State v. Reed ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-33
Filed: 20 September 2016
Johnston County, No. 14 CRS 54773, 14 CRS 54776
STATE OF NORTH CAROLINA
v.
DAVID MICHAEL REED, Defendant.
Appeal by Defendant from a judgment entered 21 July 2015 by Judge Thomas
H. Lock in Johnston County Superior Court. Heard in the Court of Appeals 6 June
2016.
Attorney General Roy Cooper, by Special Deputy Attorney General E. Burke
Haywood, for the State.
Patterson Harkavy LLP, by Paul E. Smith, for Defendant-Appellant.
HUNTER, JR., Robert N., Judge.
David Michael Reed (“Defendant”) filed a motion to suppress evidence found
during a traffic stop. On 14 July 2015, Judge Gale Adams entered an order denying
Defendant’s motion to suppress. On 21 July 2015, Defendant pled guilty, pursuant
to a written agreement, to trafficking more than 200 grams but less than 400 grams
of cocaine by transportation, and trafficking more than 200 grams but less than 400
grams of cocaine by possession. In exchange for his guilty plea, the State agreed to
dismiss charges against his co-defendant, consolidate his two trafficking charges for
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Opinion of the Court
judgment, and stipulate to an active sentence of 70 to 93 months imprisonment with
a $100,000.00 fine. The trial court accepted the plea agreement and sentenced
Defendant to 70 to 93 months imprisonment and imposed a $100,000.00 fine and
$3,494.50 in court costs. Defendant timely entered his notice of appeal and contends
the trial court committed error in denying his motion to suppress. We agree and
reverse the trial court.
I. Factual and Procedural Background
At 8:18 a.m. on 9 September 2014, Defendant drove a rented Nissan Altima
faster than the posted 65 mph speed limit on Interstate 95 (“I-95”) in Johnston
County, North Carolina. His fiancée, Usha Peart, rode in the front passenger seat
and held a female pit bull in her lap. Trooper John W. Lamm, of the North Carolina
State Highway Patrol, was parked in the median of I-95. Trooper Lamm used his
radar to determine Defendant was traveling 78 mph, and performed a traffic stop for
Defendant’s speeding infraction. Trooper Lamm’s patrol car had a camera that faced
forwards towards the hood of the vehicle, and recorded audio inside and outside of
the patrol car.
Defendant pulled over on the right shoulder of I-95, Trooper Lamm pulled
behind him, and Trooper Lamm approached the passenger side of the Nissan.
Trooper Lamm saw energy drinks, trash, air fresheners, and dog food scattered on
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the floor of the vehicle. He asked if the dog in Peart’s lap was friendly and Defendant
and Peart said that the dog was friendly.
Trooper Lamm stuck his arm inside the vehicle to pet the dog and asked
Defendant for his driver’s license and the rental agreement. Defendant gave Trooper
Lamm his New York driver’s license, a registration card, and an Enterprise rental
car agreement. The rental agreement listed Peart as the renter and Defendant as an
authorized driver. Trooper Lamm told Defendant “come on back here with me”
motioning towards his patrol car.
Defendant exited the Nissan and Trooper Lamm asked if he had any guns or
knives on his person. Defendant asked Trooper Lamm why the frisk was necessary,
and Trooper Lamm replied, “I’m just going to pat you down for weapons because
you’re going to have a seat with me in the car.” Trooper Lamm found a pocket knife,
said it was “no big deal,” and put it on the hood of the Nissan
Trooper Lamm opened the passenger door of his patrol car. His K-9 was in the
back seat of the patrol car at that time. Defendant sat in the front passenger seat
with the door open and one leg outside of the car. Trooper Lamm told Defendant to
close the door. Defendant hesitated and said he was “scared” to close the door; Lamm
replied, “Shut the door. I’m not asking you, I’m telling you to shut the door. I mean
you’re not trapped, the door [is] unlocked. Last time I checked we were the good
guys.” Defendant said, “I’m not saying you’re not,” and Trooper Lamm said, “You
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don’t know me, don’t judge me.” Defendant said he was stopped before in North
Carolina, but he was never taken to the front passenger seat of a patrol car during a
stop. Following Trooper Lamm’s orders, Defendant closed the front passenger door.
