{ "id": 4033432, "name": "STATE OF NORTH CAROLINA v. DONALD OSTERHOUDT, Defendant", "name_abbreviation": "State v. Osterhoudt", "decision_date": "2012-08-21", "docket_number": "No. COA11-1428", "first_page": "620", "last_page": "633", "citations": [ { "type": "official", "cite": "222 N.C. App. 620" } ], "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": "649 S.E.2d 902", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639301 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "904", "parenthetical": "holding that \"[w]hether the legal justification for [a police officer's] traffic stop was subjectively reasonable is irrelevant\"" }, { "page": "904" } ], "opinion_index": 0, "case_paths": [ "/se2d/649/0902-01" ] }, { "cite": "616 S.E.2d 615", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633599 ], "year": 2005, "pin_cites": [ { "page": "620", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/616/0615-01" ] }, { "cite": "594 S.E.2d 199", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631245, 12631246 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/594/0199-02", "/se2d/594/0199-01" ] }, { "cite": "358 N.C. 240", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12631246, 12631314, 12631219, 12631317, 12631319 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/594/0199-01", "/se2d/596/0016-03", "/se2d/594/0032-01", "/se2d/596/0017-01", "/se2d/596/0019-01" ] }, { "cite": "720 S.E.2d 388", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "opinion_index": 0 }, { "cite": "712 S.E.2d 704", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "page": "707" } ], "opinion_index": 0 }, { "cite": "186 N.C. App. 124", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8155044 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "127", "parenthetical": "holding that \"[w]hether the legal justification for [a police officer's] traffic stop was subjectively reasonable is irrelevant\"" }, { "page": "127" } ], "opinion_index": 0, "case_paths": [ "/nc-app/186/0124-01" ] }, { "cite": "172 N.C. App. 801", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8321543 ], "year": 2005, "pin_cites": [ { "page": "807", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/172/0801-01" ] }, { "cite": "720 S.E.2d 389", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "opinion_index": 0 }, { "cite": "714 S.E.2d 827", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2011, "pin_cites": [ { "page": "828-29" }, { "page": "831" } ], "opinion_index": 0 }, { "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" ] }, { "cite": "446 S.E.2d 67", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1994, "pin_cites": [ { "page": "70" }, { "page": "70", "parenthetical": "internal quotation marks omitted" }, { "page": "70", "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0 }, { "cite": "337 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549311 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "441-42" }, { "page": "441", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0437-01" ] }, { "cite": "675 S.E.2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "687", "parenthetical": "noting that \"a tip with no indicia of reliability, no corroboration, and conduct falling within the broad range of what can be described as normal driving behavior\" was not enough to establish reasonable articulable suspicion to stop the defendant (internal quotations omitted)" } ], "opinion_index": 0 }, { "cite": "196 N.C. App. 668", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4165780 ], "year": 2009, "pin_cites": [ { "page": "674" } ], "opinion_index": 0, "case_paths": [ "/nc-app/196/0668-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-153", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 2011, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 136-30", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2011, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 20446", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 13, "pin_cites": [ { "page": "(d)" }, { "page": "(a)" }, { "page": "(a)" }, { "page": "(a)" }, { "page": "(a)(3)" }, { "page": "(a)" }, { "page": "(d)" }, { "page": "(d)" }, { "page": "(a)" }, { "page": "(d)(1)" }, { "page": "(a)" }, { "page": "(a)" }, { "page": "(d)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 20-146", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 11, "pin_cites": [ { "page": "(d)(1)" }, { "page": "(d)", "parenthetical": "3-4" }, { "page": "(d)" }, { "page": "(a)" }, { "page": "(a)" }, { "page": "(a)" }, { "page": "(a)" }, { "page": "(d)", "parenthetical": "3-4" }, { "page": "(a)" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "149 L. Ed. 2d 305", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "opinion_index": 0 }, { "cite": "532 U.S. 931", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9315009, 9314948, 9314725, 9314661, 9314695, 9314631, 9314793, 9314822, 9315113, 9314863, 9315060, 9314585, 9314909 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/us/532/0931-11", "/us/532/0931-10", "/us/532/0931-05", "/us/532/0931-03", "/us/532/0931-04", "/us/532/0931-02", "/us/532/0931-06", "/us/532/0931-07", "/us/532/0931-13", "/us/532/0931-08", "/us/532/0931-12", "/us/532/0931-01", "/us/532/0931-09" ] }, { "cite": "533 S.E.2d 168", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "201" } ], "opinion_index": 0 }, { "cite": "352 N.C. 364", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684963 ], "year": 2000, "pin_cites": [ { "page": "409" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0364-01" ] }, { "cite": "543 S.E.2d 823", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "826", "parenthetical": "quoting State v. Golphin, 352 N.C. 364, 409, 533 S.E.2d 168, 201 (2000), cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305 (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. Golphin, 352 N.C. 364, 409, 533 S.E.2d 168, 201 (2000), cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305 (2001)" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0332-01" ] }, { "cite": "592 S.E.2d 733", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "735-36" }, { "page": "735-36" } ], "opinion_index": 0 }, { "cite": "163 N.C. App. 129", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8915624 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "132" }, { "page": "132" } ], "opinion_index": 0, "case_paths": [ "/nc-app/163/0129-01" ] }, { "cite": "291 S.E.2d 618", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "619" } ], "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": "607 S.E.2d 646", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "parenthetical": "noting that pursuant to N.C. Gen. Stat. \u00a7 15A-979(c), \"[t]he State has the right to appeal [to this Court] an order by the superior court granting a motion to suppress prior to trial\"" } ], "opinion_index": 0 }, { "cite": "359 N.C. 191", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3794209, 3799976, 3793513, 3800274, 3796792, 3798971, 3799454 ], "year": 2004, "pin_cites": [ { "parenthetical": "noting that pursuant to N.C. Gen. Stat. \u00a7 15A-979(c), \"[t]he State has the right to appeal [to this Court] an order by the superior court granting a motion to suppress prior to trial\"" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0191-07", "/nc/359/0191-01", "/nc/359/0191-04", "/nc/359/0191-05", "/nc/359/0191-03", "/nc/359/0191-02", "/nc/359/0191-06" ] }, { "cite": "601 S.E.2d 215", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "217", "parenthetical": "noting that pursuant to N.C. Gen. Stat. \u00a7 15A-979(c), \"[t]he State has the right to appeal [to this Court] an order by the superior court granting a motion to suppress prior to trial\"" } ], "opinion_index": 0 }, { "cite": "166 N.C. App. 228", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8411088 ], "year": 2004, "pin_cites": [ { "page": "230", "parenthetical": "noting that pursuant to N.C. Gen. Stat. \u00a7 15A-979(c), \"[t]he State has the right to appeal [to this Court] an order by the superior court granting a motion to suppress prior to trial\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/166/0228-01" ] }, { "cite": "692 S.E.2d 394", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "opinion_index": 0 }, { "cite": "363 N.C. 810", "category": "reporters:state", "reporter": "N.C.", "year": 2010, "opinion_index": 0 }, { "cite": "676 S.E.2d 559", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "561" } ], "opinion_index": 0 }, { "cite": "197 N.C. App. 201", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4167493 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "203" }, { "page": "204" } ], "opinion_index": 0, "case_paths": [ "/nc-app/197/0201-01" ] }, { "cite": "696 S.E.2d 695", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "opinion_index": 0 }, { "cite": "364 N.C. 129", "category": "reporters:state", "reporter": "N.C.", "year": 2010, "opinion_index": 0 }, { "cite": "676 S.E.2d 523", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "532" } ], "opinion_index": 0 }, { "cite": "197 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4167655 ], "weight": 4, "year": 2009, "pin_cites": [ { "page": "7" }, { "page": "6" }, { "page": "6" }, { "page": "8" } ], "opinion_index": 0, "case_paths": [ "/nc-app/197/0001-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-38.7", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 9, "year": 2010, "pin_cites": [ { "page": "11" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 20-38.6", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "year": 2010, "pin_cites": [ { "page": "(f)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 20-138.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "opinion_index": 0 } ], "analysis": { "cardinality": 946, "char_count": 31850, "ocr_confidence": 0.747, "pagerank": { "raw": 1.5932810007153072e-07, "percentile": 0.6824210600695253 }, "sha256": "f7c2ad46c58c193c32377526ecdf0d2e5913b4b9db86df34227ce7f437ad4c44", "simhash": "1:950bf3f6b2f84e43", "word_count": 5215 }, "last_updated": "2023-07-14T20:23:21.020165+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GEER and BEASLEY concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DONALD OSTERHOUDT, Defendant" ], "opinions": [ { "text": "HUNTER, Robert C., Judge.\nThe State appeals from a 14 March 2011 order entered by Judge W. Russell Duke, Jr. in Pitt County Superior Court affirming the district court\u2019s pretrial indication that granted defendant Donald Osterhoudt\u2019s (\u201cdefendant\u2019s\u201d) motion to suppress the stop of defendant (\u201cmotion to suppress\u201d). The State asserts the following errors on appeal: (1) the superior court\u2019s finding of fact that defendant\u2019s car \u201cnever crossed over the middle halfway point of Fifth Street[]\u201d was not supported by the evidence; (2) the superior court\u2019s conclusion of law that it is permissible for a vehicle to cross the double yellow line as long as it does not cross the \u201ccenterpoint of the roadway\u201d is erroneous as a matter of law; (3) the superior court applied an incorrect test to determine whether defendant\u2019s traffic stop was permissible under the Fourth Amendment and, thus, erred in its conclusion of law that the police officer\u2019s observations did not constitute reasonable articulable suspicion; and (4) the superior court\u2019s conclusion of law that the stop of defendant was unreasonable was erroneous. After careful review, we reverse and remand.