In this drug trafficking case arising out of a traffic stop, the court affirmed the conclusion of the Court of Appeals that the law enforcement officer who arrested the defendant violated the Fourth amendment by prolonging the stop without the defendant’s consent or a reasonable articulable suspicion of criminal activity.  Highway Patrol Trooper Lamm, a member of the Patrol’s Criminal Interdiction Unit who was assigned to aggressively enforce traffic laws while being on the lookout for other criminal activity including drug interdiction and drug activity, clocked the black male defendant’s vehicle by radar being operated at a speed of 78 miles per hour in a 65 mile-per-hour zone.  Lamm initiated a traffic stop and observed at its outset that there was a black female passenger and a female pit bull dog inside the vehicle.  The defendant provided Lamm with his New York driver’s license and the rental agreement for the vehicle, which indicated that the female passenger, Usha Peart who also was the defendant’s fiancée, was the renter and that the defendant was an additional authorized driver.  Trooper Lamm ordered the defendant out of the vehicle, which Lamm characterized as displaying “signs of . . . hard [continuous] driving,” and into the front seat of Lamm’s patrol car, where he further ordered the defendant to close the door of the patrol car, which the defendant did after expressing some reluctance.  Trooper Lamm did not consider the defendant to be free to leave at this point and began to question the defendant about his travel and other activities.  Upon confirming that things were sufficiently in order regarding the rental car, Lamm completed the traffic stop and returned all paperwork to the defendant, telling him that the stop was concluded.  About 20 minutes had elapsed at this point.  After telling the defendant that the stop had ended, Lamm said “I’m going to ask you a few more questions if it is okay with you,” and construed the defendant’s continued presence in his patrol car as voluntary.  Lamm testified that despite informing the defendant that the stop had ended, defendant would still have been detained, even if he denied consent to search the vehicle and wanted to leave.  Lamm asked the defendant for consent to search the vehicle, to which he replied “you could break the car down,” but further explained that Lamm should seek consent from Peart since she had rented the car.  Lamm told the defendant to “sit tight” in the patrol vehicle as Lamm went to confer with Peart.  At this time, Trooper Ellerbe, also a member of the Criminal Interdiction Unit, arrived at the scene in response to Lamm’s request for backup where he was informed by Lamm that Lamm was going to attempt to obtain consent to search from Peat.  Ellerbe then stationed himself next to Lamm’s passenger seat where the defendant remained seated with the door closed.  Lamm proceeded to talk with Peart and obtained her signature on the State Highway Patrol form “Written Consent to Search,” which he had completed himself.  Lamm then discovered cocaine in the backseat area of the vehicle and directed Ellerbe to place the defendant in handcuffs.

With this recitation of the factual circumstances surrounding the stop and search, the court proceeded to analyze, under the two-pronged analysis of Terry v. Ohio, 392 U.S. 1 (1968), (1) whether the stop was reasonable at its inception, and (2) whether the continued stop was “sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure.”  Focusing on the second prong of the analysis because the defendant conceded that the stop was lawful at is inception, the court cited its previous decision in State v. Bullock, 370 N.C. 256 (2017) while explaining that “the duration of a traffic stop must be limited to the length of time that is reasonably necessary to accomplish the mission of the stop,” and that a law enforcement officer may not detain a person “even momentarily without reasonable, objective grounds for doing so.”  The critical question on this second prong in the traffic stop context is whether Trooper Lamm “diligently pursued a means of investigation that was likely to confirm or dispel [his] suspicions quickly, during which time it was necessary to detain the defendant” or whether Lamm unlawfully extended an otherwise-completed stop.  Reviewing its own precedent and that of the U.S. Supreme Court, the court explained that all of Trooper Lamm’s investigative activities until the point where Lamm returned the defendant’s paperwork, issued the warning ticket, and told the defendant that the stop had ended were lawful.  At that point, however, the mission of the stop was accomplished and Lamm unlawfully prolonged it by detaining the defendant in his patrol car and asking the defendant further questions without reasonable suspicion.  As to whether reasonable suspicion existed to prolong the stop, the court found that inconsistencies in Lamm’s testimony demonstrated that he was unable to articulate an objective basis for his purported reasonable suspicion and was unable to articulate the time at which he formulated such suspicion.  The court disagreed with dissenting justices who took the view that the defendant’s nervousness, his explanation of travel plans, the condition of the rental car, and the fact that it had been paid for in cash provided reasonable suspicion, saying that these circumstances were generally consistent with lawful travel and were unremarkable.  The court concluded by agreeing with the Court of Appeals that the trial court erred in denying the defendant’s motion to suppress evidence obtained as a result of the defendant’s unlawful detention.

