings of fact. In defendant’s view, the Court of Appeals “adopted

without question [Officer] Anderson’s testimony about the number and significance

of [Horizontal Gaze Nystagmus] clues,” erroneously “engaging in its own fact finding,”

and “rejecting the trial courts’ unchallenged and amply supported factual findings as

to whether [defendant] appeared appreciably impaired.”

      Finally, defendant contends that “[t]he trial courts’ unchallenged and

supported findings amply supported the courts’ legal conclusion that [Officer]

Anderson lacked probable cause to arrest [defendant] for driving while impaired.” In

support of this contention, defendant points to the trial courts’ findings that

defendant was steady on his feet, cooperative, respectful, able to listen, able to follow

instructions and answer questions, and exhibited no signs of bad driving or slurred

speech. According to defendant, his own “slightly imperfect, but passing performance

on the walk-and-turn and one-leg-stand field sobriety tests,” in conjunction with the

clues indicating impairment that Officer Anderson had noted while administering the


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                                   Opinion of the Court



horizontal gaze nystagmus test, provided the only evidence of defendant’s

impairment. According to defendant, this “minimal evidence” of impairment, when

compared to the “substantial evidence” contained in the record tending to show that

defendant was not impaired, establishes that the State had failed to show that the

challenged suppression orders were not supported by the trial courts’ “competent and

unchallenged factual findings.”

      Defendant notes that “[p]robable cause for an arrest has been defined to be a

reasonable ground of suspicion, supported by circumstances sufficiently strong in

themselves to warrant a cautious man in believing the accused to be guilty,” quoting

State v. Streeter, 283 N.C. 203, 207, 195 S.E.2d 502, 505 (1973).         According to

defendant, “mere alcohol consumption and minimal impairment” did not suffice to

establish defendant’s guilt of driving while impaired, quoting State v. Harrington, 78

N.C. App. 39, 45, 336 S.E.2d 852, 855 (1985).

      According to defendant, the Court of Appeals’ reliance upon its own opinion in

Townsend was misplaced given “the limited role that precedent plays in a totality-of-

the-circumstances test,” citing State v. Williams, 366 N.C. 110, 118, 726 S.E.2d 161,

168, 201 (2012), and that Townsend involved an appeal from the denial, rather than

the allowance, of a motion to suppress. On the contrary, defendant insists that other

recent Court of Appeals’ opinions are more factually and procedurally instructive for

purposes of deciding this case, citing State v. Overocker, 236 N.C. App. 423, 762 S.E.2d

921 (2014); and then, State v. Lindsey, 249 N.C. App. 416, 791 S.E.2d 496 (2016); and


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then, State v. Sewell, 239 N.C. App. 132, 768 S.E.2d 650 (2015)). In defendant’s view,

Overocker should guide our analysis in this case given the “deference” that the Court

of Appeals afforded to the trial court’s suppression order by declining to “weigh the

evidence and assess its credibility in a manner different from that of the trial court,”

quoting Overocker, 236 N.C. App. at 433–34, 762 S.E.2d at 928. As a result, since

“the Court of Appeals abandoned the restraint required by the standard of review and

demonstrated in its decisions in Townsend, Overocker, Lindsey, and Sewell,” its

decision in this case should be reversed.

      In urging us to uphold the Court of Appeals’ decision in this case, the State

argues that the Court of Appeals’ determination that the probable cause necessary to

support defendant’s arrest was present in this case did not rest solely upon the trial

courts’ findings that Officer Anderson detected an odor of alcohol emanating from

defendant. Instead, the State contends that the Court of Appeals’ decision rested

upon findings of fact about

             [d]efendant driving the vehicle, a disturbance inside the
             vehicle as it approached the checkpoint, an odor of alcohol
             coming from the vehicle, an open box of alcoholic beverages
             in the vehicle, a moderate odor of alcohol coming from
             defendant’s person, an admission by defendant of drinking
             three [ ] beers previously in the evening, defendant missing
             steps on the walk and turn test, defendant swaying and
             using his arms for balance on the one leg stand test and
             Officer Anderson observing multiple additional clues of
             impairment during the Horizontal Gaze Nystagmus test.