Trooper Lamm ran Defendant’s New York license through record checks on his
mobile computer. While doing so, Trooper Lamm asked Defendant about New York,
and “where are y’all heading to?” Defendant said he was visiting family in
Fayetteville, North Carolina. Trooper Lamm noted the rental agreement restricted
travel to New York, New Jersey, and Connecticut, but told Defendant the matter
could likely be resolved with a phone call to the rental company.
Then, Trooper Lamm asked Defendant about his criminal history. Defendant
admitted he was arrested for robbery in the past, when he was in the military.
Trooper Lamm asked Defendant about his living arrangements with Peart, and
whether he or Peart owned the dog in the Nissan. Trooper Lamm noticed the rental
agreement was drafted for a Kia Rio not a Nissan Altima. Trooper Lamm exited the
patrol car to ask Peart for the correct rental agreement, and told Defendant to “sit
tight.”
Trooper Lamm approached the front passenger side of the Nissan Altima and
asked Peart for the correct rental agreement. He asked about her travel plans with
Defendant and the nature of their trip. She said they were visiting family in
Fayetteville but might also travel to Tennessee or Georgia. She explained the first
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Opinion of the Court
rental car they had, the Kia Rio, was struck by another car and the rental company
gave them the Nissan Altima as a replacement. She could not find the rental
agreement for the Nissan Altima and continued to look for it. Trooper Lamm told
Peart he was going to issue Defendant a speeding ticket and the two would “be on
[their] way.”
Trooper Lamm returned to the patrol car, explained Peart could not locate the
correct rental agreement, and continued to question Defendant about the purpose of
the trip to Fayetteville. Then, Trooper Lamm called the rental company and the
rental company confirmed everything was fine with the Nissan Altima rental, but
informed Trooper Lamm that Peart still needed to call the company to correct the
restricted travel condition concerning use of the car in New York, New Jersey, and
Connecticut. After the call, Trooper Lamm told Defendant that his driver’s license
was okay and he was going to receive a warning ticket for speeding. Trooper Lamm
issued a warning ticket and asked Defendant if he had any questions.
Then, Trooper Lamm told Defendant he was “completely done with the traffic
stop,” but wanted to ask Defendant additional questions. Defendant did not make an
audible response, but at the suppressing hearing, Trooper Lamm testified Defendant
nodded his head. Trooper Lamm did not tell Defendant he was free to leave.
Trooper Lamm asked Defendant if he was carrying a number of controlled
substances, firearms, or illegal cigarettes in the Nissan Altima. Defendant
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responded, “No liquor, no nothing, you can break the car down.” Trooper Lamm
continued questioning Defendant and said, “I want to search your car, is that okay
with you?” Defendant hesitated, mumbled, and told Trooper Lamm to ask Peart.
Defendant stated, “I’m just saying, I’ve got to go to the bathroom, I want to smoke a
cigarette, we’re real close to getting to the hotel so that we can see our family, like, I
don’t, I don’t see a reason why.” Trooper Lamm responded, “[W]ell let me go talk to
her then, sit tight,” and walked to the front passenger side of the Nissan Altima. By
this time, two additional officers were present at the scene.
Trooper Lamm told Peart everything was fine with the rental agreement and
asked her the same series of questions he asked Defendant, whether the two were
carrying controlled substances, firearms, or illegal cigarettes. Trooper Lamm asked
Peart if he could search the car. Peart hesitated, expressed confusion, and stated,
“No. There’s nothing in my car, I mean . . . .” Trooper Lamm continued to ask for
consent, Peart acquiesced and agreed to sign a written consent form. Trooper Lamm
searched the Nissan Altima and found cocaine under the back passenger seat.
II. Standard of Review
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
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Opinion of the Court
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).
III. Analysis
Defendant contends the trial court made findings of fact that are not supported
by competent evidence because his “initial investigatory detention was not properly
tailored to address a speeding violation.” Further, he contends Trooper Lamm seized
him without consent or reasonable suspicion of criminal activity when Trooper Lamm
told him to “sit tight” in the patrol car. Defendant contends Trooper Lamm
unlawfully seized items from the car during the search, and these items are fruit of
the poisonous tree that must be suppressed. After carefully reviewing the record and
video footage of the traffic stop, we agree.
