              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA19-134

                               Filed: 7 January 2020

Cleveland County, Nos. 18 CRS 50772-74

STATE OF NORTH CAROLINA

             v.

EHTASHAM M. HOQUE, Defendant.


      Appeal by Defendant from judgments entered 5 September 2018 by Judge

Robert C. Ervin in Cleveland County Superior Court. Heard in the Court of Appeals

22 August 2019.


      Attorney General Joshua H. Stein, by Assistant Attorneys General Kathryne E.
      Hathcock and Jonathan E. Evans, for the State-Appellee.

      Arnold & Smith, PLLC, by Paul A. Tharp, for Defendant-Appellant.


      COLLINS, Judge.


      Defendant Ehtasham Hoque appeals from judgments entered upon jury

verdicts of guilty of driving while impaired and resisting a public officer, and

responsible for possessing an open container of alcoholic beverage. Defendant argues

that the trial court (1) erred by denying his motion to dismiss; (2) erred by denying

his motion to suppress; (3) abused its discretion by admitting certain evidence; and

(4) erred in determining that law enforcement officers did not violate his

constitutional rights. We discern no error or abuse of discretion.
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                                  Opinion of the Court



                              I. Procedural History

      On 16 April 2018, Defendant was indicted for driving while impaired (“DWI”),

resisting a public officer, and driving a motor vehicle on a highway with an open

container of alcoholic beverage after drinking. A trial commenced on 4 September

2018. On the second day of the trial, Defendant filed a motion to suppress the results

of a chemical analysis of Defendant’s blood and requested special jury instructions on

spoliation of evidence, specifically a vodka bottle and body-camera recordings. The

trial court denied Defendant’s motion to suppress the blood test results, agreed to

give a spoliation instruction for the vodka bottle, and refused to give a spoliation

instruction for the body-camera recordings. At the close of the State’s evidence,

Defendant made a motion to dismiss all charges for insufficient evidence. The trial

court granted the motion as to misdemeanor possessing an open container after

drinking, allowing an infraction charge of possession of an open container to go

forward. The trial court denied the motion to dismiss as to the charges of DWI and

resisting a public officer. On 5 September 2018, the jury found Defendant guilty of

DWI and resisting a public officer, and responsible for possessing an open container.

      The trial court entered judgment upon the jury’s verdicts. Defendant timely

appealed.




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                              II. Factual Background

       The State’s evidence tended to show the following: At around 6:00 a.m. on

20 February 2018, Officer Joshua Richard of the Shelby Police Department was

dispatched in response to a call reporting a stationary car in the middle of Earl Street.

Upon his arrival, Richard observed a beige Toyota Prius in the “dead middle of the

roadway” with its headlights turned on and the engine running. Richard approached

the car and observed a male, later identified as Defendant, “slumped over appearing

to be asleep in the driver’s seat.” Richard did not see any other passengers in the car.

When Richard knocked on the driver’s side window, Defendant would not speak to

him. Richard asked Defendant to roll down his window, but Defendant refused.

Richard opened the door, asked Defendant his name, and engaged Defendant in

conversation. Richard observed that Defendant was “groggy” and his breath smelled

of alcohol.

       While waiting for other officers to arrive, Richard tried to determine

Defendant’s name. Defendant produced a bank card as his only form of identification.

Richard saw an open New Amsterdam vodka bottle in between Defendant’s legs.

Defendant then “revved his engine very high” and “pressed the gas.” After Richard

turned the engine off by depressing the keyless push-button, Defendant tried to

restart the car several times. Richard realized he had not turned on his chest-

mounted body camera, so he activated it at that time.



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      Defendant asked if he could pull the car forward and attempted to start the car

“a couple more times,” despite Richard telling him to stop. Defendant also stated that

he was at home; Richard explained to Defendant that he was actually in the middle

of the road. Richard observed that Defendant appeared “disheveled” and that his

“eyes were very glossy and bloodshot-appearing.”

      Officers Smith, Kallay, Torres, and Hill arrived on the scene and activated

their body cameras. Smith observed Defendant sitting in the driver’s seat of the car

and engaged Defendant in conversation. Defendant told Smith that “he had just a

few sips [of alcohol] just a couple hours ago.” Smith smelled a “very strong odor of

alcohol” on Defendant’s breath and noticed that Defendant’s eyes were red and glassy,

and that his movements were slow and labored.            Smith thought Defendant’s

movements were labored due to alcohol consumption.           Upon Smith’s request,

Defendant got out of the car for field sobriety testing. Smith performed a horizontal

gaze nystagmus test; Defendant failed, showing all six signs of impairment.

Defendant also failed a vertical gaze nystagmus test, which led Smith to believe that

Defendant was “significantly high.”

      While Smith was performing the field sobriety tests, Torres observed that

Defendant was “very slow to react” and had “red, glassy eyes” and “slurred speech.”

Defendant did not understand where he was or what time it was, and he had a hard




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time answering questions. Torres saw the open alcohol bottle between Defendant’s

legs.

        Smith asked Defendant to provide a breath sample on the portable alcosensor.

Although Defendant initially agreed, he refused 10 to 12 times when asked to give a

sample. Defendant repeatedly placed his hands in his pockets, which Smith told him

not to do. Because Defendant was making Smith feel concerned for his own safety,

Smith grabbed Defendant’s right wrist to pull it out of Defendant’s pocket and said,

“The games are over. We’re not going to put our hands back in our pockets anymore.”

After Defendant refused one last opportunity to provide a breath sample, Smith

began to arrest him.

