               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                      No. COA15-980

                                 Filed: 7 June 2016

Mecklenburg County, No. 11 CRS 250553

STATE OF NORTH CAROLINA

              v.

ERIC PRESTON SAWYERS


       Appeal by defendant from order and judgment entered 15 October 2014 by

Judge Lucy N. Inman in Mecklenburg County Superior Court. Heard in the Court of

Appeals 23 February 2016.


       Attorney General Roy Cooper, by Assistant Attorney General Christopher R.
       McLennan, for the State.

       Tarlton Law PLLC, by Raymond C. Tarlton, for defendant-appellant.


       McCULLOUGH, Judge.


       Eric Preston Sawyers (“defendant”) appeals from judgment entered upon his

plea of guilty to driving while impaired. Defendant argues that the trial court erred

by denying his motion to suppress. For the reasons stated herein, we affirm the order

of the trial court.

                                 I.       Background

       On 12 November 2011, defendant was arrested and issued a citation for driving

while impaired in violation of N.C. Gen. Stat. § 20-138.1.
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      On 29 April 2013, defendant filed a “Motion to Dismiss” charges against him

alleging statutory and constitutional violations regarding his right to pre-trial

release, his right to obtain additional chemical analysis, and his right to have an

opportunity to obtain evidence. On the same date, defendant filed a “Motion to

Suppress Evidence Obtained without Reasonable Suspicion to Stop and Seize

Defendant” and a “Motion to Suppress EC/IR II Test Results.”

      Following a hearing held on 27 September 2013, the trial court entered an

order on 15 October 2013 denying defendant’s motion to dismiss. The trial court made

the following pertinent findings of fact:

             3.    That Trooper Keller . . . assisted Sergeant Dorty
             with the DWI investigation and thereafter arrested the
             defendant at 2:26am for Driving While Impaired[.]

             ....

             5.    That Trooper Keller then transported the defendant
             to the Charlotte Mecklenburg detention facility for an
             EC/IR II test of his breath for alcohol, arriving at
             approximately 3:05am.

             6.    That the defendant was taken to the nurse,
             fingerprinting, and image capturing until 3:34am.

             7.      That Trooper Keller advised the defendant of his
             rights to a chemical analysis of his breath and the
             defendant reviewed and acknowledged the rights form
             regarding chemical analysis at 3:45am, but refused to
             sign. . . .

             8.   That the defendant was allowed to retrieve phone
             numbers from his phone and make phone calls. He called


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            his mother Christine Sawyers at approximately 4:00am to
            let her know he was in jail and she needed to come get him,
            but there was no mention of observing the EC/IR II testing
            procedures.

            9.    That Christine Sawyers lives in South Charlotte and
            arrived within approximately 30 minutes of receiving the
            defendant’s phone call.

            10.   That a witness did not appear for the defendant
            within the requisite 30 minutes, so Trooper Keller
            requested the defendant submit to a test of his breath for
            alcohol at 4:19am and 4:22 am. The lower of the two
            readings was .15 g/210L. . . .

(emphasis added). The trial court concluded:

            1. That there was no substantial violation of the United
               States Constitution, the North Carolina Constitution,
               or any statutory violation.

            2. That the defendant was informed of his right to have a
               witness present and was allowed a witness, Christine
               Sawyers, at the Mecklenburg County Jail, who was able
               to communicate and speak to the defendant for 30
               minutes and assist in forming his defense.

            3. That there was no evidence that anyone who came to
               the Mecklenburg County Jail to see or speak with
               defendant was denied that right.

      A hearing on defendant’s motions to suppress was held during the

15 October 2014 criminal session of Mecklenburg County Superior Court.

      In regards to defendant’s “Motion to Suppress Evidence Obtained without

Reasonable Suspicion to Stop and Seize Defendant,” the State offered the testimony

of Sergeant Henry Hill Dorty, Jr. (“Sergeant Dorty”) with the North Carolina


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Highway Patrol. Sergeant Dorty testified that on 12 November 2011 at 2:26 a.m., he

was on patrol on Tryon Street in downtown Charlotte. He was sitting stationary in

his vehicle at a stoplight. Sergeant Dorty observed defendant walking down the

sidewalk and noticed that he had a slight limp. Sergeant Dorty testified that directly

behind defendant was what appeared to be a homeless male dragging a female. The

female “appeared to either be very intoxicated or drugged.” Defendant stopped at a

car on the side of the road and opened the back door behind the driver’s seat.

