                                  NO. COA13-1059

                      NORTH CAROLINA COURT OF APPEALS

                           Filed: 21 October 2014


STATE OF NORTH CAROLINA

    v.                                      Chatham County
                                            Nos. 10CRS052754-55
RONALD MICHAEL McCRARY,
     Defendant.


    Appeal by defendant from judgment entered on or about 21

March 2013 by Judge W. Osmond Smith in Chatham County Superior

Court.     Heard in the Court of Appeals 20 February 2014.


    Attorney General Roy A. Cooper, III, by Assistant Attorney
    General Catherine F. Jordan, for the State.

    Wait Law,         P.L.L.C.,    by     John     L.    Wait    for    defendant-
    appellant.


    STROUD, Judge.


    Ronald      Michael    McCrary       (“defendant”)          appeals   from   a

judgment    entered    upon    jury     verdicts    finding       him   guilty   of

driving     while   impaired      (“DWI”)    and        communicating     threats.

Defendant argues that the trial court erred by (1) denying his

motion to suppress the evidence that resulted from a warrantless

blood test; and (2) denying his motion to dismiss. We affirm the

trial court’s order denying defendant’s motion to dismiss, but,
                                          -2-
as to defendant’s motion to suppress, we remand for additional

findings of fact.

                                   I.     Background

    We will summarize the relevant facts based upon the trial

court’s findings of fact, which are not challenged by defendant.

At 6:34 p.m. on 28 December 2010, Deputy Justin Fyle of the

Chatham    County      Sheriff’s        Office    responded   to    a    report   of

suspicious activity at the home of Marshall Lindsey.                       Upon his

arrival at 7:01 p.m., Deputy Fyle observed a red Isuzu Trooper

parked in a driveway near Lindsey’s garage.

    Deputy Fyle approached the vehicle and discovered defendant

seated    in    the   driver’s   seat.          The   vehicle’s   engine   was    not

operating, and defendant appeared to be asleep.                         Deputy Fyle

attempted to get defendant’s attention, but defendant did not

respond.        Shortly thereafter, defendant began looking at his

cell phone, which was upside down, but he continued to ignore

Deputy Fyle.

    Deputy Fyle then opened the vehicle’s door to investigate

further.       When he opened the door, Deputy Fyle detected a strong

odor of alcohol and noticed that defendant’s eyes were red and

glassy.    There was a nearly empty vodka bottle in the vehicle.

Deputy Fyle administered an Alcosensor test, and the results
                                            -3-
were “so high that Deputy Fyle determined that there may be a

need for medical attention for the defendant.”

      Deputy Fyle also spoke to Lindsey, who stated that he had

witnessed       defendant      make     multiple    attempts    to    turn   into    his

driveway from the road.                  When defendant finally was able to

enter the driveway, he ran over one of Lindsey’s potted plants

and a landscape light.                Deputy Fyle observed tracks in the snow

at   the   end    of     Lindsey’s      driveway    that   were      consistent     with

Lindsey’s statement.

      Deputy      Fyle      returned       to     defendant    and     attempted      to

administer       several       field     sobriety    tests,    but    defendant     was

unable     to    stand    up    to     perform    them.    Deputy     Fyle   arrested

defendant for DWI at 7:34 p.m.                  Upon his arrest, defendant began

complaining of chest pains and requested to be taken to the

hospital.         Deputy       Fyle    contacted    emergency     medical    services

(EMS) personnel, who arrived at 7:39 p.m.                      While EMS personnel

examined defendant, Deputy Fyle determined that he would bring

defendant to the Sheriff’s Office for processing after he was

released by EMS personnel.                 However, Deputy Fyle also decided

that if defendant needed to be taken to the hospital, he would

obtain a blood sample without a warrant.
                                            -4-
       While     the     EMS    personnel    tried      to   evaluate    defendant’s

medical        condition,       defendant    was     “continually       yelling     and

uncooperative” and would not permit them to properly examine

him.       Instead, defendant requested transport to the hospital.

At   the    direction      of    his   sergeant,     Deputy    Fyle     directed    EMS

personnel       to   comply     with   defendant’s      request.        Deputy    Barry

Ryser,     a    police    officer      assisting     Deputy    Fyle,     accompanied

defendant inside the EMS vehicle, and Deputy Fyle followed them

in his patrol car.

       Defendant arrived at the hospital emergency room at 8:39

p.m.     Deputy Fyle removed defendant’s handcuffs so that he could

be examined, but defendant refused to cooperate with the medical

staff and did not consent to any medical treatment.                              He was

“extremely        belligerent,         yelling     at    officers       and   medical

personnel” and he insulted the officers as well as others.                         “The

defendant’s continued uncooperative conduct . . . led Deputy

Fyle to conclude that the defendant was intentionally delaying

the investigation.”             Prior to defendant’s discharge from medical

care, Deputy Fyle asked defendant to submit to a blood test and

informed defendant of his rights regarding a blood test at 8:51

p.m.       Defendant refused to consent to a blood test, and his

“belligerent conduct accelerated.”                 “He issued vile insults and
                                          -5-
threats to Deputy Fyle and others, including threatening to spit

on Deputy Fyle and others.”                   After emergency room personnel

concluded their examination of defendant, he was discharged at

9:13 p.m.      Therefore, Deputy Fyle decided to have defendant’s

blood drawn without a warrant.