Justice Newby dissented, explaining that in his view, and as the trial court had found, the defendant consented to the prolonging of the stop in order to allow Trooper Lamm to ask him a few more questions.

Justice Davis, joined by Justices Newby and Ervin, also dissented, expressing the view that even is the defendant’s consent to search was not voluntary, Trooper Lamm possessed reasonable suspicion to extend the stop.  In finding that reasonable suspicion existed, Justice Davis noted the defendant and his passenger’s inconsistent statements regarding their travel plans, certain features of the rental car agreement, the fact that the car had been paid for in cash, and the condition of the interior of the car, including that dog food was strewn about and that air fresheners were present.

On an appeal from a divided panel of the Court of Appeals, ___ N.C. App. ___, 785 S.E.2d 746 (2016), the court reversed, concluding that the stop at issue was not unduly prolonged. An officer puller over the defendant for several traffic violations. During the traffic stop that ensued, officers discovered heroin inside a bag in the car. The defendant moved to suppress the evidence, arguing that the search was unduly prolonged under Rodriguez. The trial court denied the motion and the Court of Appeals reversed, concluding that the stop had been unduly prolonged. The Supreme Court reversed. After initiating the stop, the officer asked the defendant, the vehicle’s sole occupant, for his license and registration. The defendant’s hand trembled as he provided his license. Although the car was a rental vehicle, the defendant was not listed as a driver on the rental agreement. The officer noticed that the defendant had two cell phones, a fact he associated, based on experience, with those transporting drugs. The defendant was stopped on I-85, a major drug trafficking thoroughfare. When the officer asked the defendant where he was going, the defendant said he was going to his girlfriend’s house on Century Oaks Drive and that he had missed his exit. The officer knew however that the defendant was well past the exit for that location, having passed three exits that would have taken him there. The defendant said that he recently moved to North Carolina. The officer asked the defendant to step out of the vehicle and sit in the patrol car, telling him that he would receive a warning, not a ticket. At this point the officer frisked the defendant, finding $372 in cash. The defendant sat in the patrol car while the officer ran the defendant’s information through law enforcement databases, and the two continued to talk. The defendant gave contradictory statements about his girlfriend. Although the defendant made eye contact with the officer when answering certain questions, he looked away when asked about his girlfriend and where he was traveling. The database checks revealed that the defendant was issued a driver’s license in 2000 and that he had a criminal history in North Carolina starting in 2001, facts contradicting his earlier claim to have just moved to the state. The officer asked the defendant for permission to search the vehicle. The defendant agreed to let the officer search the vehicle but declined to allow a search of a bag and two hoodies. When the officer found the bag and hoodies in the trunk, the defendant quickly objected that the bag was not his, contradicting his earlier statement, and said he did not want it searched. The officer put the bag on the ground and a police dog alerted to it. Officers opened the bag and found a large amount of heroin. The defendant did not challenge the validity of the initial stop. The court began by noting during a lawful stop, an officer can ask the driver to exit the vehicle. Next, it held that the frisk was lawful for two reasons. First, frisking the defendant before putting them in the patrol car enhanced the officer safety. And second, where, as here, the frisk lasted only 8-9 seconds it did not measurably prolong stop so as to require reasonable suspicion. The court went on to find that asking the defendant to sit in the patrol car did not unlawfully extend the stop. The officer was required to check three databases before the stop could be finished and it was not prolonged by having the defendant in the patrol car while this was done. This action took a few minutes to complete and while it was being done, the officer was free to talk with the defendant “at least up until the moment that all three database checks had been completed.” The court went on to conclude that the conversation the two had while the database checks were running provided reasonable suspicion to prolong the stop. It noted that I-85 is a major drug trafficking corridor, the defendant was nervous and had two cell phones, the rental car was in someone else’s name, the defendant gave an illogical account of where he was going, and cash was discovered during the frisk. All of this provided reasonable suspicion of drug activity that justified prolonging the stop shortly after the defendant entered the patrol car. There, as he continued his conversation with the officer, he gave inconsistent statements about his girlfriend and the database check revealed that the defendant had not been truthful about a recent move to North Carolina. This, combined with the defendant’s broken eye contact, allowed the officer to extend the stop for purposes of the dog sniff.