        Because Defendant “tensed up” and “pulled his arms back,” Richard and Torres

assisted Smith in placing Defendant under arrest. Defendant continued to struggle

with the officers, fell down to his knees, and began shouting and crying. Smith and

Torres adjusted Defendant’s handcuffs, and Defendant stopped shouting and crying.

When Smith and Torres tried to place Defendant into the patrol car, Defendant was

uncooperative and would not put his legs in the car. Torres grabbed Defendant’s legs,

placed them inside the car, and shut the door. Torres smelled alcohol on Defendant’s

breath. Kallay retrieved the vodka bottle and gave it to Smith. Smith poured the

liquid out of the bottle in accordance with the police department’s common practice




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                                  Opinion of the Court



and placed the bottle in the patrol car. After Defendant was in the back of the patrol

car, Smith turned off his body camera.

      Smith transported Defendant to the Law Enforcement Center annex for a

chemical analysis of his breath and explained Defendant’s implied consent rights to

him. Smith did not have his body camera turned on while at the Law Enforcement

Center annex, in violation of his department’s policy. Defendant refused to sign the

implied rights form and did not request an attorney. Smith gave Defendant one more

opportunity to submit a breath sample. Defendant did not put his mouth on the

intoxilyzer machine or attempt to blow. After Smith marked Defendant as refusing

to provide a breath sample, Smith obtained a search warrant for Defendant’s blood

from the magistrate.

      Smith transported Defendant to the hospital to have a blood sample taken. At

the hospital, Defendant told the nurse that she did not have his permission to take

his blood. Hospital staff told Smith that Defendant would need to be held down for

the blood draw, because he was refusing to cooperate, despite the search warrant.

Smith and Kallay placed Defendant in handcuffs and placed him on his stomach.

Because Defendant was “somewhat combative and did not want his blood drawn,”

two nurses assisted the officers in holding Defendant down, and a nurse was able to

draw Defendant’s blood.




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                                   Opinion of the Court



      Defendant testified that he did not refuse to provide a blood sample but was

only asking to see the search warrant. He also testified that a doctor and a nurse

were in the hospital room with him when his blood was collected. He said, “They

forced me to the table. Not forced. They asked me to lay down.” He also testified

that unknown persons got on top of him, forced his head into a pillow, and forcibly

drew his blood.

      A chemical analysis of Defendant’s blood by technicians at the North Carolina

State Crime Laboratory revealed a blood alcohol concentration of 0.07 and the

presence of the following substances: cannabinoids (specifically the substances

tetrahydrocannabinol (“THC”) and tetrahydrocannabinol carboxylic acid (“THCA”)),

amphetamine, and methamphetamine.

                               III. Issues Presented

      Defendant presents the following issues on appeal: (1) the trial court erred by

denying his motion to dismiss for insufficient evidence of each offense; (2) the trial

court erred by denying his motion to suppress the results of the blood test; (3) the

trial court abused its discretion by allowing into evidence the vodka bottle that police

officers had emptied at the scene of the arrest; and (4) the trial court erred in

determining that the officers’ “intentional suppression” of body-camera recording

evidence did not violate Defendant’s constitutional rights.




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                                   IV. Discussion

                                A. Motion to Dismiss

      Defendant first argues that the trial court erred by denying his motion to

dismiss for insufficient evidence of each charge.

      Upon a motion to dismiss for insufficient evidence, the trial court must

determine whether the State presented “substantial evidence (1) of each essential

element of the offense charged and (2) that defendant is the perpetrator of the

offense.” State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). “Substantial

evidence is relevant evidence that a reasonable mind might accept as adequate to

support a conclusion.” State v. Worley, 198 N.C. App. 329, 333, 679 S.E.2d 857, 861

(2009) (internal quotation marks and citation omitted). The trial court must view the

evidence in the light most favorable to the State, giving the State the benefit of all

reasonable inferences. State v. Fritsch, 351 N.C. 373, 378-79, 526 S.E.2d 451, 455

(2000). This Court reviews a trial court’s denial of a motion to dismiss de novo. State

v. Moore, 240 N.C. App. 465, 470, 770 S.E.2d 131, 136 (2015) (citation omitted).

1. Driving While Impaired

      Defendant argues that the trial court erred by denying his motion to dismiss

the DWI charge, because the State failed to present sufficient evidence that

Defendant drove a vehicle and was impaired.

      Under N.C. Gen. Stat. § 20-138.1(a):



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             A person commits the offense of impaired driving if he
             drives any vehicle upon any highway, any street, or any
             public vehicular area within this State:
                    (1)   While under the influence of an impairing
                    substance; or
                    (2)   After having consumed sufficient alcohol that
                    he has, at any relevant time after the driving, an
                    alcohol concentration of 0.08 or more. The results of
                    a chemical analysis shall be deemed sufficient
                    evidence to prove a person’s alcohol concentration;
                    or
                    (3)   With any amount of a Schedule I controlled
                    substance, as listed in [N.C. Gen. Stat. §] 90-89, or
                    its metabolites in his blood or urine.

N.C. Gen. Stat. § 20-138.1(a) (2018).

      A person “drives” within the meaning of the statute if he is “in actual physical

control of a vehicle which is in motion or which has the engine running.” N.C. Gen.

Stat. § 20-4.01(7) and (25) (2018) (noting that the terms “operator” and “driver” are

synonymous). See State v. Fields, 77 N.C. App. 404, 406, 335 S.E.2d 69, 70 (1985)

(holding that defendant sitting behind the wheel of a car in the driver’s seat with the

engine running drove within the meaning of the statute, even though defendant

claimed that the car was running only to heat the car). An individual who is asleep

behind the wheel of a car with the engine running is in actual physical control of the

car, thus driving the car within the meaning of the statute. State v. Mabe, 85 N.C.

