State v. Cottrell , 234 N.C. App. 736 ( 2014 )

NO. COA13-721
NORTH CAROLINA COURT OF APPEALS
Filed: 1 July 2014
STATE OF NORTH CAROLINA
v. Forsyth County
Nos. 12 CRS 6423
ANTHONY DUWANE COTTRELL, 12 CRS 6424
Defendant. 12 CRS 55278
Appeal by defendant from judgment entered 11 February 2013
by Judge Susan E. Bray in Forsyth County Superior Court. Heard
in the Court of Appeals 21 November 2013.
Attorney General Roy Cooper, by Associate Attorney General
Gayle Kemp and Assistant Attorney General Joseph L. Hyde,
for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Katherine Jane Allen, for defendant-appellant.
GEER, Judge.
Defendant Anthony Duwane Cottrell pled guilty to possession
of a firearm by a felon, possession of a schedule II controlled
substance, and possession of up to one-half ounce of marijuana.
He also admitted being a habitual felon. On appeal, he contends
that the trial court erred in denying his motion to suppress.
He argues that he was unconstitutionally seized when the
investigating officer extended a traffic stop after addressing
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its original purpose without (1) a reasonable and articulable
suspicion of criminal activity or (2) defendant's consent to
being further detained. We agree with defendant and hold that,
under State v. Myles, 188 N.C. App. 42, 654 S.E.2d 752, aff'd
per curiam, 362 N.C. 344, 661 S.E.2d 732 (2008), because the
officer continued to detain defendant after completing the
original purpose of the stop without having reasonable,
articulable suspicion of criminal activity, defendant was
subjected to a seizure in violation of the Fourth Amendment.
Since defendant's consent to the search of his vehicle, given
during the unlawful seizure, was necessarily invalid, the trial
court should have granted defendant's motion to suppress.
Facts
At 11:37 p.m. on 28 May 2012, Officer Jordan Payne of the
Winston-Salem Police Department observed defendant driving a
Dodge Intrepid with the car's headlights off. Officer Payne
initiated a traffic stop, and defendant pulled into a nearby
parking lot. The dashboard video camera on Officer Payne's
patrol car recorded the subsequent stop.
Officer Payne approached defendant's car and asked
defendant, who was the car's sole occupant, for his license and
registration. The officer told defendant that if everything
checked out, defendant would soon be cleared to go. Defendant
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did not smell of alcohol, he did not have glassy eyes, he was
not sweating or fidgeting, and he made no contradictory
statements to Officer Payne.
Officer Payne then returned to his patrol car, ran
defendant's identification, and learned that defendant's license
and registration were valid. Officer Payne also checked
defendant's criminal history and learned that defendant had a
history of "drug charges and various felonies." Officer Payne
returned to defendant's car and asked defendant to keep his
music down since the officer had heard loud music coming from
either defendant's car or the car in front of defendant's car as
they drove down the street.
While Officer Payne spoke to defendant, he smelled an
extremely strong odor coming from defendant's car that the
officer described as "like a fragrance, cologne-ish," but "more
like an incense than what someone would wear." Officer Payne
believed the odor was a "cover scent" -- a fragrance released in
a vehicle to cover the smell of drugs like marijuana. Officer
Payne asked defendant about the odor, and defendant showed him a
small, clear glass bottle with some liquid in it and a roll-on
dispenser. Defendant stated it was an oil he put on his body.
Officer Payne told defendant that fragrances were typically used
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to mask the odor of marijuana, but defendant claimed he was not
trying to hide any odors.
Officer Payne, who still had possession of defendant's
license and registration, then asked for consent to search
defendant's car. When defendant refused to give consent,
Officer Payne said defendant was not being honest with him and
indicated he could call for a drug-detection dog to sniff
defendant's car. Defendant replied that he did not want the
officer to call for a dog and that he just wanted to go home.
When Officer Payne insisted he was going to call for the dog,
defendant then consented to a search of the car.
Officer Payne had defendant step out of the car and frisked
defendant for weapons, finding none. Officer Payne began
searching defendant's car at 11:41 p.m., roughly four minutes
after he first observed defendant's car driving down the street.
He looked first in the driver's side and then went around to the
passenger's side. He removed the key from the ignition and
unlocked the glove box with it. When the officer opened the
glove box, a handgun and a baggy containing a white powdery
substance, later determined to be cocaine, fell out. Officer
Payne then placed defendant under arrest. After defendant was
arrested, he admitted to Officer Payne that he had a small
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baggie of marijuana in his sock. The officer never returned
defendant's license and registration to defendant.
Defendant was indicted for possession of a firearm by a
felon, possession of a schedule II controlled substance,
possession of up to one-half ounce of marijuana, and being a
habitual felon. Defendant filed a motion to suppress on 30
January 2013 and an amended motion to suppress on or about 4
February 2013.