On appeal, Defendant challenges the following findings of fact and conclusion
of law:
FINDINGS OF FACT
11. That the Defendant complied with Trooper Lamm’s
request1 to accompany him back to the patrol vehicle where
Trooper Lamm told the Defendant, while the Defendant
was still outside the vehicle, that he was stopped for
speeding, which the Defendant acknowledged stating that
he “was running about 84” . . . .
21. That while Ms. Peart looked for the current rental
1 Defendant contends the trial court’s “determination of [Trooper] Lamm’s statement to be a
‘request’ rather than a command or order is actually a conclusion of law . . . because it requires the
exercise of judgment.”
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agreement, which was never found, Trooper Lamm
engaged her in casual conversation and learned from her
that she was unsure of their travel plans, but believed they
were visiting family in “Fayetteville or maybe Tennessee
or Georgia. . . .”
26. That after asking the Defendant if he could search his
car, the [D]efendant expressed reluctance before directing
Trooper Lamm to ask Ms. Peart since she was the lessee of
the vehicle. At which time, Trooper Lamm left the patrol
car, asked the Defendant to sit tight, and went to ask Ms.
Peart. . . .
CONCLUSIONS OF LAW
2. That Trooper Lamm was at all times casual and
conversational in his words and manner.
“[T]he tolerable duration of police inquires in the traffic-stop context is
determined by the seizure’s ‘mission’—to address the traffic violation that warranted
the stop, and attend to related safety concerns.” State v. Bedient, ___ N.C. App. ___,
786 S.E.2d 319, 322 (2016) (quoting Rodriguez v. United States, ___ U.S. ___, ___, 135
S. Ct. 1609, 1614 (2015) (internal citations omitted)). In addition to deciding whether
to issue a traffic ticket, a law enforcement officer’s “mission” includes “‘ordinary
inquires incident to the traffic stop.’” Bedient, ___ N.C. App. at ___, 786 S.E.2d at 322
(quoting Rodriguez, ___ U.S. at ___, 135 S.Ct. at 1615). This inquiry typically includes
checking the driver’s license, determining if the driver has any outstanding warrants,
inspecting the vehicle’s registration and proof of insurance, or a rental agreement for
a rental car, which is the equivalent of inspecting a vehicle’s registration and proof of
insurance. See Bedient, ___ N.C. App. at ___, 786 S.E.2d at 322–23 (quoting
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Rodriguez, ___ U.S. at ___, 135 S.Ct. at 1615); See also State v. Bullock, ___ N.C. App.
___, 785 S.E.2d 746, 751 (2016), writ of supersedeas allowed, 786 S.E.2d 927 (2016).
The trial court held its suppression hearing 1 June 2015 and issued an order
denying Defendant’s motion to suppress on 10 July 2015. If the trial court had the
benefit of this Court’s guidance in Bullock, ___ N.C. App. ___, 785 S.E.2d 746, it may
have ruled in Defendant’s favor.
In Bullock, this Court examined a fact pattern that is nearly identical to the
case sub judice and applied the principles of Rodriguez, ___ U.S. ___, 135 S. Ct. 1609.
In Bullock, the defendant sped and followed another vehicle too closely on the
highway. Bullock, ___ N.C. App. at ___, 785 S.E.2d at 747–48. When the officer
pulled Bullock over, he asked for Bullock’s license and rental agreement. Id., ___
N.C. App. at ___, 785 S.E.2d at 748. The rental agreement did not list Bullock’s name,
though it appeared he wrote his name on the form below the renter’s signature. Id.
The officer saw two cell phones in the car and noticed Bullock’s hands were “trembling
a little.” Id. The officer asked Bullock where he was traveling. Id. Bullock said he
was driving to meet a girl and missed his exit on the highway. Id. The officer “asked
[Bullock] to step back to his patrol car while he ran [Bullock’s] driver’s license.” Id.
