{ "id": 4033170, "name": "STATE OF NORTH CAROLINA v. ALEJANDRO O'CONNOR", "name_abbreviation": "State v. O'Connor", "decision_date": "2012-08-07", "docket_number": "No. COA12-167", "first_page": "235", "last_page": "244", "citations": [ { "type": "official", "cite": "222 N.C. App. 235" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "646 S.E.2d 768", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638872, 12638873, 12638871 ], "year": 2007, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/se2d/646/0768-02", "/se2d/646/0768-03", "/se2d/646/0768-01" ] }, { "cite": "638 S.E.2d 516", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637384 ], "year": 2007, "pin_cites": [ { "page": "523", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/se2d/638/0516-01" ] }, { "cite": "673 S.E.2d 394", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642934 ], "year": 2009, "pin_cites": [ { "parenthetical": "citing State v. Shelly, 181 N. C. App. 196, 204-205, 638 S.E.2d 516, 523, disc. review denied, 361 N.C. [367], 646 S.E.2d 768 (2007) (emphasis added" } ], "opinion_index": 0, "case_paths": [ "/se2d/673/0394-01" ] }, { "cite": "638 S.E.2d 907", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637418, 12637419, 12637420 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/638/0907-01", "/se2d/638/0907-02", "/se2d/638/0907-03" ] }, { "cite": "621 S.E.2d 306", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634314 ], "year": 2005, "pin_cites": [ { "parenthetical": "observing that use of the words \"must\" and \"shall\" in a statute are deemed to indicate a legislative intent to make the provision of the statute mandatory such that failure to observe it is fatal to the validity of the action" } ], "opinion_index": 0, "case_paths": [ "/se2d/621/0306-01" ] }, { "cite": "637 S.E.2d 868", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637331 ], "year": 2006, "pin_cites": [ { "page": "875-76" } ], "opinion_index": 0, "case_paths": [ "/se2d/637/0868-01" ] }, { "cite": "702 S.E.2d 825", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "828-29" } ], "opinion_index": 0 }, { "cite": "181 N. C. App. 196", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8373323 ], "year": 2007, "pin_cites": [ { "page": "204-205", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc-app/181/0196-01" ] }, { "cite": "360 N.C. 652", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3787808, 3793442, 3790828, 3795150, 3793998, 3797936, 3792754, 3791351, 3796858, 3790044 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc/360/0652-05", "/nc/360/0652-06", "/nc/360/0652-10", "/nc/360/0652-08", "/nc/360/0652-03", "/nc/360/0652-02", "/nc/360/0652-04", "/nc/360/0652-01", "/nc/360/0652-07", "/nc/360/0652-09" ] }, { "cite": "174 N.C. App. 567", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8352646 ], "year": 2005, "pin_cites": [ { "page": "570", "parenthetical": "observing that use of the words \"must\" and \"shall\" in a statute are deemed to indicate a legislative intent to make the provision of the statute mandatory such that failure to observe it is fatal to the validity of the action" } ], "opinion_index": 0, "case_paths": [ "/nc-app/174/0567-01" ] }, { "cite": "291 S.E.2d 618", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "620" } ], "opinion_index": 0 }, { "cite": "306 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567694 ], "year": 1982, "pin_cites": [ { "page": "134" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0132-01" ] }, { "cite": "361 N.C. 53", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3743190 ], "year": 2006, "pin_cites": [ { "page": "63-65" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0053-01" ] }, { "cite": "311 S.E.2d 281", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "285" } ], "opinion_index": 0 }, { "cite": "310 N.C. 274", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2403051 ], "year": 1984, "pin_cites": [ { "page": "279" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0274-01" ] }, { "cite": "268 S.E.2d 452", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "457" } ], "opinion_index": 0 }, { "cite": "300 N.C. 678", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564413 ], "year": 1980, "pin_cites": [ { "page": "685" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0678-01" ] }, { "cite": "377 S.E.2d 38", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "44", "parenthetical": "stating that, \"when defendant filed his motion to suppress these statements, he failed to file a supporting affidavit as required by N.C. [Gen. Stat.] \u00a7 15A-977(a)\" and that, \"[notwithstanding defendant's omission, however, we elect to address