Although the State acknowledges that this Court has held that an odor of alcohol,

“standing alone, is not evidence that [a driver] is under the influence of an intoxicant,”

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citing Atkins, 277 N.C. at 185, 176 S.E.2d at 793, the State also notes that “the ‘[f]act

that a motorist has been drinking, when considered in connection with faulty driving

. . . or other conduct indicating an impairment of physical or mental faculties, is

sufficient prima facie to show a violation of [N.C.]G.S. § 20–138.1,’ ” quoting Atkins,

at 185, 176 S.E.2d at 794. In addition to the presence of a moderate odor of alcohol,

the trial courts found the existence of multiple signs of impairment in this case,

including the fact that defendant admitted to having consumed three beers, that

defendant missed steps on the walk and turn test, that defendant swayed during the

one leg stand test, and that defendant displayed multiple clues indicating

impairment while performing the horizontal gaze nystagmus test.

      The State contends that the Court of Appeals properly applied this Court’s

decisions in Atkins and Hewitt in conducting a de novo review of the trial courts’

conclusions of law. In the State’s view, the Court of Appeals’ reliance upon Townsend

was appropriate given that, “in this case[,] there existed almost all of the same facts

and circumstances that the Court of Appeals found sufficient to support a finding of

probable cause in Townsend,” citing Townsend, 236 N.C. App. 456, 762 S.E.2d 898.

On the other hand, the State asserts that the trial courts’ reliance upon the Court of

Appeals’ unpublished decision in Sewell was “misplaced” given that opinion’s

unpublished status and the existence of material factual distinctions between the two

cases, citing Sewell, 239 N.C. App. 132, 768 S.E.2d 650.




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      The State challenges the validity of defendant’s assertion that the trial courts

failed to find Officer Anderson’s testimony credible. According to the State, the trial

courts’ findings of fact were “completely consistent with Officer Anderson’s testimony

and observations.” For that reason, the State contends that the Court of Appeals

correctly held that the trial courts’ uncontested findings of fact failed to support their

legal conclusion that Officer Anderson lacked probable cause to arrest defendant for

impaired driving.

      Finally, the State argues that the Court of Appeals applied the correct

standard of review in overturning the trial courts’ orders. Instead of utilizing a

sufficiency of the evidence standard, the State asserts that the Court of Appeals

“expressly cited the correct standard of review in its opinion.” According to the State,

the Court of Appeals properly cited Atkins and Hewitt in determining whether the

trial courts’ legal conclusions were both supported by the findings of fact and legally

correct. The State argues that, in conducting de novo review, an appellate court must

analyze a trial court’s probable cause determination in light of the totality of the

circumstances and that determining whether the trial court had applied the proper

legal principles to the relevant facts would be impossible if appellate courts were

precluded from considering all of the circumstances upon which the trial court relied

in coming to its legal conclusion. For that reason, the State contends that the Court

of Appeals correctly analyzed the validity of the trial courts’ probable cause

determination using a de novo standard of review that considered the totality of the


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circumstances reflected in the trial courts’ findings of fact. As a result, the State

urges this Court to affirm the Court of Appeals’ decision.

      As we have stated on many occasions, this Court reviews a trial court’s order

granting or denying a defendant’s suppression motion by determining “whether the

trial court’s ‘underlying findings of fact are supported by competent evidence . . . and

whether those factual findings in turn support the [trial court’s] ultimate conclusions

of law.’ ” State v. Bullock, 370 N.C. 256, 258, 805 S.E.2d 671, 674 (2017) (alterations

in original) (quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982));

see also, e.g., State v. Biber, 365 N.C. 162, 167–68, 712 S.E.2d 874, 878 (2011) (citing

State v. Brooks, 337 N.C. 132, 140–41, 446 S.E.2d 579, 585 (1994)). In accordance

with the applicable standard of review, the trial court’s findings of fact “are conclusive

on appeal if supported by competent evidence, even if the evidence is conflicting.”