\nBackground\nThe evidence tended to establish the following: On 14 January 2010 at approximately 1:10 a.m., North Carolina State Highway Patrol Trooper Nathaniel Monroe (\u201cTrooper Monroe\u201d) was on-duty and stopped at a stoplight on Fifth Street in Greenville, N.C. Trooper Monroe was traveling east on Fifth Street and observed defendant make a \u201cwide right turn\u201d onto Fifth Street whereby half of defendant\u2019s car went over the double yellow line into the turning lane for traffic coming in the opposite direction. Fifth Street is a three-lane road with two lanes for westbound traffic (consisting of a regular lane and a left hand turn lane) and one lane for eastbound traffic. Trooper Monroe turned on his blue lights and stopped defendant. Defendant pulled over on Fifth Street but only pulled his car halfway into a parking spot. Trooper Monroe charged defendant with and arrested defendant for driving while impaired (\u201cDWI\u201d) pursuant to N.C. Gen. Stat. \u00a7 20-138.1 (2009).\nOn 12 November 2010, defendant filed a motion to suppress in district court pursuant to N.C. Gen. Stat. \u00a7 20-38.6 (2010). After a pretrial hearing on 17 November 2010, the district court issued its pretrial indication and included the following pertinent conclusions of law:\n3. That it is not a violation of the N.C. General Statutes for a vehicle to cross a double yellow line separating a turn lane from a straight travel lane at an intersection while making a right turn so long as such movement is made in safety and no traffic is affected;\n4. That [Trooper Monroe\u2019s] observations do not constitute a reasonable articulable suspicion that any crime has occurred or is occurring;\n5. The stop of the vehicle which the [defendant was operating was unreasonable.\nThe district court ordered all evidence obtained as a result of the stop suppressed. The State gave oral notice of its appeal to superior court pursuant to N.C. Gen. Stat. \u00a7 20-38.7 (2010) and filed its notice of appeal on 30 November 2010.\nOn 3 December 2010, the superior court held a hearing on the State\u2019s appeal of the district court\u2019s pretrial indication. After taking the matter under advisement, the superior court made the following findings of fact in its 14 March 2011 order, nunc pro tunc to 3 December 2010:\n8. That [defendant\u2019s car], during the turn, veered over the double yellow line to the extent that approximately half of the car was over the line before coming back into its eastbound lane of travel;\n9. That, although the car cross [sic] the yellow lines . . . the car never crossed over the middle halfway point of Fifth Street[.]\nBased on its findings of fact, the superior court issued the following pertinent conclusions of law:\n3. That it is not a violation of the General Statutes for a vehicle to cross the double yellow line separating the turn lane from the straight lane at this particular intersection while making a right turn so long as the vehicle does not cross the centerpoint of the roadway, and such turn is made in safety and no traffic is affected;\n4. That this driving falls within a normal pattern of driving behavior, and the Trooper\u2019s observations do not constitute a reasonable articulable suspicion that any crime has occurred or is occurring;\n5. The stop of the vehicle which the [defendant was operating was unreasonable.\nThe superior court affirmed the district court\u2019s pretrial indication and ordered \u201call evidence obtained as a result of the stop and detention of [defendant\u201d suppressed.\nOn 21 March 2011, the State filed its notice of appeal to this Court.\n. Discussion\nI. Grounds for Appellate Review\nInitially, the Court must determine whether this appeal is properly before it. The State \u201cconcedes that, ordinarily, it has no statutory right of appeal from a superior court order entered pursuant to N.C.G.S. \u00a7 20-38.7(a).\u201d However, because the superior court failed to remand the matter back to the district court to enter a final order and it included language specifically ordering a suppression of all the evidence obtained as a result of the stop, the State asserts it is, in effect, a final order that gives the State a statutory right of appeal pursuant to N.C. Gen. Stat. \u00a7\u00a7 15A-979(c) and 15A-1445(b). However, if we find the State has no statutory right of appeal, the State requests this Court grant its petition for writ of certiorari and review the merits of its appeal.\nWe note that the State is correct in its concession that it has no statutory right of appeal from a superior court order entered pursuant to N.C. Gen. Stat. \u00a7 20-38.7. See State v. Fowler, 197 N.C. App. 1, 7, 676 S.E.2d 523, 532 (2009), disc. review denied and appeal dismissed, 364 N.C. 129, 696 S.E.2d 695 (2010); State v. Palmer, 197 N.C. App. 201, 203, 676 S.E.2d 559, 561 (2009), disc. review denied, 363 N.C. 810, 692 S.E.2d 394 (2010). Pursuant to N.C. Gen. Stat. \u00a7 20-38.6 (2011), after a defendant moves to suppress evidence in district court prior to trial, the district court \u201cshall set forth in writing the findings of fact and conclusions of law and preliminarily indicate whether the motion should be granted or denied.