the issue under our supervisory powers\"" } ], "opinion_index": 0 }, { "cite": "324 N.C. 118", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2482016 ], "year": 1989, "pin_cites": [ { "page": "128", "parenthetical": "stating that, \"when defendant filed his motion to suppress these statements, he failed to file a supporting affidavit as required by N.C. [Gen. Stat.] \u00a7 15A-977(a" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0118-01" ] }, { "cite": "336 S.E. 2d 857", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "859", "parenthetical": "where defendant fails to set forth adequate legal grounds, trial court is vested with discretion of whether to summarily deny the motion" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 235", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520628 ], "year": 1985, "pin_cites": [ { "page": "237", "parenthetical": "where defendant fails to set forth adequate legal grounds, trial court is vested with discretion of whether to summarily deny the motion" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0235-01" ] }, { "cite": "400 S.E.2d 459", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 273", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2538085, 2542919, 2544616, 2544302, 2538547 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0273-05", "/nc/328/0273-02", "/nc/328/0273-04", "/nc/328/0273-03", "/nc/328/0273-01" ] }, { "cite": "374 S.E.2d 874", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "878" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 398", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527052 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "406" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0398-01" ] }, { "cite": "120 S.E. 195", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1923, "pin_cites": [ { "page": "196" } ], "opinion_index": 0 }, { "cite": "186 N.C. 618", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654336 ], "year": 1923, "pin_cites": [ { "page": "620" } ], "opinion_index": 0, "case_paths": [ "/nc/186/0618-01" ] }, { "cite": "195 S.E. 533", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1938, "pin_cites": [ { "page": "536" } ], "opinion_index": 0 }, { "cite": "213 N.C. 194", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627162 ], "year": 1938, "pin_cites": [ { "page": "198" } ], "opinion_index": 0, "case_paths": [ "/nc/213/0194-01" ] }, { "cite": "240 S.E.2d 367", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "372", "parenthetical": "citing Felton v. Felton, 213 N.C. 194, 198, 195 S.E. 533, 536 (1938), send Rector v. Rector, 186 N.C. 618, 620, 120 S.E. 195, 196 (1923)" }, { "parenthetical": "noting that, when a statute employs the word \"may,\" it ordinarily shall be construed as permissive and not mandatory, but legislative intent must control the statute's construction" } ], "opinion_index": 0 }, { "cite": "294 N.C. 90", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570942 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "97", "parenthetical": "citing Felton v. Felton, 213 N.C. 194, 198, 195 S.E. 533, 536 (1938), send Rector v. Rector, 186 N.C. 618, 620, 120 S.E. 195, 196 (1923)" }, { "parenthetical": "noting that, when a statute employs the word \"may,\" it ordinarily shall be construed as permissive and not mandatory, but legislative intent must control the statute's construction" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0090-01" ] }, { "cite": "356 S.E.2d 388", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "390" } ], "opinion_index": 0 }, { "cite": "94 N.C. App. 354", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527192 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc-app/94/0354-01" ] }, { "cite": "576 S.E.2d 316", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "319" } ], "opinion_index": 0 }, { "cite": "356 N.C. 642", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511442 ], "year": 2003, "pin_cites": [ { "page": "647" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0642-01" ] }, { "cite": "669 S.E.2d 290", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2008, "pin_cites": [ { "page": "294", "parenthetical": "quoting In re Appeal of the Greens of Pine Glen Ltd. P'ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)" } ], "opinion_index": 0 }, { "cite": "362 N.C. 628", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150837 ], "year": 2008, "pin_cites": [ { "page": "632-33", "parenthetical": "quoting In re Appeal of the Greens of Pine Glen Ltd. P'ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0628-01" ] }, { "cite": "712 S.E.2d 874", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "page": "878", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "365 N.C. 162", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4153463 ], "year": 2011, "pin_cites": [ { "page": "168", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/365/0162-01" ] }, { "cite": "148 L. Ed. 2d 992", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "opinion_index": 0 }, { "cite": "121 S. Ct. 1126", "category": "reporters:federal", "reporter": "S. Ct.", "year": 2001, "opinion_index": 0 }, { "cite": "531 U.S. 1165", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9784512, 9783616, 9783489, 9784931, 9785068, 9784364, 9784782, 9784238, 9785236, 9783863, 9783992, 9784122, 9784638 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/us/531/1165-08", "/us/531/1165-02", "/us/531/1165-01", "/us/531/1165-11", "/us/531/1165-12", "/us/531/1165-07", "/us/531/1165-10", "/us/531/1165-06", "/us/531/1165-13", "/us/531/1165-03", "/us/531/1165-04", "/us/531/1165-05", "/us/531/1165-09" ] }, { "cite": "532 S.E.2d 496", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "501", "parenthetical": "internal citation omitted" } ], "opinion_index": 0 }, { "cite": "352 N.C. 489", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685022 ], "year": 2000, "pin_cites": [ { "page": "498", "parenthetical": "internal citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0489-01" ] }, { "cite": "543 S.E.2d 823", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "826", "parenthetical": "quoting State v. Brewington, 352 N.C. 489, 498, 532 S.E.2d 496, 501 (2000) (internal citation omitted), cert. denied, 531 U.S. 1165, 121 S. Ct. 1126, 148 L. Ed. 2d 992 (2001)" } ], "opinion_index": 0 }, { "cite": "353 N.C. 332", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135584 ], "year": 2001, "pin_cites": [ { "page": "336", "parenthetical": "quoting State v. Brewington, 352 N.C. 489, 498, 532 S.E.2d 496, 501 (2000) (internal citation omitted), cert. denied, 531 U.S. 1165, 121 S. Ct. 1126, 148 L. Ed. 2d 992 (2001)" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0332-01" ] }, { "cite": "392 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167798 ], "weight": 3, "year": 1968, "pin_cites": [ { "page": "21-22", "parenthetical": "other citation omitted" }, { "page": "1880", "parenthetical": "other citation omitted" }, { "page": "906", "parenthetical": "other citation omitted" } ], "opinion_index": 0, "case_paths": [ "/us/392/0001-01" ] }, { "cite": "446 S.E.2d 67", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "70", "parenthetical": "citing Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968) (other citation omitted)" } ], "opinion_index": 0 }, { "cite": "337 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549311 ], "year": 1994, "pin_cites": [ { "page": "441-42", "parenthetical": "citing Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968) (other citation omitted)" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0437-01" ] }, { "cite": "665 S.E.2d 438", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2008, "pin_cites": [ { "page": "440" } ], "opinion_index": 0 }, { "cite": "362 N.C. 412", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150881 ], "year": 2008, "pin_cites": [ { "page": "415" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0412-01" ] } ], "analysis": { "cardinality": 969, "char_count": 22975, "ocr_confidence": 0.748, "pagerank": { "raw": 8.09811732244097e-08, "percentile": 0.4674979120404317 }, "sha256": "10235caaee2d805a5a11a7c17a13076d9cc58a76dd37264e3f1b10203c9dbd10", "simhash": "1:abfb462a724e3df0", "word_count": 3763 }, "last_updated": "2023-07-14T20:23:21.020165+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and STEELMAN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ALEJANDRO O\u2019CONNOR" ], "opinions": [ { "text": "ERVIN, Judge.\nThe State of North Carolina appeals from an order granting a motion filed by Defendant Alejandro Antonio O\u2019Connor seeking to have suppressed certain evidence seized at the time that his vehicle was stopped. On appeal, the State argues that the trial court erred by failing to summarily dismiss Defendant\u2019s motion based upon his failure to attach a supporting affidavit as required by N.C. Gen. Stat. \u00a7 15A-977(a); by failing to make appropriate findings of fact; and by failing to determine that the investigating officer had ample justification for stopping Defendant\u2019s vehicle. After careful consideration of the State\u2019s challenges to the trial court\u2019s order in light of the record and the applicable law, we conclude that the trial court\u2019s order should be reversed and that this case should be remanded to the Durham County Superior Court for further proceedings not inconsistent with this opinion, including the entry of an order ruling on the issues raised by Defendant\u2019s suppression motion that contains appropriate findings of fact and conclusions of law.