At a 5 February 2013 hearing on the motion to suppress, the
State presented the testimony of Officer Payne and the video and
audio recording of the stop taken by the patrol car's dashboard
camera. Defendant testified in support of his motion. After
the trial court denied the motion to suppress, defendant pled
guilty to the charges and admitted being a habitual felon. The
trial court consolidated the charges into a single judgment and
sentenced defendant to a mitigated-range term of 76 to 104
months imprisonment. After entry of the judgment, defendant
gave oral notice of appeal from the denial of his motion to
suppress and filed written notice of appeal.
I
We must initially address this Court's jurisdiction over
this appeal. "An order finally denying a motion to suppress
evidence may be reviewed upon an appeal from a judgment of
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conviction, including a judgment entered upon a plea of guilty."
N.C. Gen. Stat. § 15A-979(b) (2013). Our Supreme Court has held
that "when a defendant intends to appeal from the denial of a
suppression motion pursuant to this section, he must give notice
of his intention to the prosecutor and to the court before plea
negotiations are finalized; otherwise, he will waive the appeal
of right provisions of the statute." State v. Tew, 326 N.C.
732, 735, 392 S.E.2d 603, 605 (1990). Further, since "[a]
Notice of Appeal is distinct from giving notice of intent to
appeal" the denial of a motion to suppress, a defendant who has
properly preserved his right to appeal the denial of a
suppression motion must also properly appeal the subsequent
judgment pursuant to Rule 4 of the Rules of Appellate Procedure.
State v. McBride, 120 N.C. App. 623, 625, 463 S.E.2d 403, 405
(1995), aff'd per curiam, 344 N.C. 623, 476 S.E.2d 106 (1996).
In other words, in order to properly appeal the denial of a
motion to suppress after a guilty plea, a defendant must take
two steps: (1) he must, prior to finalization of the guilty
plea, provide the trial court and the prosecutor with notice of
his intent to appeal the motion to suppress order, and (2) he
must timely and properly appeal from the final judgment. In
this case, defendant concedes that he did not properly give the
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required notice of his intent to appeal the denial of his motion
to suppress.1
Defendant has, however, filed a petition for writ of
certiorari with this Court to which he has attached affidavits
from his trial counsel and the prosecutor, both of which
indicate that defense counsel gave the prosecutor verbal notice
that if the motion to suppress was denied, defendant would enter
a plea of guilty and appeal the denial of the motion to
suppress. In addition, during the plea colloquy, defense
counsel generally advised the trial court of defendant's intent
to appeal without referencing the motion to suppress.
The State has filed a motion to dismiss defendant's appeal,
asserting that there is no dispute that defendant waived his
right to appeal by failing to properly give notice of his intent
to appeal the denial of his suppression motion. Based on
defendant's concession, we grant that motion and dismiss
defendant's appeal. See McBride, 120 N.C. App. at 625, 626, 463
S.E.2d at 405 (dismissing appeal from denial of suppression
motion followed by guilty plea for failure to properly give
1
We note that the record does contain some notice of
defendant's intent to appeal prior to entry of the guilty plea,
but since defendant has not argued that the notice given was
adequate, we do not address that issue. See Viar v. N.C. Dep't
of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005) ("It
is not the role of the appellate courts . . . to create an
appeal for an appellant.").
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State and trial court notice of intent to appeal denial of
suppression motion). Nevertheless, because it is apparent that
the State was aware of defendant's intent to appeal the denial
of the motion to suppress prior to the entry of defendant's
guilty pleas and because defendant has lost his appeal through
no fault of his own, we exercise our discretion to grant the
petition for writ of certiorari and address the merits of
defendant's appeal. See State v. Atwell, 62 N.C. App. 643, 645,
303 S.E.2d 402, 404 (1983) (dismissing appeal but issuing writ
of certiorari to reach merits of defendant's appeal from denial
of suppression motion since, although record did not demonstrate
proper notice of intent to appeal, "[t]here [was] at least some
evidence that the district attorney's office and the Court had
notice of a possible appeal of the denial of the suppression
motion before the guilty plea").
II
Defendant's sole argument on appeal is that the trial court
erred in denying his motion to suppress. Defendant contends
that, while the traffic stop was valid, Officer Payne violated
the Fourth Amendment when he detained defendant further after
determining that defendant's license and registration were valid
and defendant had no outstanding warrants. Defendant argues
that Officer Payne had no reasonable, articulable suspicion of
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criminal activity sufficient to justify detaining defendant once
the purpose of the traffic stop was completed.
Our review of a trial court's denial of a motion to
suppress is "strictly limited to determining whether the trial
judge's underlying findings of fact are supported by competent
evidence, in which event they are conclusively binding on
appeal, and whether those factual findings in turn support the
judge's ultimate conclusions of law." State v. Cooke, 306 N.C.