\u201d If the district court indicates that a defendant\u2019s motion to suppress should be granted, \u201cthe judge shall not enter a final judgment on the motion until after the State has appealed to superior court [pursuant to N.C. Gen. Stat. \u00a7 20-38.7] or has indicated it does not intend to appeal.\u201d N.C. Gen. Stat. \u00a7 20-38.6(f). This Court has held that a superior court order issued pursuant to N.C. Gen. Stat. \u00a7 20-38.7 is interlocutory even though it \u201cmay have the same \u2018effect\u2019 of a final order but requires further action for finality.\u201d Fowler, 197 N.C. App. at 6, 676 S.E.2d at 531. Pursuant to N.C. Gen. Stat. \u00a7 20-38.7, once the superior court reviews the district court\u2019s pretrial indication de novo, the superior court must \u201center an order remanding the matter to the district court with instructions to finally grant or deny the defendant\u2019s pretrial motion[.]\u201d Id. at 11, 676 S.E.2d at 535.\nHere, while acknowledging the fact that it may not appeal a superior court order issued pursuant to N.C. Gen. Stat. \u00a7 20-38.7, the State attempts to side step this procedural bar by arguing that the superior court order is no longer interlocutory, as designated in Fowler, 197 N.C. App. at 6, 676 S.E.2d at 531, but constitutes a final order giving the State a right of appeal through N.C. Gen. Stat. \u00a7\u00a7 15A-1445 and 15A-979. We are not persuaded.\nPursuant to N.C. Gen. Stat. \u00a7\u00a7 15A-1445 and 15A-979 (2011), the State has a right of appeal to this Court if the superior court grants a defendant\u2019s motion to suppress. See State v. Barnhill, 166 N.C. App. 228, 230, 601 S.E.2d 215, 217, appeal dismissed, 359 N.C. 191, 607 S.E.2d 646 (2004) (noting that pursuant to N.C. Gen. Stat. \u00a7 15A-979(c), \u201c[t]he State has the right to appeal [to this Court] an order by the superior court granting a motion to suppress prior to trial\u201d). Thus, the State is arguing that since the superior court order included language in it specifically \u201csuppressing\u201d the evidence, the superior court was granting defendant\u2019s motion.to suppress; therefore, the State has a statutory right of appeal pursuant to N.C. Gen. Stat. \u00a7\u00a7 15A-1445 and 15A-979. However, in the present case, the superior court order specifically states that the basis for the 3 December 2010 hearing is the State\u2019s appeal of the district court\u2019s pretrial indication granting defendant\u2019s motion to suppress. Therefore, although the superior court order does not fully comply with Fowler and Palmer, this does not change the nature of the order from interlocutory to final. Accordingly, because the State has no statutory right of appeal, we must grant defendant\u2019s motion to dismiss.\nHowever, as the State requests, this Court may grant a writ of certiorari \u201cwhen no right of appeal from an interlocutory order exists.\u201d N.C.R. App. P. 21(a)(1) (2012). The State argues this Court should grant certiorari for two reasons. First, the State contends that the superior court exceeded its jurisdiction by: (1) failing to remand the matter back to the district court with instructions to enter a final order granting or denying the motion to suppress in violation of N.C. Gen. Stat. \u00a7 20-38.7(a), and (2) failing to \u201cgive[] effect\u201d to Fowler and Palmer. Second, the State alleges that review is \u201cvitally important because of the manifest errors of law committed by the superior court and the very real potential for those errors to be repeated in Pitt County and elsewhere.\u201d In support of its petition for certiorari, the State cites Fowler and Palmer where we granted certiorari to address issues pertaining to the appeal of a district court\u2019s pretrial indication. Fowler, 197 N.C. App. at 8, 676 S.E.2d at 533 (granting the State\u2019s petition for certiorari after the superior court found N.C. Gen. Stat. \u00a7\u00a7 20-38.6 and 38.7 unconstitutional); Palmer, 197 N.C. App. at 204, 676 S.E.2d at 561 (allowing certiorari based on the superior court\u2019s finding that the State lacked jurisdiction in appealing the district court\u2019s pretrial indication).\nHaving determined that the State has no right of appeal from the superior court\u2019s interlocutory order and recognizing that this Court has granted certiorari in similar circumstances, we exercise our discretion to grant the State\u2019s petition for writ of certiorari.\nII. Standard of Review\nOn appeal, we will apply the same standard of review we would use as if the superior court order was a final order even though it was entered pursuant to N.C. Gen. Stat. \u00a7 20-38.7. Our review of a superior court\u2019s order granting a motion to suppress is limited to \u201cwhether the trial judge\u2019s 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\u2019s ultimate conclusions of law.\u201d State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). Any unchallenged findings of fact are \u201cdeemed to be supported by competent evidence and are binding on appeal.