App. 500, 504, 355 S.E.2d 186, 188 (1987).




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                                   Opinion of the Court



      In this case, when Richard responded to a call reporting a stationary vehicle

on the road, he found Defendant in the driver’s seat of the vehicle with the headlights

on and the engine running.      Initially, Defendant appeared to be asleep.      When

Richard was able to engage Defendant in conversation, Defendant asked if he could

pull his car forward and repeatedly revved the engine. No other passengers were in

the car. When Richard asked Defendant to exit the car, Defendant exited from the

driver’s side. This evidence was sufficient to establish that Defendant drove the car

within the meaning of the statute. See Fields, 77 N.C. App. at 406, 335 S.E.2d at 70;

Mabe, 85 N.C. App. at 504, 355 S.E.2d at 188.

      Defendant also argues that the State did not provide sufficient evidence that

he was impaired, because his blood alcohol concentration was less than 0.08, and he

only failed the horizontal gaze nystagmus test due to a medical problem.

      The acts of driving while under the influence of an impairing substance,

driving with a blood alcohol concentration of 0.08, and driving with a controlled

substance or its metabolites in one’s blood or urine are three “separate, independent[,]

and distinct ways by which one can commit the single offense of [DWI].” State v.

Coker, 312 N.C. 432, 440, 323 S.E.2d 343, 349 (1984) (emphasis omitted). The trial

court only instructed the jury on the driving while under the influence of an impairing

substance prong. Thus, the State need not have presented evidence that Defendant




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had a blood alcohol concentration of 0.08 or above in order to have presented sufficient

evidence of DWI. See id.

      “The opinion of a law enforcement officer . . . has consistently been held

sufficient evidence of impairment, provided that it is not solely based on the odor of

alcohol.” State v. Mark, 154 N.C. App. 341, 346, 571 S.E.2d 867, 871 (2002) (citations

omitted). Additionally, a defendant’s blood alcohol concentration or the presence of

any other impairing substance in the defendant’s body, as shown by a chemical

analysis, and a defendant’s refusal to submit to an intoxilyzer test are admissible as

substantive evidence of impairment.        See N.C. Gen. Stat. § 20-139.1(a) (2018)

(chemical analysis); N.C. Gen. Stat. § 20-139.1(f) (2018) (intoxilyzer refusal). An

impairing substance is defined as alcohol, a controlled substance, “any other drug or

psychoactive substance capable of impairing a person’s physical or mental faculties,”

or any combination of these substances.        N.C. Gen. Stat. § 20-4.01(14a) (2018).

Amphetamine, methamphetamine, marijuana, and tetrahydrocannabinols are

controlled substances, see N.C. Gen. Stat. §§ 90-89, 90-94 (2018), and are thus

impairing substances within the meaning of the statute.

      Here, Richard testified that he found Defendant slumped over and apparently

sleeping in the driver’s seat. Richard, Smith, and Torres detected a strong odor of

alcohol on Defendant’s breath and observed that Defendant’s speech was slurred and

that his eyes were red, watery, glassy, and bloodshot. Richard and Torres saw an



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alcohol bottle between Defendant’s legs. Defendant was confused and disoriented,

and he admitted that he had consumed alcohol. Smith observed that Defendant’s

movements were labored. Smith conducted horizontal and vertical nystagmus tests,

which Defendant failed.     Smith testified that Defendant mentioned having eye

trouble but also displayed erratic behavior, leading Smith to believe that Defendant

was impaired. Because the officers’ opinions that Defendant was impaired were not

based solely on the odor of alcohol, they were sufficient evidence of impairment. See

Mark, 154 N.C. App. at 346, 571 S.E.2d at 871.

      Additionally, the State presented a chemical analysis of Defendant’s blood,

which indicated that it contained alcohol, THC, THCA, amphetamine, and

methamphetamine. This was sufficient evidence of impairment. See N.C. Gen. Stat.

§ 20-139.1(a). Moreover, the State also presented evidence that Defendant refused to

submit to an intoxilyzer test, which was also sufficient evidence of impairment. See

N.C. Gen. Stat. § 20-139.1(f).

      Viewed in the light most favorable to the State, this evidence was sufficient to

support the conclusion that Defendant was “under the influence of an impairing

substance” at the time of the arrest. See N.C. Gen. Stat. § 20-138.1(a)(1). Because

the State presented sufficient evidence of each element of the DWI offense, the trial

court properly denied Defendant’s motion to dismiss.




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2. Resisting a Public Officer

      Defendant next argues that the trial court erred by denying his motion to

dismiss the charge of resisting a public officer for insufficient evidence. Defendant

contends that any negative interactions he had with the police were due to his

confusion and pain at the time of his arrest.

      “If any person shall willfully and unlawfully resist, delay or obstruct a public

officer in discharging or attempting to discharge a duty of his office, he shall be guilty

of” the offense of resisting a public officer. N.C. Gen. Stat. § 14-223 (2018). “The

conduct proscribed under [N.C. Gen. Stat. §] 14-223 is not limited to resisting an

arrest but includes any resistance, delay, or obstruction of an officer in the discharge

of his duties.” State v. Lynch, 94 N.C. App. 330, 332, 380 S.E.2d 397, 398 (1989)

(holding that defendant resisted officers by “continu[ing] to struggle after the officers

apprehended him” for the purpose of identifying him). See also State v. Burton, 108

N.C. App. 219, 225, 423 S.E.2d 484, 488 (1992) (explaining that obstruction may be

direct or indirect opposition or resistance to an officer lawfully discharging his duty,

and holding that defendant resisted officers when he spoke in a “loud and hostile

manner” while standing beside an officer’s patrol car, because defendant’s behavior

interfered with the officer’s attempt to use his radio to check the vehicle registration).