State v. Eason, 336 N.C. 730, 745, 445 S.E.2d 917, 926 (1994); see also Cooke, 306

N.C. at 134, 291 S.E.2d at 619; State v. Saldierna, 371 N.C. 407. 421, 817 S.E.2d 174,

183 (N.C. 2018), cert. denied, 139 S. Ct. 1279, 203 L. Ed. 2d 290 (2019). On the other

hand, however, “[c]onclusions of law are reviewed de novo and are subject to full

review,” Biber, 365 N.C. at 168, 712 S.E.2d at 878 (citing State v. McCollum, 334 N.C.

208, 237, 433 S.E.2d 144, 160 (1993) (citation omitted)), with an appellate court being

allowed to “consider[ ] the matter anew and freely substitute[ ] its own judgment’ for

that of the lower tribunal.” Id. at 168, 712 S.E.2d at 878 (quoting State v. Williams,

362 N.C. 628, 632–33, 669 S.E.2d 290, 294 (2008)). After carefully reviewing the trial


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courts’ suppression orders, we hold that the trial courts’ factual findings fail to

support their legal conclusion that Officer Anderson lacked probable cause to arrest

defendant for driving while impaired in violation of N.C.G.S. § 20-138.1.

      As the parties agree, the ultimate issue raised by defendant’s suppression

motion is whether Officer Anderson had probable cause to place defendant under

arrest for driving while subject to an impairing substance in violation of N.C.G.S.

§ 20-38.1. Section 20-138.1 provides, in pertinent part, that “[a] person commits the

offense of impaired driving if he drives any vehicle upon any highway, any street, or

any public vehicular area within this State . . . [w]hile under the influence of an

impairing substance.” N.C.G.S. § 20-138.1(a)(1). “[A] person is under the influence

of intoxicating liquor or narcotic drugs, within the meaning and intent of the statute,

when he has drunk a sufficient quantity of intoxicating beverages or taken a

sufficient amount of narcotic drugs to cause him to lose the normal control of his

bodily or mental faculties, or both, to such an extent that there is an appreciable

impairment of either or both of those faculties.” State v. Carroll, 226 N.C. 237, 241,

37 S.E.2d 688, 691 (1946). According to well-established federal and state law,

probable cause is defined as “those facts and circumstances within an officer’s

knowledge and of which he had reasonably trustworthy information which are

sufficient to warrant a prudent man in believing that the suspect had committed or

was committing an offense.” State v. Williams, 314 N.C. 337, 343, 333 S.E.2d 708,

713 (1985) (citing, first, Beck v. Ohio, 379 U.S. 89, 85 S. Ct. 223, 13 L. Ed. 2d 142


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(1964); then, State v. Zuniga, 312 N.C. 251, 322 S.E.2d 140 (1984)).          “Whether

probable cause exists to justify an arrest depends on the ‘totality of the circumstances’

present in each case.” State v. Sanders, 327 N.C. 319, 339, 395 S.E.2d 412, 425 (1990)

(citations omitted). Thus, Officer Anderson had probable cause to arrest defendant

for impaired driving in the event that a prudent officer in his position would

reasonably have believed defendant’s mental or physical faculties to have been

appreciably impaired as the result of the consumption of an intoxicant.