    Deputy Fyle requested that hospital personnel assist him

with obtaining defendant’s blood sample.                      Deputy Fyle required

the assistance of the other officers and used restraints to

protect    both     the    officers     and     hospital     staff   from     defendant

while his blood was drawn at 9:16 p.m., almost 3 hours after

Lindsey’s call.       Deputy Fyle and defendant subsequently left the

hospital at 9:29 p.m. and arrived at the magistrate’s office for

further processing at 9:43 p.m.

    Defendant        was    charged      with    DWI,   possession       of    an     open

container,     assault       on     a   government      official,       communicating

threats,    resisting       a   public    officer,      and    injury    to    personal

property.     After a bench trial in Chatham County District Court,

defendant     was    found        not   guilty    of    possession      of     an     open

container and injury to personal property                      and guilty of all

other     charges.         Defendant      appealed      to    the    Chatham        County

Superior Court for a trial de novo.
                                         -6-
    On 12 September 2012, defendant filed a motion to dismiss

the charges against him, contending that the warrantless blood

draw was flagrantly unconstitutional.                 At a hearing in which the

trial    court   treated    defendant’s        motion     as   both   a    motion   to

dismiss and a motion to suppress, Deputy Fyle testified that he

called    Magistrate      Tyson    at    7:15     p.m.,    before     he     arrested

defendant, to seek his opinion about the situation.                       Deputy Fyle

also testified that he called the magistrate after defendant’s

blood draw.      Deputy Fyle further testified that he waited at the

magistrate’s office less than thirty minutes before meeting with

the magistrate.          Deputy Fyle finally testified that, at the

time, he determined that it would be unreasonable to seek a

warrant before conducting a blood draw given the circumstances.

The trial court denied defendant’s motion to dismiss.                       Beginning

18 March 2013, defendant was tried by a jury in superior court.

    On     21    March   2013,     the   jury     returned      verdicts      finding

defendant guilty of DWI and communicating threats and not guilty

of all other charges.             For the DWI offense, the trial court

sentenced defendant to an active term of six months.                         For the

communicating      threats       offense,       the    trial    court       sentenced

defendant to an active term of 120 days.                  The sentences were to
                                                -7-
be served consecutively in the North Carolina Division of Adult

Correction.          Defendant gave notice of appeal in open court.

         II.    Exigent Circumstances for a Warrantless Blood Test

    Defendant argues that the trial court erred by denying his

motion     to        suppress          the   evidence     that     resulted        from     the

warrantless          blood    test       because,      under     Missouri     v.    McNeely,

Deputy    Fyle       “had    ample       time   and    ability    to     secure    a    search

warrant” while defendant was in custody.                         See ___ U.S. ___, 185

L.Ed. 2d 696, 702 (2013). We remand for additional findings of

fact on this issue.

    In ruling upon a motion to suppress evidence, “the [trial

court] must set forth in the record [its] findings of fact and

conclusions of law.” N.C. Gen. Stat. § 15A–977(f) (2013). “[T]he

general rule is that [the trial court] should make findings of

fact to show the bases of [its] ruling.” State v. Phillips, 300

N.C. 678, 685, 268 S.E.2d 452, 457 (1980); see also State v.

Salinas,       366    N.C.    119,       123,   729    S.E.2d    63,     66   (2012).     “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.” State v. Biber, 365 N.C. 162,
                                      -8-
167-68,   712   S.E.2d   874,   878   (2011).   Conclusions   of   law   are

reviewed de novo. Id. at 168, 712 S.E.2d at 878.

           Findings and conclusions are required in
           order that there may be a meaningful
           appellate review of the decision on a motion
           to suppress. . . .    [W]hen the trial court
           fails to make findings of fact sufficient to
           allow the reviewing court to apply the
           correct legal standard, it is necessary to
           remand the case to the trial court. Remand
           is necessary because it is the trial court
           that is entrusted with the duty to hear
           testimony, weigh and resolve any conflicts
           in the evidence, find the facts, and, then
           based upon those findings, render a legal
           decision, in the first instance, as to
           whether or not a constitutional violation of
           some kind has occurred.