The State “does not have to prove that the officer was permanently prevented from

discharging his duties by defendant’s conduct.” Id.



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      In this case, Defendant impeded the officers’ attempts to fulfill their duties at

three different points. First, when Richard approached Defendant’s car and asked

Defendant to roll down his window so Richard could speak with him, Defendant

refused. Defendant also attempted to start the car several times and revved the

engine after Richard ordered him to stop. Defendant would not provide a breath

sample when asked 10 to 12 times to do so. When Smith conducted the horizontal

gaze nystagmus test, Defendant continued to place his hands in his pockets after

being told several times to keep his hands down by his sides. Through these actions

and his inaction, Defendant directly opposed the officers in their efforts to discharge

their investigative duties of identifying him, speaking with him, and performing field

sobriety tests.   Thus, Defendant resisted the officers within the meaning of the

statute, see Lynch, 94 N.C. App. at 332, 380 S.E.2d at 398, even though the officers

were eventually able to fulfill their investigative duties, see Burton, 108 N.C. App. at

225, 423 S.E.2d at 488.

      Defendant also resisted the officers while being arrested. Defendant “tensed

up” and refused to cooperate when Smith tried to handcuff him, which required

Smith, Richard, and Torres to work together to gain control of Defendant. Defendant

then fell to the ground and started shouting and crying when the officers tried to

move him to the patrol car. Defendant refused to place his legs inside the patrol car,

so Torres had to grab Defendant’s legs and put them inside the car in order to close



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the door. Thus, Defendant also resisted, delayed, and obstructed officers in their

efforts to place him under arrest and put him in the patrol car. See Lynch, 94 N.C.

App. at 332, 380 S.E.2d at 398.

      Finally, Defendant resisted, delayed, and obstructed officers at the hospital

when they attempted to execute a search warrant to draw blood. Defendant refused

to give a nurse permission to draw his blood, so Smith placed Defendant on his

stomach while Defendant was handcuffed. Because Defendant was still resisting the

blood draw and was combative, Smith, Kallay, and two nurses held Defendant down

in order to collect a blood sample. Thus, Defendant also resisted, obstructed, and

delayed officers in their efforts to execute the search warrant. See id.

      Viewing the evidence in the light most favorable to the State, the State

presented sufficient evidence that Defendant resisted, obstructed, and delayed public

officers as they attempted to discharge their duties of investigation, arrest, and

execution of a search warrant. Accordingly, the trial court did not err by denying

Defendant’s motion to dismiss this charge.

3. Possessing an Open Container

      Defendant also argues that the trial court erred by denying his motion to

dismiss for insufficient evidence the offense of possessing an open container, because

Richard testified that the bottle did not have a significant amount of alcohol missing

from it, and Smith admitted pouring out the bottle’s contents.



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      “No person shall possess an alcoholic beverage other than in the unopened

manufacturer’s original container, or consume an alcoholic beverage, in the passenger

area of a motor vehicle while the motor vehicle is on a highway or the right-of-way of

a highway.” N.C. Gen. Stat. § 20-138.7(a1) (2018). In State v. Squirewell, 256 N.C.

App. 356, 808 S.E.2d 312 (2017), this Court affirmed the denial of a defendant’s

motion to dismiss for insufficient evidence of possessing an open container. The Court

based its holding on the following:

             Besides the evidence that there was an open can of beer
             near the console area of the vehicle defendant was driving,
             which was visible to the state trooper upon his approach to
             the driver’s side of the vehicle, the evidence also showed
             that defendant initially provided the state trooper a false
             name, defendant’s eyes were red and glassy, there was a
             strong odor of alcohol coming from the vehicle, and
             defendant’s speech was slurred. The state trooper further
             testified that he had defendant come back to his patrol car
             for further questioning. At that time, the trooper noticed
             an odor of alcohol on defendant’s breath . . . .

Id. at 363, 808 S.E.2d at 318.

      The evidence in this case is similarly sufficient. Richard and Torres testified

that they saw an opened bottle of New Amsterdam vodka in between Defendant’s legs

while Defendant was seated in the driver’s seat of a running car parked on Earl

Street. The officers testified that the bottle contained liquid, which Smith poured out

at the scene of the arrest. Richard testified that he found Defendant slumped over

and apparently asleep in the driver’s seat. Richard, Smith, and Torres detected a



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strong odor of alcohol on Defendant’s breath and observed that Defendant’s speech

was slurred and that his eyes were red, watery, glassy, and bloodshot.          Smith

observed that Defendant’s movements were labored. Defendant was confused and

disoriented, and he admitted that he had consumed alcohol.

      Defendant argues that, because Richard testified that the bottle did not have

a significant amount of alcohol missing when he found it, and Smith admitted pouring

out the contents, that the State failed to present substantial evidence of the offense.

However, the amount of alcohol missing from the container is irrelevant for purposes

of this offense, because a container is opened “[i]f the seal on [the] container of

alcoholic beverages has been broken.” N.C. Gen. Stat. Section 20-138.7(f) (2018).

Additionally, the fact that Smith poured out the contents of the container goes to the

weight of the evidence, not its sufficiency.

      Viewed in the light most favorable to the State, this was sufficient evidence

that Defendant “possess[ed] an alcoholic beverage other than in the unopened

manufacturer’s original container.” See N.C. Gen. Stat. § 20-138.7(a1). Accordingly,

the trial court did not err by denying Defendant’s motion to dismiss this offense.

                                B. Motion to Suppress

      Defendant next argues that the trial court erred by denying his motion to

suppress the results of the blood test.