      “The fact that a motorist has been drinking, when considered in connection

with faulty driving such as following an irregular course on the highway or other

conduct indicating an impairment of physical or mental faculties, is sufficient prima

facie to show [the offense of impaired driving].” Hewitt, 263 N.C. at 764, 140 S.E.2d

at 244 (citing State v. Gurley, 257 N.C. 270, 125 S.E.2d 445 (1962)). In Atkins, for

example, we held that evidence tending to show that a broken pint container had

been found in the driver’s vehicle, that an odor of alcohol could be detected on both

the driver’s breath and in his vehicle, and that the driver had failed to take any action

to avoid a collision with another vehicle sufficed to support a conclusion that

plaintiff’s faculties had been appreciably impaired by the consumption of an alcoholic

beverage. Atkins, 365 N.C. at 185, 176 S.E.2d at 794; see State v. Rich, 351 N.C. 386,

399, 527 S.E.2d 299, 306 (2000). The Court of Appeals has reached similar results in

numerous decisions, including Townsend, 236 N.C. App. at 465, 762 S.E.2d at 905

(upholding the denial of a defendant’s suppression motion based upon the fact that


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                                   Opinion of the Court



the defendant had bloodshot eyes, emitted an odor of alcohol, exhibited clues

indicating intoxication on three field sobriety tests, and produced positive results on

two alco-sensor tests); Steinkrause v. Tatum, 201 N.C. App. 289, 295, 689 S.E.2d 379,

383 (2009), (holding that probable cause to believe that a driver was guilty of impaired

driving existed in light of fact that an odor of alcohol was detected on the driver’s

person and the driver was involved in a one-vehicle accident), aff’d per curiam, 364

N.C. 419, 700 S.E.2d 222 (2010); State v. Tappe, 139 N.C. App. 33, 38, 533 S.E.2d 262,

265 (2000) (holding that the probable cause needed to support the defendant’s arrest

existed when an officer detected a strong odor of alcohol on the defendant’s breath,

when the defendant’s eyes were glassy and watery, and when the vehicle being

operated by the defendant crossed the center line of the street or highway upon which

it was travelling); and Rock v. Hiatt, 103 N.C. App. 578, 584–85, 406 S.E.2d 638, 642–

43 (1991) (holding that an officer had reasonable grounds to believe that an individual

was guilty of impaired driving based upon the fact that the officer observed the

driver’s vehicle leave a hotel parking lot at an excessive rate of speed at the

approximate time at which the hotel’s lounge closed, detected a strong odor of an

intoxicating beverage on the driver’s breath after pulling him over, and noticed that

the driver’s speech was slurred, his eyes were glassy, and he was swaying unsteadily

on his feet). As a result, Officer Anderson would have had probable cause to place

defendant under arrest for driving while impaired in the event that, based upon an

analysis of the totality of the circumstances, he reasonably believed that defendant


                                          -20-
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                                 Opinion of the Court



had consumed alcoholic beverages and that defendant had driven in a faulty manner

or provided other indicia of impairment.

     In his preliminary order, Judge Crumpton found as fact that

            1.     Defendant was driving a motor vehicle in
            Wilkesboro on April 1, 2014, when he entered a checking
            station being worked by Wilkesboro Police Department.

            2.    [Officer] Anderson approached the driver after he
            entered the checkpoint.

            3.    [Officer] Anderson did not observe any unlawful or
            bad driving by the defendant.

            4.     [Officer] Anderson asked to see [d]efendant’s driver’s
            license and [d]efendant provided the license to him.

            5.    [Officer] Anderson        noticed     [d]efendant’s   eyes
            appeared glassy.

            6.    [Officer] Anderson noticed an open container of
            alcohol in the passenger area of the motor vehicle.

            7.     [Officer] Anderson asked [d]efendant to exit the
            vehicle, which [d]efendant did.

            8.    [Officer] Anderson inquired if [d]efendant had
            anything to drink, and [d]efendant stated that he had
            drunk three beers earlier in the evening.

            9.     [Officer] Anderson administered the walk-and-turn
            field sobriety test.

            10.   Defendant missed one step on the way down and one
            step on the way back while performing the test.

            11.    [Officer] Anderson administered the one-leg stand
            field sobriety test.

