                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA17-58

                               Filed: 3 October 2017

Onslow County, No. 15CRS53886

STATE OF NORTH CAROLINA

               v.

LESTER ALAN WALKER, Defendant.


      Appeal by the State from an order granting Defendant’s Motion to Suppress,

entered 31 October 2016 by Judge John E. Nobles, Jr. in Onslow County Superior

Court. Heard in the Court of Appeals 9 August 2017.


      Attorney General Joshua H. Stein, by Assistant Attorney General Kristin J.
      Uicker, for the State.

      Jeffrey S. Miller, for Defendant-Appellee.


      MURPHY, Judge.


      The State appeals from the trial court’s grant of Lester Alan Walker’s

(“Defendant”) motion to suppress. On appeal, the State contends the trial court erred

by: (1) entering the 31 October 2016 order after the State gave its notice of appeal;

and (2) granting Defendant’s motion to suppress. After careful review, we hold the

trial court did not err by entering the 31 October 2016 order and granting the motion

to suppress.
                                         STATE V. WALKER

                                         Opinion of the Court



                                           Background

        On 5 July 2015, State Trooper Jonathan Cody (the “Trooper”) of the North

Carolina Highway Patrol was on routine patrol on U.S. 258. At approximately 5:00

p.m., dispatch notified him that a driver (“the informant”) reported another driver

(“the driver”) for driving while intoxicated. The informant reported the driver was

driving from the Hubert area towards Jacksonville, traveling at speeds of

approximately 80 to 100 miles per hour, while drinking a beer. He also claimed the

driver drove “very erratically,” and almost ran him off the road “a few times.”

        While the Trooper traveled towards Jacksonville in response to the

notification from dispatch, the informant flagged him down. The informant told the

Trooper that the vehicle in question, although no longer visible, had just passed

through the intersection on U.S. 258 heading towards Richlands.                          The Trooper

proceeded through the intersection on U.S. 258 towards Richlands, stopping

Defendant’s vehicle within approximately one-tenth of a mile from the intersection.

At some point, the vehicle in question was described as a “gray Ford passenger

vehicle[,]”1 however it is unclear whether the Trooper was given this description

before or after he stopped Defendant. Defendant was arrested and charged with

driving while impaired, and careless and reckless driving.


        1 The spelling of gray is a grey area. See generally Merriam-Webster’s Collegiate Dictionary
(11th ed. 2004) (listing grey as a variant of gray). We note the trial court’s transcript uses “gray” and
order uses “grey” to describe the same color, causing some inconsistency in the spelling of “grey” in
this opinion.

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                                  Opinion of the Court



      Prior to trial, Defendant filed a motion to suppress the evidence seized as a

result of Defendant being stopped by the Trooper. On 9 June 2016, Onslow County

District Court held a hearing on this motion, which claimed the evidence obtained by

the stop should be suppressed because the Trooper lacked the requisite reasonable

articulable suspicion to stop Defendant. The District Court denied the motion to

suppress. Subsequently, Defendant was convicted of driving while intoxicated, and

reckless and careless driving.

      Defendant appealed to Superior Court, which held a hearing on Defendant’s

motion to suppress on 15 September 2016.          After taking evidence and hearing

arguments, the Superior Court determined the Trooper lacked the reasonable

articulable suspicion required to make the stop, and granted the motion to suppress

in open court. That same day, the trial court entered a written order stating the

motion was allowed, and directing Defendant’s counsel to prepare an order. The State

gave oral notice of appeal after the trial court announced its decision, and then gave

written notice of appeal on 22 September 2016, once the trial court filed its 15

September 2016 written order. The trial court entered the written order prepared by

Defendant’s counsel, as directed in the 15 September 2016 order, on 31 October 2016.

                                      Analysis

      The State argues that the trial court erred: (1) by entering an order on 31

October 2016; and (2) by granting Defendant’s motion to suppress. We disagree.



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                                   Opinion of the Court



      I.     Authority to Enter the 31 October 2016 Order

      The State maintains that our Court should base our review solely on the 15

September 2016 order, arguing the trial court lacked jurisdiction to enter the 31

October 2016 written order because the State gave its notice of appeal prior to that

date. We disagree and review the 31 October 2016 order because “our appellate

courts have repeatedly held that a delay in the entry of findings of fact and

conclusions of law does not amount to prejudicial error.” State v. Lippard, 152 N.C.