\u201d State v. Roberson, 163 N.C. App. 129, 132, 592 S.E.2d 733, 735-36, disc. review denied, 358 N.C. 240, 594 S.E.2d 199 (2004). \u201c \u2018[T]he trial court\u2019s conclusions of law must be legally correct, reflecting a correct application of applicable legal principles to the facts found.\u2019 \u201d State v. Buchanan, 353 N.C. 332, 336, 543 S.E.2d 823, 826 (2001) (quoting State v. Golphin, 352 N.C. 364, 409, 533 S.E.2d 168, 201 (2000), cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305 (2001)).\nIII. Finding of Fact No. 9\nFirst, we address the State\u2019s argument that the superior court\u2019s finding' of fact that defendant\u2019s car \u201cnever crossed over the middle halfway point of Fifth Street\u201d was not supported by competent evidence. In support of its argument, the State claims that although Trooper Monroe testified that defendant\u2019s vehicle was \u201cabout halfway into the turning lane[,]\u201d he did not definitively establish that defendant\u2019s car was \u201cno more than halfway\u201d into the turning lane. Furthermore, the State contends that because there was no testimony establishing the total width of Fifth Street nor the width of the individual traffic lanes, \u201cthere was no way of determining by competent evidence that crossing the double yellow lines did not constitute crossing the \u2018middle halfway point of Fifth Street.\u2019 \u201d In other words, the State seems to argue that there is a possibility that the double yellow line was located near enough to the center of Fifth Street that a portion of defendant\u2019s car may have crossed the \u201cmiddle halfway point\u201d of the road. We disagree.\nWhile the State is correct that on cross-examination, Trooper Monroe did testify that defendant\u2019s car was \u201cabout halfway\u201d into the turning lane, he stated in direct examination that \u201c[h]alf of [defendant\u2019s] vehicle went over the double yellow line[.]\u201d Since Trooper Monroe\u2019s initial statement is unequivocal and corresponds with the superior court\u2019s finding of fact, the State\u2019s argument is without merit.\nAdditionally, although the State is correct in its assertion that no testimony was offered to conclusively establish where the double yellow line was in relation to the middle point of the road, it was reasonable for the superior court to assume that the double yellow line on a three-lane road, as Fifth Street is, would not be close enough to the middle of the road whereby the two lanes on one side and the one lane on the other side would essentially have the same total width. Thus, the superior court\u2019s finding of fact that \u201c[defendant\u2019s] car did not cross over the middle halfway point of Fifth Street\u201d was supported by the court\u2019s rational assumption. Therefore, because we find that there was competent evidence to support the superior court\u2019s finding of fact, the State\u2019s argument is overruled. Since the State did not challenge any other findings of fact, the remaining findings are deemed competent and are binding on appeal. See Roberson, 163 N.C. App. at 132, 592 S.E.2d at 735-36.\nIV. Conclusion of Law No. 3\nNext, the State argues that the superior court erred in its conclusion of law that crossing a double yellow line separating the turning lane from a motorist\u2019s lane of traffic at this particular intersection is not a violation of law if: (1) the motorist \u201cdoes not cross the center-point of the roadway\u201d; (2) the turn is \u201cmade in safety\u201d; and (3) \u201cno traffic is affected[.]\u201d Specifically, the State contends that the superior court\u2019s conclusion is not supported by law or evidence and that defendant\u2019s act of driving over the \u201ccenterpoint\u201d of the road violates N.C. Gen. Stat. \u00a7\u00a7 20-146 and 20-153. We agree that defendant violated N.C. Gen. Stat. \u00a7\u00a7 20446(d) and 20-153, but we do not find a violation of N.C. Gen. Stat. \u00a7 20446(a).\nThe State argues on appeal, as it did at the superior court hearing, that defendant violated N.C. Gen. Stat. \u00a7 20446(a) which requires drivers to drive on the \u201cright half of the highway[.]\u201d In fact, defendant was charged with violating this statute. However, N.C. Gen. Stat. \u00a7 20446(a) contains several exceptions. Specifically, the statute does not apply to \u201chighway[s] divided into three marked lanes for traf\u00f1cf.]\u201d N.C. Gen. Stat. \u00a7 20446(a)(3). Here, Fifth Street is a three-lane road; therefore, N.C. Gen. Stat. \u00a7 20446(a) and its requirement that drivers stay on the right half of the road would not apply. Therefore, we find the State\u2019s assertion that defendant violated this statute is without merit.\nIn contrast, we do find defendant violated N.C. Gen. Stat. \u00a7\u00a7 20446(d) and 20-153. Pursuant to N.C. Gen. Stat. \u00a7 20446(d), on streets that are two or more lanes and clearly marked:\n(1) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.\n(3) Official traffic-control devices may be erected directing specified traffic to use a designated lane or designating those lanes to be used by traffic moving in a particular direction regardless of the center of the street and drivers of vehicles shall obey the direction of every such device.\n(4) Official traffic-control devices may be installed prohibiting the changing of lanes on sections of streets, and drivers of vehicles shall obey the directions of every such device.