            12.   Defendant swayed and used his arms for balance
            during the performance of the test.


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                                 Opinion of the Court



             13.    [Officer] Anderson did not observe any other
             indicators of impairment during his encounter with
             [d]efendant, including any evidence from [d]efendant’s
             speech.

             14.    [Officer] Anderson formed the opinion that
             [d]efendant has consumed a sufficient amount of
             impairing substance so as to appreciably impair
             [d]efendant’s physical and/or mental faculties.

             15.   [Officer] Anderson formed the opinion that the
             impairing substance was alcohol.

             16.   [Officer] Anderson placed [d]efendant under arrest.

After making many of the same factual findings, Judge Duncan made a number of

additional findings on appeal that were included in Judge Crumpton’s final order,

including the fact that Officer Anderson observed a “disturbance” between the

defendant and other occupants of the vehicle as he approached it; that, although

Officer Anderson noticed an open box of alcoholic beverages in the passenger-side

floorboard, he did not observe any open containers of alcoholic beverages in the

vehicle; that Officer Anderson observed an odor of alcohol emanating from the vehicle

and a moderate odor of alcohol emanating from defendant’s person; that defendant’s

eyes appeared to be red; and that Officer Anderson found clues indicating impairment

while administering the horizontal gaze nystagmus test.

      Although the findings of fact made in the trial courts’ orders have adequate

evidentiary support, they do not support the trial courts’ conclusions that Officer

Anderson lacked the probable cause needed to justify defendant’s arrest. As the

Court of Appeals correctly noted, the trial courts’ findings reflect that “Officer

                                        -22-
                                   STATE V. PARISI

                                  Opinion of the Court



Anderson was presented with the odor of alcohol, defendant’s own admission of

drinking, and multiple indicators on field sobriety tests demonstrating impairment.”

Parisi, 817 S.E.2d at 230–31. In view of the unchallenged findings that defendant

had been driving, that defendant admitted having consumed three beers, that

defendant’s eyes were red and glassy, that a moderate odor of alcohol emanated from

defendant’s person, and that defendant exhibited multiple indicia of impairment

while performing various sobriety tests, we have no hesitation in concluding that the

Court of Appeals correctly determined that the trial courts’ findings established that

Officer Anderson had probable cause to arrest defendant for impaired driving. See

State v. Harris, 279 N.C. 307, 311, 182 S.E.2d 364, 367 (1971) (citing 5 Am. Jur.2d

Arrest § 44 (1962)). As a result, we hold that the Court of Appeals did not err by

reversing the trial courts’ suppression orders.

      In seeking to persuade us to reach a different result, defendant argues that the

Court of Appeals’ decision to reverse the trial courts’ suppression orders relied upon

the erroneous use of a “non-deferential sufficiency test,” with this contention resting

upon the majority’s statement, in the introductory portion of its opinion, that,

“[w]here the State presented sufficient evidence that a law enforcement officer had

probable cause to stop defendant, the trial court erred in granting defendant’s motion

to suppress the stop.” Parisi, 817 S.E.2d at 229. Although the language upon which

defendant relies in support of this contention could have been more artfully drafted,

we do not believe that it enunciates the standard of review that the Court of Appeals


                                         -23-
                                    STATE V. PARISI

                                   Opinion of the Court



utilized in reviewing the State’s challenge to the trial courts’ suppression orders. On

the contrary, the Court Appeals correctly stated the applicable standard of review at

the very beginning, Parisi, 817 S.E.2d at 230 (stating that “[o]ur review of a trial

court’s denial of a motion to suppress is ‘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’ ” (quoting Cooke, 306

N.C. at 134, 291 S.E.2d at 619 (1982), and that “ [t]he trial court’s conclusions of law

. . . are fully reviewable on appeal,” (quoting State v. Hughes, 353 N.C. 200, 208, 539

S.E.2d 625, 631 (2000))), and in the conclusion of its opinion, Parisi, 817 S.E.2d at

231 (stating that “it seems clear that the facts, as supported by the evidence and as

found by the district and superior courts, supported a conclusion that Officer

Anderson had probable cause to stop and cite defendant for driving while impaired”),

and analyzed the relevant factual findings in accordance with the applicable standard

of review. As a result, we are unable to agree with defendant that the Court of

Appeals failed to apply the applicable statute of review.