On appeal pursuant from the decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 775 S.E.2d 362 (2015), the court per curiam affirmed. In this post-Rodriguez case, the court of appeals had held that the officer had reasonable suspicion to extend the scope and duration of a routine traffic stop to allow a police dog to perform a drug sniff outside the defendant’s vehicle. The court of appeals noted that under Rodriguez v. United States, ___ U.S. ___, 191 L.Ed. 2d 492 (2015), an officer who lawfully stops a vehicle for a traffic violation but who otherwise does not have reasonable suspicion that any crime is afoot beyond a traffic violation may execute a dog sniff only if the check does not prolong the traffic stop. It further noted that earlier N.C. case law applying the de minimus rule to traffic stop extensions had been overruled by Rodriguez. The court of appeals continued, concluding that in this case the trial court’s findings support the conclusion that the officer developed reasonable suspicion of illegal drug activity during the course of his investigation of the traffic offense and was therefore justified to prolong the traffic stop to execute the dog sniff. Specifically:

Defendant was observed and stopped “in an area [the officer] knew to be a high crime/high drug activity area[;]” that while writing the warning citation, the officer observed that Defendant “appeared to have something in his mouth which he was not chewing and which affected his speech[;]”that “during his six years of experience [the officer] who has specific training in narcotics detection, has made numerous ‘drug stops’ and has observed individuals attempt to hide drugs in their mouths and . . . swallow drugs to destroy evidence[;]” and that during their conversation Defendant denied being involved in drug activity “any longer.”

The court per curiam affirmed the decision below, State v. Heien, 226 N.C. App. 280 (2013). Over a dissent the court of appeals had held that a valid traffic stop was not unduly prolonged and as a result the defendant’s consent to search his vehicle was valid. The stop was initiated at 7:55 am and the defendant, a passenger who owned the vehicle, gave consent to search at 8:08 am. During this time, the two officers discussed a malfunctioning vehicle brake light with the driver, discovered that the driver and the defendant claimed to be going to different destinations, and observed the defendant behaving unusually (he was lying down on the backseat under a blanket and remained in that position even when approached by an officer requesting his driver’s license). After each person’s name was checked for warrants, their licenses were returned. The officer then requested consent to search the vehicle. The officer’s tone and manner were conversational and non-confrontational. No one was restrained, no guns were drawn and neither person was searched before the request to search the vehicle was made. The trial judge properly concluded that the defendant was aware that the purpose of the initial stop had been concluded and that further conversation was consensual. The court of appeals also had held, again over a dissent, that the defendant’s consent to search the vehicle was valid even though the officer did not inform the defendant that he was searching for narcotics.

In this Sampson County case, defendant appealed his convictions for trafficking heroin by possession and by transport, possession with intent to sell or deliver heroin and cocaine, and resisting a public officer, arguing (1) insufficient findings of fact, and (2) error in denying his motion to suppress the results of a traffic stop. The Court of Appeals found no error. 