132, 134, 291 S.E.2d 618, 619 (1982). "The trial court's
conclusions of law . . . are fully reviewable on appeal." State
v. Hughes, 353 N.C. 200, 208, 539 S.E.2d 625, 631 (2000).
Defendant does not challenge any of the trial court's
findings of fact and they are, therefore, binding on this Court.
See State v. Robinson, 187 N.C. App. 795, 797, 653 S.E.2d 889,
891 (2007) (explaining that unchallenged findings of fact are
"conclusive and binding on appeal"). Defendant, however,
challenges the following conclusions of law made by the trial
court:
3. Generally, an initial stop concludes
after the officer returns the
detainee's license and registration.
State v. Jackson, 199 N.C. App. 236[,
681 S.E.2d 492] (2009)[;] State v.
Kincaid, 147 N.C. App. 94[, 555 S.E.2d
294] (2001). In this case, because the
initial seizure had not concluded (no
return of Defendant Cottrell's
license), a [State v.] McClendon[, 350
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N.C. 630, 517 S.E.2d 128 (1999)]
analysis about developing reasonable,
articulable suspicion that criminal
activity is afoot is inapplicable. . .
.
. . . .
5. Officer Payne was going to call for a
dog to sniff Defendant Cottrell's car.
This was permissible, so long as dog
[sic] would get there in under five
minutes. However, Defendant then
consented to search.
6. Defendant's consent was not coerced.
Officer Payne was not threatening
something (a dog sniff) he didn't have
the right to do. The threat to do what
an officer has a legal right to do does
not constitute duress. It is not
duress to take any measure authorized
by law and the circumstances of the
case. . . .
This Court has held that, "'[g]enerally, the scope of the
detention must be carefully tailored to its underlying
justification. Once the original purpose of the stop has been
addressed, there must be grounds which provide a reasonable and
articulable suspicion in order to justify further delay.'"
Myles, 188 N.C. App. at 45, 654 S.E.2d at 754 (quoting State v.
Falana, 129 N.C. App. 813, 816, 501 S.E.2d 358, 360 (1998)). We
must, therefore, first address whether the initial purpose of
the stop was completed prior to the time defendant gave consent
to search.
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In Myles, the officer conducted a traffic stop for weaving,
indicating possible impaired driving. Id., 654 S.E.2d at 755.
The car stopped by the officer was rented by the defendant
passenger. Id. at 43, 654 S.E.2d at 753. During the stop, the
officer detected no odor of alcohol and described the driver and
the defendant as cooperative. Id. at 45, 654 S.E.2d at 755.
The officer did not find any weapons or contraband on the driver
when he frisked him, and the driver had a valid driver's
license. Id. The officer issued a warning ticket. Id. at 43,
654 S.E.2d at 753. The officer then proceeded to question the
defendant, separately from the driver, about his travel plans
and the rental car agreement. Id., 654 S.E.2d at 754.
On appeal, this Court in Myles observed that since there
was no evidence to indicate that either the driver or the
defendant was impaired, the officer "considered the traffic stop
'completed' because he had 'completed all [his] enforcement
action of the traffic stop.'" Id. at 45, 654 S.E.2d at 755.
The Court, therefore, held that "in order to justify [the
officer's] further detention of defendant, [the officer] must
have had defendant's consent or 'grounds which provide a
reasonable and articulable suspicion in order to justify further
delay' before he questioned defendant." Id. (quoting Falana,
129 N.C. App. at 816, 501 S.E.2d at 360).
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Here, the trial court has misapplied this Court's decisions
in Jackson and Kincaid. In each of those cases, this Court held
that once an officer returned the defendant's license and
registration, the seizure had ended because the defendant was
free to go, and any further communications between the officer
and the defendant were, as a result, consensual. See Jackson,
199 N.C. App. at 243, 681 S.E.2d at 497 ("Generally, an initial
traffic stop concludes and the encounter becomes consensual only
after an officer returns the detainee's driver's license and
registration."); Kincaid, 147 N.C. App. at 100, 555 S.E.2d at
299 ("A reasonable person, under the circumstances, would have
felt free to leave when [his license and registration] were
returned. Therefore, the first seizure concluded when [the
officer] returned the documents to defendant.").
While Jackson and Kincaid hold that return of a person's
license and registration may mean that the traffic stop has
concluded, nothing in Jackson and Kincaid suggests that the
officer may prolong a traffic stop, after the original purpose
of the stop has been completed, simply by not returning the
driver's documentation. Indeed, Jackson sets out the applicable
rule overlooked by the trial court: "Once the original purpose
of the stop has been addressed, in order to justify further
delay, there must be grounds which provide the detaining officer
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with additional reasonable and articulable suspicion or the
encounter must have become consensual." Jackson, 199 N.C. App.
at 241-42, 681 S.E.2d at 496.
