An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in
accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of
A   p   p    e   l   l   a    t   e       P   r    o   c   e   d   u    r   e   .



                              NO. COA13-955
                     NORTH CAROLINA COURT OF APPEALS

                            Filed: 5 August 2014


STATE OF NORTH CAROLINA

      v.                                    Buncombe County
                                            Nos. 12 CRS 61691–92
ROBERT LEE MATHES, JR.1


      Appeal by Defendant from Order and Judgments entered 17

April 2013 by Judge Sharon Tracey Barrett in Buncombe County

Superior Court. Heard in the Court of Appeals 22 January 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Carrie D. Randa, for the State.

      Richard J. Costanza for Defendant.


      STEPHENS, Judge.



1
  The parties’ briefs and the transcript list Defendant’s last
name as “Mathis.” The trial court’s 17 April 2013 order and
judgments, however, list Defendant’s last name as “Mathes.”
While the parties do not address this discrepancy in their
briefs, the indictment indicates that Defendant is known as
“Robert Lee Mathes, Jr., AKA: Robert Lee Mathis, Robert Lee
Mathis, Jr[.]” Pursuant to the custom and practice of this
Court, and for the sake of consistency between the courts, we
use the spelling employed by the trial court in its 17 April
2013 order and judgments.
                                     -2-
                   Procedural History and Evidence

    On 11 October 2012, Defendant Robert Lee Mathes, Jr., was

arrested and charged with driving while impaired, driving while

license revoked, and hit and run causing property damage. On 5

November   2012,   Defendant   was    indicted    for    habitual    impaired

driving in lieu of the original impaired driving charge because

he had three or more convictions for driving while impaired in

the ten years directly preceding the current charge. Defendant

filed a motion to suppress statements and tangible evidence on

15 April 2013, and a hearing on that motion was conducted the

same day. The evidence presented at the hearing tended to show

the following:

    Officer      Roger   Patton      of    the   Black    Mountain    Police

Department (“BMPD”) responded on 11 October 2012 to a dispatch

concerning a wreck on North Blue Ridge Road in Buncombe County.

The driver of the truck, who was reportedly wearing tan shorts

and a blue jean jacket, left the scene of the accident and was

walking north on     North Blue Ridge Road.         When Officer Patton

arrived at the scene, he pulled into a retirement complex and

discovered an unoccupied Chevrolet pickup truck blocking both

lanes of North Blue Ridge Road with the front end in a ditch.

The truck had sustained extensive damage. Witnesses at the scene
                                     -3-
indicated that the driver of the truck had gone up the road and

was wearing a plaid jacket and tan shorts.

      Officer Patton drove from the parking lot of the retirement

complex onto Old United States Highway 70. Four to five minutes

later and approximately 200 to 250 yards away from the accident,

Officer Patton spotted a person, later identified as Defendant,

walking along the road. Defendant was wearing a plaid jacket and

tan-colored shorts, but no shoes. Officer Patton got out of his

car and told Defendant that he was investigating an accident on

North Blue Ridge Road. When Officer Patton asked Defendant if he

knew anything about the accident, Defendant indicated that he

did   not.    According     to   Officer     Patton,    Defendant     looked

intoxicated and appeared to have urinated on himself. His eyes

were bloodshot and glassy, there was a dark stain on his pants,

he smelled of alcohol and urine, and he had slurred speech.

      Officer Patton “asked [Defendant] if he would go back to

the scene with me, so I patted him down, . . . just an outer

pat-down Terry frisk of his outer clothing for weapons. Found

none.” (Italics added). During the frisk Officer Patton felt a

set   of   keys   in   Defendant’s   right   front   pocket,   but   did   not

remove them. On cross-examination, defense counsel asked Officer

Patton to elaborate on the frisk:
                      -4-
[DEFENSE COUNSEL:] But you also testified
that    you   were    continuing  in   your
investigation to determine who was actually
operating the vehicle; right?

[OFFICER PATTON:]    Right.

[DEFENSE COUNSEL:] So you placed him           in
handcuffs and then you patted him down?