\nI. Background\nA. Substantive Facts\nOn 12 November 2010, Officer Kyle Staton of the Durham Police Department was on patrol in the vicinity of the McDougald Terrace housing project. At approximately 3:30 a.m., Officer Staton noticed Defendant driving towards him. In light of the fact that the location in question was a high crime area and his own \u201ccuriosity,\u201d Officer Staton decided to check Defendant\u2019s license plate number using a law enforcement computer database.\nAccording to the information that Officer Staton received in response to his query, the registered owner of the vehicle had a Cary address. In Officer Staton\u2019s \u201cexperience],] a lot of people from out of town, especially Chapel Hill, Raleigh, Cary, [and] Morrisville ... come to those areas to possibly buy drugs.\u201d Since Defendant\u2019s presence in the neighborhood \u201ckind of raised [his] curiosity,\u201d Officer Staton turned around and began to follow Defendant.\nAlthough Officer Staton did not use radar equipment, he estimated that Defendant was driving 35 mph in a 25 mph zone. In addition, Officer Staton noticed that Defendant was \u201cslight[ly] weaving inside of the travel lane\u201d and was slowing and then speeding up, which \u201craised [his] suspicion even more.\u201d Although there were no other vehicles in the area, Officer Staton \u201cinitiated a traffic stop\u201d of Defendant\u2019s vehicle \u201cbased on the speed of the vehicle.\u201d\nAccording to Officer Staton, Defendant \u201cwas pretty good at pulling over immediately.\u201d At that point, Officer Staton approached Defendant\u2019s car, where he \u201cquestioned] what [Defendant] was doing in the area\u201d and received a negative answer when he asked if Defendant was \u201cin the area buying drugs just to see what his reaction was.\u201d Although Defendant did not have a drivers\u2019 license on his person, he provided Officer Staton with a passport I.D. card.\nAfter Officer Staton noticed the smell of alcohol, he asked if Defendant had been drinking. Although Defendant initially denied having consumed any alcoholic beverages, he eventually admitted that he had had at least one drink. When Officer Staton gave Defendant the opportunity to take a roadside breath test, Defendant declined. However, Defendant successfully performed the \u201cone-leg stand and the walk and turn\u201d sobriety tests.\nOn cross-examination, Officer Staton conceded that he developed his estimate of Defendant\u2019s speed after following him for only fifteen or twenty seconds and acknowledged that Defendant\u2019s weaving within his own lane was \u201cslight.\u201d On redirect examination, Officer Staton denied having made eye contact with Defendant before turning around and following him.\nDefendant testified that he lived in Cary on 12 November 2010 and that he had visited his brother, who lived in Durham, on that date. At the time that he left his brother\u2019s residence, Defendant\u2019s \u201cbrother said to go down Main Street\u201d; \u201cthat... there would be a [gas] station\u201d; \u201cthat not too far from there would be the Durham Highway\u201d; and that, \u201conce [he] got there, [he] was familiar with\u201d the area. However, Defendant missed a turn and became lost in an unfamiliar neighborhood. At each corner, Defendant slowed down in an attempt to \u201cget [his] bearings and try to find a sign so [he] could sort out where [he] was[.]\u201d\nAs he was driving through the area in which the housing project was located, Defendant saw Officer Staton, who made eye contact with him. About fifteen seconds after they exchanged glances, Officer Staton turned around and began following him. Defendant \u201cknew there was a police officer behind [him]\u201d and \u201cwas probably going maybe 20 [mph].\u201d Officer Staton stopped Defendant\u2019s car, approached his vehicle, and asked Defendant at least three times, \u201cwhat are you doing in this area?\u201d\nB. Procedural History\nOn 12 November 2010, citations were issued charging Defendant with driving while impaired, speeding 35 miles per hour in a 25 mile per hour zone, and driving without a license. The charges against Defendant came on for trial before Judge Patricia Evans at the 11 May 2011 criminal session of Durham County District Court. On that date, Judge Evans convicted Defendant of driving while impaired, speeding, and driving without an operator\u2019s license. After the entry of judgment, Defendant noted an appeal to the Durham County Superior Court for a trial de novo.