The trial court erred, therefore, in basing its decision on
the premise that because the officer had not yet returned
defendant's license, the underlying purpose of the stop was not
yet complete, and the officer could continue to detain
defendant. See also State v. Jarrett, 203 N.C. App. 675, 676,
682-83, 692 S.E.2d 420, 422, 426 (2010) (holding initial purpose
for stop at checkpoint "was addressed when defendant produced a
valid North Carolina driver's license and registration" even
though that occurred "[b]efore [the officer] return[ed]
defendant's documentation").
Turning to the question of when Officer Payne completed the
purpose of the underlying stop in this case, the trial court
found that Officer Payne had observed defendant driving without
headlights and that the officer, during the stop, had told
defendant to keep his music down because "he had heard loud
music from either Defendant's car or the one in front of
Defendant as they drove down Trade Street, and that this would
violate a local noise ordinance." For the purposes of our
analysis, we assume that Officer Payne stopped defendant for
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both the headlights infraction and the potential noise
violation.
With respect to the two reasons given for the officer's
stop, the trial court found that defendant had turned his
headlights on before he actually stopped and that defendant told
the officer he realized his headlights had not been on and
apologized for having them off. The trial court found that upon
taking defendant's license and registration, Officer Payne told
defendant that "if everything checked out, he would be [sic]
soon be cleared to go." Officer Payne then determined that
defendant's license and registration were valid and defendant
had no outstanding warrants. When the officer returned to
defendant's car, the officer asked defendant to make sure to
keep his music down because of the noise ordinance. The officer
then smelled a strong fragrance, and all of the officer's
questions and statements after that point had to do with the
fragrance, whether defendant had drugs in the car, whether
defendant would consent to a search, and whether the officer was
going to call for a drug-sniffing dog.
Given the facts found by the trial court, we hold that once
Officer Payne told defendant to keep his music down, the officer
had completely addressed the original purpose for the stop.
Defendant had turned on his headlights, he had been warned about
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his music, his license and registration were valid, and he had
no outstanding warrants. Consequently, Officer Payne was then
required to have "defendant's consent or 'grounds which provide
a reasonable and articulable suspicion in order to justify
further delay' before" asking defendant additional questions.
Myles, 188 N.C. App. at 45, 654 S.E.2d at 755 (quoting Falana,
129 N.C. App. at 816, 501 S.E.2d at 360).
The trial court erred in concluding otherwise. See also
Jackson, 199 N.C. App. at 242, 681 S.E.2d at 496-97 (holding
stop was unlawfully extended beyond original purpose of
determining whether driver had valid driver's license when,
after officer had dispelled suspicion of invalid license, she
asked driver whether there was anything illegal in vehicle).
Turning next to whether Officer Payne had a reasonable and
articulable suspicion of criminal activity in order to extend
the stop beyond its original scope, our Supreme Court has
explained:
Reasonable suspicion is a less
demanding standard than probable cause and
requires a showing considerably less than
preponderance of the evidence. The standard
is satisfied by some minimal level of
objective justification. This Court
requires that [t]he stop . . . be based on
specific and articulable facts, as well as
the rational inferences from those facts, as
viewed through the eyes of a reasonable,
cautious officer, guided by his experience
and training. Moreover, [a] court must
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consider the totality of the circumstances -
- the whole picture in determining whether a
reasonable suspicion exists.
State v. Styles, 362 N.C. 412, 414, 665 S.E.2d 438, 439-40
(2008) (internal citations and quotation marks omitted). In
addition, "[t]he requisite degree of suspicion must be high
enough 'to assure that an individual's reasonable expectation of
privacy is not subject to arbitrary invasions solely at the
unfettered discretion of officers in the field.'" State v.
Fields, 195 N.C. App. 740, 744, 673 S.E.2d 765, 767 (2009)
(quoting State v. Murray, 192 N.C. App. 684, 687, 666 S.E.2d
205, 208 (2008)).
Here, the trial court found that as of the time Officer
Payne told defendant about the noise ordinance, the officer knew
that defendant's license and registration were valid, defendant
had no outstanding warrants, defendant had turned his headlights
back on prior to being stopped and had apologized, defendant had
no odor of alcohol or glassy eyes, defendant was not sweating or
fidgeting, and defendant did not make contradictory statements.
The court also found that Officer Payne knew defendant "had a
history of 'drug charges and various felonies'" and the officer,
upon speaking with defendant after checking defendant's
documents, "noticed an extremely strong odor coming from the
vehicle." The trial court found that the officer "described it
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as 'like a fragrance, cologne-ish, strong[,]'" and "more like an
incense than what someone would wear." Officer Payne also
"believed the odor was what is commonly referred to as a cover
scent -- a fragrance or air freshener typically sprayed or
released in a vehicle to mask or cover the smell of drugs like
marijuana."