[OFFICER PATTON:]   No, sir. He was patted
down for a Terry frisk [based on] officer
safety prior to being put into cuffs. He was
not put into cuffs until I had determined
that we needed to go back to the scene and
he was going to be going in my car.

[DEFENSE COUNSEL:] All     right. So  you
performed a Terry frisk. And what did you
discover from the Terry frisk?

[OFFICER PATTON:]    No weapons.

[DEFENSE COUNSEL:] Now, you mentioned this
set of keys in response to the direct
questions. Did you find the set of keys as
part of the Terry frisk?

[OFFICER PATTON:]    I felt a set of keys in
his pocket, yes.

[DEFENSE COUNSEL:]   But    you   did   not   take
them out?

[OFFICER PATTON:]    No, sir.

[DEFENSE COUNSEL:] So when you felt them,
they were immediately apparent to you as a
set of keys?

[OFFICER PATTON:]    Yes.
                                           -5-
(Italics added). Officer Patton testified on redirect that he

placed Defendant in handcuffs out of concern for officer safety.

       When Officer Patton and Defendant returned to the scene of

the   accident,      two   unidentified        witnesses     told       Officer      Patton

that Defendant was the person they saw get out of the truck.

Officer Patton then determined that (1) the truck did not belong

to Defendant and (2) Defendant’s driver’s license was revoked.

At that point, Officer Patton placed Defendant under arrest for

driving while impaired and driving while license revoked.

       During the arrest Officer Patton again searched Defendant

and, at that point, removed the keys from his pocket. Defendant

indicated     that     none    of    the     keys   would    fit    in    the       truck’s

ignition.     Nonetheless,          Officer        Patton    entered          the   truck,

inserted one of the keys, and “turned the switch over and turned

it    back   off.”    Officer       Patton    did    not    attempt      to    start   the

engine. Pursuant to BMPD policy, Officer Patton then left the

keys with the vehicle for transportation by the towing company.

Afterward, he took Defendant to the Buncombe County Detention

Facility.

       Another       police     officer,         Officer     Christopher            Staton,

traveled     with    Officer    Patton       and    Defendant      to    the    facility.

During the ride, Defendant made several comments that the keys
                                    -6-
would fit in any Chevrolet vehicle. Upon arrival, Officer Staton

read Defendant his Miranda rights for the first time. Defendant

waived those rights, declined to submit to a chemical analysis

of his breath, and refused to answer more than three questions

about   the    incident.    Defendant   also   continued   to   deny   having

driven the truck.

    At the suppression hearing, Defendant moved the trial court

to suppress any evidence obtained “as the fruit of the . . .

illegal . . . search of Defendant’s person.” The trial court

orally denied Defendant’s motion and memorialized that denial by

written order entered 17 April 2013. In its written order, the

court also made the following pertinent findings of fact and

conclusions of law:

                           . . . FINDINGS OF FACT:

              . . . .

              12. [BMPD] policy required that keys to any
              vehicle that requires towing should be left
              at the scene of the wreck. As a result
              . . . , Officer Patton obtained the keys
              from . . . Defendant and tried them in the
              vehicle’s ignition. The keys did work in the
              ignition. So the keys were left at the
              accident scene to be given to the tow truck
              driver.

              . . . .

                        . . . CONCLUSIONS OF LAW:
                               -7-
         . . . .

         3. . . . Officer Patton had reasonable
         grounds to conduct an investigatory stop of
         . . . Defendant as a pedestrian, to conduct
         a protective pat[ ]down for officer safety,
         and to transport . . . Defendant from the
         road[]side to the wreck scene in his police
         vehicle.

         4. . . . [Officer Patton] had probable cause
         to arrest . . . Defendant and charge[] him
         with [d]riving [w]hile [i]mpaired, [d]riving
         [w]hile [l]icense [r]evoked and[, h]it and
         [r]un [f]ailure to [s]top after a motor
         vehicle accident involving property damage.

