An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.




                                NO. COA13-944
                       NORTH CAROLINA COURT OF APPEALS

                              Filed:    15 April 2014


STATE OF NORTH CAROLINA

      v.                                      Mecklenburg County
                                              No. 10 CRS 225348
TRAVIS LINDLEY,
     Defendant


      Appeal by defendant from judgment entered 11 January 2013

by Judge Linwood O. Foust in Mecklenburg County Superior Court.

Heard in the Court of Appeals 11 December 2013.


      Roy Cooper, Attorney General, by Lauren                     T.       Earnhardt,
      Assistant Attorney General, for the State.

      J. Edward Yeager, Jr. for defendant-appellant.


      DAVIS, Judge.


      Travis     Lindley     (“Defendant”)       appeals     from      a     judgment

entered upon a jury verdict finding him guilty of driving while

impaired and driving after consuming alcohol while under the age

of 21.     On appeal, he contends that the trial court committed
                                           -2-

reversible error by (1) denying his motion to suppress based on

a lack of reasonable suspicion to justify his traffic stop; and

(2) denying his motion to dismiss due to the fact that he was

held in jail for an unreasonable amount of time after posting

bond.      After careful review, we conclude that Defendant received

a fair trial free from error.

                                 Factual Background

      On 29 May 2010, Officer William Duncan (“Officer Duncan”)

of   the    Huntersville        Police    Department     was    on   patrol    shortly

before 5:00 p.m. in Birkdale Village when he parked his patrol

car in front of the Birkdale movie theater.                           Officer Duncan

exited his vehicle to walk across the street when two women on a

balcony overlooking the parking lot directly beside the movie

theater     screamed      for    his     attention.      They    informed      Officer

Duncan that they had seen a silver Mitsubishi occupied by two

shirtless white males strike another vehicle in the parking lot

directly     in   front    of     them.      The   two   women       pointed   in   the

direction in which the silver Mitsubishi had driven off, and one

woman stated “that it went toward — back down Formb[y] Road

towards Sam Furr Road, the backside of Birkdale Village.”

      Officer Duncan then ran back to his patrol car and issued a

“Be on the Lookout” (“BOLO”) for the silver Mitsubishi.                        He then

drove down Formby Road to search for the vehicle.
                                                -3-

       Officer Vaughn Griffin (“Officer Griffin”) of the Cornelius

Police        Department       received         the    BOLO    regarding      the    silver

Mitsubishi,       which    included         a    description      of   the    vehicle     and

indicated that it was heading towards the Redcliff Apartments.

Officer Griffin proceeded to a “cut through” he knew was heavily

used     by    commuters       traveling          from    Birkdale      Village     to    the

Redcliff Apartments.             Approximately 45 seconds after receiving

the BOLO, he saw the silver Mitsubishi traveling north on West

Catawba Avenue.          Officer Griffin turned around and activated his

blue lights and siren.                However, the silver Mitsubishi did not

stop.     Instead, the vehicle made a left turn off of northbound

West    Catawba       Avenue    onto    Kingspoint         Drive,      continuing      for   a

quarter of a mile before finally coming to a stop in the parking

lot of a townhouse community.

       Officer Griffin exited his patrol car and approached the

driver’s       side     door    of    the       silver    Mitsubishi.         He    saw   two

shirtless       white    males       sitting      in     the   front   of    the    vehicle.

Defendant was the driver.

       Officer        Griffin        asked       for      Defendant’s        license      and

registration and observed that Defendant “had slurred speech,

red glassy eyes, and . . . a strong odor of alcohol coming from

his breath.”          Officer Griffin then asked Defendant to step out

of the car.           He administered standardized field sobriety tests

on Defendant, including the horizontal gaze nystagmus (HGN), the
                                         -4-

walk-and-turn, and the one-leg stand.                  Based on the results of

these tests, the odor of alcohol on Defendant’s breath, and the

fact that      Defendant was under           21 years old,       Officer Griffin

charged Defendant with driving while impaired and driving after

consuming alcohol while under the age of 21.                      Defendant was

arrested, placed in the back of Officer Griffin’s patrol car,

and taken to the Cornelius Police Department.

       At the police department, Defendant’s blood alcohol level

was measured with the Intoxilyzer EC/IR-II, revealing a blood

alcohol concentration of .18 grams per 210 liters of breath.                     At

7:08    p.m.,        Defendant     was   transported       to    the    Charlotte-

Mecklenburg Police Department, arriving there at 7:33 p.m.                        He

was taken before a magistrate, and his bond was set in the

amount of $4,000.        He was permitted to call his mother.