Based on these findings, the trial court noted that, "[f]or
argument's sake," it "would find that Officer Payne did not have
reasonable, articulable suspicion that criminal activity was
afoot -- mere cologne odor and previous felony conviction aren't
enough." The court further noted there was "[n]o evidence of
extreme nervousness, failure to maintain eye contact, [or]
conflicting stories about registration[] [or] destination," and
there were "no invalid documents."
We agree with the trial court that a strong incense-like
fragrance, which the officer believes to be a "cover scent," and
a known felony and drug history are not, without more,
sufficient to support a finding of reasonable suspicion of
criminal activity. Instead, our case law tends to show that
some additional evidence of criminal activity is necessary for
an officer to develop a reasonable and articulable suspicion.
Compare Myles, 188 N.C. App. at 47, 50, 51, 654 S.E.2d at 756,
758 (holding no reasonable suspicion existed to extend traffic
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stop when rental car occupants' stories did not conflict, there
was no odor of alcohol, officer found no contraband or weapons
upon frisking driver, and driver's license was valid, despite
fact that driver's "heart was beating unusually fast" and rental
car was one day overdue), Jackson, 199 N.C. App. at 242-43, 681
S.E.2d at 497 (holding officer did not have reasonable suspicion
to extend traffic stop when "occupants of the vehicle had been
cooperative with the officers throughout the stop," officer
"confirmed 'there were no problems with any of these folks'"
while checking validity of driver's license, and "there were no
pending warrants for any of the vehicle's occupants"), State v.
Sinclair, 191 N.C. App. 485, 491, 663 S.E.2d 866, 871 (2008)
(holding no reasonable suspicion existed where only facts
tending to show criminal activity were that officers "'received
information about drug activity[,]'" "scene of the attempted
stop was a known drug activity area," and officer "had made
prior drug arrests in the area") with State v. Fisher, ___ N.C.
App. ___, ___, 725 S.E.2d 40, 45 (2012) (holding reasonable
suspicion present based on defendant's nervousness, "smell of
air freshener, inconsistency with regard to travel plans," and
"driving a car not registered to the defendant"), cert. denied,
___ U.S. ___, 187 L. Ed. 2d 279, 134 S. Ct. 420 (2013); State v.
Euceda-Valle, 182 N.C. App. 268, 274-75, 641 S.E.2d 858, 863
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(2007) (holding reasonable suspicion present based on
defendant's extreme nervousness, refusal to make eye contact,
smell of air freshener from vehicle, and conflict in defendant's
and passenger's stories about their trip), and State v.
Hernandez, 170 N.C. App. 299, 309, 612 S.E.2d 420, 426, 427
(2005) (holding reasonable suspicion present based on
defendant's acting "'very nervous,'" defendant giving
conflicting statements, and trooper's observation of several air
fresheners in vehicle giving off "'strong odor'").
Thus, the trial court correctly determined that Officer
Payne did not have reasonable, articulable suspicion to extend
the traffic stop after the original purposes for the stop had
been completely addressed. We note that although the State does
not expressly challenge the trial court's determination that
Officer Payne did not have reasonable suspicion to extend the
stop, the State does argue that, given the court's findings
about the fragrance and the loud music, the officer's
"observations . . . required investigation" and that "Officer
Payne would have been remiss in his duties had he not asked
questions to complete his investigation." To the extent that
the State contends that the officer could, under the
circumstances of this case, continue to question defendant in
the absence of reasonable suspicion or consent, the State's
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argument is foreclosed by Myles and the Supreme Court's decision
in State v. Williams, 366 N.C. 110, 116, 726 S.E.2d 161, 166
(2012) ("[T]o detain a driver beyond the scope of the traffic
stop, the officer must have the driver's consent or reasonable
articulable suspicion that illegal activity is afoot.").
Since Officer Payne did not have reasonable suspicion to
extend the stop, we next address whether defendant consented to
further detention after Officer Payne had fully addressed the
initial purpose of the stop. The trial court concluded that up
until the time defendant consented to the search, he remained
seized by Officer Payne. In support of its conclusion, the
trial court found that Officer Payne never returned defendant's
license. The court also found that defendant denied consent to
search, indicated he did not want the officer to call a drug
dog, and "told the officer he just wanted to go home." Further,
defendant "confirmed he didn't get his license back and never
felt free to leave." The State does not contend that defendant
was free to leave at any point.
"Generally, an initial traffic stop concludes and the
encounter becomes consensual only after an officer returns the
detainee's driver's license and registration." Jackson, 199
N.C. App. at 243, 681 S.E.2d at 497. Indeed, at times, even the
return of documentation is not sufficient to make further
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detention during a traffic stop consensual. See id.("'Furthermore, the return of documentation would render a
subsequent encounter consensual only if a reasonable person
under the circumstances would believe he was free to leave or
disregard the officer's request for information.'" (quoting
Kincaid, 147 N.C. App. at 99, 555 S.E.2d at 299)).