      In addition, defendant argues that the Court of Appeals misapplied the

applicable standard of review as well. In defendant’s view, the trial courts “implicitly

found” that defendant was not appreciably impaired and that this “unchallenged and

supported factual determination” should be deemed binding for purposes of appellate

review, citing Bartlett, 368 N.C. at 312, 776 S.E.2d at 674. In essence, defendant


                                          -24-
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                                   Opinion of the Court



argues that, by determining that Officer Anderson lacked probable cause to place

defendant under arrest, the trial courts implicitly rejected Officer Anderson’s opinion

that defendant was appreciably impaired; that, by making this determination, the

trial courts effectively found as a fact that Officer Anderson lacked probable cause to

place defendant under arrest; and that the Court of Appeals erred by failing to defer

to this implicit finding given that it had the requisite evidentiary support.

      As we understand it, defendant’s argument rests upon the assumption that the

trial courts implicitly found that defendant’s mental and physical faculties were not

appreciably impaired and a contention that this implicit finding is binding upon the

appellate courts in the event that it has sufficient evidentiary support. To be sure,

this Court has held that “only a material conflict in the evidence—one that potentially

affects the outcome of the suppression motion—must be resolved by explicit factual

findings that show the basis for the trial court’s ruling,” Bartlett, 368 N.C. at 312, 776

S.E.2d at 674 (citing, first State v. Salinas, 366 N.C. 119, 123–24, 729 S.E.2d 63, 66

(2012); then, State v. Ladd, 308 N.C. 272, 278, 302 S.E.2d 164, 168 (1983)), and that,

“[w]hen there is no conflict in the evidence, the trial court’s findings can be inferred

from its decision,” id. at 312, 776 S.E.2d at 674 (citing State v. Munsey, 342 N.C. 882,

885, 467 S.E.2d 425, 427 (1996)). However, this principle does not justify a decision

in defendant’s favor in the present instance.

      First, and perhaps most importantly, the record evidence in this case was not,

at least in our opinion, in conflict in the manner contemplated by the Court in the


                                          -25-
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                                    Opinion of the Court



decisions cited in the preceding paragraph. Instead, as we have already noted, the

evidence contained in the present record, which consisted of testimony from Officer

Anderson concerning his observations of defendant’s condition and his performance

on certain field sobriety tests, showed that defendant had a moderate odor of alcohol

about his person, that defendant’s eyes were red and glassy, that defendant had

admitted having consumed three beers earlier that evening, and that defendant

exhibited a number of clues indicating impairment while performing the walk-and-

turn test, one-leg stand test, and the horizontal gaze nystagmus test.4 As we have

already noted, these facts, all of which are reflected in the trial courts’ findings,

establish, as a matter of law, that defendant had consumed alcohol on the evening in

question and that his faculties were appreciably impaired, albeit not completely

obliterated, on the evening in question. As a result, rather than having made an

implicit factual finding that defendant was not appreciably impaired, the trial courts

made explicit findings of fact establishing that the appreciable impairment needed to

support defendant’s arrest in this case did, in fact, exist before incorrectly concluding

as a matter of law that no probable cause for defendant’s arrest existed.

       Secondly, this Court has clearly stated that “[f]indings of fact are statements

of what happened in space and time,” State ex rel. Utilities Comm’n v. Eddleman, 320

N.C. 344, 351, 358 S.E.2d 339, 346 (1987), while conclusions of law “state[ ] the legal


       Interestingly, the trial courts, in finding that Officer Anderson had not “observe[d]
       4

any other indicators of impairment” aside from these sobriety test results, essentially
acknowledged that these test results constituted “indications of impairment.”