Salinas, 366 N.C. at 124, 729 S.E.2d at 66-67 (citations and

quotation marks omitted). Deputy Fyle performed a warrantless

blood draw on defendant under the provisions of North Carolina

General Statutes, section 20–139.1(d1), which provides that

           [i]f a person refuses to submit to any test
           or tests pursuant to this section, any law
           enforcement officer with probable cause may,
           without a court order, compel the person to
           provide blood or urine samples for analysis
           if the officer reasonably believes that the
           delay necessary to obtain a court order,
           under the circumstances, would result in the
           dissipation of the percentage of alcohol in
           the person’s blood or urine.

N.C. Gen. Stat. § 20-139.1(d1) (2009). This statutory procedure

is also subject to limitations on searches imposed by the state
                                            -9-
and federal constitutions. “Our courts have held that the taking

of blood from a person constitutes a search under both” the

United     States      and     North    Carolina         Constitutions.         State     v.

Barkley, 144 N.C. App. 514, 518, 551 S.E.2d 131, 134 (2001).

Accordingly, “a search warrant must be issued before a blood

sample   can    be     obtained,       unless       probable       cause   and     exigent

circumstances exist that would justify a warrantless search.”

State v. Carter, 322 N.C. 709, 714, 370 S.E.2d 553, 556 (1988).

The   issue    in     cases    of   this    sort     normally       depends      upon    the

findings      and     conclusions      as    to     the        existence   of     “exigent

circumstances”         as     our   case      law        has     defined   that         term,

considering the “totality of the circumstances” in each case.

State v. Dahlquist, ___ N.C. App. ___, ___, 752 S.E.2d 665, 667

(2013), appeal dismissed and disc. rev. denied, ___ N.C. ___,

755 S.E.2d 614 (2014).

      In State v. Fletcher, this Court held that the trial court

properly      found     that    exigent      circumstances          existed       for    the

arresting officer to obtain a blood sample from the defendant

without a warrant, where the evidence showed that the defendant

had “failed multiple field sobriety tests” and was unsuccessful

in “producing a valid breath sample using the Intoximeter at the

police   station.”       202    N.C.   App.       107,    111,     688   S.E.2d    94,     97
                                         -10-
(2010). The officer testified about “the distance between the

police station and the magistrate’s office, her belief that the

magistrate’s office would be busy late on a Saturday night, and

her previous experience with both the magistrate’s office and

hospital      on     weekend   nights[,]”        all    of   which     supported     a

“probability of significant delay” to obtain a warrant. Id. at

111, 688 S.E.2d at 97. This Court held in Fletcher that these

circumstances supported a finding of exigent circumstances and

affirmed the trial court’s denial of the defendant’s motion to

suppress.     Id. at 113, 688 S.E.2d at 98.

       More    recently,       the     United    States      Supreme    Court      has

addressed the issue of obtaining warrantless blood tests from

defendants         suspected   of     impaired       driving.    In    Missouri     v.

McNeely, the United States Supreme Court held that “the natural

metabolization of alcohol in the bloodstream” does not create a

“a per se exigency that justifies an exception to the Fourth

Amendment’s warrant requirement for nonconsensual blood testing

in all drunk-driving cases.” ___ U.S. at ___, 185 L.Ed. 2d at

702. In McNeely, the Supreme Court noted, however, that “some

circumstances        will   make     obtaining   a     warrant   impractical      such

that   the    dissipation       of    alcohol    from     the    bloodstream      will

support an exigency justifying a properly conducted warrantless
                                              -11-
blood test.” Id. at ___, 185 L.Ed. 2d at 707. Such circumstances

“may   arise    in    the   regular       course       of    law    enforcement         due   to

delays from the warrant application process.” Id. at ___, 185

L.Ed. 2d at 709. The Supreme Court noted that

              while the natural dissipation of alcohol in
              the blood may support a finding of exigency
              in a specific case, as it did in Schmerber
              [v. California, 384 U.S. 757, 16 L.Ed. 2d
              908   (1966)],    it    does   not    do   so
              categorically. Whether a warrantless blood
              test   of   a    drunk-driving   suspect   is
              reasonable must be determined case by case
              based on the totality of the circumstances.

Id. at ___, 185 L.Ed. 2d at 709. Thus, the circumstances that

may    make    obtaining      a   warrant       impractical          may    in   some    cases

support the trial court’s finding of an exigent situation in

which a warrantless blood draw is proper. Id. at ___, 185 L.Ed.

2d at 709. “Therefore, 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.” Dahlquist, ___ N.C. App. at ___, 752 S.E.2d

at 667.

       Defendant does not challenge the trial court’s findings of

fact but argues only that his case is similar to the situation

presented      in    Missouri      v.   McNeely,       which        was    decided    by      the
                                 -12-
United States Supreme Court just over a month after the trial

court ruled upon his motion to suppress. Defendant focuses on

the lack of findings of fact as to the time that it would have

taken Deputy Fyle to obtain a search warrant for the blood test.