\nAs for a definition for \u201ctraffic-control devices,\u201d N.C. Gen. Stat. \u00a7 136-30 (2011) requires any traffic-control devices to comply with the Manual on Uniform Traffic-Control Devices for Streets and Highways (\u201cthe Manual\u201d) published by the United States Department of Transportation; therefore, we look to the Manual to find a definition of a traffic-control device. According to the Manual, a traffic control device is \u201ca sign, signal, marking, or other device used to regulate, warn, or guide traffic, placed on, over, or adjacent to a street, highway, private road open to public travel, pedestrian facility, or shared-use path by authority of a public agency or official .having jurisdiction[.]\u201d Manual on Uniform Traffic-Control Devices for Streets and Highways \u00a7 1A.13 (2009 ed.). Therefore, the double yellow line at issue in this case is a \u201cmarking\u201d used to guide traffic and, thus, a traffic-control device.\nWhen defendant crossed the double yellow line on Fifth Street, he failed to stay in his lane and violated N.C. Gen. Stat. \u00a7 20-146(d)(1). Additionally, defendant failed to obey the double yellow line marker and, therefore, violated N.C. Gen. Stat. \u00a7 20-146(d)(3-4). Thus, we find that defendant violated \u00a7 20-146(d)(1), (3-4).\nPursuant to N.C. Gen. Stat. \u00a7 20-153(a) (2011), \u201ca right turn shall be made as close as practicable to the right-hand curb or edge of the roadway.\u201d At the superior court hearing, Trooper Monroe testified that there was nothing in the roadway that would cause defendant to make a wide turn to avoid hitting something. Thus, as the State asserts and we agree, there was no practical reason why defendant would need to veer over the double yellow line. Therefore, we find defendant also violated N.C. Gen. Stat. \u00a7 20-153 by failing to stay close to the right-hand curb when making the turn onto Fifth Street.\nBecause we find that defendant violated N.C. Gen. Stat. \u00a7\u00a7 20-146(d) and 20-153, we hold that the superior court\u2019s conclusion of law no. 3 does not reflect a correct interpretation of applicable legal principles. Furthermore, we note that the superior court\u2019s conclusion that defendant did not violate the law because he did not cross the \u201ccenterpoint\u201d of the road, he made the turn safely, and no traffic was affected is not an accurate reflection of our traffic laws. Therefore, we hold that the superior court erred in concluding defendant did not violate any traffic laws in crossing the double yellow line.\nV. Test to Determine Whether the Traffic Stop was Valid Under the Fourth Amendment\nNext, the State argues that the superior court erred by considering in its analysis whether defendant\u2019s driving fell within a normal driving pattern when determining if the stop was valid under the Fourth Amendment. Specifically, the State alleges that the superior court\u2019s analysis has the potential to make our traffic laws unenforceable since it is normal for people to violate them and warns that a formal adoption of this analysis would necessitate the need for expert witness testimony in all traffic cases. Finally, the State contends that the superior court erred by \u201coverlook[ing] or discount[ing]\u201d other objective factors that established reasonable articulable suspicion because it only focused on whether defendant\u2019s driving was normal. We agree.\nWhile we acknowledge that this Court has classified a defendant\u2019s driving as normal when looking at the totality of the circumstances, that classification has never been the only objective factor we have examined to determine whether a police officer has reasonable articulable suspicion. See State v. Peele, 196 N.C. App. 668, 674, 675 S.E.2d 682, 687 (2009) (noting that \u201ca tip with no indicia of reliability, no corroboration, and conduct falling within the broad range of what can be described as normal driving behavior\u201d was not enough to establish reasonable articulable suspicion to stop the defendant (internal quotations omitted)). The relevant inquiry for determining the constitutionality of an investigatory stop under the Fourth Amendment is whether the police officer had \u201cspecific and articulable facts, as well as the rational inferences from those facts\u201d that a person is involved in criminal activity but not, as the superior court seems to indicate, how \u201cnormal\u201d his or her driving is. State v. Watkins, 337 N.C. 437, 441-42, 446 S.E.2d 67, 70 (1994). Here, since the superior court fails to look beyond whether defendant\u2019s driving was normal in order to determine whether Trooper Monroe had reasonable articulable suspicion, the court erred.\nVI. Conclusions of Law Nos. 4 and 5\nFinally, the State argues that the superior court erred in its conclusions of law that Trooper Monroe did not have reasonable articulable suspicion to stop defendant and that the stop was unreasonable. Specifically, the State asserts that because Trooper Monroe- observed defendant violate several traffic statutes when defendant crossed the double yellow line, he was justified in stopping defendant. We agree that Trooper Monroe had reasonable articulable suspicion to stop defendant based on the observed traffic violations notwithstanding his mistaken belief that defendant had violated N.C. Gen. Stat. \u00a7 20-146(a) and that the stop was reasonable under the Fourth Amendment.\nThe Fourth Amendment protects \u201c[t]he right of the people to be secure . . . against unreasonable searches and seizures[.]