       At 10:42 p.m., bond was posted on behalf of Defendant.                     At

10:49 p.m., however, Defendant was taken to the “dress out” area

for placement in jail due to the fact that the officers in this

area had not received any information that Defendant’s bond had

been posted.          Once they ultimately discovered that Defendant

had, in fact, posted bond, he was released at 11:37 p.m.

       Prior    to    trial,     Defendant     filed   motions   to    dismiss   the

charges against him and to suppress the evidence obtained as a

result of the stop of his vehicle.                The trial court denied both

motions.
                                               -5-

       A jury trial was held in Mecklenburg County Superior Court

on 8 January 2013.              The jury convicted Defendant both of driving

while impaired and driving after consuming alcohol while under

the age of 21.            The trial court sentenced Defendant to a 60-day

term   of    imprisonment,           which     was    suspended        and     Defendant     was

placed on supervised probation for 14 months.                                  Defendant was

also required to            complete 48 hours of community service and

obtain       a     substance         abuse     assessment        within        30    days     of

sentencing.            Defendant filed a timely notice of appeal to this

Court.

                                             Analysis

I. Denial of Motion to Suppress

       Defendant’s        first       argument       on     appeal   is    that     the   trial

court erred in denying his motion to suppress because Officer

Griffin did not have reasonable suspicion to believe that he was

committing a criminal offense at the time of the traffic stop.

This contention lacks merit.

       Our       review    of    a    trial    court's        ruling      on   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).         Furthermore,       any
                                         -6-

unchallenged factual findings are “deemed to be supported by

competent    evidence     and    are     binding      on    appeal.”         State    v.

Roberson, 163 N.C. App. 129, 132, 592 S.E.2d 733, 735–36 (2004).

“The   conclusions   of    law    made    from     the     findings    of    fact    are

reviewable de novo.”        State v. Brown, 199 N.C. App. 253, 256,

681 S.E.2d 460, 463 (2009).

       A traffic stop must be based on reasonable suspicion of

criminal activity based on the totality of the circumstances.

State v. Maready, 362 N.C. 614, 618, 669 S.E.2d 564, 567 (2008).

Reasonable   suspicion     must    arise       from   the    officer’s       knowledge

before the time of the stop.              State v. Hughes, 353 N.C. 200,

208, 539 S.E.2d 625, 630 (2000).

            Reasonable suspicion is a “less demanding
            standard than probable cause and requires a
            showing considerably less than preponderance
            of the evidence.”    Only “some minimal level
            of objective justification” is required.
            This   Court    has    determined    that   the
            reasonable suspicion standard requires that
            “[t]he stop . . . 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   his    experience  and
            training.”      Moreover,    “[a]   court  must
            consider the totality of the circumstances —
            the whole picture in determining whether a
            reasonable suspicion” exists.


Maready, 362 N.C. at 618, 669 S.E.2d at 567 (quoting State v.

Barnard,    362   N.C.   244,    247,    658     S.E.2d     643,   645      (citations

omitted), cert. denied, 555 U.S. 914, 172 L.Ed.2d 198 (2008)).
                                               -7-

    A     tip         from     an    informant           can    provide        the     reasonable

suspicion necessary to initiate an investigatory traffic stop.

State   v.       Nixon,      160    N.C.     App.       31,    34,    584     S.E.2d       820,   822

(2003).          When    the       basis    for     a    vehicle       stop    comes       from   an

informant’s tip, “the indicia of the tip’s reliability” must be

taken     into        account        when     assessing          the        totality        of    the

circumstances.            Maready, 362 N.C. at 619, 669 S.E.2d at 567.

Moreover, in evaluating the reliability of an informant’s tip,

there is a difference between a tip from a known and reliable

source,      a    tip     to    an       officer        stemming      from     a     face-to-face

encounter, and an anonymous tip.                        See id. at 619, 669 S.E.2d at

567 (discussing reliability of tip received from an informant

face-to-face); see also State v. McRae, 203 N.C. App. 319, 324,

691 S.E.2d 56, 60 (2010) (addressing known reliable informant);

State v. Hudgins, 195 N.C. App. 430, 435, 672 S.E.2d 717, 720

(2009) (examining indicia of reliability of tip from anonymous

informant).

    Defendant             claims          Officer        Griffin          lacked       reasonable

suspicion        to     stop       his     vehicle       because       the     information        he

received from dispatch was no more than “a basic description”

that originated from an informant’s anonymous tip.                                     Therefore,

Defendant argues, no reasonable suspicion existed.