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      As a threshold issue, the State argues that Defendant failed to preserve this

issue for appellate review, because Defendant failed to move for suppression prior to

trial. Although Defendant did not move for suppression prior to trial, the trial court,

in its discretion, heard the motion and denied it on its merits. Defendant’s argument

is thus properly before us. See State v. Detter, 298 N.C. 604, 619, 260 S.E.2d 567, 579

(1979) (reviewing a constitutional question presented in defendant’s motions to

suppress despite their untimeliness, because the trial court considered and overruled

them on their merits).

      This Court reviews a trial court’s ruling on a motion to suppress to determine

whether the “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 . . . ultimate conclusions of law.” State v. Cooke, 306 N.C.

132, 134, 291 S.E.2d 618, 619 (1982). We review a trial court’s conclusions of law de

novo. State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011).

1. Officers’ Use of Force

      Defendant first argues that the trial court erred by denying his motion to

suppress the results of the blood test, because Defendant’s blood was drawn by

excessive and unreasonable force, in violation of his rights under the Fourth and

Fourteenth Amendments to the United States Constitution.




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      In its written order denying the motion to suppress, the trial court included 72

paragraphs of interspersed findings of fact and conclusions of law. Findings relevant

to the force used in connection with obtaining Defendant’s blood sample include:

             3. Officer Smith asked [Defendant] 10-12 times to blow into
             the alcosensor device.
             4. [Defendant] never provided a sample for the portable
             breath test.
             5. When officers attempted to handcuff [Defendant], he
             tensed up and the officers forced him onto the hood of a
             patrol vehicle.
             6. [Defendant] was placed in handcuffs and put into a
             patrol car.
             7. [Defendant] started screaming after he was handcuffed.
             Once the handcuffs were adjusted, he stopped screaming.
             8. [Defendant] was transported to the law enforcement
             annex for an intoxilyzer test.
             9. After being advised of his rights, [Defendant] refused to
             sign the rights form.
             10. [Defendant] did not provide a breath sample. He never
             put his mouth on the tube or attempted to blow into the
             machine.
             11. After asking [Defendant] multiple times to provide a
             breath sample, [O]fficer Smith recorded the result of the
             intoxilyzer test as a “Refusal.”
             12. Smith then prepared an application for a search
             warrant to take a blood sample from [Defendant].
             13. After the magistrate issued the search warrant, Smith
             took [Defendant] to the hospital in order to obtain the blood
             sample.
             14. At the emergency room, Smith advised the charge
             nurse that he had a search warrant for a blood sample.
             15. Smith also advised [Defendant] that he had a search


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warrant to take a blood sample.
16. Officer Smith read the search warrant to [Defendant].
17. Officer Smith did not indicate whether he gave
[Defendant] a copy of the search warrant.
18. Officer Smith took [Defendant] to a room in the
emergency room and they waited for a nurse.
19. Smith indicated that a nurse came to perform the blood
draw.
20. [Defendant] also indicated that a nurse was in the
room.
21. Smith observed the blood draw and the nurse signed on
the rights form.
22. Officer Smith did not recall the name of the nurse and
he could not read the signature on the rights form.
23. Hospital personnel obtained an EKG from [Defendant]
prior to taking the blood sample to check on his medical
condition.
24. The nurse asked [Defendant] if he minded if she took
his blood and [Defendant] replied that she could not have
his blood.
25. [Defendant] advised the nurse that she could not take
his blood.
26. [Defendant] tensed up and told the nurse that she was
not going to take his blood.
27. [Defendant] was handcuffed as he sat on a bed in the
room waiting to have his blood drawn.
28. [Defendant] was combative and would not allow his
blood to be drawn.
29. [Defendant] testified that he would not agree for his
blood to be taken without a search warrant.
30. [Defendant] testified that he was never given a copy of
the search warrant.
31. [Defendant] testified that he did not object to giving a
blood sample and that he was willing to provide the

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               sample. The Court does not find these statements to be
               credible.
               32. The officers pinned [Defendant] to the bed in order to
               take his blood.
               33. [Defendant] in this case does not challenge the validity
               of the search warrant to take samples of his blood. Instead,
               [Defendant] challenged the use of force to take these
               samples despite [Defendant’s] resistance to the execution
               of the search warrant.

       Defendant argues that findings of fact 16 and 21 are not supported by

competent evidence.1 We disagree. Smith’s testimony indicating that he read the

search warrant to Defendant at the hospital and that Smith was present and aware

that a nurse was drawing Defendant’s blood provide competent evidence to support

both findings of fact. The remaining, unchallenged findings of fact are binding on

appeal. State v. Taylor, 178 N.C. App. 395, 412-13, 632 S.E.2d 218, 230 (2006)

(citation omitted).

       Defendant also argues that that the findings of fact do not support the trial

court’s conclusion of law 57: “The force used to execute the search warrant in this

instance was not unreasonable under the Fourth Amendment.”

       Schmerber v. California, 384 U.S. 757 (1966), is the seminal case involving the

forced extraction of blood from an accused. In Schmerber, the Court held that blood



       1   Defendant also argues that “[t]he trial court’s findings and conclusions in Paragraphs 34
through 45 of its Order are not supported by competent evidence, and the findings fail to support the
court’s legal conclusions.” However, Paragraphs 34 through 45 contain no findings of fact, but consist
mainly of recitation of legal rules from applicable case law.

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alcohol evidence could be taken without a driving-under-the-influence suspect’s

consent and without a warrant when probable cause and exigent circumstances

existed, e.g., rapid elimination of blood alcohol content by natural bodily functions.

