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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 20 November 2007
STATE OF NORTH CAROLINA
v. Mecklenburg County
Nos. 05 CRS 257350 - 257352
Appeal by defendant from order entered 25 January 2007 by
Judge J. Gentry Caudill in Mecklenburg County Superior Court.
Heard in the Court of Appeals 16 November 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Tamara L. Shields, for the State.
Robin E. Strickland, for defendant-appellant.
Jose Sanchez (defendant) appeals from order entered denying
his motion to suppress. We affirm.
On 6 December 2005, defendant was arrested for impaired
driving, reckless driving, and speeding. On 22 September 2006,
defendant was found guilty in the Mecklenburg County District Court
of impaired driving and sentenced to ninety days imprisonment and
twelve months unsupervised probation. Defendant appealed to the
Mecklenburg County Superior Court.
On 23 January 2007, defendant filed a motion to suppress
evidence obtained from an arrest without an arrest warrant or
insufficient probable cause to justify an arrest. At thesuppression hearing, Charlotte-Mecklenburg Police Officer James R.
Montgomery (Officer Montgomery) testified on 6 December 2005 at
2:50 a.m., he was driving southbound on the 6100 block of South
Boulevard when he observed defendant's vehicle approaching from
behind him exceeding the posted forty miles per hour speed limit.
Officer Montgomery stopped his patrol car and activated his rear
radar antenna, which measured defendant's speed at seventy miles
per hour. Remaining stationary, Officer Montgomery watched as
defendant's vehicle almost ran into the back of [his] patrol car
before moving into the adjacent lane. After defendant passed him,
Officer Montgomery activated his blue lights and initiated a
Officer Montgomery spoke to defendant through his open car
window and discovered defendant spoke little English and had a
very strong odor of alcohol emitting from his breath[.] Defendant
also had a very hard time producing his driver's license and
failed to produce a registration card for the vehicle. When
Officer Montgomery asked defendant to step out of the vehicle, he
had a hard time and almost fell to the ground. Based upon
defendant's driving, the difficulty he experienced in exiting his
vehicle, and the odor on his breath, Officer Montgomery formed an
opinion that defendant's faculties were appreciably impaired by the
consumption of alcohol. Officer Montgomery called his dispatcher
and was advised that no Spanish-speaking officers were available to
assist him. Officer Montgomery was unable to administer fieldsobriety tests due to the language barrier. Defendant was placed
under arrest for impaired driving, reckless driving, and speeding.
During his cross-examination of Officer Montgomery, defendant
entered into evidence an audiotape and videotape of the traffic
stop recorded by equipment installed in the patrol car. Defendant
called no witnesses and did not testify.
At the conclusion of the hearing, the trial court made
findings of fact consistent with Officer Montgomery's testimony.
Based upon these findings, the trial court concluded that Officer
Montgomery had sufficient grounds to perform an investigatory stop
of defendant's vehicle, and probable cause to arrest him for
impaired driving pursuant to N.C. Gen. Stat. § 20-138.1. On 25
January 2007, the trial court entered an order denying defendant's
motion to suppress.
While preserving the right to appeal the denial of his motion
to suppress pursuant to N.C. Gen. Stat. § 15A-979(b), defendant
entered an Alford plea to the charges of impaired driving pursuant
to N.C. Gen. Stat. § 20-179 and reckless driving pursuant to N.C.
Gen. Stat. § 20-140B. North Carolina v. Alford, 400 U.S. 25, 37,
27 L. Ed. 2d 162, 171 (1970). The trial court sentenced defendant
to a term of 120 days imprisonment for impaired driving and thirty
days imprisonment for reckless driving. The trial court suspended
these sentences and placed defendant on unsupervised probation for
a period of twelve months. Defendant appeals.
Defendant argues the arresting officer lacked probable cause
to arrest him for impaired driving and asserts the trial court
erred by denying his motion to suppress.