    Defendant’s trial began immediately after the court’s oral

denial of his motion to suppress. At the close of the State’s

case and the close of all of the evidence, Defendant moved to

dismiss the charges against him. The trial court denied that

motion, and Defendant was convicted of driving while impaired,

driving while license revoked, and hit and run causing property

damage. Because Defendant stipulated to having three convictions

of driving while impaired in the previous ten years, he received

a sentence for habitual impaired driving, a class F felony.

Defendant was sentenced to concurrent terms of 23 to 37 months

in prison for habitual impaired driving and 120 days in prison

for hit and run and driving while license revoked. Defendant

gave notice of appeal in open court.

                       Standards of Review
                                                 -8-
       Our    review       of    the    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.” State v. Cooke, 306 N.C.

132,    134,       291    S.E.2d        618,    619     (1982).     “The     trial    court’s

conclusions of law . . . are fully reviewable on appeal.” State

v. Hughes, 353 N.C. 200, 208, 539 S.E.2d 625, 631 (2000).

       “This Court reviews the trial court’s denial of a motion to

dismiss de novo.” State v. Smith, 186 N.C. App. 57, 62, 650

S.E.2d       29,     33    (2007).       “Upon        [the]    defendant’s        motion     for

dismissal, the question for the [appellate c]ourt is whether

there is substantial evidence (1) of each essential element of

the offense charged, or of a lesser offense included therein,

and    (2)    of     [the]       defendant’s      being       the   perpetrator       of    such

offense.       If    so,     the    motion       is     properly     denied.”        State    v.

Fritsch,      351     N.C.       373,    378,     526    S.E.2d     451,     455    (citation

omitted), cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000).

                                           Discussion

       On appeal, Defendant argues that the trial court erred in

denying his motions to suppress and dismiss. Defendant contends
                                    -9-
that the trial court erred in denying his motion to suppress

because Officer Patton did not have the authority to (1) perform

a pat down when he first encountered Defendant or (2) seize

Defendant’s keys during the arrest. Defendant argues that the

trial court erred in denying his motion to dismiss because the

State   did    not   present   substantial   evidence   that   he   was   the

operator or driver of the truck. We find no prejudicial error.

    I. Defendant’s Motion to Suppress

                   The Fourth Amendment of the United
              States Constitution prohibits unreasonable
              searches and seizures. U.S. Const. Amend.
              IV. This prohibition applies to the states
              through the Due Process Clause of the
              Fourteenth Amendment. Article I, Section 20
              of the North Carolina Constitution similarly
              prohibits    unreasonable     searches   and
              seizures. There are generally two types of
              “seizures” under the Fourth Amendment: (1)
              arrests and (2) investigatory stops. [In
              order to be reasonable under the Fourth
              Amendment, an a]rrest[] require[s] that the
              arresting officer have “probable cause,”
              whereas investigatory stops do not.

State v. Thorpe, __ N.C. App. __, __, 754 S.E.2d 213, 220–21

(2014) (certain citations and internal quotation marks omitted).

              A. The First Search

    Defendant does not dispute the trial court’s findings of

fact. Therefore, they are binding on appeal. State v. Taylor,

178 N.C. App. 395, 401, 632 S.E.2d 218, 223 (2006). Furthermore,
                                       -10-
Defendant    states      outright    that   he      “does    not    contest    Officer

Patton’s right to stop [him].” Instead, Defendant argues that

Officer Patton did not have authority for the first search. We

agree.

                 Under the standard first laid out in
            Terry v. Ohio, 392 U.S. 1, . . . 20 L. Ed.
            2d   889    (1968),    officers    temporarily
            detaining someone for investigatory purposes
            only   require    reasonable    suspicion    of
            criminal   activity. . . .    The     officer’s
            reasonable   suspicion   must   be   based   on
            specific and articulable facts, as well as
            the rational inferences from those facts, as
            viewed through the eyes of a reasonable,
            cautious officer, guided by the officer’s
            experience and training. In reviewing the
            validity of a Terry stop, the [c]ourt must
            consider the totality of the circumstances.

Thorpe,     __    N.C.   App.   at    __,     754    S.E.2d        at   221    (certain

citations,       internal   quotation       marks,     and    brackets        omitted).

