IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-37

No. COA20-715

Filed 18 January 2022

Cleveland County, No. 18CRS053262

STATE OF NORTH CAROLINA

v.

REBECCA MICHELLE HEATH, Defendant.

Appeal by defendant from judgment entered on or about 6 September 2019 by 

Judge Daniel A. Kuehnert in Superior Court, Cleveland County. Heard in the Court 

of Appeals 8 June 2021.

Attorney General Joshua H Stein, by Special Deputy Attorney General 

Alexander G. Walton, for the State.

Shawn R. Evans, for defendant-appellant.

STROUD, Chief Judge.

¶ 1 Defendant appeals the denial of her motion to suppress. Because the trial 

court failed to make sufficient findings of fact resolving conflicting evidence of 

material facts, we must vacate and remand for further findings of fact and the 

requisite conclusions of law.

I. Procedural Background
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¶ 2 On 27 August 2018, defendant was indicted for possession of 

methamphetamine. On 1 August 2019, defendant filed a motion to suppress “any 

statements made by the Defendant as well as any controlled substances seized after 

an unconstitutional stop and delay pursuant to a search without a search warrant on 

or about June 4, 2018.” Defendant argued, “there was no reasonable articulable 

suspicion or traffic violation warranting a stop of the vehicle, that the Defendant was 

asked to leave her vehicle without justification and that she was further detained 

without reasonable articulable suspicion that criminal activity was afoot[.]” 

Defendant filed an affidavit in support of her motion to suppress.

¶ 3 After a hearing on the motion to suppress on 1 August 2019, the trial court 

entered an order denying defendant’s motion. The trial court found:

1. That on June 4, 2018, the defendant Rebecca Heath 

was stopped by Deputy Nathan Hester for driving left of 

center and driving without an active license.

2. That Deputy Hester had a connection with this 

individual from prior drug activity and recognized the 

vehicle she was driving as one owned by someone involved 

in drug activity.

3. That upon conducting [sic] the vehicle, he began to 

perform those standard vehicle checks involved with a 

traffic stop which included checking car registration, VIN, 

and license status of Heath.

4. That, as Deputy Hester was in an unmarked car and 

thus did not have the ability to run the defendant’s 

information himself, the information had to be called in 
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and run through dispatch.

5. That while that information was being run, Deputy 

Hester asked the defendant for consent to search the vehicle 

which the defendant did not give.

6. That Deputy Hester then asked the defendant to get 

out of the vehicle and called for a canine officer to come to 

the scene.

7. That the call to the canine officer for a sniff came 

approximately four minutes after the defendant’s vehicle 

was stopped by Deputy Hester.

8. That within four minutes of being called to the 

scene, Canine Officer Chris Graham with the Kings 

Mountain Police Department arrived on scene.

9. That prior to the canine officer’s arrival, the 

defendant advised Deputy Hester that she possessed 

illegal narcotics in the vehicle.

10. That upon the canine officer’s arrival following the 

admission, a canine sniff was done and confirmed the 

presence of narcotics in the vehicle.

11. That a subsequent search of the vehicle uncovered 

in what [sic] was believed to be methamphetamine in the 

defendant’s purse along with marijuana and a glass pipe.

12. That during the entire period of the vehicle stop, 

prior to the defendant’s admission to the presence of 

narcotics and the arrival of the canine officer, Deputy 

Hester was waiting on dispatch to run all the information 

on the defendant and the vehicle with regards to the 

original basis of the stop for left of center and driving 

without an active license.

13. At no time did Deputy Hester prolong the stop involved 
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in this case.

(Emphasis added.)

The trial court concluded:

1. Deputy Hester had reasonable, articulable suspicion 

and justification to stop the vehicle based on the violation 

of driving left of center and knowledge the defendant was 

driving without an active license.

2. The Court also concludes as a matter of law that 

Deputy Hester did not violate the defendant’s Fourth 

Amendment rights in that the consent to search was given 

within the context of the stop and the stop was not extended.

3. The Court also concludes as a matter of law that 

Deputy Hester received consent from the defendant to 

search the vehicle and, upon searching, found what he 

believed to be methamphetamine in the defendant’s 

vehicle, thus establishing probable cause.