Defendant argues that “Officer Fyle’s testimony is strikingly

similar to the testimony found insufficient in McNeely.”             The

Supreme Court noted that

          [i]n his testimony before the trial court,
          the arresting officer did not identify any
          other factors that would suggest he faced an
          emergency or unusual delay in securing a
          warrant. He testified that he made no effort
          to obtain a search warrant before conducting
          the blood draw even though he was “sure” a
          prosecuting attorney was on call and even
          though he had no reason to believe that a
          magistrate    judge    would    have    been
          unavailable. The officer also acknowledged
          that he had obtained search warrants before
          taking blood samples in the past without
          difficulty. He explained that he elected to
          forgo a warrant application in this case
          only because he believed it was not legally
          necessary to obtain a warrant.

___ U.S. at ___, 185 L.Ed. 2d at 714 (citations omitted).

    But the factual circumstances presented by this case and

McNeely   are   quite   different.   McNeely   involved   a   DWI   stop

described as “unquestionably a routine DWI case” involving a

cooperative defendant with no need for medical treatment and no

need for “police to attend to a car accident.”       Id. at ___, 185
                                    -13-
L.Ed. 2d at 714. As the unchallenged findings of fact in this

case as noted above demonstrate, this case was not “a routine

DWI case.”     From the moment that Deputy Fyle placed defendant

into custody, at 7:34 p.m., defendant claimed to have chest pain

and to require medical assistance, which he then refused and

actively     fought.     He   became      increasingly    belligerent      and

threatened    Deputy   Fyle   and   others.1      Ultimately    Deputy    Fyle

determined     that    defendant    was    intentionally       delaying    his

investigation.     Also unlike the officer in McNeely, Deputy Fyle

testified at the suppression hearing as to the time it would

have taken to obtain a warrant, as follows:

           Considering that this is Chatham County and
           we don’t have as many magistrates as other
           places on duty and all the time, a lot of
           times when you need a search warrant and
           somebody   is  placed   in   custody  during
           nighttime hours, we have to actually call
           out the magistrate and at times wait for
           them to arrive and sometimes wait for other
           people to process prisoners before we can
           see them. So I was not aware of there being
           a magistrate in Siler City, which is where
           we were, because, like I said, during
           nighttime hours, they are not there. And I
           was unaware if in Pittsboro there was a
           magistrate on duty at the time. I felt that
           it was unreasonable for me to load him up,
           go back to Pittsboro, possibly wait for the
           magistrate to get there, draw up the search
           warrant, get the magistrate to sign it, load

1
   Defendant did not challenge            on   appeal   his   conviction    of
communicating threats.
                                        -14-
              him back up, go back to Siler City, and then
              do the blood draw when we were losing
              evidence.

Defendant asks us to second-guess the officer’s determinations

about how long it might have taken to obtain a warrant and

whether   it    would    have    been   reasonable    for    him   to    take    the

increasingly belligerent defendant, “load him up, go back to

Pittsboro, possibly wait for the magistrate to get there, draw

up the search warrant, get the magistrate to sign it, load him

back up, go back to Siler City, and then do the blood draw when

[he    was]     losing    evidence.”           Defendant    claims      that    the

dispositive      question,      under   McNeely    and     Schmerber,    is     “Did

Officer Fyle have the time and ability to seek out a warrant?”

Defendant argues that he did, and that the trial court failed to

address the availability of a magistrate or “whether Officer

Fyle   should    have    sought    a    warrant   since     Officer     Ryser   was

accompanying [defendant] in the EMS vehicle.”                 Yet all of these

questions are squarely within the authority of the trial court

to make the factual findings as to these issues and to make the

appropriate legal conclusions upon those facts. It is the trial

court that “is entrusted with the duty to hear testimony, weigh

and resolve any conflicts in the evidence, find the facts, and,

then based upon those findings, render a legal decision, in the
                                       -15-
first instance, as to whether or not a constitutional violation

of some kind has occurred.” State v. Cooke, 306 N.C. 132, 134,

291 S.E.2d 618, 620 (1982).

       We find this case to be more similar to State v. Granger

than to McNeely. See ___ N.C. App. ___, 761 S.E.2d 923 (2014).

In   Granger,     this   Court   found    that   the   trial   court     properly

concluded that the totality of the circumstances showed exigent

circumstances that justified the warrantless blood draw. Id. at

___, 761 S.E.2d at 928. There, the defendant was injured in a

wreck and required medical care. Id. at ___, 761 S.E.2d at 924.

The officer was investigating the case alone and would have had

to wait for another officer to come to the hospital so that he

could travel to the magistrate to obtain a warrant. Id. at ___,

761 S.E.2d at 928. The trial court also noted the officer’s

“knowledge of the approximate probable wait time” and travel

time   to   the   magistrate.    Id.     at   ___,   761   S.E.2d   at   928.   In

addition, the officer was concerned that medications could have

been administered to the defendant as part of his treatment that

could contaminate the blood sample. Id. at ___, 761 S.E.2d at

928.