The officer “shook hands with [Bullock] and told him that he would give him a
warning for the traffic violation.” Id. The officer “then asked if he could briefly search
[Bullock] for weapons before he got into his patrol car.” Id. Bullock “agreed and lifted
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his arms up in the air . . . .” Id. Bullock sat in the front seat of the patrol car as the
officer ran his driver’s license through a mobile computer. Id. The officer’s K-9 was
in the back seat. Id. While the officer and Bullock sat in the front seats, the officer
questioned Bullock. Id. The officer thought Bullock “looked nervous while he was
questioning him . . .” and saw he was “‘breathing in and out in his stomach’ and not
making much eye contact.” Id. The officer attributed this nervousness “to something
other than general anxiety from a routine traffic stop” because he already told Bullock
he was going to issue a warning ticket. Id., ___ N.C. App. at ___, 785 S.E.2d at 751.
The officer asked Bullock “if there were any weapons or drugs in the car and if he
could search the vehicle.” Id., ___ N.C. App. at ___, 785 S.E.2d at 748. Bullock
consented to the search except for his personal belongings, which included a bag,
some clothes, and condoms. Id. The officer called for a backup officer and explained
he could not search without another officer present. Id. While they waited
approximately ten minutes for a backup officer to arrive, Bullock asked “what would
happen if he did not consent to a search of the car,” and the officer stated “he would
then deploy his K-9 dog to search the car.” Id. “At that time, [Bullock] and [the
officer] spoke some more about the girl [Bullock] was going to see and other matters
unrelated to the traffic stop.” Id. The backup officer arrived, searched the car, and
found 100 bindles of heroin. Id., ___ N.C. App. at ___, 785 S.E.2d at 749.
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Opinion of the Court
The Bullock Court applied the United States Supreme Court’s guidance in
Rodriguez and held the officer could check Bullock’s license and rental agreement,
but he “was not allowed to ‘do so in a way that prolonged the stop, absent the
reasonable suspicion ordinarily demanded to justify detaining an individual.’” Id.,
___ N.C. App. at ___, 785 S.E.2d at 751 (quoting Rodriguez, ___ U.S. at ___, 135 S.Ct.
at 1615). This Court held, “[the officer] completed the mission of the traffic stop when
he told [Bullock] that he was giving [Bullock] a warning for the traffic violations as
they were standing at the rear of [Bullock’s] car.” Id.
Here, Trooper Lamm’s authority to seize Defendant for the speeding infraction
ended “when tasks tied to the traffic infraction [were]—or reasonably should have
been—completed.” Rodriguez, ___ U.S. at ___, 135 S.Ct. at 1614 (emphasis added)
(citation omitted). At the very latest, this occurred when Trooper Lamm told
Defendant he was going to issue a warning ticket and gave him a hard copy of the
warning ticket. See Bullock, ___ N.C. App. at ___, 785 S.E.2d at 751. Beyond this
identifiable point in time, this Court notes an officer may not delay telling a driver
they are going to receive a ticket (or warning ticket), withhold writing or providing a
written copy of the ticket (or warning ticket), withhold the driver’s license, car
registration, rental agreement, or other pertinent documents, in such a way that
prolongs “‘the stop, absent the reasonable suspicion ordinarily demanded to justify
detaining an individual.’” Id. (quoting Rodriguez, ___ U.S. at ___, 135 S.Ct. at 1615).
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Opinion of the Court
Prior to Rodriguez, it was well settled that an officer may ask a driver to exit
a vehicle during a traffic stop. See State v. McRae, 154 N.C. App. 624, 629, 573 S.E.2d
214, 218 (2002) (citations omitted). Historically, the de minimis intrusion of asking
a driver to exit a vehicle was outweighed by “the government’s ‘legitimate and
weighty’ interest in officer safety . . . .” Rodriguez, ___ U.S. at ___, 135 S.Ct. at 1615
(quoting Pennsylvania v. Mimms, 434 U.S. 106, 110–11 (1977) (per curiam)).
However, “under Rodriguez, even a de minimis extension is too long if it prolongs the
stop beyond the time necessary to complete the mission.” Bullock, ___ N.C. App. at
___, 785 S.E.2d at 752. Therefore, an officer may offend the Fourth Amendment if he
unlawfully extends a traffic stop by asking a driver to step out of a vehicle. See Id.