“[T]he characteristics of the investigatory stop, including its

length, the methods used, and any search performed, should be

the least intrusive means reasonably available to effectuate the

purpose of the stop.” Id. (citation and internal quotation marks

omitted).

            [W]hen a police officer observes unusual
            behavior which leads him to conclude, in
            light of his experience, that criminal
            activity may be occurring and that the
            person may be armed and dangerous, the
            officer  is  permitted [under Terry]  to
            conduct a pat-down search to determine
                                   -11-
           whether    the       person     is        carrying        a
           weapon. . . .

           The purpose of the officer’s frisk or
           pat[ ]down is for the officer’s safety; as
           such, the pat[ ]down is limited to the
           person’s outer clothing and to the search
           for weapons that may be used against the
           officer. If during a limited weapons search,
           contraband or evidence of a crime is of
           necessity   exposed,   the   officer   is not
           required   by    the   Fourth   Amendment  to
           disregard such contraband or evidence of
           crime. Evidence of contraband, plainly felt
           during a pat[ ]down or frisk, may be
           admissible,    provided    the   officer  had
           probable cause to believe that the item was
           in fact contraband.

           Under the “plain feel” doctrine if a police
           officer lawfully pats down a suspect’s outer
           clothing and feels an object whose contour
           or mass makes its identity immediately
           apparent, there has been no invasion of the
           suspect’s   privacy   beyond  that   already
           authorized by the officer’s search for
           weapons.

State v. Robinson, 189 N.C. App. 454, 458–59, 658 S.E.2d 501,

504–05   (2008)   (citations,    certain       internal   quotation      marks,

brackets, and ellipsis omitted). An officer’s conclusion that a

suspect may be armed and dangerous is sufficient to justify a

protective   pat-down   frisk     when    it    is    based     on   reasonable

suspicion. State v. Carrouthers, 200 N.C. App. 415, 419, 683

S.E.2d 781, 784 (2009) (citation omitted).
                                               -12-
       When Officer Patton first encountered Defendant, Defendant

was walking         barefoot along          Highway         70 near North Blue Ridge

Road, wearing a plaid jacket and tan shorts. Officer Patton did

not observe anything resembling a weapon on Defendant’s person

or testify that he noticed any circumstances suggesting that

Defendant      was       armed    and     dangerous.         He    did    not       state    that

Defendant was walking along a particularly dangerous part of

Highway 70 or that Defendant had acted in a way to suggest that

he was armed. He did not describe any movements that Defendant

made   which    might          have     indicated      Defendant         was    reaching     for

something      on    his       person      and,       thereby,      creating         reasonable

concern that Defendant was reaching for a weapon. Indeed, it

appears     from         the     transcript          that    Defendant         was     entirely

cooperative,        if    not     sober.       The    only    rationale         that   Officer

Patton    provided        for     his    decision       to    frisk      Defendant      is    the

following: “I asked [Defendant] if he would go back to the scene

with me, so I patted him down, done [sic] just an outer pat-down

Terry frisk of his outer clothing for weapons.” (Emphasis and

italics added). This explanation does not even suggest, much

less   establish,         the     kind    of    unusual       behavior         sufficient     to

justify    a   reasonable             belief    that    the       suspect      is    armed   and

dangerous.
                                           -13-
       A suspect’s decision to accede to an officer’s request to

return to the scene of the crime does not, in and of itself,

justify a Terry frisk. See State v. Rhyne, 124 N.C. App. 84, 91,

478 S.E.2d 789, 792–93 (1996) (holding that the officer did not

have    reasonable      suspicion       to    justify     a     Terry   frisk   of    the

defendant      when     the      officer     received     an     anonymous   tip     that

several men were dealing drugs in a breezeway and the defendant,

who was sitting in the breezeway, complied with the officer’s

request for identification, but refused the search). It does not

indicate that the suspect is armed and dangerous or that the

officer’s      safety       is   in   jeopardy.     See    id.    If    anything,    such

behavior implies that the suspect is compliant and, thus, not

dangerous. See id. (noting that the defendant did not flee when

approached by the officer and, “[o]ther than being nervous, [the

defendant] exhibited no other behavior that would indicate that

he was engaged in criminal activity”). In addition, an officer’s

plain statement that he conducted a pat down solely for the

purpose of ensuring that no weapons were present does not, in

and of itself, establish reasonable suspicion that the suspect

was    armed   and    dangerous.       There      must    be    some    external    facts

giving    rise   to     a     reasonable     concern      for    the    presence     of   a
                                   -14-
weapon, none of which were present here.2 See id.; cf. State v.