       Although the situation here is different from Granger in

that the defendant here only feigned a need for medical care and
                                         -16-
in fact needed none, they are otherwise similar. Obtaining a

warrant    may     have     required     an    officer     to   either      leave   the

defendant, which in this case may not have been a reasonable

option    even    with    more    than   one    officer     present,     considering

defendant’s       threats    to   Deputy      Fyle   and   others,     or    take   the

defendant with him to Pittsboro and then back to Siler City. The

evidence    and    uncontested      findings      of   fact     show   that    several

officers were needed to control the defendant and ensure the

safety of the hospital personnel.2 In Conclusion of Law No. 6,

the trial court concluded that

            [b]ased upon the time elapsed to that point
            and the additional time and uncertainties in
            how much additional time would be needed to
            obtain a search warrant or other court order
            for   defendant’s   blood   and  all   other
            attendant circumstances, the same gave rise
            to the existence of exigent circumstances
            and   supported   the  officer’s  reasonable
            belief that the additional delay necessary

2
   The dissent would find that even taking into account
defendant’s belligerent behavior, the presence of so many
officers would lead to the conclusion that there was no
plausible justification for an exception to the warrant
requirement under the totality of the circumstances. See
McNeely, ___ U.S. at ___, 185 L.Ed. 2d at 708. We believe that
this sort of determination is a factual determination that can
be made only by the trial court that heard the evidence and
observed all of the witnesses. An appellate court, far removed
from the real physical dangers presented by a combative, highly
intoxicated defendant, is in a poor position to make a finding
of fact about how many officers are reasonably needed to protect
themselves and others in that moment. That is the job of the
trial judge.
                                          -17-
            to obtain a search warrant or court order
            under the circumstances would result in the
            dissipation of the percentage of alcohol in
            the defendant’s blood.

Defendant    is   correct     that     the    trial      court      did    not    make       any

specific findings addressing the availability of a magistrate at

the time of the incident and the probable delay in seeking a

warrant, although Deputy Fyle did testify about this matter, but

it seems from the above conclusion of law that the trial court

considered the time factor in mentioning the “additional time

and uncertainties in how much additional time would be needed to

obtain a search       warrant.” Without findings                    of fact       on these

details, however, we cannot properly review this conclusion. We

must    therefore    remand       this    matter        to    the    trial       court       for

additional    findings      of     fact      as    to    the       availability         of     a

magistrate    and     the   “additional           time       and    uncertainties”            in

obtaining    a      warrant,      as      well     as        the    “other        attendant

circumstances”      that    may    support        the    conclusion        of     law    that

exigent circumstances existed.

                            III. Motion to Dismiss

       Defendant’s motion before the trial court was styled as a

motion to dismiss pursuant to N.C. Gen. Stat. § 15A-954(a)(4),

which   requires     dismissal       of   criminal       charges      if     “defendant’s

constitutional rights have been flagrantly violated and there is
                                -18-
such irreparable prejudice to the defendant’s preparation of his

case that there is no remedy but to dismiss the prosecution.”

N.C. Gen. Stat. § 15A-954(a)(4) (2013). However, at the hearing

on defendant’s motion, both parties agreed to treat the motion

as both a motion to dismiss and a motion to suppress.          Both of

these motions were subsequently denied by the trial court.            On

appeal, defendant requests that this Court reverse the trial

court’s order as to both motions.

    In   State   v.   Wilson,   the    trial   court   found   that   a

warrantless   blood    draw     had    violated    the    defendant’s

constitutional rights and dismissed the charges against him. ___

N.C. App. ___, ___, 736 S.E.2d 614, 616 (2013). On appeal, this

Court held that dismissal was an inappropriate remedy:

         In his motion to dismiss, defendant argued
         the officer’s conduct flagrantly violated
         his constitutional rights “and there is such
         irreparable prejudice to the defendant’s
         preparation of his case that there is no
         remedy but to dismiss the prosecution.”
         While   defendant’s  motion   addresses  the
         alleged    flagrant    violation    of   his
         constitutional rights, his motion in no way
         details how there was irreparable damage to
         the preparation of his case as a result.
         Indeed, the trial court made no such finding
         or conclusion, and defendant has made no
         such argument on appeal. Thus, we fail to
         see how the alleged constitutional violation
         at issue here irreparably prejudiced the
         preparation of defendant’s case, and section
                                           -19-
              four of the dismissal statute likewise does
              not apply to the present case.

Id. at ____, 736 S.E.2d at 617-18. Instead, “the appropriate

argument by defendant was for suppression of the evidence, and

the    only   appropriate         action    by    the     trial    court    under   the

circumstances of the present case was to consider suppression of

the evidence as the proper remedy if a constitutional violation

was found.”      Id. at ___, 736 S.E.2d at 618.