Id. at 770-771. However, the Schmerber Court emphasized that a blood draw remains

subject to Fourth Amendment standards of reasonableness. Id. at 768. Specifically,

the procedure must be conducted without unreasonable force and in a medically

acceptable manner. Id. at 771.

      In Graham v. Connor, 490 U.S. 386 (1989), the Court clarified that “all claims

that law enforcement officers have used excessive force—deadly or not—in the course

of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed

under the Fourth Amendment and its ‘reasonableness’ standard.”               Id. at 395.

“Determining whether the force used to effect a particular seizure is ‘reasonable’

under the Fourth Amendment requires a careful balancing of ‘the nature and quality

of the intrusion on the individual’s Fourth Amendment interests’ against the

countervailing governmental interests at stake.”          Id. at 396 (citation omitted).

“Because ‘[t]he test of reasonableness under the Fourth Amendment is not capable of

precise definition or mechanical application,’” id. (citation omitted), its application

             requires careful attention to the facts and circumstances of
             each particular case, including the severity of the crime at
             issue, whether the suspect poses an immediate threat to
             the safety of the officers or others, and whether he is
             actively resisting arrest or attempting to evade arrest by
             flight.


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Id. Reasonableness “must be judged from the perspective of a reasonable officer on

the scene, rather than with the 20/20 vision of hindsight.” Id. Courts have likewise

analyzed claims of excessive force in effectuating a blood draw under a

reasonableness standard. See Schmerber, 384 U.S. at 768.

       Defendant cites no published North Carolina case law analyzing an officer’s

use of force in effectuating a search warrant to draw a defendant’s blood, and our

research reveals none.2 The trial court relied upon United States v. Bullock, 71 F.3d

171 (5th Cir. 1995), wherein that court considered whether the force used during a

blood draw authorized by a search warrant was excessive. In Bullock,

               the FBI obtained a search warrant to obtain samples of [the
               defendant’s] blood and hair for DNA and other analysis.
               [The defendant] refused to comply with the warrant, so a
               seven member “control team” was used to subdue him and
               get the blood and hair samples. [The defendant] was cuffed
               and shackled between two cots that were strapped
               together. He physically resisted by kicking, hitting and
               attempting to bite the agents. A towel was placed on [the
               defendant’s] face because he was spitting on the agents. A
               registered nurse took blood from [the defendant’s] hand
               and then combed and plucked twenty hair samples from
               his scalp.

Id. at 174.




       2  In an unpublished opinion, this Court determined that the findings of fact supported the trial
court’s conclusion that the defendant’s blood draw was performed pursuant to a valid search warrant,
which was executed in a reasonable manner. State v. Davis, 243 N.C. App. 675, 779 S.E.2d 787 (2015).


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      The Bullock court concluded that “[t]he use of force in taking the samples was

caused by [the defendant’s] refusal to comply with a lawful warrant and was

reasonable.” Id. at 176. “When [the defendant] resisted the sample-taking, the

agents used the force necessary to restrain him while samples were taken.” Id.

Noting that the defendant “had no right to resist execution of a search warrant [and

i]n fact, his actions may even have risen to the level of criminal conduct [under] . . .

18 U.S.C. § 111 (assaulting or resisting a federal agent carrying out duties punishable

by up to three years in prison)[,]” id. at 176 n.4, the court explained that the defendant

“was given multiple opportunities to comply with the warrant; he was the one who

decided that physical force would be necessary.” Id. at 176. It was the defendant’s

“refusal to comply with a lawful warrant which forced the situation.” Id. at 177. The

court explained that a defendant “cannot resist a lawful warrant and be rewarded

with the exclusion of evidence.” Id.

      In this case, the officers were authorized to require Defendant to provide a

blood sample, because they possessed a valid search warrant. See N.C. Gen. Stat.

§ 15A-241 (2018) (“A search warrant is a court order and process directing a law-

enforcement officer to search designated . . . persons for the purpose of seizing

designated items and accounting for any items so obtained to the court which issued

the warrant.”). Defendant’s blood was drawn by medical personnel, see § III.B.2.,

infra, in a hospital, which the U.S. Supreme Court has identified as a reasonable



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manner in which to draw blood. See Schmerber, 384 U.S. at 771 (emphasizing the

importance of defendant’s health and safety by contrasting the described acceptable

conditions—by medical personnel in a hospital—with unreasonable conditions that

threaten “personal risk of infection and pain,” such as police officers drawing blood in

the privacy of a police station). Regarding the officers’ use of force, we are persuaded

by the reasoning in Bullock and conclude that the use of force in taking the blood

sample in this case was caused by Defendant’s refusal to comply with a lawful

warrant and was reasonable.

      Defendant admitted that he was initially asked to lie down so that his blood

could be drawn. When Defendant refused and resisted the blood draw, the officers

used the force necessary to restrain him while the sample was taken. Defendant had

no right to resist execution of a search warrant and, in fact, his actions rose to the

level of criminal conduct under N.C. Gen. Stat. § 14-223, for resisting a public officer.

See § III.A.2., supra. As in Bullock, Defendant was given multiple opportunities to

comply with the warrant, and it was his “refusal to comply with a lawful warrant

which forced the situation.” See Bullock, 71 F.3d at 177. Defendant “cannot resist a

lawful warrant and be rewarded with the exclusion of evidence.” See id.

      In summary, the trial court’s findings of fact support a conclusion that the

officers’ use of force was objectively reasonable in light of the facts and circumstances

confronting the officers at the time they executed the search warrant. See Graham,



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                                  Opinion of the Court



490 U.S. at 395-97. Therefore, the trial court’s findings of fact support its legal

conclusion that the force used to execute the search warrant was not unreasonable

under the Fourth Amendment. Accordingly, the trial court did not err by denying

Defendant’s motion to suppress the results of the blood test on this ground.