\u201d U.S. Const, amend. IV. \u201cAn investigatory stop must be justified by a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity.\u201d State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 70 (1994) (internal quotation marks omitted). The stop must be based on a \u201cminimal level of objective justification, something more than an unparticularized suspicion or hunch.\u201d Id. at 442, 446 S.E.2d at 70 (internal quotation marks and citation omitted). Our Supreme Court has held that \u201creasonable 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). However, \u201can officer\u2019s determination regarding potential criminal activity must be objectively reasonable, and an officer\u2019s mistaken belief that a defendant has committed a traffic violation is not an objectively reasonable justification for a traffic stop.\u201d State v. Heien, _N.C. App. _, _, 714 S.E.2d 827, 828-29 (2011), writ of supersedeas allowed and disc. review granted,_ N.C._, 720 S.E.2d 389 (2012). This Court has held that \u201can officer\u2019s subjective motivation for stopping a vehicle is irrelevant as to whether there are other objective criteria justifying the stop.\u201d State v. Baublitz, 172 N.C. App. 801, 807, 616 S.E.2d 615, 620 (2005) (internal quotation marks omitted); see also State v. McLamb, 186 N.C. App. 124, 127, 649 S.E.2d 902, 904 (2007) (holding that \u201c[w]hether the legal justification for [a police officer\u2019s] traffic stop was subjectively reasonable is irrelevant\u201d).\nHere, Trooper Monroe testified that he initiated the stop of defendant after he observed \u201chalf of [defendant\u2019s] vehicle\u201d go over the double yellow line when defendant turned right onto Fifth Street. Even though he charged defendant with \u201cdriving left of center\u201d and issued defendant a ticket for violating N.C. Gen. Stat. \u00a7 20-146(a) for failing to keep his \u201cvehicle on the right half of the highway,\u201d Trooper Monroe did not testify that he stopped defendant for violating N.C. Gen. Stat. \u00a7 20-146(a) but based for defendant\u2019s crossing the double yellow line.\nSince we have held that defendant did not violate N.C. Gen. Stat. \u00a7 20-146(a) because Fifth Street is a three-lane road, the issue becomes whether there is objective criteria to justify stopping defendant other than Trooper Monroe\u2019s mistaken belief that defendant violated N.C. Gen. Stat. \u00a7 20446(a) when he crossed the double yellow line. To decide this issue, we must determine whether Trooper Monroe\u2019s proffered justification for stopping defendant is sufficient to establish an objectively reasonable basis for the stop.\nTrooper Monroe\u2019s testimony that he initiated the stop of defendant after observing defendant drive over the double yellow line is sufficient to establish a violation of: (1) N.C. Gen. Stat. \u00a7 20-146(d)(3-4) since we concluded that crossing the double yellow line constitutes a failure to obey traffic-control devices; (2) N.C. Gen. Stat. \u00a7 20446(d)(1) because by crossing the double yellow line, defendant failed to stay in his lane; and (3) N.C. Gen. Stat. \u00a7 20-153 as defendant failed to stay close to the right-hand curb of Fifth Street when he veered over the double yellow line. Therefore, regardless of his subjective belief that defendant violated N.C. Gen. Stat. \u00a7 20446(a), Trooper Monroe\u2019s testimony establishes objective criteria justifying the stop. Consequently, the stop of defendant was reasonable, and the superior court erred in holding otherwise.\nWe note that because Trooper Monroe\u2019s reason for stopping defendant was not based solely on his mistaken belief that defendant violated N.C. Gen. Stat. \u00a7 20446(a) but because defendant crossed the double yellow line, we find the present case distinguishable from other cases where our Court has held that an officer\u2019s mistaken belief a defendant has committed a traffic violation is not objectively reasonable and, thus, violates a defendant\u2019s Fourth Amendment rights. See Heien,_N.C. App. at_, 714 S.E.2d at 831; McLamb, 186 N.C. App. at 127, 649 S.E.2d at 904; State v. Burke,_N.C. App. _,_, 712 S.E.2d 704, 707 (2011), aff\u2019d, per curiam,_N.C. _, 720 S.E.2d 388 (2012).\nAccordingly, we remand and reverse the superior court\u2019s order affirming the district court\u2019s pretrial indication. On remand, the superior court must remand the matter back down to the district court with instructions to enter a final order denying defendant\u2019s motion to suppress in accordance with this opinion.\nConclusion\nBased on our holding that defendant\u2019s driving violated N.C. Gen. Stat. \u00a7\u00a7 20446(d) and 20-153 and Trooper Monroe\u2019s reason for initiating the stop was objectively reasonable, we find that the superior court erred in affirming the district court\u2019s pretrial indication. We, therefore, reverse and remand the superior court\u2019s order affirming the district court\u2019s pretrial indication. On remand, the superior court must remand the matter back down to the district court with instructions to enter a final order denying defendant\u2019s motion to suppress in accordance with this opinion.\nReversed and Remanded.\nJudges GEER and BEASLEY concur.\n. We note that the phrase \u201cmotion to suppress the stop\u201d was used by defendant, and the record shows that the actual name of defendant\u2019s motion was \u201cMotion to Suppress Stop Pursuant to N.C.G.S. \u00a7 20-38.6.