Defendant and the other male put the female in the backseat of the vehicle. Dorty

testified that “I didn’t know whether she was being kidnapped, if she was in danger

or what the situation was.” Thereafter, defendant got into the driver’s seat and the

other male got into the front passenger seat of the car. Defendant got into traffic two

car lengths in front of Sergeant Dorty. Sergeant Dorty testified that he stayed behind

defendant and planned to stop defendant’s vehicle “[t]o investigate to see if the female

in the vehicle was okay, what was going on.” After defendant made two turns,

Sergeant Dorty activated his blue lights and pulled defendant over.

      The trial court denied defendant’s motion to suppress for lack of reasonable

suspicion by stating as follows:

             THE COURT: . . . I am persuaded, based on the evidence
             presented and the very eloquent arguments of counsel for
             both sides, the authorities cited, that Trooper Dorty had a
             reasonable and articulable suspicion to initiate the stop
             and that the stop falls within the community caretaker
             exception to the Fourth Amendment.


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      In regards to defendant’s “Motion to Suppress EC/IR II Test Results,” Trooper

Robert B. Keller (“Trooper Keller”) and defendant testified. Trooper Keller with the

North Carolina State Highway Patrol testified that he came into contact with

defendant during the early hours of 12 November 2011. Trooper Keller was contacted

by Sergeant Dorty. Subsequent to arriving on the scene, Trooper Keller formed the

opinion that defendant was impaired and arrested defendant for driving while

impaired at 2:26 a.m.      Defendant was taken to “Mecklenburg County intake

downtown” and entered the room containing the Intoximeter ECIR/II machines.

Defendant’s rights were read to him at 3:45 a.m. and defendant refused to sign the

form acknowledging his rights. Defendant called for a witness using the landline

provided by the sheriff’s department and spoke with his mother at 3:59 a.m. When

asked whether Trooper Keller had a disagreement with defendant over defendant’s

access to his cell phone, Trooper Keller testified that he did not “recall communication

a whole lot about the cell phone.” Trooper Keller further testified that he could not

recall whether he heard defendant asking his mother to come down to the jail or

whether he asked his mother to serve as a witness for the breath test. Trooper Keller

testified that to his recollection, defendant failed to indicate to him at 3:45 a.m. that

he had a witness coming to view the testing procedures and that if defendant had so

indicated, Trooper Keller would have waited thirty minutes for the witness to arrive.

Defendant provided two samples at 4:19 a.m. and 4:22 a.m. Trooper Keller testified


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that between 3:45 a.m. and 4:19 a.m., he was not notified that anyone had arrived to

view the testing procedures.

      Defendant testified that he and Trooper Keller had disagreements regarding

signing paperwork and accessing his cell phone so that he could access his attorney’s

phone number.     Defendant recalled Trooper Keller reading him his rights as it

pertained to submitting to a test of his breath but testified that he refused to sign the

rights form. At 3:59 a.m. defendant made a phone call to his mother. Defendant

testified that the purpose of calling his mother was because he “wanted a witness to

watch the Breathalyzer test.” It would have taken ten to fifteen minutes for his

mother to arrive at the jail. Defendant testified that to his knowledge, his mother

arrived within thirty minutes of his phone call.

      The trial court adopted the findings of fact made in the 15 October 2013 order

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

suppress evidence from defendant’s breath test and stated as follows:

             THE COURT: . . . And I do find that the State has met the
             burden of producing evidence, which hasn’t been
             impeached, that Trooper Keller observed the defendant.
             The standard is not -- as I understand it, there’s not any
             authority that says the standard is that you’re not allowed
             to fill out paperwork or talk on the phone or do anything
             else during that observation period. So I’m going to find
             that the State’s met its burden on that. And for all those
             reasons, I’m going to deny the motion to suppress[.]




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      On 15 October 2014, the trial court entered an order, denying both of

defendant’s motions to suppress. Thereafter, defendant pled guilty to driving while

impaired while reserving his right to appeal the denial of his motions to suppress.

On the same date, the trial court entered judgment, sentencing defendant to a DWI

Level Five punishment. Defendant was sentenced to 30 days in jail. This sentence

was suspended and defendant was placed on supervised probation for a term of 12

months. On 16 October 2014, defendant entered notice of appeal.

                              II.     Standard of Review

      Review of a trial court’s denial of a motion to suppress is “strictly limited to

determining whether the trial [court]’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 [court]’s ultimate conclusions of

law.” State v. Salinas, 366 N.C. 119, 123, 729 S.E.2d 63, 66 (2012) (citation omitted).