2. Qualifications of Medical Professional

      Defendant also argues that the trial court erred by denying his motion to

suppress the results of the blood test, because the State did not meet its burden to

demonstrate that the person who drew the blood was qualified.

      When a law enforcement officer requires a blood test to be administered, “a

physician, registered nurse, emergency medical technician, or other qualified person

shall withdraw the blood sample.” N.C. Gen. Stat. § 20-139.1(c) (2018). An officer’s

trial testimony regarding the qualifications of the person who withdrew the blood is

sufficient evidence of the person’s qualifications. See, e.g., State v. Hinchman, 192

N.C. App. 657, 663, 666 S.E.2d 199, 203 (2008) (holding that an officer’s testimony

that the person who drew defendant’s blood worked in a restricted area in a blood lab

and wore a lab technician’s uniform was sufficient to establish qualification under

the statute); Richardson v. Hiatt, 95 N.C. App. 196, 199, 381 S.E.2d 866, 868 (1989)

(holding that an officer’s testimony that a nurse authorized to draw blood in fact drew

blood satisfied the State’s burden to show qualification); State v. Watts, 72 N.C. App.

661, 664, 325 S.E.2d 505, 507 (1985) (holding that an officer’s testimony that a blood



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                                  Opinion of the Court



technician at a hospital drew the blood sample was sufficient to show that blood was

drawn by a qualified person).

      The trial court made the following relevant findings of fact:

            14. At the emergency room, Smith advised the charge
            nurse that he had a search warrant for a blood sample.
            ....
            18. Officer Smith took [Defendant] to a room in the
            emergency room and they waited for a nurse.
            19. Smith indicated that a nurse came to perform the blood
            draw.
            20. [Defendant] indicated a nurse was in the room.
            21. Smith observed the blood draw and the nurse signed on
            the rights form.
            22. Officer Smith did not recall the name of the nurse and
            he could not read the signature on the rights form.
            ....
            24. The nurse asked [Defendant] if he minded if she took
            his blood and [Defendant] replied that she could not have
            his blood.
            25. [Defendant] advised the nurse that she could not take
            his blood.
            ....
            60. The individual who drew [D]efendant’s blood was not
            identified by name and no evidence was offered to prove
            this individual’s qualifications.




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                                         Opinion of the Court



       Defendant does not challenge any of these findings; they are thus binding upon

us. See Taylor, 178 N.C. App. at 412-13, 632 S.E.2d at 230.3 These findings support

the trial court’s conclusion that that “[t]he evidence offered in this case was sufficient

to prove that a qualified person drew [Defendant’s] blood.” See, e.g., Hinchman, 192

N.C. App. at 663, 666 S.E.2d at 203; Richardson, 95 N.C. App. at 199, 381 S.E.2d at

868; Watts, 72 N.C. App. at 664, 325 S.E.2d at 507.

       As the State met its burden to demonstrate that the person who drew the blood

was qualified within the meaning of N.C. Gen. Stat. § 20-139.1(c), the trial court did

not err by denying Defendant’s motion to suppress the results of the blood test on this

ground.

                                    C. Admission of Evidence

       Defendant next asserts that “[t]he trial court abused its discretion when it

admitted into evidence, over [Defendant’s] objection, a bottle purporting to have

contained some quantity of vodka, which the State’s officers admitted to destroying

prior to [Defendant’s] trial.”

       Defendant notes that “[a]t trial, the trial court overruled [Defendant’s]

objections to the admission of a vodka bottle found in a vehicle on the grounds that



       3  Defendant argues that “[t]he trial court’s findings that ‘a law enforcement officer testified
that the sample was drawn by a blood technician at the hospital’ and ‘the only evidence before the trial
court was that a nurse was present to withdraw the blood, and there was no evidence to the contrary,’
were not supported by competent evidence.” Defendant’s challenge is misguided as the trial court
made no such findings; the challenged statements were portions of conclusions of law citing supporting
authority.

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the contents of the bottle had been destroyed and the chain-of-custody of the bottle

had not been properly established.” Defendant’s sole argument on appeal is that he

is entitled to a new trial as a result of the trial court’s admission of the bottle into

evidence, because it was prejudicial, i.e., there was “a reasonable possibility that, had

the error in question not been committed, a different result would have been reached

at the trial[.]” See State v. Hawk, 236 N.C. App. 177, 180, 762 S.E.2d 883, 885 (2014)

(internal quotation marks and citation omitted).

      However, as we would only reach a prejudice analysis after determining that

the admission of the evidence was erroneous, and Defendant cites no legal authority

on appeal as to why the trial court’s admission of the bottle into evidence was

erroneous, Defendant’s argument is thus deemed abandoned. See N.C. R. App. P.

28(b)(6) (“Issues not presented in a party’s brief, or in support of which no reason or

argument is stated, will be taken as abandoned. . . . The body of the argument . . .

shall contain citations of the authorities upon which the appellant relies.”).

                           D. Officers’ Use of Body Cameras

      In his final argument, Defendant presents the following issue on appeal: “The

trial court erred in its determination that the intentional suppression of body-camera

recording evidence did not violate [Defendant’s] rights under the Sixth and

Fourteenth Amendments to the Constitution of the United States.” Citing State v.

Williams, 362 N.C. 628, 669 S.E.2d 290 (2008), Defendant “respectfully requests that



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                                  Opinion of the Court



the Court of Appeals dismiss the prosecution against him or, in the alternative, award

him a new trial.”

      We first address the State’s contention that this issue is not properly before us.