(Emphasis added.) Thereafter, defendant entered a plea arrangement to plead guilty 

to possession of methamphetamine while reserving her right to appeal the denial of 

her motion to suppress. On 6 September 2019, the trial court entered judgment for 

possession of methamphetamine, and defendant appeals.

II. Defendant’s Appeal

¶ 4 Defendant contends the trial court erred in denying her motion to suppress.

A. Standard of Review

The standard of review in evaluating the denial of a motion 

to suppress is whether competent evidence supports the 

trial court’s findings of fact and whether the findings of fact 
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Opinion of the Court

support the conclusions of law. The trial court’s findings 

are conclusive on appeal if supported by competent 

evidence, even if the evidence is conflicting. Conclusions of 

law are reviewed de novo and are subject to full review. 

Under a de novo review, the court considers the matter 

anew and freely substitutes its own judgment for that of 

the lower tribunal.

State v. Royster, 224 N.C. App. 374, 375–76, 737 S.E.2d 400, 402–03 (2012) (citations 

and quotation marks omitted).

B. Findings of Fact

¶ 5 Defendant primarily challenges many of the findings of fact based on 

arguments regarding the exact sequence of events. Both Deputy Hester and 

defendant’s testimonies establish that defendant was stopped; Deputy Hester asked 

for consent to search the vehicle; defendant denied the request for consent; Deputy 

Hester called in the K-9 officer; and after this call, defendant admitted she had drugs 

in the vehicle. 

¶ 6 But there was also conflicting evidence as to the details of the interactions 

between Deputy Hester and defendant and the timing of the relevant events, and the 

findings of fact do not resolve these conflicts. See generally State v. Bartlett, 368 N.C. 

309, 312, 776 S.E.2d 672, 674 (2015) (“At the suppression hearing in this case, 

disagreement between two expert witnesses created a material conflict in the 

evidence. Although defendant did not dispute the officer’s testimony about what 

happened during the field sobriety tests, defendant’s expert sharply disagreed with 
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the officer’s opinion on whether defendant’s performance indicated impairment. 

Expert opinion testimony is evidence, and the two expert opinions in this case differed 

from one another on a fact that is essential to the probable cause determination—

defendant’s apparent degree of impairment. Thus, a finding of fact, whether written 

or oral, was required to resolve this conflict. Here, Judge Jones made no such finding. 

Although he did attempt to explain his rationale for granting the motion, we cannot 

construe any of his statements as a definitive finding of fact that resolved the 

material conflict in the evidence. Without such a finding, there can be no meaningful 

appellate review of the trial judge’s decision. See Salinas, 366 N.C. at 124, 729 S.E.2d 

at 66. Accordingly, the oral ruling by Judge Jones did not comply with N.C.G.S. §§ 

15A–974 and 15A–977.”) 

¶ 7 Defendant’s testimony raised an issue regarding the timing of when Deputy 

Hester seized the drugs in relation to the canine sniff. Defendant claims Deputy 

Hester removed the drugs from the vehicle before the K-9 officer’s arrival, and then 

he put the drugs back into the car and allowed the sniff for training purposes. Deputy 

Hester testified that defendant confessed; the K-9 officer arrived; the dog sniffed the 

vehicle; then he searched the vehicle to seize the drugs. The order does not include 

any findings resolving the conflicting evidence as to the potential timing issue or the 

relevance of the K-9 officer’s search. Finding of fact 10 notes that the canine sniff 

“confirmed the presence of narcotics in the vehicle” but does not state whether the 
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narcotics were found based upon defendant’s admission before the K-9 officer arrived, 

as defendant testified. 

¶ 8 But the trial court did not base its ruling regarding the search upon 

Defendant’s “admission” or the canine sniff for the narcotics. The trial court 

concluded:

2. The Court also concludes as a matter of law that 

Deputy Hester did not violate the defendant’s Fourth 

Amendment rights in that the consent to search was given 

within the context of the stop and the stop was not 

extended.

3. The Court also concludes as a matter of law that 

Deputy Hester received consent from the defendant to 

search the vehicle and, upon searching, found what he 

believed to be methamphetamine in the defendant’s 

vehicle, thus establishing probable cause.