    In       rejecting         Defendant’s         argument,         we     find     our    Supreme

Court’s decision in Maready instructive.                             In Maready, the driver
                                         -8-

of   a    minivan   noticed    a   silver      Honda    driving   in   an   erratic

fashion in her rearview mirror.                 She informed law enforcement

officers in a face-to-face encounter of her observations of the

silver Honda’s erratic driving.                Maready, 362 N.C. at 617, 669

S.E.2d at 566.       The officers then found the Honda driven by the

defendant stopped at a stoplight.                 They activated their blue

lights and conducted an investigatory stop of the vehicle.                    Id.

         The defendant argued that the officers lacked reasonable

suspicion     for   the   stop     of   his    vehicle.     Our    Supreme   Court

disagreed, noting that the tip was not anonymous because the

officers     received     it   from     an    individual   who    approached   the

officers in a face-to-face encounter and informed them of the

defendant’s unsafe driving.              The Court further noted that the

informant was traveling immediately in front of the defendant's

vehicle and was thus in a position to view the alleged traffic

violations she had reported.            Id. at 619, 669 S.E.2d at 567.

         The Court gave “significant weight” to the fact that the

informant approached the police and “gave them information at a

time and place near to the scene of the alleged violations”

because the informant would have had “little time to fabricate

her allegations against defendant.”               Id.    Our Supreme Court also

noted the informant’s willingness to place “her anonymity at

risk” and concluded that, under these circumstances, her tip was

reliable.     Id. at 620, 669 S.E.2d at 568.
                                            -9-

       Likewise, here, the tip received by Officer Duncan — which,

in turn, resulted in the dispatch heard by Officer Griffin —

stemmed from Officer Duncan’s face-to-face encounter with two

witnesses.      Like the informant in Maready, the witnesses in this

case   initiated       an    in-person      encounter      with    Officer   Duncan,

putting their anonymity at risk in order to report conduct they

had just observed.          Moreover, the witnesses were able to provide

details concerning (1) the make, color, and model of Defendant’s

car; (2) a description of the driver and his passenger; (3) the

location of the damage sustained by Defendant’s car; and (4) its

last known direction of travel.                   See State v. Hughes, 353 N.C.

200,    203,     539        S.E.2d    625,        628    (2000)     (holding       that

“[r]eliability could be established by showing that . . . the

informant demonstrated personal knowledge by giving clear and

precise details in the tip”).

       Even though Officer Duncan did not make the investigatory

stop himself, Officer Griffin was responding to the information

he   received    as    a    result   of     Officer     Duncan’s    BOLO.    Officer

Griffin used this information to determine the likely path of

Defendant’s     vehicle       and    then    observed     the     car   matching   the

description provided by the dispatcher.

       We have previously held that

           [i]f the officer making the investigatory
           stop (the second officer) does not have the
           necessary reasonable suspicion, the stop may
                                         - 10 -

              nonetheless be made if the second officer
              receives from another officer (the first
              officer) a request to stop the vehicle, and
              if, at the time the request is issued, the
              first   officer   possessed   a   reasonable
              suspicion   that   criminal  conduct   ha[d]
              occurred, was occurring, or was about to
              occur.
State v. Battle, 109 N.C. App. 367, 370-71, 427 S.E.2d 156, 159

(1993).

       Defendant cites          State v. Peele,         196 N.C. App. 668, 675

S.E.2d 682, disc. review denied, 363 N.C. 587, 683 S.E.2d 383

(2009), in which this Court reversed the trial court's denial of

the defendant's motion to suppress evidence obtained following a

stop    of    his     vehicle    based     on     information        provided    by     an

anonymous tipster.           In Peele, the officer received a dispatch

indicating      that    a    burgundy     Chevrolet         pickup    truck     was    “a

possible careless and reckless, D.W.I., headed towards the . . .

intersection.”         Id. at 669, 675 S.E.2d at 684.                    The officer

arrived at the designated intersection within seconds and saw a

truck that matched the description of the vehicle.                        The officer

followed the truck for approximately one-tenth of a mile.                          After

observing the truck weave once within its lane of travel, the

officer      pulled    the   truck      over    and    charged   the     driver       with

driving while impaired.           Id. at 669, 675 S.E.2d at 684–85.

       This    Court    held     that    while        the   anonymous     caller       had

accurately described the vehicle, the caller gave police no way

to test his or her credibility.                 Id. at 674, 675 S.E.2d at 687.
                                        - 11 -

We noted that “[t]he record contains no information about who

the caller was, no details about what the caller had seen, and

no information even as to where the caller was located.”                   Id. at

673, 675 S.E.2d at 686.