App. 564, 571, 568 S.E.2d 657, 662 (2002) (citing State v. Horner, 310 N.C. 274, 279,

311 S.E.2d 281, 285 (1984)).

      The State relies on State v. Grundler, 251 N.C. 177, 11 S.E.2d 1 (1959) to

support its argument that the trial court did not have jurisdiction to enter the 31

October 2016 order, contending that once the oral and written notices of appeal are

given, the trial court is without further authority to make orders affecting the merits

of the case effective immediately. See id. at 185, 11 S.E.2d at 7 (explaining that “when

appeal entries are noted, the appeal becomes” instantly effective, and the Superior

Court no longer has the authority “to make orders affecting the merits of the case”).

However, Grundler does not control this case because the 31 October 2016 order was

not a new order affecting the merits, but, rather, is a chronicle of the findings and

conclusions decided at the hearing. The 15 September 2016 order, which reads: “J.

Miller to prepare order[,]” specifically contemplates this later entry of the 31 October



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                                  Opinion of the Court



2016 order, which was intended to record the findings and conclusions decided at the

15 September 2016 hearing, not to affect the merits.        As such, we reject the

contentions of the State and review the 31 October 2016 order.

       II.    Motion to Suppress

       The State argues that the trial court erred in granting Defendant’s motion to

suppress because: (1) several of the findings of fact are not supported by competent

evidence; and (2) the findings of fact do not support the conclusions of law. We

disagree. The findings of fact are based on competent evidence and support the

conclusions of law.

                               A. Standard of Review

       When reviewing an order granting a motion to suppress, this Court “is strictly

limited to determining whether the trial judge’s underlying findings of facts 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).

                                 B. Findings of Fact

       The State challenges whether there was competent evidence to support the

findings of fact as follows.

       i) Findings of Fact 1 and 3, Conclusion of Law 6




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                                         Opinion of the Court



       The State contests: (1) the part of finding of fact 1 that states “[a]t what point

the radio dispatcher forwarded the information about the description of the vehicle

and the license plate number is unclear from the testimony[;]” (2) the part of finding

of fact 3 that states “the State offered no evidence that [the Trooper] received any

information as to the tag number of the vehicle in question until after [the Trooper]

stopped [Defendant’s] vehicle[;]” and (3) the part of conclusion of law 62 that states

“the State has failed to produce evidence that [the Trooper] had the license plate of

[D]efendant’s vehicle before making a stop in this case[.]” The State argues these

findings of fact are unsupported by competent evidence because the Trooper testified

he received the license plate number from dispatch before making the stop and the

trial court found the Trooper credible. We disagree.

       The Trooper gave conflicting testimony as to whether or not he had the license

plate number at the time of the stop.              According to finding of fact 6, which is

unchallenged, the Trooper testified in District Court that he did not remember

whether he had the license plate number, and then called communications the day

before his 15 September 2016 Superior Court testimony to check and confirm whether

“that information was relayed out.” During his testimony in Superior Court, the



       2  We review the portion of this conclusion of law quoted here while reviewing the findings of
fact both: (1) to address the State’s argument; and (2) because it describes a finding of fact, not a
conclusion of law. See Rolan v. N.C. Dep’t of Agric. & Consumer Servs., 233 N.C. App. 371, 380, 756
S.E.2d 788, 794 (2014) (“As with separate findings of fact and conclusions of law, the factual elements
of a mixed finding must be supported by competent evidence, and the legal elements must, in turn, be
supported by the facts.”) (citation omitted).

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                                   STATE V. WALKER

                                   Opinion of the Court



Trooper again testified that he did not recall if he “remembered the full tag or not, at

the time” of the stop, and further stated that he only recorded the tag number “on the

citation, after the fact.” The fact that the trial court observed in open court that the

witness was credible does not bind its findings of fact as it relates to the witness’s

recollection of past events. This testimony provides competent evidence to support

the findings related to when the radio dispatcher forwarded the information about

Defendant’s license plate number.

      ii) Findings of Fact 4 and 7

      The State next contests: the part of finding of fact 4 that states “[a]t some point

the vehicle was described as a grey Ford passenger vehicle, but the State offered no

evidence as to when the vehicle was so described[;]” and the part of finding of fact 7

that states “the only mention of the color of the vehicle was in the witness statements,

. . . written after [Defendant’s] vehicle was stopped.” The State argues these findings

of fact are unsupported by competent evidence because the Trooper testified that the

informant told him the vehicle was a grey Ford passenger vehicle when she flagged

him down, and he may have had the information that the car was grey before he

stopped Defendant. We disagree.