(Emphasis added.) Thus, the specific basis for the trial court’s denial of defendant’s 

motion to suppress is her “consent to search[.]” 

¶ 9 The State argues the consent mentioned in conclusions of law 2 and 3 is based 

upon defendant’s consent for the canine to sniff and the officer to search the vehicle 

after her confession. The State summarizes the evidence as follows:

Upon the arrival of the K-9 officer however, she did 

give consent to a search of her vehicle. According to 

Defendant, upon arriving the K-9 officer asked her, “Do you 

mind since I’m here, for dog training purposes, to go ahead 

and search your car?” (T p 63) Defendant responded, “No, I 

don’t care. Go ahead.” (Id.) She continued, “He already 

had the drugs in his car, Hester. He had to go back, put it 
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Opinion of the Court

back where it was in my car so the canine could do its 

training thing – I consented to that – and then take the 

drugs back out.”

¶ 10 The trial court is the finder of fact, and we cannot assume facts from the 

unusual evidence of this alleged transaction where defendant claimed the drugs were 

removed from the vehicle before the canine arrived and then put back into the vehicle. 

We note that even according to the State’s summary of the evidence, Deputy Hester 

had seized the drugs before defendant “consented” for the canine to sniff, and thus it 

does not make sense for the trial court to base its determination of defendant’s 

“consent” on a “consent” which occurred after the drugs were seized. Further, the 

trial court’s findings of fact do not discuss most of the evidence the State relies upon

in its argument on appeal regarding consent, as the trial court’s written findings of 

fact mention only the request for consent to search before the call for the canine, and 

the trial court found defendant did not consent at that point. 

¶ 11 The State also contends this Court should note the trial court’s oral findings of 

fact. At the hearing, while the trial court briefly explained why it denied the motion,

it did not render oral findings of fact and conclusions of law which were then 

memorialized in a written order as the State contends. The trial court’s rendition in 

open court does not clarify the basis for denial of the motion to suppress. Because the 

findings of fact are not sufficient to allow proper appellate review, we must remand 

for further findings of fact, particularly regarding whether and when defendant 
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Opinion of the Court

consented to a search and the timing of the search and seizure in relation to the

consent and the call for, arrival, and sniff of the canine officer. See Bartlett, 368 N.C. 

at 312, 776 S.E.2d at 674 (“In determining whether evidence should be suppressed, 

the trial court ‘shall make findings of fact and conclusions of law which shall be 

included in the record.’ N.C.G.S. § 15A–974(b) (2013); see also id. § 15A–977(f) (2013)

(‘The judge must set forth in the record his findings of facts and conclusions of law.’)

A written determination setting forth the findings and conclusions is not necessary, 

but it is the better practice. State v. Oates, 366 N.C. 264, 268, 732 S.E.2d 571, 574 

(2012). Although the statute’s directive is in the imperative form, only a material 

conflict in the evidence—one that potentially affects the outcome of the suppression 

motion—must be resolved by explicit factual findings that show the basis for the trial 

court’s ruling. State v. Salinas, 366 N.C. 119, 123–24, 729 S.E.2d 63, 66 (2012); State 

v. Ladd, 308 N.C. 272, 278, 302 S.E.2d 164, 168 (1983). When there is no conflict in 

the evidence, the trial court’s findings can be inferred from its decision. State v. 

Munsey, 342 N.C. 882, 885, 467 S.E.2d 425, 427 (1996). Thus, our cases require 

findings of fact only when there is a material conflict in the evidence and allow the 

trial court to make these findings either orally or in writing.”) Without such a finding, 

there can be no meaningful appellate review of the trial judge’s decision. See generally 

id.

¶ 12 Ultimately, the trial court’s findings of fact are not sufficient to allow 
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meaningful appellate review.

III. Conclusion

¶ 13 Because the trial court failed to make sufficient findings of fact resolving 

conflicting evidence of material facts, we must vacate and remand for further findings 

of fact and the requisite conclusions of law.

VACATED and REMANDED.

Judges COLLINS and WOOD concur.