      Here,    unlike     in   Peele,      the    information      dispatched    to

Officer Griffin originated from a face-to-face encounter with an

informant rather than from an anonymous tip.                  Therefore, Peele

is inapposite.         Accordingly, there was reasonable suspicion to

stop Defendant’s vehicle and Defendant’s motion to supress was

properly denied.

II. Denial of Motion To Dismiss

      Defendant’s final argument is that the trial court erred in

denying his motion to dismiss the charges against him on the

theory that his rights were violated when he was held in the

Charlotte-Mecklenburg County Jail for an unreasonable amount of

time following the posting of his bond.                We disagree.

      Our review of the denial of a motion to dismiss based upon

alleged violations of statutes is limited to “‘whether there is

competent evidence to support the findings and the conclusions.

If   there    is   a   conflict   between        the   [S]tate's    evidence    and

defendant's evidence on material facts, it is the duty of the

trial court to resolve the conflict and such resolution will not

be disturbed on appeal.’”         State v. Labinski, 188 N.C. App. 120,

124, 654 S.E.2d 740, 743 (quoting State v. Lewis, 147 N.C. App.
                                       - 12 -

274, 277, 555 S.E.2d 348, 351 (2001)), disc. review denied, 362

N.C. 367, 661 S.E.2d 889 (2008).                 “Findings of fact which are

not challenged are presumed to be correct and are binding on

appeal.” State v. Eliason, 100 N.C. App. 313, 315, 395 S.E.2d

702, 703 (1990).

      “In order to warrant dismissal of a charge under N.C. Gen.

Stat. § 20-138.1(a)(2) [the statute prohibiting driving while

impaired],    a    defendant    must   make       a       sufficient    showing       of   a

substantial       statutory     violation        and        of   prejudice       arising

therefrom.”       Eliason, 100 N.C. App. at 315, 395 S.E.2d. at 703.

“Dismissal of charges for violations of statutory rights is a

drastic remedy which should be granted sparingly.                            Before a

motion to dismiss should be granted . . . it must appear that

the   statutory     violation    caused     irreparable          prejudice       to    the

preparation of defendant’s case.”                 Labinski, 188 N.C. App. at

124, 654 S.E.2d at 742-43 (citation and internal quotation marks

omitted).

      Pursuant     to   N.C.    Gen.   Stat.          §    15A-534.2,    a   defendant

subject to detention for driving while impaired has the right to

pretrial release when a judicial official determines either that

(1) the defendant is “no longer impaired to the extent that he

presents a danger of physical injury to himself or others or of

damage   to   property     if    he    is       released”;       or    (2)   a    sober,

responsible adult assumes responsibility for the defendant until
                                     - 13 -

he   is   no    longer   impaired.    N.C.    Gen.   Stat.   §   15A-534.2(c)

(2013).    Although the judicial official sets the conditions for

a defendant’s pretrial release, those conditions may not impede

on a defendant’s right to communicate with counsel and friends.

      Here, the trial court made the following oral findings in

denying Defendant’s motion to dismiss:

               The Court finds that the magistrate set a
               reasonable bond for the defendant. That the
               defendant was able to make the bond, and
               there was never an issue as to the bond or
               its amount. The defendant was not prejudiced
               by the setting of the secured bond by the
               magistrate.

               The Court finds that the approximate fifty
               minute delay between the time of the release
               of the defendant . . . and the defendant
               having met the bond requirement . . . was an
               unintentional delay on the part of the
               Sheriff’s Department.    And that it was a
               reasonable time period that passed between
               the   time  the   defendant  met   the  bond
               requirements and the time that the defendant
               was released.

               The Court further finds that the defendant
               at no time requested an opportunity to have
               a witness present to observe any part of the
               arrest.

               That the defendant was advised of his
               constitutional rights, that his rights were
               on the wall in the jailhouse area where he
               was, and that he made no efforts for a
               single request [sic] to have any person
               present.

               The Court further finds that even after the
               mother came to . . . the Mecklenburg County
               Jail, she did not enter the jail to attempt
               to make any observation of the defendant.
                    - 14 -

The Court further finds that the information
the mother received regarding her ability to
see the defendant at the jail was given to
her by her bondsman, or the bondsman that
she was talking to, and not by the Sheriff’s
Department in any effort to preclude the
defendant from having witnesses to observe
his condition.

The Court finds that . . . there was no
substantial violation of the defendant’s
constitutional rights.

The Court finds that the defendant has not
been deprived of an opportunity to obtain
evidence to support any defense.

That the Court finds that the defendant’s
breathalyzer reading was .18, which was
substantially   higher    than    the   .08
requirement under the law.     And that the
defendant, while operating the vehicle, was
alleged to have struck another vehicle and
failed to stop.
That these are also factors that the
magistrate could consider in setting the
bond, which information was contained in the
affidavit of the arresting officer.