\nOn 16 August 2011, Defendant filed a motion to suppress any evidence obtained as a result of the stopping of Defendant\u2019s vehicle on the grounds that Officer Staton lacked the reasonable suspicion needed to justify conducting such an investigative detention. Defendant\u2019s suppression motion was heard before the trial court on 18 August 2011. At the conclusion of-the hearing, the trial court ruled that \u201c[t]he motion to suppress is granted for the reasons argued in the memorandum by the defense, that it was a[n] unlawful investigatory stop,\u201d and directed \u201ccounsel [] to prepare an order.\u201d On the same day, the trial court signed a written order granting Defendant\u2019s suppression motion. The State noted an appeal to this Court from the trial court\u2019s order.\nII. Legal Analysis\nA. Applicable Legal Principles\nAs we have already noted, Defendant\u2019s motion seeks the suppression of evidence obtained as the result of a traffic stop. \u201c[R]easonable suspicion is the necessary standard for traffic stops, regardless of whether the traffic violation was readily observed or merely suspected.\u201d State v. Styles, 362 N.C. 412, 415, 665 S.E.2d 438, 440 (2008). \u201cAn officer has reasonable suspicion if a \u2018reasonable, cautious officer, guided by his experience and training,\u2019 would believe that criminal activity is afoot \u2018based on specific and articulable facts, as well as the rational inferences from those facts.\u2019 \u201d State v. Williams, _N.C. _., _, 726 S.E.2d_, __, 2012 N.C. Lexis 410 *13-*14 (2012) (quoting State v. Watkins, 337 N.C. 437, 441-42, 446 S.E.2d 67, 70 (1994) (citing Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968) (other citation omitted)).\n\u201cIt is well established that the standard of review in evaluating a trial court\u2019s ruling on a motion to suppress is that the trial court\u2019s findings of fact \u2018are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting.\u2019 \u201d State v. Buchanan, 353 N.C. 332, 336, 543 S.E.2d 823, 826 (2001) (quoting State v. Brewington, 352 N.C. 489, 498, 532 S.E.2d 496, 501 (2000) (internal citation omitted), cert. denied, 531 U.S. 1165, 121 S. Ct. 1126, 148 L. Ed. 2d 992 (2001)). However, \u201c[c]onclusions of law are reviewed de novo and are subject to full review.\u201d State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011) (citation omitted). \u201c \u2018Under a de novo review, the court considers the matter anew and freely substitutes its own judgment\u2019 for that of the lower tribunal.\u201d State v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008) (quoting In re Appeal of the Greens of Pine Glen Ltd. P\u2019ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)).\nN.C. Gen. Stat. \u00a7 15A-977 \u201csets forth the procedure for considering a motion to suppress in superior court.\u201d State v. Salinas, _ N.C._,_,_S.E.2d_,_2012 N.C. LEXIS 412 (2012). According to N.C. Gen. Stat. \u00a7 15A-977:\n(a) A motion to suppress evidence in superior court... must state the grounds upon which it is made ... [and] must be accompanied by an affidavit containing facts supporting the motion. The affidavit may be based upon personal knowledge, or upon information and belief, if the source of the information and the basis for the belief are stated. . . .\n(c) The judge may summarily deny the motion to suppress evidence if:\n(1) The motion does not allege a legal basis for the motion; or\n(2) The affidavit does not as a matter of law support the ground alleged.\n(d) If the motion is not determined summarily the judge must make the determination after a hearing and finding of facts. Testimony at the hearing must be under oath.\n(f) The judge must set forth in the record his findings of facts and conclusions of law.\nB. Failure to Attach Affidavit\nAs an initial matter, the State argues that the trial court erred by failing to summarily dismiss Defendant\u2019s suppression motion based upon his failure to attach a supporting affidavit as required by N.C. Gen. Stat. \u00a7 15A-977(a). Although the trial court has the authority to summarily deny or dismiss a suppression motion that fails to comply with the required procedural formalities, we conclude that the trial court has the discretion to refrain from summarily denying such a motion that lacks an adequate supporting affidavit if it chooses to do so. As a result, we conclude that the State\u2019s initial argument lacks merit.