“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).

                                    III.   Discussion

      Defendant presents two issues on appeal. Defendant argues that the trial

court erred by:    (A) denying defendant’s motion to suppress where the facts

demonstrated that Sergeant Dorty did not have the reasonable articulable suspicion

needed to justify an investigatory stop and (B) denying defendant’s motion to



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suppress the breath test results where the seizure of defendant’s cell phone prevented

defendant from obtaining a witness in time to observe the test. Before we reach the

merits of defendant’s appeal, we first address a preliminary issue.

Notice of Appeal

       Defendant has filed a petition for writ of certiorari in which defendant concedes

that while he intended to appeal “from all adverse decisions against him,” through

miscommunication or inadvertent error, his “trial counsel inadvertently failed to

specifically state that the appeal was from both the denial of the suppression motions

and also from the Judgment entered on October 15, 2014.” Accordingly, defendant

requests that our Court issue a writ of certiorari pursuant to the North Carolina

Rules of Appellate Procedure Rule 21(a)(1). Rule 21(a)(1) provides that:

              [t]he writ of certiorari may be issued in appropriate
              circumstances by either appellate court to permit review of
              the judgments and orders of trial tribunals when the right
              to prosecute an appeal has been lost by failure to take
              timely action, or when no right of appeal from an
              interlocutory order exists, or for review pursuant to
              N.C.G.S. § 15A-1422(c)(3) of an order of the trial court
              ruling on a motion for appropriate relief.

N.C. R. App. P. Rule 21(a)(1) (2016).           Our Court has previously ruled that

“ ‘[a]ppropriate circumstances’ may include when a defendant’s right to appeal has

been lost because of a failure of his or her trial counsel to give proper notice of appeal.”

State v. Gordon, 228 N.C. App. 335, 337, 745 S.E.2d 361, 363 (2013). Because

defendant’s right to appeal from the 15 October 2014 judgment was lost as a result of


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no fault of his own, we exercise our discretion and allow defendant’s petition for writ

of certiorari pursuant to Rule 21(a)(1).

             A.    Motion to Suppress for Lack of Reasonable Suspicion

      In his first argument on appeal, defendant contends that the trial court erred

in denying his motion to suppress where the facts demonstrated that Sergeant Dorty

did not have the reasonable articulable suspicion necessary to justify an investigatory

stop, thereby violating his rights under the Fourth Amendment to the United States

Constitution and Article I, § 20 of the North Carolina Constitution to be free from

unreasonable seizures. Defendant also argues that the trial court erred by applying

the community caretaking doctrine as an exception to the warrant requirement of the

Fourth Amendment. We disagree.

                    The Fourth Amendment protects individuals
             against unreasonable searches and seizures and the North
             Carolina Constitution provides similar protection. A traffic
             stop is a seizure even though the purpose of the stop is
             limited and the resulting detention quite brief. Traffic
             stops have been historically reviewed under the
             investigatory detention framework first articulated in
             Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L. Ed. 2d 889
             (1968). Under Terry and subsequent cases, a traffic stop is
             permitted if the officer has a reasonable, articulable
             suspicion that criminal activity is afoot.

State v. Smith, 192 N.C. App. 690, 693, 666 S.E.2d 191, 193 (2008) (citations omitted).

“Reasonable suspicion requires that the stop be based on specific and articulable

facts, as well as the rational inferences from those facts, as viewed through the eyes



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of a reasonable, cautious officer, guided by his experience and training.” State v.

Lopez, 219 N.C. App. 139, 145, 723 S.E.2d 164, 169 (2012) (citation omitted). “All the

State is required to show is a minimal level of objective justification, something more

than an unparticularized suspicion or hunch. A court must consider the totality of

the circumstances in determining whether the officer possessed a reasonable and

articulable suspicion to make an investigatory stop.” State v. Brown, 213 N.C. App.

617, 619, 713 S.E.2d 246, 248 (2011) (citations and quotation marks omitted).

      After thoroughly reviewing the record, we hold that Sergeant Dorty had

specific and articulable facts sufficient to support an investigatory stop of defendant.

