State v. Osterhoudt and motions procedures in implied consent cases

Jeff wrote earlier this week about the court of appeals’ opinion in State v. Osterhoudt (August 21, 2012).  Jeff’s post dealt with the court’s substantive analysis of whether the police officer who stopped the defendant had the reasonable, articulable suspicion required to render the stop lawful under the Fourth Amendment. I want to focus on another, admittedly less sexy, aspect of the opinion:  its procedural history.

The prosecution of the defendant in Osterhoudt began, as most misdemeanor DWI prosecutions do, in district court. Before trial, the defendant filed a motion to suppress evidence resulting from the stop.  Though motions to suppress evidence in misdemeanor prosecutions in district court ordinarily may be made during trial, see G.S. 15A-973, G.S. 20-38.6 requires that such motions be made pre-trial when the defendant is charged with an implied consent offense, unless the motion is based upon facts discovered by the defendant during the course of the trial. When a defendant moves to suppress evidence in an implied consent case before trial, the district court judge cannot rule on the motion in the same manner he or she might in any other criminal case. Instead, after holding a hearing on the motion, the district court judge must set forth in writing his or her findings of facts and conclusions of law and “preliminarily indicate” whether the motion should be granted or denied. See G.S. 20-38.6(f).  If the judge preliminarily indicates that the motion should be granted, the judge may not enter a final judgment on the motion until after the State has appealed to superior court or indicates that it does not intend to appeal. If the judge preliminarily indicates that the motion should be denied, he or she may proceed to enter a final judgment denying the motion. The defendant may not appeal the district court’s denial of a pretrial motion to suppress or dismiss, see G.S. 20-38.7(b), though upon conviction, the defendant may appeal to superior court for trial de novo as provided in G.S. 15A-1431.

If the State appeals a district court preliminary determination granting a motion to suppress to superior court, and there is a dispute about the findings of fact, the superior court must determine the matter de novo. See G.S. 20-38.7(a). If there is no dispute about the findings of fact, the superior court reviews for error the district court’s conclusions of law. The superior court does not, however, actually rule on the motion to suppress. Instead, the superior court must enter an order remanding the matter to district court with instructions to enter a final judgment granting or denying the motion. See State v. Fowler, 197 N.C. App. 1 (2009) (interpreting G.S. 20-38.6(f) to require remand for entry of final order).

As I noted earlier, the Osterhoudt defendant move to suppress evidence before trial. The district court entered a preliminary determination indicating that it intended to grant the motion, and the State appealed to superior court, which held a hearing on the matter. So far so good. But when the superior court entered its order affirming the district court’s determination, it ordered the evidence obtained as a result of the stop suppressed rather than remanding the case to the district court for entry of an order suppressing the evidence.

The State appealed from the superior court’s order, arguing that although it ordinarily had no statutory right of appeal from an order entered pursuant to G.S. 20-38.7(a), the superior court’s entry of a final order without remand—in contravention of G.S. 20-38.6(f) as construed by Fowler—conferred such a right.  The court of appeals rejected that argument, citing its determination in Fowler that such rulings were interlocutory regardless of whether they had the effect of a final order. Nevertheless, as in Fowler and State v. Palmer, 197 N.C. App. 201 (2009), the court in Osterhoudt granted certiorari.

Suppose that the superior court in Osterhoudt had complied with G.S. 20-38.6(f) and had remanded the matter for entry of an order by the district court suppressing the evidence? What avenue for review if of the ensuing district court order would have been available to the State?  Given that there is no statutory provision allowing the State to appeal from a district court’s final order suppressing evidence, it appears that the State’s lone option would have been to petition the superior court for certiorari review.  I wonder, though, how inclined a superior court would be to further review an issue on which it already had ruled, albeit in an interlocutory fashion.

The procedural rules outlined above for suppression motions also apply to motions to dismiss in implied consent cases (other than motions based upon newly discovered facts or insufficient evidence).  But G.S. 15A-1432(e) affords the State a right to appeal from a district court’s final judgment dismissing charges, whereas no such right exists for district court orders suppressing evidence. Yet the act of appealing to superior court a final district court order that dismisses charges in accordance with the superior court’s instructions may seem as fruitless as the petition for certiorari review of a motion to suppress.

Even when there is a right to appeal or review, some have questioned whether a superior court has the authority, even if so inclined, to enter a ruling that differs from the earlier interlocutory order. Does the entry of such an order amount to one trial judge overruling another?  Perhaps not, given that the first superior court order was an interlocutory ruling, and the second a final order.  On the other hand, the legal issues are the same in both procedural contexts. Regardless of the answer to the previous question, is the State collaterally estopped from re-litigating the motion? The same issues previously were raised and litigated by these parties and were ruled upon by the court. On the other hand, perhaps G.S. 15A-1432 evinces the legislature’s intent to allow further review.  And if the State concedes that a superior court’s review of an interlocutory determination is precluded, has it sufficiently preserved the issue for appellate review as required by G.S. 15A-1446(a)?

Though the court of appeals has not yet considered these issues, my guess is that litigants and trial courts have given them a fair amount of thought.  If you have thoughts to share or know of relevant rulings, please send in a comment. And if you can’t get enough of the boring back-story, an in-depth explanation of the motions procedures in implied consent cases and how they came to be is available here.


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