The same is true of an officer who unlawfully extends a traffic stop by asking a driver
to sit in his patrol car, thereby creating the need for a weapons pat down.2 It is also
possible for an officer to unlawfully extend a traffic stop by telling a driver to close
the patrol car’s front passenger door, while the officer questions the driver about
matters unrelated to the traffic stop. Further, this Court notes officer safety is put
at risk an increased number of times when an officer adds additional steps to delay
the traffic stop, such as ordering the driver to step out of the vehicle, patting the
2 “By requiring defendant to submit to a pat-down search and questioning in the patrol car
unrelated to the purpose of the traffic stop, the officer prolonged the traffic stop beyond the time
necessary to complete the stop’s mission and the routine checks authorized by Rodriguez.” Bullock,
___ N.C. App. at ___, 785 S.E.2d at 753 (citing State v. Castillo, ___ N.C. App. ___, 787 S.E.2d 48
(2016)).
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driver down, having the driver sit in the patrol car, and sitting next to the driver to
ask them questions and observe their demeanor.
To detain a driver beyond a traffic stop, an officer must have “reasonable
articulable suspicion that illegal activity is afoot.” State v. Williams, 366 N.C. 110,
116, 726 S.E.2d 161, 166–67 (2012) (citing Florida v. Royer, 460 U.S. 491, 497–98
(1983)) (citation omitted). An officer is “required to have reasonable suspicion before
asking [a] defendant to go to his patrol vehicle to be questioned.” Bullock, ___ N.C.
App. at ___, 785 S.E.2d at 753. During a lawful traffic stop, an officer “may conduct
a pat down search, for the purpose of determining whether the person is carrying a
weapon, when the officer is justified in believing that the individual is armed and
presently dangerous.” State v. Sanders, 112 N.C. App. 477, 480, 435 S.E.2d 842, 844
(1993) (citing Terry v. Ohio, 392 U.S. 1, 24 (1968); Minnesota v. Dickerson, 508 U.S.
366, 373 (1993)) (emphasis added).
Here, the trial court found Trooper Lamm had “sufficient reasonable suspicion
of criminal activity to continue the traffic stop beyond the speeding enforcement
action” for the following reasons:
a. Defendant was overly nervous for a traffic stop for
speeding.
b. Defendant would not close the patrol car door until
ordered to do so, stating that he was “scared to do that” and
had one leg out of the door.
c. Defendant gave the Trooper a rental agreement for a
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Opinion of the Court
different car than he was operating and that car was paid
for in cash.
d. Defendant was operating the car outside of the approved
area for travel, New York, New Jersey, and Connecticut.
e. He noted the presence of numerous air fresheners in the
vehicle.
f. The vehicle had a lived in look showing hard travel, such
as, coffee, energy drinks, and trash.
g. The presence of a female dog in the car and dog food
scattered throughout the car.
h. The driver and passenger provided inconsistent travel
plans.
The trial court’s findings do not support its conclusion that Trooper Lamm had
reasonable suspicion of criminal activity to extend the traffic stop and conduct a
search after the traffic stop concluded. The various legal behaviors in the trial court’s
findings do not amount to a “reasonable articulable suspicion that illegal activity is
afoot.” Williams, 366 N.C. at 116, 726 S.E.2d at 166–67 (citing Royer, 460 U.S. at
497–98) (citation omitted). “In order to preserve an individual’s Fourth Amendment
rights, it is of the utmost importance that we recognize that the presence of [a
suspicious but legal behavior] is not, by itself, proof of any illegal conduct and is often
quite consistent with innocent travel.” State v. Fields, 195 N.C. App. 740, 745, 673
S.E.2d 765, 768 (2009) (citing United States v. Sokolow, 490 U.S. 1, 9 (1989)).
Reasonable suspicion may arise from “wholly lawful conduct.” Reid v. Georgia, 448
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U.S. 438, (1980) (citing Terry, 392 U.S. at 27–28). However, “‘the relevant inquiry is
. . . the degree of suspicion that attaches to particular types of noncriminal acts.’”
Sokolow, 490 U.S. at 10 (quoting Illinois v. Gates, 462 U.S. 213, 243–44 n. 13 (1983)).
Here, Defendant’s nervousness is “an appropriate factor to consider,” but it
must be examined “in light of the totality of the circumstances” because “many people
do become nervous when [they are] stopped by an officer . . . .” State v. McClendon,
350 N.C. 630, 638, 517 S.E.2d 128, 134 (1999) (citations omitted). The degree of
suspicion attached to Defendant’s possession of a female dog, dog food, coffee, energy
drinks, trash, and air fresheners is minimal, as it is consistent with innocent travel.