In July of 2017, an officer pulled defendant over for driving 70 mph in a 55 mph zone. When the officer approached defendant’s car, he noticed the smell of marijuana and what appeared to be marijuana residue on the floorboard. After a long search for registration, defendant finally produced his documents; when the officer returned to his vehicle, he called for backup. After checking defendant’s registration and returning his documents, the officer asked defendant if any illegal drugs were in the vehicle, and defendant said no.  Defendant declined the officer’s request to search the vehicle, but during a free-air sniff around the vehicle, a canine altered at the driver’s side door. A search found various narcotics. Defendant filed a pre-trial motion to suppress the results of the search, but the trial court denied the motion after a suppression hearing.  

Both of defendant’s points of appeal depended upon the underlying argument that the officer unconstitutionally prolonged the traffic stop. Beginning with (1) the findings of fact to support the trial court’s conclusion of law that the traffic stop was not unconstitutionally extended, the Court of Appeals explained that “our de novo review examining the constitutionality of the traffic stop’s extension shows that the challenged legal conclusion is adequately supported by the findings of fact.” Slip Op. at 8. 

The court then proceeded to (2), performing a review of the traffic stop to determine whether the officer had reasonable suspicion to extend the stop. Because defendant argued that the legalization of hemp in North Carolina meant the smell and sight of marijuana could not support the reasonable suspicion required to extend the stop, the court looked to applicable precedent on the issue. The court noted several federal court decisions related to probable cause, and the holding in State v. Teague, 286 N.C. App. 160 (2023), that the passage of the Industrial Hemp Act did not alter the State’s burden of proof. Slip Op. at 13. After considering the circumstances, the court concluded “there was at least ‘a minimal level of objective justification, something more than an unparticularized suspicion or hunch’ of completed criminal activity—possession of marijuana.” Id. at 13, quoting State v. Campbell, 359 N.C. 644, 664 (2005). Because the officer had sufficient justification for extending the stop, the trial court did not err by denying defendant’s motion to suppress. 

In this Mecklenburg County case, defendant appealed his judgment for trafficking methamphetamine and maintaining a vehicle for keeping or selling methamphetamine, arguing that his motion to suppress the evidence obtained from a search of his vehicle was improperly denied. The Court of Appeals agreed, reversing the denial of his motion and vacating the judgment. 

In December of 2019, defendant was pulled over by officers of the Charlotte-Mecklenburg County Police Department for speeding. During the stop, one officer determined defendant was on active probation while checking his license. The officer asked defendant to step out of the car and speak with him, and during their discussion, the officer asked for defendant’s consent to search the vehicle. Defendant told the officer he could go ahead and search the vehicle, resulting in the discovery of a bag of methamphetamine under the driver’s seat. At trial, defendant moved to suppress the results of the search, and the trial court denied the motion after conducting a hearing. Defendant subsequently pleaded guilty to the charges without negotiating a plea agreement. Defendant did not give notice of his intent to appeal prior to entering a plea but made oral notice of appeal during the sentencing hearing. 

The Court of Appeals first discussed whether defendant had a right of appeal after pleading guilty without giving notice of his intent, explaining that the recent precedent in State v. Jonas, 280 N.C. App. 511 (2021), held that notice of intent to appeal is not required when a defendant did not negotiate a plea agreement. However, the court also noted that Jonas was stayed by the North Carolina Supreme Court. As a result, the court granted defendant’s petition for writ of certiorari to consider his arguments on appeal. Judge Murphy dissented from the grant of certiorari and would have found jurisdiction under Jonas. Slip Op. at 11, n.1.  

On appeal, defendant argued that when he consented to the search of his vehicle, he was unlawfully seized. The Court of Appeals agreed, explaining “[b]ased upon the totality of the circumstances, a reasonable person would not have felt free to terminate this encounter and a search of the car was not within the scope of the original stop.” Id. at 11. Here, after the officer returned defendant’s license and registration documents, the purpose for the traffic stop had ended. When the officer reached inside defendant’s vehicle to unlock the door, instructed him to “come out and talk to me real quick” behind the vehicle, and began asking questions about defendant’s probation status, the officer improperly extended the stop and engaged in a show of authority. Id. at 19. At trial, the officer testified that he used the technique of separating operators from their vehicles “because people are more likely to consent to a search when they are separated from their vehicle.” Id. After reviewing the totality of the circumstances, the court concluded “the seizure was not rendered consensual by the return of the documents, the request to search was during an unlawful extension of the traffic stop, and [defendant]’s consent to search was invalid.” Id. at 20.