      During his testimony, the Trooper admitted that he only knew the color of the

vehicle from the witness statements. Further, the Trooper admitted that the witness

statements were written after the stop, and he “may or may not” have had the



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                                  STATE V. WALKER

                                  Opinion of the Court



information prior to the stop. Overall, the Trooper was unclear as to what description

of the vehicle he had at the time of the stop. At first, during direct examination, he

claimed to have been looking for a Ford Taurus. When opposing counsel took issue

with this description, the Trooper changed his testimony to say he only had

information that the vehicle was a “gray Ford passenger vehicle.” This conflicting

testimony presents competent evidence that the State failed to show when and to

what extent the Trooper was aware of the description of the vehicle.

      iii) Finding of Fact 13

      The State next challenges whether there was competent evidence to support

finding of fact 13 that, at the time of the stop, the Trooper had no particular

information as to what vehicle he was looking for except that it was a grey Ford. The

State argues the Trooper did have particular information as to what vehicle he was

looking for, claiming he knew the model and the license plate number of the vehicle.

As discussed above, the Trooper gave conflicting testimony both as to whether or not

he had the license plate number at the time of the stop, and as to whether he knew

the model of the car. As there was competent evidence supporting the trial court’s

findings of fact 1, 3, 4, and 7, there is also competent evidence to support finding of

fact 13 that there was no particular information about the vehicle except that it was

a grey Ford.

                                C. Conclusions of Law



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                                         STATE V. WALKER

                                         Opinion of the Court



        The State argues that the findings of fact do not support the conclusions of law.

We disagree.3

        The State challenges the following conclusions of law:

                1. At the time that [the Trooper] stopped [Defendant’s]
                vehicle he lacked any reasonable, articulable suspicion that
                [Defendant] was engaged in any unlawful activity, since he
                lacked any information that particularized [Defendant’s]
                vehicle as the one that had been complained about in
                Hubert earlier that day or complained about by the
                roadside witnesses.

                2. The State has advanced State v. Maready, 362 N.C. 614
                (2008), as authority for its position that [the Trooper’s] stop
                of [Defendant] was lawful. Upon the court’s review of State
                v. Maready, it is obvious that prior to the stop the deputies
                saw the defendant staggering, obviously intoxicated, across
                the roadway, and a driver behind Maready’s vehicle told
                them that Maready had been driving erratically, running
                stop signs and stop lights. Furthermore, he specifically
                pointed out the vehicle as being the suspected vehicle.

                3.   In this case noone [sic] specifically pointed out
                [Defendant’s] vehicle as being the one that was reported as
                having been observed or reported driving unlawfully.
                Furthermore, unlike the case in Maready, the State
                Trooper here did not observe the driver do anything, nor
                did he observe the vehicle being driven in any erratic or
                any other suspicious way.

                4. The State further relied upon State v. Nelson, No.
                COA13-1355 (unpublished 2014), but that case is
                distinguishable from this one because the tipster in

        3We note that in reviewing these conclusions of law for whether the order’s findings of fact
support the conclusions, we are bound by the order’s findings of fact because, as discussed above, they
are supported by competent evidence. See Cooke, 306 N.C. at 134, 291 S.E.2d at 619 (explaining that
when “the trial judge’s underlying findings of facts are supported by competent evidence, . . . they are
conclusively binding on appeal”).

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                     STATE V. WALKER

                     Opinion of the Court



question “flagged [the officer] down and directed his
attention to the pickup truck, which was exciting [sic] the
parking lot.” In that case then the suspected vehicle was
specifically identified.   Here the evidence was that
[Defendant’s] vehicle was never specifically pointed out to
the Trooper prior to him making the stop.

5. In State v. Hudgins, 195 N.C. App. 430 (2009) there
again was no question at the time of the stop that the
vehicle stopped was the vehicle that had been complained
about. The officer in question had advised the dispatch to
direct the caller to drive to Market Street so he could
intercept them. Officer Pamenteri proceeded to Market
Street where he observed vehicles matching the description
given by the caller stopped at a red light. There was in that
case no question as to the particular vehicle or person to be
seized.

6. In Navarette v. California, 134 S.Ct. 1683 (2014), the
officer making the stop had the license plate number of the
pickup truck before he made the stop of the vehicle. Here
the State has failed to produce evidence that [the Trooper]
had the license plate of [D]efendant’s vehicle before making
a stop in this case, and the court further notes and finds as
a fact that [the Trooper], while he testified that he found a
vehicle that matched that tag number, admitted that in the
trial in District Court he did not remember that dispatch
had given out a tag or a description of the vehicle “from our
communications” and that he had called his
communications the day before the hearing and learned
that that information was relayed out. “It was just from
my memory from District Court that I didn’t remember
that that happened.”