Most importantly, the trial court’s findings are based upon facts that were
discovered after the “tolerable duration” of the speeding stop expired, namely
Defendant’s nervousness and his fear about closing the front passenger door of the
patrol car. See Bedient, ___ N.C. App. at ___, 786 S.E.2d at 322 (quoting Rodriguez,
___ U.S. ___, ___, 135 S.Ct. at 1614). Rodriguez clearly changes the law and traffic
stop procedures that existed prior to its issuance on 21 April 2015. To affirm the trial
court, as the dissent suggests, is to ignore the United States Supreme Court’s
direction in Rodriguez, ___ U.S. ___, 135 S. Ct. 1609.
IV. Conclusion
For the foregoing reasons, we reverse the trial court.
REVERSED.
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Chief Judge McGEE concurs.
Judge DILLON dissents in a separate opinion.
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No. COA16-33 – STATE v. REED
DILLON, Judge, dissenting.
Because I agree with the State that Judge Adams’ findings support a
conclusion that Trooper Lamm obtained Defendant’s consent to search the rental
vehicle after the traffic stop had concluded and Defendant was otherwise free to leave,
I respectfully dissent.
Assuming, arguendo, that Trooper Lamm’s exchange with Defendant following
the conclusion of the traffic stop was non-consensual and that Defendant’s “consent”
was coerced, I believe that Trooper Lamm had reasonable suspicion of separate,
independent criminal activity to support an extension of the traffic stop beyond the
time necessary to complete the mission of citing Defendant for the traffic violation.
I. There Was the Consensual Search After Traffic Stop Had Concluded and
Defendant Was Free to Leave.
Judge Adams’ findings support her conclusion that Trooper Lamm obtained
Defendant’s voluntary consent after Defendant was otherwise free to leave the scene.
The majority contends that Defendant’s consent to search the car was
ineffective since Trooper Lamm impermissibly extended the traffic stop in violation
of the principles set out in Rodriguez v. United States, 135 S. Ct. 1609 (2015). See
also Florida v. Royer, 460 U.S. 491, 507-08 (1983) (holding that a defendant’s consent
to a search is ineffective to justify the search when the consent is obtained while the
defendant is being illegally detained). Rodriguez is certainly an important
development in Fourth Amendment law, clarifying that even a de minimis extension
STATE V. REED
DILLON, J., dissenting
of a traffic stop to investigate matters unrelated to the mission of the traffic stop
without reasonable suspicion of separate criminal activity is impermissible.
However, this principle in Rodriguez is inapplicable here as Trooper Lamm did not
extend the traffic stop to question Defendant and then search Defendant’s rental
vehicle. Rather, Judge Adams’ findings show that Trooper Lamm concluded the
traffic stop and then obtained Defendant’s consent only after his exchange with
Defendant evolved into a consensual encounter. For the same reasons, our case is
distinguishable from our recent decision in State v. Bullock, ___ N.C. App. ___, 785
S.E.2d 746 (2016), which is cited by the majority, where we applied Rodriguez to
invalidate a search based on the impermissible extension of a traffic stop. Bullock
did not involve a situation where a traffic stop had concluded and the encounter
became consensual.
There is no detention for Fourth Amendment purposes when law enforcement
engages with a defendant unless a reasonable person in the defendant’s position
“would have believed he was not free to leave.” United States v. Mendenhall, 446 U.S.
544, 554 (1980). In the context of a traffic stop, the detention of a motorist is a seizure
for Fourth Amendment purposes. However, when the traffic stop is over and the
detainee is free to leave, the traffic stop transforms into a consensual encounter: the
officer may ask questions, and the detainee can choose to answer them or simply
refuse to answer and leave.