Law enforcement in Guilford County received information that the defendant was selling drugs from his girlfriend’s apartment. They conducted a controlled buy at the location with the help of an informant, who identified the defendant as the seller. Police were later surveilling the home and saw the defendant leave with his girlfriend in her car. The car was stopped for speeding 12 mph over the limit. The stopping officer saw the defendant reach for the center console and smelled a strong odor of marijuana upon approach. The officer removed the occupants from the car and searched it, leading to the discovery of marijuana. During the search, an officer contacted the drug investigators about the possibility of notifying the defendant of the wider drug investigation. This took approximately five to seven minutes. The on-scene officers then informed the pair of the ongoing drug investigation of the defendant and sought consent to search the apartment, which the girlfriend gave. A gun and cocaine were discovered there, and the defendant was charged with firearm by felon and possession of cocaine. He moved to suppress, arguing that the traffic stop was unreasonably extended and that any consent was invalid. The trial court denied the motion, and the defendant entered a guilty plea, preserving his right to appeal the denial of the motion. On appeal, the Court of Appeal unanimously affirmed.

(1) The defendant argued since the police never acted on the speeding or marijuana offenses discovered during the traffic stop, the mission of the stop was complete, and the officer deviated from the mission of the stop by delving into an unrelated drug investigation and seeking consent to search the apartment. The court disagreed:

[A]t the time Officer Fisher asked for consent to search the Apartment, there is no evidence to suggest Officer Fisher had already made a determination to refrain from charging Defendant for the traffic violation or marijuana possession. Instead, the Record seems to indicate that at the time of Officer Fisher’s request for consent to search the Apartment, the stop had not been ‘otherwise-completed’ as he had not yet made a decision on whether to charge Defendant for the marijuana possession.” Jordan Slip op. at 9-10.

The act of asking for consent to search the apartment therefore occurred during the lawful course of the stop. Further, officers had reasonable suspicion that the defendant was selling drugs, justifying extension of the stop even if the original mission of the stop was complete at the time of the request for consent. Given the tip, the controlled purchase, law enforcement surveillance of the residence (which included observing a high volume of guests visiting the home), law enforcement likely had probable cause to arrest the defendant or obtain a warrant to search the apartment. “Consequently, the officer was justified in extending the seizure to question Defendant about the sale of heroin and crack-cocaine even though it was unrelated to the traffic violation.” Id. at 12.

(2) Officers had informed the pair that police would seek a search warrant, or that they could consent to a search of the apartment. The defendant argued that this was improper coercion and that any consent was therefore involuntary and invalid. The court disagreed. The defendant and his girlfriend were informed of the right to refuse consent, the girlfriend signed a written consent form, and neither person objected or attempted to revoke consent during the search. Further, the officers did not use any threats or other “inherently coercive tactics” in obtaining consent. Thus, the trial court properly determined that consent was freely and voluntarily given. The trial court’s judgment was consequently affirmed.

In this felony possession of cocaine case, the trial court erred by denying the defendant’s motion to suppress evidence that was discovered pursuant to a consent search where the request for consent and the search measurably extended a traffic stop without reasonable suspicion in violation of Rodriguez.  An officer made a traffic stop of the defendant after observing him driving without wearing a seatbelt.  “Almost immediately,” the officer asked the defendant to exit the vehicle and accompany him to his patrol car.  As they walked, the officer asked if the defendant possessed anything illegal and whether he could search the defendant.  The defendant raised his hands above his waist and the officer reached into the defendant’s sweatshirt pocket, discovering a plastic wrapper containing soft material he believed to be powder cocaine.

The court first determined that the defendant had preserved his undue delay argument for appellate review by generally arguing to the trial court that the stop was unsupported by reasonable suspicion and the search was unreasonable under the Fourth Amendment, regardless of the fact that the defendant’s precise Fourth Amendment argument on appeal differed slightly from his argument to the trial court.  The court went on to say that it would exercise Rule 2 discretion to address the merits in any event.

