State v. Lindley

An unpublished opinion of the North Carolina Court of Appeals does not constitute

controlling legal authority. Citation is disfavored, but may be permitted in accordance

with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-944

NORTH CAROLINA COURT OF APPEALS

Filed: 15 April 2014

STATE OF NORTH CAROLINA

v. Mecklenburg County

No. 10 CRS 225348

TRAVIS LINDLEY,

Defendant

Appeal by defendant from judgment entered 11 January 2013

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

Heard in the Court of Appeals 11 December 2013.

Roy Cooper, Attorney General, by Lauren T. Earnhardt,

Assistant Attorney General, for the State.

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

DAVIS, Judge.

Travis Lindley (“Defendant”) appeals from a judgment

entered upon a jury verdict finding him guilty of driving while

impaired and driving after consuming alcohol while under the age

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

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

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

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

held in jail for an unreasonable amount of time after posting

bond. After careful review, we conclude that Defendant received

a fair trial free from error.

Factual Background

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

of the Huntersville Police Department was on patrol shortly

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

car in front of the Birkdale movie theater. Officer Duncan

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

balcony overlooking the parking lot directly beside the movie

theater screamed for his attention. They informed Officer

Duncan that they had seen a silver Mitsubishi occupied by two

shirtless white males strike another vehicle in the parking lot

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

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

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

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

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

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

drove down Formby Road to search for the vehicle.

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

Police Department received the BOLO regarding the silver

Mitsubishi, which included a description of the vehicle and

indicated that it was heading towards the Redcliff Apartments.

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

used by commuters traveling from Birkdale Village to the

Redcliff Apartments. Approximately 45 seconds after receiving

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

Catawba Avenue. Officer Griffin turned around and activated his

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

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

West Catawba Avenue onto Kingspoint Drive, continuing for a

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

lot of a townhouse community.

Officer Griffin exited his patrol car and approached the

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

shirtless white males sitting in the front of the vehicle.

Defendant was the driver.

Officer Griffin asked for Defendant’s license and

registration and observed that Defendant “had slurred speech,

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

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

of the car. He administered standardized field sobriety tests

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

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

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

fact that Defendant was under 21 years old, Officer Griffin

charged Defendant with driving while impaired and driving after

consuming alcohol while under the age of 21. Defendant was

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

and taken to the Cornelius Police Department.

At the police department, Defendant’s blood alcohol level

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

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

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

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

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

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

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

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

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

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

been posted. Once they ultimately discovered that Defendant

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

Prior to trial, Defendant filed motions to dismiss the

charges against him and to suppress the evidence obtained as a

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

motions.

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A jury trial was held in Mecklenburg County Superior Court

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

while impaired and driving after consuming alcohol while under

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

term of imprisonment, which was suspended and Defendant was

placed on supervised probation for 14 months. Defendant was

also required to complete 48 hours of community service and

obtain a substance abuse assessment within 30 days of

sentencing. Defendant filed a timely notice of appeal to this

Court.

Analysis

I. Denial of Motion to Suppress

Defendant’s first argument on appeal is that the trial

court erred in denying his motion to suppress because Officer

Griffin did not have reasonable suspicion to believe that he was

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

This contention lacks merit.

Our review of a trial court's ruling on a motion to

suppress is “strictly limited to determining whether the trial

judge's underlying findings of fact are supported by competent

evidence, in which event they are conclusively binding on

appeal, and whether those factual findings in turn support the

judge's ultimate conclusions of law.” State v. Cooke, 306 N.C.

132, 134, 291 S.E.2d 618, 619 (1982). Furthermore, any

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unchallenged factual findings are “deemed to be supported by

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

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

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

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

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

A traffic stop must be based on reasonable suspicion of

criminal activity based on the totality of the circumstances.

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

Reasonable suspicion must arise from the officer’s knowledge

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

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

Reasonable suspicion is a “less demanding

standard than probable cause and requires a

showing considerably less than preponderance

of the evidence.” Only “some minimal level

of objective justification” is required.