Since defendant was not given his license back; defendant
was not told he could leave; defendant was continuously
questioned by the officer after the original purpose for the
stop had been addressed until defendant ultimately consented to
a search, despite defendant's statements that he wanted to go
home and that he did not want a drug dog called; and defendant
was told the officer was going to call a drug dog to sniff
defendant's car, the trial court correctly found that
defendant's detention never became consensual in this case. See
id. ("As a reasonable person under the circumstances would
certainly not believe he was free to leave without his driver's
license and registration, [the officer's] continued detention
and questioning of [the driver] after determining that [the
driver] had a valid driver's license was not a consensual
encounter.").
Recognizing that defendant remained seized throughout the
encounter and that Officer Payne did not have reasonable,
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articulable suspicion that defendant was engaged in criminal
activity, the trial court concluded, and the State argues on
appeal, that this case is controlled by this Court's precedent
allowing for a "de minimis" extension of a traffic stop for the
purpose of conducting a drug dog sniff even without reasonable
suspicion or consent. See State v. Brimmer, 187 N.C. App. 451,
455, 653 S.E.2d 196, 198 (2007) (adopting rule that if detention
is prolonged for very short period of time in order to complete
a dog sniff, intrusion is considered de minimis); State v.
Sellars, ___ N.C. App. ___, ___, 730 S.E.2d 208, 212 (2012)
(following Brimmer and applying de minimis rule), appeal
dismissed and disc. review denied, 366 N.C. 395, 736 S.E.2d 489,
cert. denied, ___ U.S. ___, 187 L. Ed. 2d 317, 134 S. Ct. 471(2013). We disagree.
The United States Supreme Court held in Illinois v.
Caballes, 543 U.S. 405, 410, 160 L. Ed. 2d 842, 848, 125 S. Ct.
834, 838 (2005), that "[a] dog sniff conducted during a
concededly lawful traffic stop that reveals no information other
than the location of a substance that no individual has any
right to possess does not violate the Fourth Amendment." This
Court subsequently followed Caballes in State v. Branch, 177
N.C. App. 104, 108, 627 S.E.2d 506, 509 (2006) ("[B]ased on
Caballes, once [the defendant] was detained to verify her
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driving privileges, [the two deputies] needed no heightened
suspicion of criminal activity before walking [the drug dog]
around her car.").
In Brimmer, this Court adopted the United States Court of
Appeals for the Eighth Circuit's interpretation of Caballes in
United States v. Alexander, 448 F.3d 1014 (8th Cir. 2006), and
held that if a traffic stop is prolonged for only a very short
period of time in order to conduct a dog sniff, the intrusion is
considered "de minimis" such that "even if the traffic stop has
been effectively completed, the sniff is not considered to have
prolonged the detention beyond the time reasonably necessary for
the stop." 187 N.C. App. at 455, 653 S.E.2d at 198. Since the
dog sniff in Brimmer only extended the stop for slightly over
one and a half minutes, the Court held that the extension was de
minimis, and the officer needed no reasonable suspicion or
consent in order to prolong the stop for the dog sniff. Id. at
457, 458, 653 S.E.2d at 199, 200. This Court again applied the
de minimis rule in Sellars and held that the extension of a
traffic stop for four minutes and 37 seconds for the purpose of
a dog sniff was de minimis and did not violate the defendant's
Fourth Amendment rights. ___ N.C. App. at ___, 730 S.E.2d at
213.
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We do not believe that the de minimis analysis applied in
Brimmer and Sellars should be extended to situations when, as
here, a drug dog was not already on the scene. Brimmer was
based, in part, on Caballes' holding that a dog sniff conducted
during an otherwise lawful stop did not implicate the Fourth
Amendment, 543 U.S. at 410, 160 L. Ed. 2d at 848, 125 S. Ct. at
838, and the reasoning of that holding is inapplicable in the
absence of an actual dog sniff or the immediate availability of
a drug dog.
As this Court noted in Sellars, the Court's earlier
decision in Falana, 129 N.C. App. at 816, 501 S.E.2d at 360,
held that an officer could not conduct a dog sniff after the
original purpose of a traffic stop had been completed without
grounds providing reasonable and articulable suspicion. The
Sellars Court concluded, however, that "[t]he difference between
Falana and Brimmer is that Brimmer incorporated the analysis
contained in later United States Supreme Court and federal cases
that were not in existence at the time Falana was decided," with
the "[m]ost significant" being Caballes and "subsequent federal
District Court and Court of Appeals decisions interpreting
Caballes." ___ N.C. App. at ___, 730 S.E.2d at 211.