Addressing the merits, the court determined that while it may have been permissible on the grounds of officer safety to conduct an external frisk if the officer had reasonable suspicion that the defendant was armed and dangerous, the search in this case went beyond such a frisk, lasting almost thirty seconds and appearing to miss areas that would be searched in a safety frisk.  The State also made no argument that reasonable suspicion of being armed and dangerousness justified the search.  The court proceeded to distinguish case law the State argued supported the position that officers need no additional reasonable suspicion to request consent to search during a traffic stop as a universal matter, explaining that in the case at hand the request for consent and the full search were not related to the mission of the stop and were not supported by additional reasonable suspicion beyond the observed seatbelt violation.  The court concluded that any consent the defendant gave for the search was involuntary as a matter of law, reversed the trial court’s denial of the defendant’s motion to suppress, and vacated the judgement entered against the defendant based on his guilty pleas.

Judges Carpenter and Griffin concurred with separate opinions, each agreeing with the Fourth Amendment analysis.  Judge Griffin wrote to address an argument in the defendant’s brief “raising a question of impartiality in traffic stops, and our justice system generally, based on the color of a person’s skin and their gender.”  Judge Griffin rejected that argument, characterizing it as “inflammatory and unnecessary.”  Judge Carpenter wrote that “[c]hoosing to inject arguments of disparate treatment due to race into matters before the Court where such treatment is not at issue . . . does not further the goal of the equal application of the law to everyone.”

In this case from Burke County, an officer observed the defendant driving ten miles over the speed limit and believed that the vehicle’s window tint was illegal. When the officer approached, he smelled a slight odor of marijuana and a strong odor of cologne. He also observed that the car windows were not tinted but rather had “shades” covering them. While running license and background checks of the defendant, the officer called for a canine unit and a backup officer. When he returned to the defendant’s vehicle, the odor of marijuana was stronger. The defendant denied having drugs in the car and gave no indications of impairment during field sobriety testing. While the officer was writing a warning ticket, a canine unit arrived. The dog alerted on the car, and the defendant ultimately admitted that a gun was inside. A search revealed the gun, cash, digital scales, cocaine, and synthetic opioids. The defendant moved to suppress. He also sought to admit evidence of a relationship between the backup officer on scene and a woman whose house the defendant had been at immediately before the stop and challenged the reliability of the canine sniff. The trial court denied the motion to suppress, allowed a limited offer of proof regarding the relationship between the woman and the officer (but excluded the evidence as irrelevant), and found the canine was reliable. The defendant pled guilty to trafficking opium and appealed.

(1) The stop of the defendant’s car was supported by reasonable suspicion based on the officer’s observation of speeding (which was confirmed by radar), as well as the suspected window tint violation. The officer developed additional reasonable suspicion of a drug offense based on the odor of marijuana emanating from the defendant’s car. The canine unit arrived on scene 12 minutes into the traffic stop and conducted its sniff of the defendant’s car within one minute while the stopping officer was writing a warning ticket. The officer therefore acted within the mission of the stop throughout the encounter and the stop was not improperly extended. The search of the defendant’s car was also supported by probable cause based on the odor of marijuana and the positive canine alert.

(2) The defendant complained that his offer of proof regarding the relationship between one officer on the scene and a woman whose house the defendant had traveled from prior to the stop was improperly limited. The Court of Appeals noted that “a trial court may limit an offer of proof by allowing counsel to articulate what a defendant’s showing would have been by identifying witnesses and presenting a detailed forecast of evidence for the record.” Walton Slip op. at 11. Here, the fact of the relationship was established before the trial court and that was a sufficient offer of proof on the issue. The court also found that because this officer was not the stopping officer and had limited involvement in the case, the trial court did not commit prejudicial error in limiting or excluding this evidence.