                                           -26-
                                    STATE V. PARISI

                                   Opinion of the Court



basis upon which [a] defendant’s liability may be predicated under the applicable

statutes,” Coble v. Coble, 300 N.C. 708, 713, 268 S.E.2d 185, 189 (1980) (holding that

the trial court’s “finding of fact” that the plaintiff needed financial assistance for the

support of her children and that the defendant was capable of providing such

assistance was, in actuality, a conclusion of law). See also State v. McFarland, 234

N.C. App. 274, 284, 758 S.E.2d 457, 465 (2014) (holding that “a conclusion of law

requires ‘the exercise of judgment’ in making a determination, ‘or the application of

legal principles’ to the facts found”) (quoting Sheffer v. Rardin, 208 N.C. App. 620,

624, 704 S.E.2d 32, 35 (2010)); In re Helms, 127 N.C. App. 505, 510, 491 S.E.2d 672,

675 (1997) (noting that “a determination which requires the exercise of judgment or

the application of legal principles is more appropriately a conclusion of law”).

Although the issue of whether an officer had probable cause to support a defendant’s

arrest for impaired driving exists certainly contains a factual component, the proper

resolution of that issue inherently “requires the exercise of judgment or the

application of legal principles,” In re Helms, 127 N.C. App. at 510, 491 S.E.2d at 675,

and constitutes a conclusion of law subject to de novo review rather than a finding of

fact which cannot be disturbed on appeal without a determination that none of the

evidence contained in the record supports that decision.

      According to defendant, we are precluded from reaching exactly this result by

our decision in Bartlett, 368 N.C. at 312, 776 S.E.2d at 674. Defendant’s argument,

however, rests upon a misreading of that decision. To be sure, we held in Bartlett


                                          -27-
                                    STATE V. PARISI

                                   Opinion of the Court



that a material evidentiary conflict “must be resolved by explicit factual findings that

show the basis for the trial court’s ruling.” Bartlett, 368 N.C. at 312, 776 S.E.2d at

674.   However, the material evidentiary conflict that existed in Bartlett, which

involved differing expert opinions concerning the extent, if any, to which a

defendant’s performance on certain field sobriety tests indicated impairment, simply

does not exist in this case. Id. at 312, 776 S.E.2d at 674. Although Bartlett does make

reference to “a fact that is essential to the probable cause determination—defendant’s

apparent degree of impairment,” id. at 312, 776 S.E.2d at 674, the language in

question refers to necessity for the trial court to resolve the factual conflict that

existed between the testimony of the two witnesses rather than to a determination

that the extent to which probable cause exists to support the arrest of a particular

person is a factual, rather than a legal, question. As a result, while the actual

observations made by arresting officers and the extent to which a person suspected

of driving while impaired exhibits indicia of impairment involve questions of fact that

must be resolved by findings that are subject to a sufficiency of the evidence review

on appeal, the extent, if any, to which these factual determinations do or do not

support a finding that an officer had the probable cause needed to make a particular

arrest is a conclusion of law subject to de novo review.

       Thus, for the reasons set forth above, we hold that the unchallenged facts found

by the trial courts, including those relating to defendant’s red and glassy eyes, the

presence of a moderate odor of alcohol emanating from defendant’s person,


                                          -28-
                                   STATE V. PARISI

                                  Opinion of the Court



defendant’s admission to having consumed three beers prior to driving, and

defendant’s performance on the field sobriety tests that were administered to him by

Officer Anderson suffice, as a matter of law, to support Officer Anderson’s decision to

place defendant under arrest for impaired driving. As a result, we affirm the decision

of the Court of Appeals.

      AFFIRMED.




                                         -29-