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DILLON, J., dissenting
Our Court has held on a number of occasions that “[g]enerally, an initial traffic
stop concludes and the encounter becomes consensual . . . after an officer returns the
detainee’s driver’s license and registration.” State v. Jackson, 199 N.C. App. 236, 243,
681 S.E.2d 492, 497 (2009). See also State v. Henry, 237 N.C. App. 311, 324, 765
S.E.2d 94, 104 (2014) (recognizing that “a traffic stop is not terminated until after the
officer returns the driver’s license or other documents to the driver”); State v. Cottrell,
234 N.C. App. 736, 742-43, 760 S.E.2d 274, 279 (2014) (restating the general principle
that the return of motorist documentation typically renders any subsequent
exchanges between motorist and law enforcement consensual). In State v. Kincaid,
we recognized that “subject to a totality of the circumstances test, that once an officer
returns the license and registration, the stop is over and the person is free to leave.”
147 N.C. App. 94, 99, 555 S.E.2d 294, 298 (2001).
Likewise, the Fourth Circuit Court of Appeals has consistently held that a
motorist is no longer detained after the officer gives the motorist his or her license
and other paperwork, absent some other factor which might indicate restraint. See,
e.g., United States v. Sullivan, 138 F.3d 126, 133-34 (4th Cir. 1998); United States v.
Whitney, 391 F. App’x. 277, 280-81 (4th Cir. 2010); United States v. Meikle, 407 F.3d
670, 673-74 (4th Cir. 2005).
Here, Judge Adams found that Trooper Lamm did not seek Defendant’s
consent to search the rental car until after returning Defendant’s paperwork back to
3
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DILLON, J., dissenting
him and informing Defendant that the traffic stop had concluded. There is no finding
to suggest any restraint or compulsion by Trooper Lamm when he obtained
Defendant’s consent to search the rental vehicle. That is, Trooper Lamm did not
simply launch into an interrogation after returning to Defendant his license and other
paperwork. Rather, Judge Adams found that Trooper Lamm took the extra step of
first asking Defendant for his consent to question him further. See Kincaid, 147 N.C.
App. at 102, 555 S.E.2d at 300 (holding in a similar situation when the officer “asked
if he could question defendant . . . [,] [he] did not deprive defendant of freedom of
action in any significant way. After [the officer] handed back defendant’s license and
registration, defendant was free to leave and free to refuse to answer questions”).
Judge Adams also found that Trooper Lamm “was at all times casual and
conversational in his words and manner.”3 See Sullivan, 138 F.3d at 133 (finding
relevant that “there is no indication that [the officer] employed any physical force or
engaged in any outward displays of authority”). Also significant is that the
questioning occurred on a public highway during the daytime.
It is true that there is no indication (or finding) that Trooper Lamm ever told
Defendant that he “was free to leave.” The United States Supreme Court, however,
has held that an officer is not required to inform a detainee that he is free to leave to
3 Defendant challenges the finding regarding the casualness of the conversation; however, he
does not challenge this finding with regards to any portion of the encounter occurring after Trooper
Lamm informed Defendant that the traffic stop was completed.
4
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DILLON, J., dissenting
transform a traffic stop into a consensual encounter. Ohio v. Robinette, 519 U.S. 33,
39-40 (1996) (concluding that it would “unrealistic to require police officers to always
inform detainees that they are free to go before a consent to search may be deemed
voluntary.”). The Fourth Circuit has reached this same conclusion. Sullivan, 138
F.3d at 133 (“While [the officer] never told [the defendant] that he was free to go, that
fact alone is not dispositive.”) And our Court has also reached this same conclusion.
Kincaid, 147 N.C. App. at 97, 555 S.E.2d at 297 (affirming the trial court’s conclusion
that the defendant was free to leave “although the officer never told defendant that
he was free to leave”).
It is also true that Judge Adams found that after Defendant gave Trooper
Lamm consent to search the rental vehicle (subject to Ms. Peart’s consent), Trooper
Lamm asked Defendant to “sit tight” in the unlocked patrol car while he returned to
the rental vehicle to ask Ms. Peart for her consent, which she gave. Given the context
of Trooper Lamm’s request that Defendant “sit tight,” I believe that a reasonable
person in Defendant’s position would have still felt that he could have withdrawn his
consent and terminated the encounter.4 Trooper Lamm only “asked” Defendant to sit
4 By this point, another officer was on the scene who remained with Defendant while Trooper
Lamm sought Ms. Peart’s consent to search the vehicle. Defendant could have simply told this other
officer that he was withdrawing his consent and that he was going to leave.