       Likewise, in the instant case, while defendant’s motion to

dismiss asserts that the warrantless blood draw was a flagrant

violation of his constitutional rights, “his motion in no way

details how there was irreparable damage to the preparation of

his case as a result” and “defendant has made no such argument

on    appeal.”       See    id.     Thus,    pursuant      to     Wilson,    “the   only

appropriate action by the trial court under the circumstances of

the present case was to consider suppression of the evidence as

the proper remedy if a constitutional violation was found.” See

id.    Accordingly,        we   affirm     the    trial    court’s    order    denying

defendant’s motion to dismiss.

                                    IV.    Conclusion

       We   affirm    the       trial    court’s    order       denying     defendant’s

motion to dismiss. However, we remand to the trial court to make

additional findings of fact addressing the availability of a
                                   -20-
magistrate   and     the   “additional    time   and   uncertainties”   in

obtaining    a     warrant,   as   well    as    the   “other   attendant

circumstances” that bear upon the conclusion of law that exigent

circumstances existed that justified the warrantless blood draw.

    AFFIRMED, in part, and REMANDED.

    Judge DAVIS concurs.

    Judge CALABRIA dissents in a separate opinion.
                                    NO. COA13-1059

                         NORTH CAROLINA COURT OF APPEALS

                            Filed:     21 October 2014


STATE OF NORTH CAROLINA


    v.                                       Chatham County
                                             Nos. 10 CRS 52754-55
RONALD MICHAEL McCRARY



    CALABRIA, Judge, dissenting.


    Because I believe that, based upon the testimony presented

below, remanding this case for further findings would be futile,

I must respectfully dissent from the majority’s opinion.                             I

would reverse the trial court’s denial of defendant’s motion to

suppress and remand for a new trial.

    As     an    initial    matter,    I   agree    with    the      majority    that

defendant’s      self-styled     “Motion     to    Dismiss”      based    upon      the

warrantless blood draw is most properly treated as a motion to

suppress.        See State v. Wilson, ___ N.C. App. ___, ___, 736

S.E.2d 614, 618 (2013).             “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.”     State    v.

Biber,   365     N.C.    162,   167-68,     712    S.E.2d     874,    878    (2011).
                                          -2-
Conclusions of law are reviewed de novo. Id. at 168, 712 S.E.2d

at 878.       For a properly filed motion to suppress, “the burden is

upon    the     [S]tate    to     demonstrate     the       admissibility     of   the

challenged evidence[.]” State v. Cheek, 307 N.C. 552, 557, 299

S.E.2d 633, 636 (1983).

       “Our    courts     have    held   that   the   taking     of   blood   from   a

person constitutes a search under both” the United States and

North Carolina Constitutions. State v. Barkley, 144 N.C. App.

514, 518, 551 S.E.2d 131, 134 (2001).                        This is because the

drawing    of    blood     “involve[s]     a    compelled      physical     intrusion

beneath [a suspect]’s skin and into his veins to obtain a sample

of his blood for use as evidence in a criminal investigation.

Such an invasion of bodily integrity implicates an individual’s

‘most     personal      and      deep-rooted     expectations         of   privacy.’”

Missouri v. McNeely, 569 U.S. ___, ___, 185 L. Ed. 2d 696, 704

(2013) (quoting Winston v. Lee, 470 U.S. 753, 760, 84 L. Ed. 2d

662,    668     (1985)).           Accordingly,       our     Supreme      Court   has

specifically held that “a search warrant must be issued before a

blood sample can be obtained, unless probable cause and exigent

circumstances exist that would justify a warrantless search.”

State v. Carter, 322 N.C. 709, 714, 370 S.E.2d 553, 556 (1988)

(emphasis added).
                                             -3-
       The United States Supreme Court recently held that “the

natural metabolization of alcohol in the bloodstream” does not

create “a per se exigency that justifies an exception to the

Fourth Amendment's warrant requirement for nonconsensual blood

testing in all drunk-driving cases[.]”                      McNeely, 569 U.S. at

___,    185   L.   Ed.   2d    at     702.     “Therefore,      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.” State v. Dahlquist, ___ N.C. App.

___, ___, 752 S.E.2d 665, 667 (2013), appeal dismissed and disc.

rev. denied, ___ N.C. ___, 755 S.E.2d 614 (2014).

       In McNeely, a Missouri law enforcement officer initiated a

traffic stop of the defendant for speeding and crossing the

centerline. 569 U.S. at ___, 185 L. Ed. 2d at 702. The defendant

displayed obvious signs of impairment and failed various field-

sobriety tests.          Id.        As a result, the officer arrested the

defendant and began to transport him to the station house. Id.

While in transit, the defendant informed the officer he would

not submit to a breath test. Id.                   Consequently, the officer took

the defendant directly to a nearby hospital for a blood test.

Id. The officer never attempted to obtain a warrant, but sought
                                           -4-
defendant’s consent for the blood test, which defendant refused.