This Court has determined that the

reasonable suspicion standard requires that

“[t]he stop . . . be based on specific and

articulable facts, as well as the rational

inferences from those facts, as viewed

through the eyes of a reasonable, cautious

officer, guided by his experience and

training.” Moreover, “[a] court must

consider the totality of the circumstances —

the whole picture in determining whether a

reasonable suspicion” exists.

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

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

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

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A tip from an informant can provide the reasonable

suspicion necessary to initiate an investigatory traffic stop.

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

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

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

taken into account when assessing the totality of the

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

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

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

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

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

567 (discussing reliability of tip received from an informant

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

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

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

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

informant).

Defendant claims Officer Griffin lacked reasonable

suspicion to stop his vehicle because the information he

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

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

Defendant argues, no reasonable suspicion existed.

In rejecting Defendant’s argument, we find our Supreme

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

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of a minivan noticed a silver Honda driving in an erratic

fashion in her rearview mirror. She informed law enforcement

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

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

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

defendant stopped at a stoplight. They activated their blue

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

The defendant argued that the officers lacked reasonable

suspicion for the stop of his vehicle. Our Supreme Court

disagreed, noting that the tip was not anonymous because the

officers received it from an individual who approached the

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

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

informant was traveling immediately in front of the defendant's

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

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

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

informant approached the police and “gave them information at a

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

because the informant would have had “little time to fabricate

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

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

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

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

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

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

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

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

case initiated an in-person encounter with Officer Duncan,

putting their anonymity at risk in order to report conduct they

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

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

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

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

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

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

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

informant demonstrated personal knowledge by giving clear and

precise details in the tip”).

Even though Officer Duncan did not make the investigatory

stop himself, Officer Griffin was responding to the information

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

Griffin used this information to determine the likely path of

Defendant’s vehicle and then observed the car matching the

description provided by the dispatcher.

We have previously held that

[i]f the officer making the investigatory

stop (the second officer) does not have the

necessary reasonable suspicion, the stop may

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nonetheless be made if the second officer

receives from another officer (the first

officer) a request to stop the vehicle, and

if, at the time the request is issued, the

first officer possessed a reasonable

suspicion that criminal conduct ha[d]

occurred, was occurring, or was about to

occur.

State v. Battle, 109 N.C. App. 367, 370-71, 427 S.E.2d 156, 159

(1993).

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

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

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

the defendant's motion to suppress evidence obtained following a

stop of his vehicle based on information provided by an

anonymous tipster. In Peele, the officer received a dispatch

indicating that a burgundy Chevrolet pickup truck was “a

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

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

arrived at the designated intersection within seconds and saw a

truck that matched the description of the vehicle. The officer

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

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

officer pulled the truck over and charged the driver with

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

This Court held that while the anonymous caller had

accurately described the vehicle, the caller gave police no way

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

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

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

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

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

Here, unlike in Peele, the information dispatched to

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

informant rather than from an anonymous tip. Therefore, Peele

is inapposite. Accordingly, there was reasonable suspicion to

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

properly denied.

II. Denial of Motion To Dismiss

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

denying his motion to dismiss the charges against him on the

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

Charlotte-Mecklenburg County Jail for an unreasonable amount of

time following the posting of his bond. We disagree.

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

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

competent evidence to support the findings and the conclusions.

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

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

trial court to resolve the conflict and such resolution will not

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

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

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

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

not challenged are presumed to be correct and are binding on

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

702, 703 (1990).

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

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

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

substantial statutory violation and of prejudice arising

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

“Dismissal of charges for violations of statutory rights is a

drastic remedy which should be granted sparingly. Before a

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

the statutory violation caused irreparable prejudice to the

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

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

omitted).

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

subject to detention for driving while impaired has the right to

pretrial release when a judicial official determines either that

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

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

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

responsible adult assumes responsibility for the defendant until

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

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

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

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

Here, the trial court made the following oral findings in

denying Defendant’s motion to dismiss:

The Court finds that the magistrate set a

reasonable bond for the defendant. That the

defendant was able to make the bond, and

there was never an issue as to the bond or

its amount. The defendant was not prejudiced

by the setting of the secured bond by the

magistrate.