Sergeant Dorty testified that in the early morning hours of 12 November 2011 at 2:26

a.m., he was on patrol on Tryon Street in downtown Charlotte. He was sitting

stationary in his vehicle at a stoplight when he observed defendant walking down the

street with a slight limp. Sergeant Dorty observed that directly behind defendant

was another male, who appeared to be homeless, dragging an “either very intoxicated

or drugged” female down the street. Defendant and the other male placed the female

in defendant’s vehicle, defendant and the other male entered the vehicle, and

defendant’s vehicle left the scene.    Sergeant Dorty testified that he was unsure

whether the female “was being kidnapped, if she was in danger or what the situation

was.” Sergeant Dorty did not believe that the other male was with defendant and the

female and wanted to investigate “to see if the female in the vehicle was okay, what



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was going on.” Considering the totality of the circumstances, we hold that defendant’s

investigatory stop was justified by Sergeant Dorty’s reasonable suspicion that

defendant was involved in criminal activity. Therefore, we hold that the trial court

did not err by denying defendant’s motion to suppress on this ground.

      In addition to holding that there was reasonable articulable suspicion to

conduct an investigatory stop of defendant, the trial court also held that the stop fell

within the community caretaker exception to the Fourth Amendment. In State v.

Smathers, 232 N.C. App. 120, 753 S.E.2d 380 (2014), our Court formally recognized

the community caretaking doctrine as an exception to the warrant requirement under

the Fourth Amendment to the United States Constitution. Id. at 122, 753 S.E.2d at

382. In reference to a large majority of state courts recognizing this doctrine as an

exception, our Court noted that:

             [t]he overarching public policy behind this widespread
             adoption is the desire to give police officers the flexibility
             to help citizens in need or protect the public even if the
             prerequisite suspicion of criminal activity which would
             otherwise be necessary for a constitutional intrusion is
             nonexistent.      The doctrine recognizes that, in our
             communities, law enforcement personnel are expected to
             engage in activities and interact with citizens in a number
             of ways beyond the investigation of criminal conduct. Such
             activities include a general safety and welfare role for
             police officers in helping citizens who may be in peril or
             who may otherwise be in need of some form of assistance.

Id. at 125, 753 S.E.2d at 384 (citation omitted). Our Court adopted a three-pronged

test in applying the community caretaking exception:


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             the State has the burden of proving that: (1) a search or
             seizure within the meaning of the Fourth Amendment has
             occurred; (2) if so, that under the totality of the
             circumstances an objectively reasonable basis for a
             community caretaking function is shown; and (3) if so, that
             the public need or interest outweighs the intrusion upon
             the privacy of the individual. Relevant considerations in
             assessing the weight of public need against the intrusion of
             privacy include, but are not limited to: (1) the degree of the
             public interest and the exigency of the situation; (2) the
             attendant circumstances surrounding the seizure,
             including time, location, the degree of overt authority and
             force displayed; (3) whether an automobile is involved; and
             (4) the availability, feasibility and effectiveness of
             alternatives to the type of intrusion actually accomplished.

Id. at 128-29, 753 S.E.2d at 386 (citations omitted). “[T]his exception should be

applied narrowly and carefully to mitigate the risk of abuse.” Id. at 129, 753 S.E.2d

at 386.

      We must now apply the three-pronged test to the circumstances in our present

case. First, it is undisputed that the traffic stop of defendant was a seizure under the

Fourth Amendment of the United States Constitution. Second, given that Sergeant

Dorty observed defendant and what appeared to be a homeless male dragging a

female who seemed to “either be very intoxicated or drugged” into defendant’s vehicle,

there was an objectively reasonable basis under the totality of the circumstances to

conclude that the seizure was based on the community caretaking function of

ensuring the safety of the female. Sergeant Dorty testified that he was unsure

whether the female “was being kidnapped, if she was in danger or what the situation



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was.” Third, the public need or interest in having defendant seized outweighed his

privacy interest in being free from the intrusion. Sergeant Dorty observed the female

who was either intoxicated or drugged being put in the backseat of defendant’s vehicle

by defendant and another male who “appeared to be homeless and didn’t appear to

be with these two people that I saw him with.” Defendant and the other male entered

the vehicle and began driving away from the scene. Therefore, the degree of public

interest in ensuring the safety and well-being of the female was high and the fact

that defendant was driving away in a vehicle with the female as a passenger

contributed to the exigency of the situation. Furthermore, defendant was operating

a vehicle when he was seized rather than enjoying the privacy of his own home,

thereby lessening his expectation of privacy. See Smathers, 232 N.C. App. at 131,

753 S.E.2d at 387 (stating that “[o]ne has a lesser expectation of privacy in a motor

vehicle because its function is transportation and it seldom serves as one’s residence

or as the repository of personal effects. . . . It travels public thoroughfares where both

its occupants and its contents are in plain view”) (citation omitted).