Beveridge, 112 N.C. App. 688, 696, 436 S.E.2d 912, 916 (1993)

(holding that the officer was not justified in continuing a

search of the defendant after concluding that the defendant was

not armed because it was “unrelated to the sole justification

for the search . . . the protection of the police officer and

others   nearby”)    (citation   omitted),   affirmed   per   curiam,   336

N.C. 601, 444 S.E.2d 223 (1994).

    Nonetheless, this initial search did not yield any evidence

other than the fact that Defendant had keys in his pocket. As

many innocent people carry keys in their pockets, this fact did

not help the State’s case at trial. Officer Patton had already

decided to take Defendant back with him to the crime scene, and

Defendant   did     not   make   any   additional   statements   directly

related to the first search. Therefore, the trial court’s error



2
  The only case law cited by the State for the contrary assertion
is authority from the Fourth Circuit, which is not controlling,
where the court concluded that the officer had authority for a
Terry stop and frisk when he was investigating a theft that had
just occurred, the suspects matched the description of the
individuals involved in the crime, and the “suspects behaved
nervously and in a threatening manner upon being approached and
addressed.” United States v. Swann, 149 F.3d 271, 274 (1998).
Even though this case is not binding on this Court, we note that
it is entirely distinguishable given the fact that the defendant
in that case acted in a “threatening manner” upon being
approached. Id.
                                         -15-
in failing to suppress this evidence was not prejudicial and

does not warrant reversal.

            B. The Second Search

    Defendant          also   argues    that        the   trial     court     erred    by

concluding that the seizure of his keys, following the second

search, was appropriate under BMPD’s towing policy. In response,

the State contends that the seizure of the keys was instead

appropriate      in    conjunction      with    a    valid    search    incident       to

arrest. We agree.

                      i. BMPD’s Towing Policy

    Officer Patton testified that he seized the keys during the

arrest of Defendant. At the suppression hearing, the prosecution

argued    that   this     seizure      was   proper       because    Officer     Patton

“needed to leave those keys with the tow truck to make sure that

those were the keys in order for the tow truck driver to be able

to get it on the tow truck.” In its order, the trial court made

only one finding of fact related to the seizure of Defendant’s

keys,    determining      that   Officer       Patton     obtained     them    “[a]s    a

result of” the BMPD policy requiring “that keys to any vehicle

that requires towing should be left at the scene of the wreck.”

This the Fourth Amendment does not permit.

    Whatever the practical application of BMPD’s towing policy,
                                              -16-
it had no bearing on the validity of Officer’s Patton’s search

of Defendant’s person or the seizure of Defendant’s keys from

his pocket. While that policy might have served to justify a

search of the truck and seizure of keys located in the truck

under the inventory search exception to the Fourth Amendment, it

did   not    provide       authority      for        Officer    Patton’s       decision    to

search Defendant’s person and seize the keys in his pocket. Cf.

South Dakota v. Opperman, 428 U.S. 364, 373, 49 L. Ed. 2d 1000,

1007–08 (1976) (holding that the police officers did not violate

the Fourth Amendment by performing a search of the defendant’s

lawfully      impounded          car     on     grounds        that    “[i]t     would     be

unreasonable to hold that the police, having to retain the car

in their custody for such a length of time, had no right, even

for their own protection, to search it”); see generally State v.