The Court further finds that according to
the defendant’s own evidence the mother of
the   defendant  talked  to  the   defendant
multiple times, and that that [sic] also is
or could be some evidence to support the
defendant’s position at trial as to his
sobriety.

The defendant’s mother lived in the same
household with the defendant, and . . . she
would be a suitable person to evaluate his
condition during the relevant period.

The Court finds that there’s insufficient
evidence of any direct injury to the
defendant as a result of any delay that may
have been alleged to have occurred during
the time of the defendant’s arrest and the
                                       - 15 -

              defendant’s release.         The      motion     of     the
              defendant is denied.

      Defendant challenges only the trial court’s findings that

(1) the delay between the posting of his bond and his release

was unintentional; (2) this delay was reasonable; and (3) there

was no substantial violation of his rights.

      Deputy     James    Ingram   (“Deputy         Ingram”)        testified      that

Defendant was taken to the “booking, dress out” area — the area

where inmates are given a standard orange uniform before being

admitted into the jail — at 10:49 p.m.                     He stated that it was

not until after Defendant left the “dress out” area at 11:15

p.m. that deputies were informed that he had actually posted his

bond at 10:42 p.m., thereby satisfying the conditions for his

release.       Once they were made aware that his bond had been

posted, he was released from the jail at 11:37 p.m.                               Deputy

Ingram explained that this misunderstanding occurred because

              the deputies in the jail reception, dress
              out   area,    they   wouldn’t   know   that
              [Defendant] had met his conditions at that
              time.   So his paperwork had been placed in
              dress out before knowing that the conditions
              were met.   And after he was dressed out it
              was acknowledged in dress out that he had a
              bond posted, and at that time he was taken .
              . . back to jail reception.

      We   believe       that   Deputy          Ingram’s     testimony       provides

competent evidence to support the trial court’s findings that

the   delay    between    the   time     bond      was     posted    and    the    time
                                    - 16 -

Defendant was released was both unintentional and reasonable.

Accordingly, we conclude that the trial court did not err in

finding   that   no   substantial     violation    of   Defendant’s   rights

occurred.

    We also reject Defendant’s contention that because of the

delay in his release, his right to have his friends and family

members observe his condition was compromised.            Defendant points

to our Court’s decision in Labinski, in which we held that

            [i]f   the   provisions   of the   foregoing
            pretrial release statutes are not complied
            with by the magistrate, and the defendant
            can show irreparable prejudice directly
            resulting from a lost opportunity to gather
            evidence in his behalf by having friends and
            family observe him and form opinions as to
            his condition following arrest . . . and to
            prepare a case in his own defense, the DWI
            charge must be dismissed.

188 N.C. App. at 126, 654 S.E.2d at 744 (citation and internal

quotation marks omitted).

    In the present case, the trial court did not err in finding

that Defendant had failed to show prejudice.               Defendant had a

passenger in his vehicle who had the opportunity to observe his

condition at the time        of his    arrest.      Furthermore, although

Officer Griffin gave Defendant the option of having a witness

present     during    the   performance      of   the   Intoxilyzer    test,

Defendant voluntarily waived that right and did not request to

have anyone present.        Defendant’s mother was also allowed to
                                  - 17 -

communicate with him over the phone while he was in custody and

was present at the time of his release.         Moreover, we note that

upon her arrival at the jail, she did not make any request to

observe Defendant’s condition.

    For these reasons, we believe competent evidence existed to

support the trial court’s finding that “[D]efendant [was] not .

. . deprived of an opportunity to obtain evidence to support any

defense.”     See State v. Daniel, 208 N.C. App. 364, 366, 702

S.E.2d 306, 308 (2010) (holding that defendant’s detention for

nearly 24 hours after being taken into custody for driving while

impaired did not violate her statutory rights “to the point of

irreparably   prejudicing   any   preparation   of   a   defense   to   the

charge”); Labinski, 188 N.C. App. at 128, 654 S.E.2d at 745

(although defendant alleged that magistrate committed statutory

violation in delaying her release from jail, she failed to show

prejudice   because   she   had   opportunity   to   contact   witnesses

before submitting to Breathalyzer test, was informed of that

right, and was not denied access to friends and family who could

serve as witnesses).

                              Conclusion

    For the reasons stated above, we conclude that the trial

court did not err in denying Defendant’s motion to suppress or

in denying his motion to dismiss.

    NO ERROR.
                         - 18 -

Judge STEELMAN and STEPHENS concur.

Report per Rule 30(e).