7. Based upon the totality of the circumstances the court
concludes that the State failed to carry its burden of
demonstrating that [the Trooper] was looking for any
vehicle that was “particularly described” as the Fourth
Amendment and the cases thereunder require, and that
the stop of [D]efendant’s vehicle and the fruits thereof must


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                                  Opinion of the Court



             be suppressed.

      The State contends the trial court’s conclusions of law are in error because of

the conclusion that the Trooper lacked reasonable suspicion to stop Defendant.

Specifically, the State argues the conclusions cannot be supported on the ground that

the informant’s tip was not sufficiently reliable. We disagree, because the tip did not

have sufficient indicia of reliability to provide reasonable suspicion to make an

investigatory stop of the vehicle driven by Defendant.

       “[T]o conduct an investigatory warrantless stop and detention of an individual,

a police officer must have reasonable suspicion, grounded in articulable and objective

facts, that the individual is engaged in criminal activity.” State v. Hudgins, 195 N.C.

App. 430, 433, 672 S.E.2d 717, 719 (2009) (citation omitted). “[I]n determining

whether a reasonable suspicion exists[,]” we consider the totality of these

circumstances, id. at 720, 672 S.E.2d at 720 (quotation omitted), including “the

rational inferences from those facts, as viewed through the eyes of a reasonable,

cautious officer, guided by his experience and training.” State v. Barnard, 362 N.C.

244, 247, 658 S.E.2d 643, 645 (quotation and citations omitted). We do not consider

information that he later learns; “reasonable suspicion must arise from the officer’s

knowledge prior to the time of the stop.” State v. Hughes, 353 N.C. 200, 208, 539

S.E.2d 625, 631 (2000).




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                                   STATE V. WALKER

                                   Opinion of the Court



      “When police act on the basis of an informant’s tip, the indicia of the tip’s

reliability are certainly among the circumstances that must be considered in

determining whether reasonable suspicion exists.” State v. Maready, 362 N.C. 614,

619, 669 S.E.2d 564, 567 (2008). Potential indicia include “all the facts known to the

officers from personal observation[.]”     Id. at 619, 669 S.E.2d at 567 (quotation

omitted). In Maready, the officers observed an intoxicated man enter a vehicle. A

nearby second vehicle’s driver, who had also been in a position to see the intoxicated

man enter the first vehicle, then approached the officers and, while able to point out

the first vehicle, told the officers that the first vehicle had been driving erratically,

running stop signs and stop lights. Id. at 620, 669 S.E.2d at 568.

      Here, the informant’s tip has less indicia of credibility than the tip in Maready.

While the informant was not anonymous, he was unable to specifically point out

Defendant’s vehicle as being the one driving unlawfully, as it was out of sight, and

the Trooper did not observe Defendant’s vehicle being driven in a suspicious or erratic

fashion. Moreover, as addressed in the findings of fact, it is unknown whether the

Trooper had the license plate number before or after the stop, and, further, we do not

know whether he had any vehicle description besides a “gray Ford passenger vehicle”

to specify his search.

      The State also challenges the conclusions of law that distinguish State v.

Hudgins, 195 N.C. App. 430, 672 S.E.2d 717 (2009) and State v. Nelson, No. COA13-



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                                   STATE V. WALKER

                                   Opinion of the Court



1355, 235 N.C. App. 219, 763 S.E.2d 339, 2014 WL 3510586 (N.C. Ct. App. July 15,

2014) (unpublished) from the instant case. Similar to Maready, in both Hudgins and

Nelson, the officers had reasonable suspicion to stop an individual where an

informant’s tip had sufficient indicia of reliability to, in light of the totality of the

circumstances, create reasonable suspicion. In Hudgins and Nelson, the tip provided

enough information that there was no doubt as to which particular vehicle each

informant reported. Hudgins, 195 N.C. App. at 431, 672 S.E.2d at 718; Nelson, 2014

WL 3510586 *7. In contrast, here, the informant’s ambiguous description did not

specify a particular vehicle. There were no other circumstances that enabled the

Trooper to further corroborate the tip; the Trooper did not testify that he witnessed

Defendant’s vehicle exhibit any behavior similar to the erratic driving described by

the informant. Thus, given the totality of the circumstances, this informant’s tip did

not have enough indicia of credibility to create reasonable suspicion for the Trooper

to stop Defendant’s vehicle.

                                     Conclusion

      For the foregoing reasons, we hold that the trial court had jurisdiction to enter

the 31 October 2016 order. The findings of fact in that order were based on competent

evidence, and support the conclusions of law.

      AFFIRMED

      Judges HUNTER, JR. and DAVIS concur.



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