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NO. COA12-525 NORTH CAROLINA COURT OF APPEALS Filed: 6 November 2012 STATE OF NORTH CAROLINA v. JAMES R. KOCHUK Durham County No. 10 CRS 56388

Search and Seizure -- traffic stop -- failure to maintain lane control The trial court in an impaired driving prosecution did not err by granting defendant's motion to suppress where the State contended that an officer had reasonable suspicion for a stop based on defendant's failure to maintain lane control. Defendant's weaving alone was insufficient to establish reasonable suspicion and the trial court found that the officer saw no other signs of high or low speed, no prolonged weaving, no improper turns, no inappropriate use of signals, and no other evidence of any type of improper or erratic driving. Judge BEASLEY dissenting.

NO. COA12-525 NORTH CAROLINA COURT OF APPEALS Filed: 6 November 2012 STATE OF NORTH CAROLINA v. JAMES R. KOCHUK Durham County No. 10 CRS 56388

Appeal by the State from order entered 3 October 2011 by Judge Carl R. Fox in Durham County Superior Court. Court of Appeals 10 October 2012. Attorney General Roy Cooper by Assistant Attorney General Joseph L. Hyde, for the State. Russell Joseph Hollers, attorney for defendant. ELMORE, Judge. The State appeals from an order granting James R. Kochuk's (defendant) motion to suppress evidence obtained following a Heard in the

stop of his vehicle.

We affirm.

On 3 July 2010, Trooper Ellerbe of the North Carolina State Highway Patrol was on duty and traveling eastbound on Interstate 40. Around 1:00 AM, Trooper Ellerbe began traveling 1-2 car He then

lengths behind defendant's vehicle in the middle lane.

observed defendant's vehicle cross over the dotted white line,

-2causing both wheels on the passenger side of the vehicle to cross into the right lane for about 3-4 seconds, and then move back into the middle lane. Trooper Ellerbe then observed There, he

defendant lawfully merge into the right-hand lane.

observed defendant's vehicle drift over to the right-hand side of the right lane, with both wheels riding on top of the solid white line, twice for a period of 3-4 seconds each time. Based on these observations, Trooper Ellerbe conducted a stop of defendant's vehicle, and defendant was cited for driving while impaired of (DWI). and On 25 January to 2011, defendant court. On was 19

convicted

DWI

appealed

superior

September 2011, defendant filed a motion to suppress.

On 20

September 2011, a hearing was held on the motion, and on 3 October 2011 the trial court entered an order granting

defendant's motion and suppressing all evidence obtained as a result of the stop. The State now appeals.

The State argues that the trial court erred in granting defendant's motion to suppress because Trooper Ellerbe had

reasonable suspicion for the stop based on defendant's failure to maintain lane control. Our review of a We disagree. court's denial of a motion to

trial

suppress is "strictly limited to determining whether the trial

-3judge'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." 132, 134, 291 S.E.2d 618, 619 State v. Cooke, 306 N.C. "The trial court's State (2000).

(1982).

conclusions of law . . . are fully reviewable on appeal." v. Hughes, 353 N.C. 200, 208, 539 S.E.2d 625, 631

"Where, however, the trial court's findings of fact are not challenged competent on appeal, and they are are deemed on to be supported State by v.

evidence

binding

appeal."

Roberson, 163 N.C. App. 129, 132, 592 S.E.2d 733, 735-36 (2004) (citation omitted). Here, the State does not challenge any of the trial court's findings. Thus, they are binding on appeal. However, the State

argues that the trial court erred in concluding that Trooper Ellerbe lacked reasonable and articulable suspicion to support a stop of defendant's vehicle. This determination actually appears as a finding of fact in the trial court's order, and not as a conclusion of law.

Finding of fact 22 reads "when all of the facts and factors in this case were taken into account . . . [they] did not amount to reasonable and articulable suspicion and as such [the]

-4subsequent stop . . . [was] invalid and illegal." Regardless,

we conclude that this finding of fact is more appropriately classified as a conclusion of law, see N.C. State Bar v. Key, 189 N.C. App. 80, 88, 658 the S.E.2d exercise 493, of 499 (2008) or ("any the

determination

requiring

judgment

application of legal principles is more properly classified a conclusion of law."), and we will review accordingly, see id. ("classification determinative, of an when item within the the order is court not can

and,

necessary,

appellate

reclassify an item before applying the appropriate standard of review."). As the trial court correctly determined, this case is

analogous to State v. Fields, 195 N.C. App. 740, 673 S.E.2d 765 (2009). In Fields, the defendant argued on appeal that the

trial court erred in denying his motion to suppress, in part, because the initial stop of his car was not based on a 195

reasonable and articulable suspicion of criminal activity. N.C. App. at 742, 673 S.E.2d at 767.

There, the defendant was

stopped after the officer observed the defendant's car swerve to the white line on the right side of the traffic lane on three separate occasions. Id. at 741, 673 S.E.2d at 766. This Court

reversed the trial court's decision because "[the] defendant's

-5weaving within his lane, standing alone, [was] insufficient to support a reasonable suspicion that defendant was driving under the influence of alcohol." Id. at 746, 673 S.E.2d at 769. We

also noted that this Court has previously held that "weaving can contribute impaired[,]" additional to but a reasonable that the suspicion must of be driving "coupled also while with

weaving

specific

articulable

facts,

which

indicate[]

that the defendant was driving while impaired." S.E.2d at 768. Here, Ellerbe the trial court's findings "vehicle

Id. at 744, 673

establish cross

that the

Trooper dotted

witnessed

defendant's

over

white line" causing "both of the wheels on the passenger side" to enter "into the right lane for about three to four seconds" and that later he observed defendant's vehicle "drift over to the right-hand side of the right lane where its wheels were riding on top of the white line . . . twice for a period of three to four seconds each time." We conclude that these

movements amount to nothing more than weaving.

Further, the

trial court found that "other than those movements," Trooper Ellerbe "saw no other signs of a high or low speed, no prolonged weaving, no improper turns, no inappropriate use of signals, and no other evidence of any type of improper or erratic driving."

-6Thus, consistent with our holding in Fields, we conclude that defendant's weaving alone was insufficient to establish

reasonable suspicion. order. Affirmed.

According, we affirm the trial court's

Judge STROUD concurs. Judge BEASLEY dissents by separate opinion.

NO. COA12-525 NORTH CAROLINA COURT OF APPEALS Filed: 6 November 2012 STATE OF NORTH CAROLINA v. JAMES R. KOCHUK Durham County No. 10 CRS 56388

BEASLEY, Judge, dissenting. Because I believe controlling precedent determines that

Trooper Ellerbe had reasonable suspicion, I respectfully dissent from the majority's opinion and would reverse the trial court's order granting Defendant's motion to suppress and remand the case for trial. This case is controlled by State v. Otto, __ N.C. __, 726 S.E.2d 824 (2012). In Otto, our Supreme Court focused on "`the Id. at __, 726 S.E.2d at 828

totality of the circumstances.'"

(quoting State v. Styles, 362 N.C. 412, 414, 665 S.E.2d 438, 440 (2008)). Prior to the case reaching our Supreme Court, this

Court focused on its precedent requiring weaving in one's own lane plus one additional factor to constitute reasonable

suspicion.

State v. Otto, ___ N.C. App. __, __, 718 S.E.2d 181, The Supreme Court held that there was reasonable

184

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