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DILLON, J., dissenting
tight and only did so after Defendant had already given his consent and after
Defendant “direct[ed] Trooper Lamm to ask Ms. Peart” for her consent.5
In conclusion, I believe that Defendant gave consent to search the car after the
traffic stop concluded and the encounter between Defendant and Trooper Lamm
became consensual. Therefore, I would affirm Judge Adams’ order.
II. Trooper Lamm Otherwise Had Reasonable Suspicion to Extend the Stop.
Assuming, arguendo, that the traffic stop did not become consensual after
Trooper Lamm returned all of the paperwork to Defendant, informed Defendant that
the traffic stop had concluded, and asked Defendant for his consent to question him
further, I believe that Judge Adams’ findings support her conclusion that Trooper
Lamm had reasonable suspicion that Defendant was transporting illegal drugs.
The majority likens this case to our recent decision in Bullock, which applied
Rodriguez and held that a traffic stop cannot be extended beyond the time necessary
to complete the mission of the traffic stop (issuing the citation, processing tags,
reviewing driver’s license information, etc.), without reasonable suspicion of some
other crime being afoot. Bullock , ___ N.C. App. at ___, 785 S.E.2d at 752. Admittedly,
there are similarities between the facts in Bullock and Judge Adams’ findings in the
5 Defendant does not make any argument concerning whether Ms. Peart would not have felt
free to leave when she gave her consent to search the vehicle or any argument about the impact the
validity of Ms. Peart’s consent should have on our analysis in this prosecution of Defendant. Therefore,
any issue concerning Ms. Peart’s consent is not before us.
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DILLON, J., dissenting
present case. Specifically, in Bullock, our Court determined that the defendant’s
presence on a busy interstate typically used for drug trafficking, the defendant’s
unauthorized operation of a rental vehicle,6 the defendant’s nervous behavior, and
the defendant’s statement that he had missed an exit to explain his erratic driving
did not give rise to a “particularized suspicion of criminal activity” permitting
extension of the traffic stop to conduct a frisk of the defendant. Id. at ___, 785 S.E.2d
at 753-56. In reaching its conclusion, our Court relied on the Fourth Circuit’s
acknowledgment that:
[T]he Supreme Court has recognized that factors
consistent with innocent travel can, when taken together,
give rise to reasonable suspicion. On the other hand, the
articulated innocent factors collectively must serve to
eliminate a substantial portion of innocent travelers before
the requirement of reasonable suspicion will be satisfied.
Id. at ___, 785 S.E.2d at 754 (quoting U.S. v. Digiovanni, 650 F.3d 498, 511 (4th Cir.
2011)) (emphasis added) (internal citations and marks omitted).
Judge Adams found additional facts which, I believe, distinguish this case from
Bullock. For instance, the trial court found that the following events occurred before
Trooper Lamm committed any act which could arguably be related to the traffic stop:
6. Trooper Lamm observed a female in the front passenger
seat holding an adult female pit bull dog and defendant in
driver’s seat.
7. Trooper Lamm noticed the presence of . . . dog food
6The rental agreement in the present case only allowed the vehicle to be driven in New York,
New Jersey, and Connecticut.
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DILLON, J., dissenting
scattered throughout the interior of the vehicle.
8. Trooper Lamm knew that the presence of a female dog
and dog food are sometimes used to distract a male canine
during a dog sniff.
9. Trooper Lamm noticed several air fresheners which
Trooper knew are sometimes used to mask the odor of a
controlled substance.
Indeed, in Digiovanni, which was relied upon by our Court in Bullock, the
Fourth Circuit opined that the presence of air fresheners would have had an impact
on their determination that no reasonable suspicion existed to extend the stop.
Digiovanni, 650 F.3d at 513. I believe that these additional findings were sufficient
to “eliminate a substantial portion of innocent drivers,” Bullock, ___ N.C. App. at ___,
785 S.E.2d at 754, and supported the conclusion that Trooper Lamm had reasonable
suspicion that criminal activity was afoot to justify an extension of the traffic stop.
See State v. Warren, ___ N.C. App.___, ___, 775 S.E.2d 362, 365-66 (2015) (holding
that Rodriguez was not violated and that there was reasonable suspicion to conduct
a dog sniff search).
8