      Based on the foregoing, we hold that the public need and interest outweighed

defendant’s privacy interest in being free from government seizure and that

defendant’s seizure fit within the community caretaking exception as set out in

Smathers. Accordingly, we hold that the trial court did not err by applying the




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community caretaking exception and affirm the trial court’s order denying

defendant’s motion to suppress.

                     B.   Motion to Suppress Breath Test Results

        In his second argument on appeal, defendant asserts that the trial court erred

by denying his motion to suppress the results of his breath test where he was deprived

of a reasonable opportunity to arrange to have a witness observe his breath test.

Specifically, defendant argues that officers deprived defendant access to his cell

phone address book, which in turn impeded his ability to contact a witness in a timely

manner.

        Defendant directs our attention to North Carolina General Statutes section 20-

16.2(a)(6) regarding his right to call a witness to view the administration of a

chemical breath test. N.C. Gen. Stat. § 20-16.2(a)(6) provides as follows, in pertinent

part:

              Any law enforcement officer who has reasonable grounds
              to believe that the person charged has committed the
              implied-consent offense may obtain a chemical analysis of
              the person.

              Before any type of chemical analysis is administered the
              person charged shall be taken before a chemical analyst
              authorized to administer a test of a person’s breath or a law
              enforcement officer who is authorized to administer
              chemical analysis of the breath, who shall inform the
              person orally and also give the person a notice in writing
              that:

              ....


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             You may call an attorney for advice and select a witness to
             view the testing procedures remaining after the witness
             arrives, but the testing may not be delayed for these
             purposes longer than 30 minutes from the time you are
             notified of these rights. You must take the test at the end
             of 30 minutes even if you have not contacted an attorney or
             your witness has not arrived.

N.C. Gen. Stat. § 20-16.2(a)(6) (2015).

      After careful review, we hold that the record evidence supports the trial court’s

conclusion that police officers complied with the requirements set out in N.C. Gen.

Stat. § 20-16.2(a)(6) as defendant’s first breath test was not administered until more

than thirty minutes after defendant was informed of his rights. Trooper Keller

testified that defendant was arrested at 2:26 a.m. on 12 November 2011 for driving

while impaired. Defendant was taken to “Mecklenburg County intake downtown”

and entered the room containing the Intoximeter ECIR/II machines. Trooper Keller

read defendant’s rights to him at 3:45 a.m., however, defendant refused to sign the

form acknowledging his rights. Trooper Keller testified that between 3:45 a.m. and

3:59 a.m., defendant was not prevented from using the telephone. Defendant called

his mother using a landline provided by the sheriff’s department at 3:59 a.m. Trooper

Keller could not recall whether he heard defendant asking his mother to come down

to the jail or whether he asked his mother to serve as a witness for the breath test.

Defendant failed to indicate to Trooper Keller at 3:45 a.m. that he had a witness

coming to view the testing procedures. Trooper Keller testified that if defendant had


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indicated to him that he had a witness on the way, Trooper Keller would have waited

thirty minutes for the witness to arrive. Defendant provided two breath samples at

4:19 a.m. and 4:22 a.m. Trooper Keller testified that between 3:45 a.m. and 4:19 a.m.,

he was not notified that anyone had arrived to view the testing procedures.

      Defendant’s argument that he was denied access to his cell phone in order to

retrieve numbers is without merit. The trial court adopted the findings of fact entered

in the 15 October 2013 order denying defendant’s motion to dismiss and defendant

does not challenge any specific findings on appeal. Finding of fact number 8 indicates

that defendant was “allowed to retrieve phone numbers from his phone and make

phone calls.” This finding is supported by the testimony of Deputy James Ingram, of

the Mecklenburg County Sheriff’s Office, at the hearing held on 27 September 2013:

             Q.     Looking towards the bottom of the page where the
             notes are listed, we’ve gone through some of these. It looks
             like at 3:18 the defendant retrieved numbers from his
             phone; is that correct?

             A.     Correct.

      Accordingly, we hold that the trial court did not err by denying defendant’s

motion to suppress the results of his breath test.

                                   IV.    Conclusion

      Based on the foregoing reasons, we affirm the order of the trial court denying

defendant’s motions to suppress.

      AFFIRMED.


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Judges BRYANT and STEPHENS concur.




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