Phifer, 39 N.C. App. 278, 288, 250 S.E.2d 309, 315, affirmed,

297   N.C.        216,    254    S.E.2d       586    (1979)     (“[I]n      order   for    an

inventorying         process      not     to        violate    the     Fourth    Amendment

proscription        against       unreasonable         searches       and   seizures,     the

State    must      show    that    the    automobile          was   lawfully    impounded,

there being a demonstrable need for its impoundment; that the

driver      was    not    arrested       as    a     subterfuge       for   searching     the

vehicle;      that       the    inventory      was     reasonably       related     to    its
                                        -17-
purpose which is the protection of the owner from loss, and the

police or other custodian from unjust claims; that the inventory

itself was reasonable and not exploratory in character; [and]

that the inventory was actually conducted under circumstances

indicative of a true protective examination of the contents of

vehicle.”) (emphasis added). To the extent BMPD’s towing policy

could be applicable in this case, it would be limited to a

search of Defendant’s truck, not his person. See Opperman, 428

U.S. at 369, 49 L. Ed. 2d at 1007–08. Accordingly, we hold that

the trial court erred by determining that seizure of the keys

from     Defendant’s     person   was     justified    under      BMPD’s    towing

policy.

                   ii. The State’s New Argument

       Despite    the      prosecutor’s        misguided     argument      at   the

suppression      hearing    and   the    trial     court’s    obviously     flawed

order,    the    State   now   argues     that    seizure    of   the   keys    was

appropriate in conjunction with a search incident to Defendant’s

arrest. In response, Defendant asserts that “this Court should

reject [that] theor[y] of admissibility” on grounds that the

State did not raise it during the suppression hearing, citing

case law that the parties are not permitted to raise a new legal

theory for the first time on appeal. We disagree.
                                      -18-
      Well-settled case law in this State makes it clear that

“[a] correct decision of a lower court [on a motion to suppress]

will not be disturbed on review simply because an insufficient

or superfluous reason is assigned.” State v. Austin, 320 N.C.

276, 290, 357 S.E.2d 641, 650 (1987) (emphasis added). Whether

the trial court’s reasoning for denying the defendant’s motion

is correct or — as is obviously the case here — incorrect, “we

are   not    required   on   this   basis    alone   to   determine   that   the

ruling      was   erroneous.”   Id.    (citation     omitted).    “The   [only

relevant] question for review is whether the ruling of the trial

court was correct and not whether the reason given therefor is

sound or tenable. The crucial inquiry for [the appellate c]ourt

is admissibility and whether the ultimate ruling was supported

by the evidence.” Id. (citation omitted; emphasis added); see

also State v. Bone, 354 N.C. 1, 8, 550 S.E.2d 482, 486 (2001)

(“We additionally conclude that further grounds, not articulated

by the trial court, also justify the seizure.”). Therefore, the

State’s inexplicable failure to raise the search incident to

arrest doctrine at the hearing is not sufficient reason for this

Court to decline to consider the possibility that the trial

court’s order might be correct under some other doctrine. We

hold that it is.
                                            -19-
                    iii. Search Incident to Arrest

      “An officer may conduct a warrantless search incident to a

lawful arrest. A search is considered incident to arrest even if

conducted prior to formal arrest if probable cause to arrest

exists   prior      to   the    search      and    the   evidence     seized    is   not

necessary to establish that probable cause.” State v. Chadwick,

149   N.C.   App.    200,      205,   560    S.E.2d      207,   211   (citations     and

internal quotation marks omitted), disc. review denied, 355 N.C.

752, 565 S.E.2d 672 (2002). A warrantless arrest by a police

officer is lawful if the officer has “probable cause to believe

[the suspect] has committed a felony.” Id. at 204, 560 S.E.2d at

210   (citations     omitted).        If    the    police   officer    has     probable

cause to believe that the suspect has committed a misdemeanor, a

warrantless arrest is generally unlawful unless the misdemeanor

is committed in the officer’s presence or some other exception

applies. See State v. McCloud, 276 N.C. 518, 526, 173 S.E.2d

753, 759 (1970). Section 15A-401 of the North Carolina General

Statutes describes those exceptions as follows:

             (2) Offense Out of Presence of Officer. — An
             officer may arrest without a warrant any
             person who the officer has probable cause to
             believe:

             a. Has committed a felony; or

             b. Has committed a misdemeanor, and:
                                       -20-


                      1. Will not be apprehended                unless
                      immediately arrested, or

                      2. May cause physical injury to himself
                      or others, or damage to property unless
                      immediately arrested; or

            c. Has committed a misdemeanor under G.S.
            14-72.1, 14-134.3, 20-138.1, or 20-138.2; or

            d. Has committed a misdemeanor under G.S.
            14-33(a), 14-33(c)(1), 14-33(c)(2), or 14-34
            when the offense was committed by a person
            with whom the alleged victim has a personal
            relationship as defined by G.S. 50B-1; or

            e. Has committed a misdemeanor under G.S.
            50B-4.1(a); or

            f. Has violated a pretrial                release order
            entered under G.S. 15A-534                or G.S. 15A-
            534.1(a)(2).

N.C. Gen. Stat. § 15A-401(b)(2) (2013).

    In this case, Officer Patton stated at the hearing that he

arrested   Defendant       “for    [driving   while    impaired    and]    driving

while license revoked.” Later that day Defendant was charged

with operating a vehicle in a public vehicular area: “[w]hile

subject    to    an    impairing    substance”    under    section       20-138.1,

“[w]hile   the    defendant’s       drivers   license     was    revoked”   under

section 20-28, and in violation of section 20-166(c) for failing

to stop. Each of these crimes is punishable as a misdemeanor

and, on that basis, would not generally be sufficient to justify
                                            -21-
an    arrest    when     committed     outside     the    officer’s    presence,     as

here. See N.C. Gen. Stat. §§ 20-28, -138.1, -166 (2013). Because

section 15A-401(b)(2)(c) provides an exception to this rule for

suspected violations of section 20-138.1, however, Defendant’s

arrest for driving while impaired was lawful as long as Officer

Patton had       probable cause to believe                that Defendant      was, in

fact, driving while impaired. We hold that he did.

       Officer Patton responded to a dispatch that an individual

wearing a blue jean jacket and tan shorts had been involved in

an accident. Witnesses at the scene informed Officer Patton that

the    driver    was     wearing   a    plaid      jacket   with    tan    shorts   and

directed       Officer    Patton       up   the    road,    where     he    discovered

Defendant. Defendant was wearing a plaid shirt and tan shorts,

looked   intoxicated,        had   bloodshot        and   glassy    eyes,    exhibited

slurred speech, smelled of alcohol, and had a urine stain on his

pants. When Officer Patton brought Defendant back to the scene

of the accident, witnesses unequivocally identified Defendant as

the man who was driving the truck when it wrecked. At that

point, Officer Patton certainly had probable cause to believe

that Defendant had been driving the truck and had been doing so

while subject to an impairing substance in violation of section

20-138.1. See N.C. Gen. Stat. § 138.1. Therefore it was lawful
                                             -22-
for Officer Patton to arrest Defendant and, incident to that

lawful arrest, to conduct a search of Defendant’s person.

      Despite the State’s complete failure to make this point at

the   hearing      and   the    trial      court’s      improper      reliance    on     the

State’s misguided towing argument, the trial court reached the

right result — the denial of Defendant’s motion to suppress.

Accordingly, we will not disturb the court’s order on appeal.

Defendant’s argument is overruled.

      II. Defendant’s Motion to Dismiss

      Lastly,      Defendant        argues     that    the    trial    court     erred   in

denying   his      motion      to    dismiss     because      each    of   the    charged

offenses required proof that Defendant was operating or driving

the truck and the State did not present substantial evidence

that this occurred. We disagree.

      None    of   the    bystanders         from     the    scene    of   the   accident

offered      testimony         at     trial.        Nonetheless,      Officer      Patton

testified that the keys lawfully seized from Defendant fit into

the   truck’s      ignition         and   turned.     This    testimony,       alone,    is

sufficient to constitute substantial evidence that Defendant was

the driver of the truck. Accordingly, Defendant’s final argument

is overruled, and we hold that the trial court properly denied

Defendant’s motion to dismiss.
                         -23-
NO PREJUDICIAL ERROR.

Judges STEELMAN and DAVIS concur.

Report per Rule 30(e).