\nAs we have already noted, the trial court \u201cmay summarily deny [a] suppression motion\u201d if it \u201cdoes not allege a legal basis for the motion\u201d or if the accompanying \u201caffidavit does not as a matter of law support the ground alleged.\u201d N.C. Gen. Stat. \u00a7 15A-977(c). \u201cThe decision to summarily deny a motion that is not accompanied by an affidavit is vested in the discretion of the trial court.\u201d State v. Langdon, 94 N.C. App. 354, 356 S.E.2d 388, 390 (1989). Thus, in the event that the trial court had summarily denied Defendant\u2019s suppression motion for lack of an adequate supporting affidavit, it would have been fully entitled to do so. We do not, however, believe that this determination necessarily ends the relevant inquiry for purposes of this case.\nAlthough the relevant statutory language provides that the trial court \u201cmay\u201d summarily dismiss a defective suppression motion, nothing in N.C. Gen. Stat. \u00a7 15A-977(c) compels it to do so. \u201cOrdinarily when the word \u2018may\u2019 is used in a statute, it will be construed as permissive and not mandatory.\u201d In re Hardy, 294 N.C. 90, 97, 240 S.E.2d 367, 372 (1978) (citing Felton v. Felton, 213 N.C. 194, 198, 195 S.E. 533, 536 (1938), send Rector v. Rector, 186 N.C. 618, 620, 120 S.E. 195, 196 (1923)). For example, in State v. Marshall, 92 N.C. App. 398, 374 S.E.2d 874 (1988), cert. denied, 328 N.C. 273, 400 S.E.2d 459 (1991), this Court addressed a contention by the State that the defendant failed to comply with the procedural requirements of N.C. Gen. Stat. \u00a7 15A-977(a) and had, for that reason, waived the right to obtain appellate review of the trial court\u2019s order denying his suppression motion. In response, we stated that:\nThe trial judge here had the authority pursuant to N.C. [Gen. Stat. \u00a7] 15A-977(c)(1) to summarily deny the motion to suppress because defendant did not give a legal basis for his motion to suppress. [N.C. Gen. Stat. \u00a7] 15A-977(c)(1) [(2011)] (judge may summarily deny the motion to suppress evidence if motion does not contain legal basis for motion) [(emphasis in original)]; State v. Harvey, 78 N.C. App. 235, 237, 336 S.E. 2d 857, 859 (1985) (where defendant fails to set forth adequate legal grounds, trial court is vested with discretion of whether to summarily deny the motion). However, the trial judge exercised his discretion not to summarily deny the motion and immediately proceeded to conduct a voir dire relating to the admissibility of the defendant\u2019s statements[.] . . . Thus, we conclude defendant has not waived his right to contest the admissibility of statements by him for failure to comply with the procedural requirements of [N.C. Gen. Stat. \u00a7] 15A-977.\nMarshall, 92 N.C. App at 406, 374 S.E.2d at 878. See also State v. McQueen, 324 N.C. 118, 128, 377 S.E.2d 38, 44 (1989) (stating that, \u201cwhen defendant filed his motion to suppress these statements, he failed to file a supporting affidavit as required by N.C. [Gen. Stat.] \u00a7 15A-977(a)\u201d and that, \u201c[notwithstanding defendant\u2019s omission, however, we elect to address the issue under our supervisory powers\u201d) (citing N.C.R. App. P. 2). As a result, we conclude that the trial court had discretion to refrain from summarily dismissing Defendant\u2019s suppression motion and did not err by proceeding to conduct an evidentiary hearing addressing the merits of the issues raised by Defendant\u2019s motion.\nC. Failure to Make Findings of Fact\nSecondly, the State argues that the trial court erred by failing to make findings of fact resolving material conflicts in the evidence presented at the suppression hearing. This aspect of the State\u2019s challenge to the trial court\u2019s order has merit.\n\u201c \u2018[T]he general rule is that [the trial court] should make findings of fact to show the bases of [its] ruling. If there is a material conflict in the evidence .. . [the trial court] must do so in order to resolve the conflict.\u2019 . . . \u2018Findings and conclusions are required in order that there may be a meaningful appellate review of the decision\u2019 on a motion to suppress.\u2019 \u201d Salinas,_N.C. at_,_S.E.2d at_ (quoting State v. Phillips, 300 N.C. 678, 685, 268 S.E.2d 452, 457 (1980), and State v. Horner, 310 N.C. 274, 279, 311 S.E.2d 281, 285 (1984)). \u201cWhen the trial court fails to make findings of fact sufficient to allow the reviewing court to apply the correct legal standard, it is necessary to remand the case to the trial court. Remand is necessary because it is the trial court that \u2018is entrusted with the duty to hear testimony, weigh and resolve any conflicts in the evidence, find the facts, and, then based upon those findings, render a legal decision, in the first instance, as to whether or not a constitutional violation of some kind has occurred.