Id. at ___, 185 L. Ed. 2d at 702-03.                    The United States Supreme

Court    concluded        that   the     results    of       this   blood     test   were

required     to     be   suppressed      pursuant       to    the   Fourth    Amendment

because       “in        drunk-driving        investigations,           the      natural

dissipation of alcohol in the bloodstream does not constitute an

exigency in every case sufficient to justify conducting a blood

test without a warrant.” Id. at ___, 185 L. Ed. 2d at 715.                             In

support of this conclusion, the Court provided the following

example:

             Consider, for example, a situation in which
             the warrant process will not significantly
             increase the delay before the blood test is
             conducted because an officer can take steps
             to secure a warrant while the suspect is
             being transported to a medical facility by
             another officer. In such a circumstance,
             there would be no plausible justification
             for an exception to the warrant requirement.

Id. at ___, 185 L. Ed. 2d at 708.

       In    the    instant      case,     the     trial      court’s    unchallenged

findings demonstrate that Deputy Fyle’s actions fall squarely

within the ambit of the example articulated by McNeely.                               The

trial court found that Deputy Fyle had determined that he would

seek    to   obtain      a   blood   sample      from    defendant      at    7:39   p.m.

However, Deputy Fyle made no attempt to secure a warrant for
                                             -5-
this blood draw.         Instead, Deputy Fyle followed defendant to the

hospital,      despite        the    fact     that     Deputy         Ryser     was    already

traveling with the handcuffed defendant in the ambulance.                                   There

is   nothing    in   the      court’s       order    or    in   the     transcript          which

provides any explanation for the reason Deputy Fyle followed

defendant      rather      than      using     the     time      to     seek     a     warrant.

Pursuant to McNeely, “[i]n such a circumstance, there [is] no

plausible      justification          for     an      exception         to     the     warrant

requirement.”        Id.; cf. State v. Granger, ___ N.C. App. ___,

___, 761 S.E.2d 923, 928 (2014) (upholding a warrantless blood

draw in part because “unlike the example in McNeely, [569] U.S.

at ___, 185 L. Ed. 2d at 708, Officer Lippert was investigating

the matter by himself and would have had to call and wait for

another     officer      to      arrive      before       he    could     travel       to     the

magistrate to obtain a search warrant.”).

      Nonetheless,         the      majority        contends     that         Deputy    Fyle’s

actions were appropriate under this Court’s decision in Granger.

In that case, a law enforcement officer responded to the report

of an accident in which the defendant had rear-ended another

vehicle.       Granger, ___ N.C. App. at ___, 761 S.E.2d at 924.

When the officer arrived at the scene, he observed that the

defendant was in pain and emanated a moderate odor of alcohol.
                                             -6-
Id.     The defendant was transported to the hospital before the

officer could perform any sobriety tests.                       Id.       Upon arrival,

the    defendant     admitted     to    the    officer      that    he    had    consumed

alcohol   and    displayed      clear    signs     of    impairment.            Id.      The

officer administered two portable breath tests, and both tests

indicated the presence of alcohol on defendant’s breath.                                 Id.

As a result, the officer obtained a warrantless blood sample

from the defendant. Id. at ___, 761 S.E.2d at 925.                           This Court

held that, under the totality of the circumstances, there was a

sufficient exigency to support a warrantless blood draw.                              Id. at

___, 761 S.E.2d at 928.           Specifically, the Court noted that (1)

the officer was concerned about the dissipation of alcohol from

the defendant’s blood, because over an hour had elapsed since

the accident occurred before the officer established sufficient

probable cause to seek the blood draw; (2) the officer estimated

that    the   time   it   would       take    to   travel    to     the    magistrate’s

office, obtain a warrant, and return to the hospital would be at

least    forty   minutes;       (3)    the     officer    was      investigating         the

matter alone, which would have required him to wait for another

officer to arrive before he could travel to the magistrate’s

office to obtain a warrant; and (4) the officer was concerned

that if he left the defendant unattended or waited any longer
                                       -7-
for a blood draw, the hospital might have administered pain

medication to the defendant that could contaminate his blood

sample. Id.

    Granger is distinguishable from the instant case.                    First

and foremost, unlike the officer in Granger,                  Deputy Fyle was

not the sole officer who accompanied defendant to the hospital.

Instead, Deputy Ryser accompanied defendant in the ambulance,

while Deputy Fyle followed behind the ambulance in his patrol

car, despite the fact that he had already determined that he

would seek to draw defendant’s blood.                Moreover, unlike the

officer   in   Granger,   Deputy       Fyle   had   already    completed   his

investigation and placed defendant under arrest on suspicion of

DWI prior to defendant’s transportation to and arrival at the

hospital.      The circumstances which this Court found justified

the warrantless blood draw in Granger are simply not present in

this case.