The sole legal argument advanced on appeal is that “[t]he intentional decisions of

Officers Richard and Smith not to employ their body cameras in a manner consistent

with police policy . . . served to deny [Defendant] his due process rights under Brady

v. Maryland[,]” 373 U.S. 83 (1963). Due process rights are Fourteenth Amendment

rights. See U.S. Const. amend. XIV, § 1 (“No State shall . . . deprive any person of

life, liberty, or property, without due process of law . . . .”). As Defendant makes no

Sixth Amendment argument on appeal, that portion of Defendant’s issue is deemed

abandoned. See N.C. R. App. P. 28(a) (“Issues not presented and discussed in a party’s

brief are deemed abandoned.”); N.C. R. App. P. 28(b)(6) (“Issues not presented in a

party’s brief, or in support of which no reason or argument is stated, will be taken as

abandoned.”).

      Turning to Defendant’s Fourteenth Amendment argument on appeal,

Defendant has not preserved for appellate review any argument that the trial court

erred by failing to dismiss the prosecution against him due to a Brady violation,

because Defendant failed to move to dismiss the case for such a violation.           In

Williams, which Defendant cites in support of his argument, our Supreme Court

affirmed the Court of Appeals, which had affirmed a trial court’s order allowing the



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defendant’s motion to dismiss a criminal charge for prosecutorial misconduct under

N.C. Gen. Stat. § 15A-954(a)(4). Williams, 362 N.C. at 639-40, 669 S.E.2d at 298-99.

Pursuant to that section,

                The court on motion of the defendant must dismiss the
                charges stated in a criminal pleading if it determines that:
                . . . [t]he defendant’s constitutional rights have been
                flagrantly violated and there is 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) (2018). In a pretrial hearing in Williams, the State

“admitted to the existence, possession, and destruction of material evidence favorable

to defendant and acknowledged that it was impossible to produce the evidence at that

time or, by implication, at any future trial.” Williams, 362 N.C. at 629, 669 S.E.2d at

292. Based on these circumstances, the Court concluded that “the State flagrantly

violated defendant’s constitutional rights and irreparably prejudiced the preparation

of his defense.” Id. Accordingly, the Court found the requirements of N.C. Gen. Stat.

§ 15A-954(a)(4) satisfied and affirmed the order allowing the motion to dismiss. Id.

        Unlike in Williams, Defendant in this case did not move to dismiss the charges

in the trial court pursuant to N.C. Gen. Stat. § 15A-954(a)(4). We are therefore

precluded from reviewing any denial of such motion, and Defendant’s request that

this Court “dismiss the prosecution against him” is itself dismissed.4


        4Defendant also argued at trial that he was entitled to a spoliation of the evidence instruction
based on the officers’ failure “to record the entire encounter.” Defendant does not argue on appeal that



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                                        Opinion of the Court



       However, Defendant did argue at the suppression hearing that the officers’

failure “to record the forcible withdrawal of blood [was] . . . a due process violation,

and it’s a violation of departmental policy.” Defendant now argues on appeal that the

officers’ failure to record the encounter “served to deny [Defendant] his due process

rights under Brady v. Maryland.” We thus address whether the trial court erred by

denying his motion to suppress, such that he may be entitled to a new trial, because

Richard’s and Smith’s failure to employ their body cameras in a manner consistent

with police policy denied Defendant his due process rights under Brady.

       This Court reviews alleged violations of constitutional rights de novo. State v.

Graham, 200 N.C. App. 204, 214, 683 S.E.2d 437, 444 (2009).

       In Brady, the Supreme Court of the United States determined that the Due

Process Clause of the Fourteenth Amendment to the United States Constitution

requires in state criminal cases “that the suppression by the prosecution of evidence

favorable to an accused upon request violates due process where the evidence is

material either to guilt or to punishment, irrespective of the good faith or bad faith of

the prosecution.” Brady, 373 U.S. at 87. Evidence favorable to an accused can be

either impeachment evidence or exculpatory evidence. United States v. Bagley, 473

U.S. 667, 676 (1985). Evidence is “material if there is a reasonable probability of a




the trial court erred in refusing to give this instruction, and it is therefore deemed abandoned. See
N.C. R. App. P. 28.

                                               - 32 -
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                                  Opinion of the Court



different result had the evidence been disclosed.” State v. Berry, 356 N.C. 490, 517,

573 S.E.2d 132, 149 (2002) (internal quotation marks and citation omitted).

      First, we cannot conclude that the State “suppressed” the body-camera video,

because the State never possessed it; it never existed. Under Brady, the State is

required “to disclose only those matters in its possession.” State v. Thompson, 187

N.C. App. 341, 353, 654 S.E.2d 486, 494 (2007) (internal quotation marks and citation

omitted). Defendant essentially asks this Court to extend Brady’s holding to include

evidence not collected by an officer, which we decline to do.

      Moreover, Defendant cannot show that video of the blood draw, if collected,

would have been favorable to him; it may have corroborated the officers’ testimony.

Although the officers’ failure to record the interaction violated departmental policy,

such violation did not amount to a denial of Defendant’s due process rights under

Brady in this case. Accordingly, the trial court did not err in denying Defendant’s

motion to suppress.

                                   V. Conclusion

      We conclude that the trial court did not (1) err by denying Defendant’s motion

to dismiss; (2) err by denying Defendant’s motion to suppress; (3) abuse its discretion

by admitting certain evidence; or (4) err in determining that law enforcement officers

did not violate Defendant’s constitutional rights.

      AFFIRMED IN PART; NO ERROR IN PART.



                                         - 33 -
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                     Opinion of the Court



Judges BERGER and ARROWOOD concur.




                            - 34 -