\u2019 \u201d Salinas,_N.C. at_,_S.E.2d at _(citing State v. McKinney, 361 N.C. 53, 63-65, 637 S.E.2d 868, 875-76 (2006), and quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 620 (1982)).\nAfter the evidence had been presented at the suppression hearing, Defendant\u2019s trial counsel argued that Officer Staton stopped Defendant\u2019s vehicle because he was driving \u201ca white Lexus in a troubled neighborhood at 3:00 in the morning\u201d rather than because Officer Staton had a reasonable suspicion that Defendant was engaged in criminal activity and that it was \u201csimply not plausible\u201d that, after exchanging glances with a law enforcement officer and after that officer made a U-turn for the purpose of following him, Defendant would drive in an unlawful manner with the officer right behind him. The testimony of Officer Staton and Defendant concerning whether the two men made eye contact before Officer Staton decided to turn around and follow Defendant, the extent to which Officer Staton questioned Defendant about his presence in the neighborhood, and the extent to which Defendant was driving in an inappropriate manner directly conflicted. In light of this conflicting testimony concerning matters which were directly relevant to the issue of whether Officer Staton had a reasonable suspicion that Defendant was engaging in unlawful activity, the trial court was obligated to make findings of fact that resolved the material conflicts between the testimony of Officer Staton and Defendant.\nAt the conclusion of the suppression hearing, however, the trial court entered an order that simply stated that:\nThis cause coming before the Court ... it is hereby order [ed that]:\n(i) Defendant\u2019s Motion To Suppress Evidence is hereby granted;\n(ii) Any and all evidence gathered subsequent to the traffic stop made in this matter is hereby suppressed and not admissible at trial[.]\nThe trial court\u2019s order granting Defendant\u2019s suppression motion contains no findings of fact resolving the material evidentiary conflicts that became apparent during the suppression hearing. For that reason, we are unable to conduct a meaningful review of the trial court\u2019s order and must remand this case to the trial court for the entry of an order ruling on the issues raised by Defendant\u2019s suppression motion that contains adequate findings of fact and conclusions of law.\nIn urging us to affirm the trial court\u2019s order, Defendant argues that \u201cthe trial court\u2019s ruling from the bench indirectly indicated that the trial court resolved the credibility issue in favor of the Defendant\u201d and that the trial court \u201cindirectly provided a rationale from the bench\u201d by stating that Defendant\u2019s motion was granted \u201cfor the reasons argued in the memorandum for the defense, that it was a[n] unlawful investigatory stop.\u201d Defendant may, of course, be correct in arguing that the trial court\u2019s decision to grant his suppression motion \u201cindirectly\u201d indicated that the trial court resolved disputed factual issues in his favor. However:\nWe observe that the language of section 15A-977(f) is mandatory \u2014a trial court \u201cmust set forth in the record [its] findings of fact and conclusions of law.\u201d N.C. Gen. Stat. \u00a7 15A-977(f) [(2011)] (emphasis added). Compare In re Hardy, 294 N.C. 90, [97,] 240 S.E.2d 367[, 372] (1978) (noting that, when a statute employs the word \u201cmay,\u201d it ordinarily shall be construed as permissive and not mandatory, but legislative intent must control the statute\u2019s construction) with State v. Inman, 174 N.C. App. 567, 570,] 621 S.E.2d 306[, 309] (2005) (observing that use of the words \u201cmust\u201d and \u201cshall\u201d in a statute are deemed to indicate a legislative intent to make the provision of the statute mandatory such that failure to observe it is fatal to the validity of the action), disc. rev. denied, 360 N.C. 652, 638 S.E.2d 907 (2006).\nThe language of [N.C. Gen. Stat. \u00a7] 15A-977 has been interpreted as mandatory to the trial court unless (1) the trial court provides its rationale from the bench, and (2) there are no material conflicts in the evidence at the suppression hearing.\u201d State v. Williams, [195] N.C. App. 554, 555, 673 S.E.2d 394 ,395 (2009) (citing State v. Shelly, 181 N. C. App. 196, 204-205, 638 S.E.2d 516, 523, disc. review denied, 361 N.C. [367], 646 S.E.2d 768 (2007) (emphasis added). . . .