    The majority contends that the appropriate disposition for

this case is to remand for additional findings of fact regarding

the availability of a magistrate and the additional time and

uncertainties    in   obtaining    a    warrant.      However,     the   trial

court’s conclusion of law reflects that the court considered
                                        -8-
these    factors      and   applied   the       appropriate    totality       of    the

circumstances test required by McNeely:

            Based upon the time elapsed to that point
            and the additional time and uncertainties in
            how much additional time would be needed to
            obtain a search warrant or other court order
            for the defendant's blood and all other
            attendant circumstances, the same gave rise
            to the existence of exigent circumstances
            and   supported  the   officer's  reasonable
            belief that the additional delay necessary
            to obtain a search warrant or court order
            under the circumstances would result in the
            dissipation of the percentage of alcohol in
            the defendant's blood.

While the majority is correct that the trial court could have

made     more    explicit    findings       from      Deputy   Fyle’s       testimony

regarding       the   availability    of    a    magistrate    and    the    ease   of

obtaining a warrant, there is a fundamental flaw in the premise

that these additional findings could support the trial court’s

denial of the motion to suppress.                    The trial court’s findings

clearly indicate that Deputy Fyle determined he would obtain a

sample     of     defendant’s    blood          at    approximately     7:39       p.m.

Accordingly, any determination of exigent circumstances must be

based upon whether, under the facts that existed at that time,

Deputy Fyle could have reasonably taken the appropriate steps to

secure a warrant while defendant was transported to the hospital

by Deputy Ryser.
                                          -9-
       However,    there     is   no    evidence       on   this      question    in   the

record, because Deputy Fyle’s testimony unequivocally indicates

that he only considered whether exigent circumstances existed

after defendant was discharged from the hospital and refused to

consent to the blood draw.               At that time, approximately ninety

minutes    had    already     elapsed     since        Deputy    Fyle    had     arrested

defendant on suspicion of DWI and determined that he would seek

to obtain a sample of defendant’s blood.                       Despite the fact that

Deputy Ryser was with defendant, who was restrained in handcuffs

in the back of the ambulance, and the additional fact that at

least two other deputies were dispatched to the hospital to

assist with defendant when he arrived, there is nothing in the

record    to    suggest    that   Deputy        Fyle    ever    attempted,       or    even

considered attempting, taking steps to obtain a warrant in the

time   between     defendant’s         arrest    and    his     discharge       from   the

hospital.

       The majority speculates that it may still have not been

reasonable for Deputy Fyle to seek a warrant while Deputy Ryser

transported him to the hospital because “several officers were

needed    to     control    defendant      and     ensure       the    safety     of    the

hospital       personnel.”        This    speculation           into    Deputy     Fyle’s

motives at the time he followed defendant to the hospital is not
                                             -10-
supported by any evidence that was presented during the hearing.

Deputy     Fyle        restrained        defendant    in       handcuffs     without     any

physical altercation, deemed it unnecessary to travel together

in the ambulance with Deputy                  Ryser and defendant, and never

indicated       at     any      point    during     his    testimony       that    he   went

directly to the hospital due to safety concerns.                            Moreover, it

was not until Deputy Fyle ordered the warrantless “invasion of

[defendant’s] bodily integrity,” McNeely, 569 U.S. at ___, 185

L.   Ed.   2d     at     704,     that    defendant       resisted      sufficiently     to

require several officers to help control him.3

      Ultimately,          I    conclude     that    the       trial    court’s    findings

demonstrate that Deputy Fyle never considered whether a warrant

was necessary during the ninety minutes after placing defendant

in   custody         and       determining    that        he    would     seek     to   draw

defendant’s          blood.        Therefore,        “there       [was]     no    plausible

justification for an exception to the warrant requirement” under

the totality of the circumstances. McNeely, 569 U.S. at ___, 185

L.   Ed.   2d     at    708.       Deputy    Fyle    simply       ignored    our    Supreme

Court’s long-established directive that “a search warrant must

be issued before a blood sample can be obtained[.]” Carter, 322

N.C. at 714, 370 S.E.2d at 556.                   He then sought to impermissibly

3
  Defendant’s conviction for communicating threats was based upon
his belligerent behavior during the blood draw.
                                    -11-
benefit from his failure to seek a warrant by asserting that an

exigency existed at the moment the blood draw was to occur.              At

this point, it was far too late for Deputy Fyle to consider, for

the first time, whether a warrant could reasonably be obtained.

      Since neither the trial court’s findings of fact nor any

other evidence presented at the hearing support its conclusion

of   law   that,   based   upon   the   totality   of   the   circumstances,

exigent circumstances existed to support defendant’s warrantless

blood draw, the trial court erred by denying defendant’s motion

to suppress the results of the blood test.               The trial court’s

order should be reversed and remanded for the entry of an order

suppressing this evidence.        I respectfully dissent.