In Caballes, the Supreme Court was addressing a dog sniff
that occurred during the course of a lawful traffic stop. The
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Court, however, specifically noted a distinction between a dog
sniff occurring during a routine traffic stop and one occurring
during an "unreasonably prolonged traffic stop." 543 U.S. at
407, 160 L. Ed. 2d at 846, 125 S. Ct. at 837 (citing People v.
Cox, 202 Ill.2d 462, 782 N.E.2d 275 (2002)).
In addition, the federal decisions on which Brimmer relied
in adopting the de minimis exception limited that exception to
situations in which the officer "ha[d] at his immediate disposal
the canine resources to employ this uniquely limited
investigative procedure" of a drug sniff. United States v.
$404,905.00 in U.S. Currency, 182 F.3d 643, 649 (8th Cir. 1999)
(emphasis added). In that case, the canine was already on the
scene at the time of the stop. Id. at 645-46. Likewise, in
Alexander, 448 F.3d at 1015-16, the defendant was stopped by a
canine officer who had his drug-sniffing dog in his patrol car,
and the stop was prolonged by only four minutes to conduct a dog
sniff after the defendant was notified that he would receive a
warning ticket.
Consequently, Brimmer must be limited to the situation in
which a drug-sniffing dog is available at the scene of the
traffic stop prior to completion of the purpose of the stop.
Indeed, no North Carolina appellate court has held, as the trial
court ruled here, that the de minimis exception applies when a
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canine has not already been called to the scene prior to
completion of the lawful stop. In Brimmer, 187 N.C. App. at
453, 653 S.E.2d at 197, the canine had arrived prior to
completion of the lawful purpose of the stop, while in Sellers,
___ N.C. App. at ___, 730 S.E.2d at 209, the dog was present in
the back of the patrol car during the entire stop.
Moreover, in Williams, the Supreme Court specifically
considered the constitutionality of an officer's extending a
stop after its lawful purpose was completed by (1) asking
questions, (2) requesting consent to search the defendant's car,
(3) subsequently calling for a drug-sniffing canine, and (4)
having a drug sniff conducted. 366 N.C. at 112, 116-18, 726
S.E.2d at 164, 166-68. Although the officer's conduct only
extended the stop by 14 minutes, the Supreme Court did not
conduct a de minimis analysis, but rather held that the
extension, including the drug sniff, was only permissible if
supported by reasonable, articulable suspicion or consent. Id.
at 116, 726 S.E.2d at 166. In support of this holding, the
Court, id., 726 S.E.2d at 166-67 (emphasis added), cited Florida
v. Royer, 460 U.S. 491, 498, 75 L. Ed. 2d 229, 236, 103 S. Ct.
1319, 1324 (1983), as "declaring that, absent consent to a
voluntary conversation or to a search, a law enforcement officer
may not detain a person 'even momentarily without reasonable,
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objective grounds for doing so.'" Thus, when the dog was
summoned after completion of the purpose of the traffic stop,
the Supreme Court required a showing of reasonable, articulable
suspicion for the stop to be prolonged in order to conduct the
dog sniff.
Here, however, the State appears to be arguing that even in
the absence of reasonable, articulable suspicion, defendant's
consent to a search was valid because it was obtained by Officer
Payne threatening to have a dog sniff defendant's car -- an
action the State contends, based on the de minimis cases, that
Officer Payne was constitutionally allowed to do. As this Court
has acknowledged, "'[a]s a general rule, it is not duress to
threaten to do what one has a legal right to do. Nor is it
duress to threaten to take any measure authorized by law and the
circumstances of the case.'" State v. Paschal, 35 N.C. App.
239, 241, 241 S.E.2d 92, 94 (1978) (quoting 25 Am. Jur. 2d.,
Duress & Undue Influence, § 18, p. 375).
The State has not, however, shown that Officer Payne had a
legal right to conduct a dog sniff at the time that defendant
gave his consent to a search. "'[A]t the suppression hearing,'"
the State has the burden "'of demonstrating with particularity a
constitutionally sufficient justification of the officers'
search. . . .'" State v. Crews, 66 N.C. App. 671, 675, 311
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S.E.2d 895, 897 (1984) (second emphasis added) (quoting Cooke,
306 N.C. at 136, 291 S.E.2d at 620).
First, Officer Payne did not have a canine at his
"immediate disposal" since he had not yet called for a canine.
$404,905.00 in U.S. Currency, 182 F.3d at 649. While in Brimmer
and Sellars, the canine was already on the scene, Officer Payne
testified at the suppression hearing that "[a]s a general rule,
it typically takes no more than ten minutes, typically five,
sometimes less" for a canine unit to arrive at the scene after
it has been called. Since Brimmer approved extension of a stop
for only slightly over one and a half minutes, 187 N.C. App. at
457, 653 S.E.2d at 199, and Sellars approved only an extension
of four minutes and 37 seconds, ___ N.C. App. at ___, 730 S.E.2d
at 213, just the projected time for arrival of the canine, in
this case, was substantially in excess of the time periods
previously found to be de minimis by North Carolina courts.