III. Motion to Suppress
Defendant asserts the trial court should have suppressed
evidence pertaining to his impaired driving charge. Defendant
argues his warrantless arrest was not supported by probable cause,
as required by the Fourth and Fourteenth Amendments of the United
States Constitution, Article I, Section 19-20, of the North
Carolina Constitution, and N.C. Gen. Stat. § 15A-401(b)(2). We
A. Standard of Review
In reviewing the denial of a motion to suppress, we must
determine 'whether the trial court's findings of fact were
supported by competent evidence, in which event they are binding on
appeal, and whether those findings support the trial court's
conclusions of law.' State v. Styles, __ N.C. App. __, __, 648
S.E.2d 214, 215 (2007) (quoting State v. Cooke, 306 N.C. 132, 134,
291 S.E.2d 618, 619 (1982)). Because the trial court's oral
findings were supported by Officer Montgomery's hearing testimony,
we are bound thereby. We review de novo the trial court's
conclusion that the facts known to Officer Montgomery at the time
supported probable cause. Id.
Defendant contends the trial court erred in finding probable
cause for his arrest because Officer Montgomery failed to performa field sobriety test. Defendant also argues that Officer
Montgomery's claim that defendant nearly fell down while exiting
his vehicle was apparently contradicted by the police car
To be lawful, a warrantless arrest must be supported by
probable cause. State v. Zuniga, 312 N.C. 251, 259, 322 S.E.2d
140, 145 (1984). An officer has probable cause to arrest a suspect
if he has a 'reasonable ground of suspicion supported by
circumstances sufficiently strong in themselves to warrant a
cautious man in believing the accused to be guilty.' Id. (quoting
State v. Shore, 285 N.C. 328, 335, 204 S.E.2d 682, 687 (1974)).
'Probable cause is a flexible, common-sense standard. It does not
demand any showing that such a belief be correct or more likely
true than false. A practical, nontechnical probability is all that
is required.' State v. Sinapi, 359 N.C. 394, 399, 610 S.E.2d 362,
365 (2005) (quoting Zuniga, 312 N.C. at 262, 322 S.E.2d at 146).
N.C. Gen. Stat. § 20-138.1(a) (2005) provides:
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
(2) After having consumed sufficient alcohol
that he has, at any relevant time after the
driving, an alcohol concentration of 0.08 or
The State presented evidence of : (1) defendant's reckless
manner of driving, including his delay in changing lanes to avoid
Officer Montgomery's car; (2) a strong odor of alcohol ondefendant's breath at 3:00 a.m.; and (3) the difficulties defendant
displayed in producing his driver's license and exiting his
vehicle. This evidence was sufficient to provide Officer
Montgomery with probable cause for an arrest. State v. Tappe, 139
N.C. App. 33, 38, 533 S.E.2d 262, 265 (2000); State v. Rogers, 124
N.C. App. 364, 369-70, 477 S.E.2d 221, 224 (1996), disc. rev.
denied, 345 N.C. 352, 483 S.E.2d 187 (1997).
To the extent defendant challenges the trial court's findings
are contradicted by the audiotape and videotape played at the
suppression hearing, we note defendant failed to include the
audiotape and videotape as exhibits to the record on appeal. An
appellate court will not assume error when none appears in the
record on appeal, and the burden is on appellant to show error.
State v. Kornegay, 313 N.C. 1, 19, 326 S.E.2d 881, 895-96 (1985)
(citing State v. Phifer, 290 N.C. 203, 212, 225 S.E.2d 786, 792
(1976), cert. denied, 429 U.S. 1123, 51 L. Ed. 2d 573 (1977); In re
Moore, 306 N.C. 394, 403, 293 S.E.2d 127, 132 (1982)). This
assignment of error is overruled.
The trial court's findings and conclusion to deny defendant's
motion to suppress are supported by Officer Montgomery's hearing
testimony. Defendant failed to include the videotape and audiotape
in the record on appeal. The trial court's order denying
defendant's motion to suppress is affirmed.
Judges GEER and STEPHENS concur.
Report per Rule 30(e).
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