\u201d However, for clarity, we refer to it as a motion to suppress the evidence obtained as a result of the stop.\n. Defendant was also charged with violating N.C. Gen. Stat. \u00a7 20-146(a) for failing to stay within the right half of the road.\n. We note that the superior court seems to base its conclusion of law that defendant did not violate any traffic law because he did not cross the \u201ccenterpoint\u201d of the road on a misapplication of this statute to the facts of this case. Since we have found that N.C. Gen. Stat. \u00a7 20-146(a) does not apply to the facts here, whether defendant crossed the \u201ccenterpoint\u201d of Fifth Street is irrelevant, and we do not address the State\u2019s assertions on this point.", "type": "majority", "author": "HUNTER, Robert C., Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney .General Jess D. Mekeel, for the State.", "Matthew J. Davenport for defendant-appellant.", "The Avery, P.C., by Isaac T. Avery, III, Raleigh, on behalf of the North Carolina Conference of District Attorneys, amicus curiae.", "Tiffanie W. Sneed, Chapel Hill, on behalf of the North Carolina Association of Police Attorneys, amicus curiae.", "Edmond W. Caldwell, Jr. and Julie B. Smith, Raleigh, on behalf of the North Carolina Sheriffs\u2019 Association, amicus curiae." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DONALD OSTERHOUDT, Defendant\nNo. COA11-1428\n(Filed 21 August 2012)\n1. Appeal and Error \u2014 DWI pretrial indication \u2014 appeal directly from superior to appellate court\nThe State correctly conceded that it did not have a statutory right of appeal to the Court of Appeals from a superior court order entered pursuant to N.C.G.S. \u00a7 20-38.7 (after a district court\u2019s pretrial indication that granted defendant\u2019s motion to suppress in a DWI prosecution). Although the State argued that the superior court order was final because it included language \u201csuppressing\u201d the evidence, the order specifically stated that the basis for the hearing was the State\u2019s appeal of the district court indication, which meant that a remand to district court for final action was required. The order was therefore interlocutory; however, the State\u2019s petition for certiorari was granted.\n2. Motor Vehicles \u2014 crossing halfway point in street\u2014 turn lane\nThere was competent evidence in a DWI suppression hearing to support the superior court\u2019s finding of fact that defendant\u2019s car did not cross the halfway point on a street in a DWI prosecution that involved a street with a turn lane (a total of three lanes). A Highway Patrol Trooper testified on direct examination that half of defendant\u2019s car went over the double-yellow line, which corresponded with the superior court\u2019s finding. Additionally, it would have been reasonable for the superior court to assume that the double-yellow line on a three-lane street would not be close enough to the middle of the street that the two lanes on one side and the one on the other would have the same total width.\n3. Motor Vehicles \u2014 cross double-yellow line \u2014 statutory violations\nThe trial court erred by concluding that a DWI defendant did not violate any traffic laws in crossing a double-yellow line where defendant made a wide turn and went over the double-yellow line on a street with three lanes (two regular lanes and a turn lane). Defendant did not violate N.C.G.S. \u00a7 20-146(a) because, that statute does not apply to highways divided into three marked lanes; however, defendant violated N.C.G.S. \u00a7 20-146(d)(3-4) by not obeying a traffic control device (the double-yellow line) and N.C.G.S. \u00a7 20-146(d)(l) by not staying in his lane.\n4. Search and Seizure \u2014 traffic stop \u2014 normal driving\u2014 articulable suspicion\nThe trial court erred when considering a DWI stop by not looking beyond whether defendant\u2019s driving was normal in order to determine whether the trooper had reasonable, articulable suspicion for stopping defendant. The relevant inquiry is whether the officer had specific and articulable facts, as well as rational inferences from those facts, that a person was involved in criminal activity.\n5. Search and Seizure \u2014 traffic stop \u2014 reasonable articulable suspicion \u2014 mistaken statute\nThe trial court erred by finding that a Trooper did not have a reasonable, articulable suspicion for stopping a DWI defendant where the Trooper saw defendant cross a double-yellow line but was mistaken about the statute violated. Defendant\u2019s driving violated other statutes and the Trooper\u2019s testimony established objective criteria justifying the stop.\nAppeal by the State from order entered 14 March 2011 by Judge W. Russell Duke, Jr. in Pitt County Superior Court. Heard in the Court of Appeals 23 May 2012.\nAttorney General Roy Cooper, by Assistant Attorney .General Jess D. Mekeel, for the State.\nMatthew J. Davenport for defendant-appellant.\nThe Avery, P.C., by Isaac T. Avery, III, Raleigh, on behalf of the North Carolina Conference of District Attorneys, amicus curiae.\nTiffanie W. Sneed, Chapel Hill, on behalf of the North Carolina Association of Police Attorneys, amicus curiae.\nEdmond W. Caldwell, Jr. and Julie B. Smith, Raleigh, on behalf of the North Carolina Sheriffs\u2019 Association, amicus curiae." }, "file_name": "0620-01", "first_page_order": 630, "last_page_order": 643 }