Moreover, at the time defendant consented to a search,
approximately two minutes had already elapsed since the purpose
for the traffic stop had been achieved. Consequently, even if
Brimmer and Sellars could apply despite the failure to summon a
canine unit before the traffic stop was completed, the State's
evidence indicated that the stop would have to be extended by
between seven and 12 minutes in order for the canine to arrive.
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In other words, just waiting for the canine would have more than
doubled the length of the stop. In addition, the State
presented no evidence regarding how long it would take for the
canine to deploy and alert.
Thus, even assuming that the de minimis rule could apply in
the absence of immediate availability of a dog, the State did
not present evidence that Officer Payne obtained defendant's
consent to search by threatening to do something -- a dog sniff
-- that he had a legal right to do. Based on the State's
evidence, Officer Payne did not have the legal right to conduct
a dog sniff because he did not have a canine at his immediate
disposal and, in any event, the State did not establish that
Officer Payne could have completed the dog sniff in a de minimis
period of time. The State has cited no case suggesting that
consent may properly be obtained by a threat to perform an act
that might or might not be legal depending on how the threatened
event hypothetically could unfold.2 The State has, therefore,
failed to prove that defendant's consent was valid.
2
We also note that the State's argument requires that we
review the videotape of the encounter with a stopwatch in hand
calculating the minutes and seconds elapsing for each stage of
the stop and then adding to the time by which the stop was
actually extended estimates of the additional time that might
typically be necessary for a canine unit to arrive. Then, we
must determine how many additional minutes of detention are too
many. Is seven minutes waiting for a dog too much? Eight
minutes? Nine minutes? What is the basis for making that
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The State nonetheless cites State v. Barden, 356 N.C. 316,
572 S.E.2d 108 (2002), State v. McMillan, 214 N.C. App. 320, 718
S.E.2d 640 (2011), and State v. Cummings, 188 N.C. App. 598, 656
S.E.2d 329 (2008), in support of its argument that defendant's
consent to search was valid in this case. However, in Barden,
McMillan, and Cummings, there was no indication that the
respective defendants were unconstitutionally seized when they
gave consent to searches or seizures of items. See Barden, 356
N.C. at 341, 572 S.E.2d at 125-26 (holding defendant's consent
to seizure of his shoes was valid when defendant voluntarily
drove to site of police interview and voluntarily gave
statements concerning crime); McMillan, 214 N.C. App. at 331,
718 S.E.2d at 648 (holding defendant's consent to seizure of
physical items was valid when defendant voluntarily went to
sheriff's department, was informed he was under "'investigative
detention,'" and was told he could either consent to seizure of
items or officers would detain him until they could prepare and
execute search warrant for items, since officers "reasonably
believed they had sufficient probable cause" to obtain search
warrant); Cummings, 188 N.C. App. at 603-04, 656 S.E.2d at 332-
decision? Constitutional rights should not hinge on such
arbitrary calculations and determinations. With Brimmer and
Sellars, since the dog was already there and the stop was
extended only by the time necessary for the dog to sniff the
vehicle and alert, such arbitrariness was not present.
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33 (holding defendant's consent to search of his vehicle
voluntarily given when defendant agreed to go to law enforcement
headquarters for questioning and while at headquarters, signed
consent form for search of vehicle). Those cases are,
therefore, inapplicable here.3
In sum, after Officer Payne had addressed the original
purpose for the traffic stop, he continued to detain defendant
without either (1) defendant's valid consent or (2) reasonable,
articulable suspicion of criminal activity. Accordingly, the
officer's continued detention of defendant violated defendant's
Fourth Amendment right against unreasonable seizures and
defendant's subsequent consent to a search of his car was
involuntary as a matter of law. See Myles, 188 N.C. App. at 51,
654 S.E.2d at 758 ("Since [the officer's] continued detention of
defendant was unconstitutional, defendant's consent to the
search of his car was involuntary.").
Because defendant's consent to search his car was the
product of an unconstitutional seizure, the trial court erred in
denying defendant's motion to suppress. Accordingly, we reverse
3
Although the State also cites State v. Wrenn, 316 N.C. 141,
146, 147, 340 S.E.2d 443, 447, 448 (1986), the defendant in
Wrenn was lawfully arrested at the time his car was searched,
and the search was, therefore, a valid search incident to the
defendant's arrest.
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and remand to the trial court for entry of an order vacating
defendant's guilty pleas.
Reversed and remanded.
Judges STEPHENS and ERVIN concur.