The Court finds that the approximate fifty

minute delay between the time of the release

of the defendant . . . and the defendant

having met the bond requirement . . . was an

unintentional delay on the part of the

Sheriff’s Department. And that it was a

reasonable time period that passed between

the time the defendant met the bond

requirements and the time that the defendant

was released.

The Court further finds that the defendant

at no time requested an opportunity to have

a witness present to observe any part of the

arrest.

That the defendant was advised of his

constitutional rights, that his rights were

on the wall in the jailhouse area where he

was, and that he made no efforts for a

single request [sic] to have any person

present.

The Court further finds that even after the

mother came to . . . the Mecklenburg County

Jail, she did not enter the jail to attempt

to make any observation of the defendant.

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The Court further finds that the information

the mother received regarding her ability to

see the defendant at the jail was given to

her by her bondsman, or the bondsman that

she was talking to, and not by the Sheriff’s

Department in any effort to preclude the

defendant from having witnesses to observe

his condition.

The Court finds that . . . there was no

substantial violation of the defendant’s

constitutional rights.

The Court finds that the defendant has not

been deprived of an opportunity to obtain

evidence to support any defense.

That the Court finds that the defendant’s

breathalyzer reading was .18, which was

substantially higher than the .08

requirement under the law. And that the

defendant, while operating the vehicle, was

alleged to have struck another vehicle and

failed to stop.

That these are also factors that the

magistrate could consider in setting the

bond, which information was contained in the

affidavit of the arresting officer.

The Court further finds that according to

the defendant’s own evidence the mother of

the defendant talked to the defendant

multiple times, and that that [sic] also is

or could be some evidence to support the

defendant’s position at trial as to his

sobriety.

The defendant’s mother lived in the same

household with the defendant, and . . . she

would be a suitable person to evaluate his

condition during the relevant period.

The Court finds that there’s insufficient

evidence of any direct injury to the

defendant as a result of any delay that may

have been alleged to have occurred during

the time of the defendant’s arrest and the

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defendant’s release. The motion of the

defendant is denied.

Defendant challenges only the trial court’s findings that

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

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

was no substantial violation of his rights.

Deputy James Ingram (“Deputy Ingram”) testified that

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

where inmates are given a standard orange uniform before being

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

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

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

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

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

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

Ingram explained that this misunderstanding occurred because

the deputies in the jail reception, dress

out area, they wouldn’t know that

[Defendant] had met his conditions at that

time. So his paperwork had been placed in

dress out before knowing that the conditions

were met. And after he was dressed out it

was acknowledged in dress out that he had a

bond posted, and at that time he was taken .

. . back to jail reception.

We believe that Deputy Ingram’s testimony provides

competent evidence to support the trial court’s findings that

the delay between the time bond was posted and the time

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Defendant was released was both unintentional and reasonable.

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

finding that no substantial violation of Defendant’s rights

occurred.

We also reject Defendant’s contention that because of the

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

members observe his condition was compromised. Defendant points

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

[i]f the provisions of the foregoing

pretrial release statutes are not complied

with by the magistrate, and the defendant

can show irreparable prejudice directly

resulting from a lost opportunity to gather

evidence in his behalf by having friends and

family observe him and form opinions as to

his condition following arrest . . . and to

prepare a case in his own defense, the DWI

charge must be dismissed.

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

quotation marks omitted).

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

that Defendant had failed to show prejudice. Defendant had a

passenger in his vehicle who had the opportunity to observe his

condition at the time of his arrest. Furthermore, although

Officer Griffin gave Defendant the option of having a witness

present during the performance of the Intoxilyzer test,

Defendant voluntarily waived that right and did not request to

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

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

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

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

observe Defendant’s condition.

For these reasons, we believe competent evidence existed to

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

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

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

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

nearly 24 hours after being taken into custody for driving while

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

irreparably prejudicing any preparation of a defense to the

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

(although defendant alleged that magistrate committed statutory

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

prejudice because she had opportunity to contact witnesses

before submitting to Breathalyzer test, was informed of that

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

serve as witnesses).

Conclusion

For the reasons stated above, we conclude that the trial

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

in denying his motion to dismiss.

NO ERROR.

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Judge STEELMAN and STEPHENS concur.

Report per Rule 30(e).