\nState v. Baker, _ N.C. App _, _, 702 S.E.2d 825, 828-29 (2010). In this case, as we have already observed, the evidence presented at the hearing held with respect to Defendant\u2019s suppression motion was sharply conflicting. Were we to adopt the logic espoused in Defendant\u2019s brief, we would have effectively eviscerated the requirement that trial judges make findings of fact and conclusions of law in deciding whether to grant or deny a suppression motion, a step which we decline to take. As a result, we conclude that, by failing to make any factual findings resolving the conflicts in the testimony given by Officer Staton and Defendant at the suppression hearing, the trial court failed to comply with N.C. Gen. Stat. \u00a7 15A-977, that the absence of the necessary findings of fact prevents us from reviewing the trial court\u2019s order in accordance with the applicable standard of review, and that this case must be remanded to the trial court for the entry of an order that contains appropriate findings and conclusions.\nOn the other hand, the State contends that the trial court erred by failing to deny Defendant\u2019s suppression motion on its merits. In support of this contention, the State relies on Officer Staton\u2019s testimony to the effect that Defendant was weaving and exceeding the posted speed limit in order to argue that the nature of Defendant\u2019s driving and the time and location at which this driving occurred provided ample justification for Officer Staton\u2019s decision to stop Defendant\u2019s vehicle. However, as we have already noted, the testimony of Officer Staton and the testimony of Defendant concerning the manner in which Defendant was driving conflicted. In view of the fact that we cannot determine the extent, if any, to which Officer Staton had the authority to stop Defendant\u2019s vehicle until these issues of fact have been resolved and since the trial court failed to make any findings of fact that resolved these disputed factual issues, we are simply not in a position to take the State up on its invitation that we decide the validity of Officer Staton\u2019s decision to stop Defendant\u2019s vehicle on the merits at this time.\nIII. Conclusion\nThus, for the reasons set forth above, we conclude that the trial court erred by failing to make appropriate findings and conclusions in its order ruling on Defendant\u2019s suppression motion. As a result, the trial court\u2019s order should be, and hereby is, reversed and this case should be, and hereby is, remanded to the Durham County Superior Court for further proceedings not inconsistent with this opinion.\nREVERSED AND REMANDED.\nJudges McGEE and STEELMAN concur.", "type": "majority", "author": "ERVIN, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Kathryne E. Hathcock, for the State.", "Mary McCullers Reece for Defendant-appellee." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ALEJANDRO O\u2019CONNOR\nNo. COA12-167\n(Filed 7 August 2012)\n1. Search and Seizure \u2014 motion to suppress \u2014 failure to attach supporting affidavit \u2014 trial court discretion to refrain from summarily denying motion\nThe trial court did not err in a driving while impaired, speeding, and driving without an operator\u2019s license case by failing to summarily dismiss defendant\u2019s suppression motion based upon his failure to attach a supporting affidavit as required by N.C.G.S. \u00a7 15A-977(a). Although the trial court has the authority to summarily deny or dismiss a suppression motion that fails to comply with the required procedural formalities, the trial court has the discretion to refrain from summarily denying such a motion that lacks an adequate supporting affidavit if it chooses to do so.\n2. Motor Vehicles \u2014 driving while impaired \u2014 speeding\u2014 driving without operator\u2019s license \u2014 suppression hearing\u2014 insufficient findings of fact\nThe trial court erred in a driving while impaired, speeding, and driving without an operator\u2019s license case by failing to make findings of fact resolving material conflicts in the evidence presented at the suppression hearing as required by N.C.G.S. \u00a7 15A-977. The case was remanded to the trial court for the entry of an order that contained appropriate findings and conclusions.\nAppeal by the State from order entered 18 August 2011 by Judge Orlando F. Hudson in Durham County Superior Court. Heard in the Court of Appeals 22 May 2012.\nAttorney General Roy Cooper, by Assistant Attorney General Kathryne E. Hathcock, for the State.\nMary McCullers Reece for Defendant-appellee." }, "file_name": "0235-01", "first_page_order": 245, "last_page_order": 254 }