(3) The defendant also argued that the trial court incorrectly found the canine was properly trained and reliable. Under Florida v. Harris, 568 U.S. 237 (2013), a certified or well-trained canine’s alert can supply probable cause to search under the totality of circumstances. A defendant is permitted to demonstrate that the animal was not properly trained or reliable in arguing against probable cause based on the alert. The defendant pointed to the fact that one of the dog’s certifications was expired at the time of the sniff. The court rejected this a determinative factor, finding the dog had been repeatedly certified by two different organizations and had at least one unexpired certification at the time. This was sufficient evidence of the dog’s reliability, absent any showing by the defendant that its training or performance was deficient. The fact that the officer handling the canine had gaps in his training inconsistent with departmental policies was similarly not determinative. While the officer’s training is a relevant consideration in the analysis, this alone was insufficient to overcome the showing that the dog was properly trained and reliable.

The case was therefore affirmed in all respects.

The trial court did not err by denying the defendant’s motion to suppress, which argued that officers improperly extended a traffic stop. Officers initiated a traffic stop of the vehicle for a passenger seatbelt violation. The defendant was in the passenger seat. That seat was leaned very far back while the defendant was leaning forward with his head near his knees in an awkward position. The defendant’s hands were around his waist, not visible to the officer. The officer believed that based on the defendant’s position he was possibly hiding a gun. When the officer introduced himself, the defendant glanced up, looked around the front area of the vehicle, but did not change position. The officer testified that the defendant’s behavior was not typical. The defendant was unable to produce an identity document, but stated that he was not going to lie about his identity. The officer testified that this statement was a sign of deception. The officer asked the defendant to exit the vehicle. When the defendant exited, he turned and pressed against the vehicle while keeping both hands around his waist. The defendant denied having any weapons and consented to a search of his person. Subsequently a large wad of paper towels fell from the defendant’s pants. More than 56 grams of cocaine was in the paper towels and additional contraband was found inside the vehicle. The defendant was charged with drug offenses. He unsuccessfully moved to suppress. On appeal he argued that the officer lacked reasonable suspicion to extend the traffic stop. The court disagreed, holding that the officer’s conduct did not prolong the stop beyond the time reasonably required to complete its mission. When the defendant was unable to provide identification, the officer “attempted to more efficiently conduct the requisite database checks” and complete the mission of the stop by asking the defendant to exit the vehicle. Because the officer’s conduct did not extend the traffic stop, no additional showing of reasonable suspicion was required.

In this DWI case, the trial court properly denied the defendant’s motion to suppress evidence discovered after a roadside breath test. Specifically, the defendant asserted that the results of roadside sobriety tests and intoxilyzer test should be suppressed as fruit of the poisonous tree of an illegal search and seizure caused by an unlawfully compelled roadside breath test. The court disagreed. An officer observed the defendant exit a bar after midnight and swerve several times within his driving lane; after the initial traffic stop—the legality of which the defendant did not challenge—the officer smelled a strong odor of alcohol, the defendant presented his debit card when asked for his driver’s license, and the defendant initially denied but later admitted drinking alcohol. These facts were sufficient to establish reasonable suspicion to justify prolonging the initial stop to investigate the defendant’s potential impairment, including administering the roadside sobriety tests. These findings, in conjunction with findings regarding the defendant’s performance on the roadside sobriety tests supported a conclusion that the officer had probable cause to arrest the defendant for DWI, justifying the later intoxilyzer test. Therefore, the trial court properly refused to suppress the results of the roadside sobriety tests and the intoxilyzer test.

(1) In this drug trafficking case, the court held that the fact that the defendant’s truck crossed over a double yellow line justified the stop. The officer saw the defendant’s vehicle cross the center line of the road by about 1 inch. The court stated:

[T]here is a “bright line” rule in some traffic stop cases. Here, the bright line is a double yellow line down the center of the road. Where a vehicle actually crosses over the double yellow lines in the center of a road, even once, and even without endangering any other drivers, the driver has committed a traffic violation of N.C. Gen. Stat. § 20-146 (2017). This is a “readily observable” traffic violation and the officer may stop the driver without violating his constitutional rights.

(2) After a proper traffic stop, the officer had reasonable suspicion to extend the stop for six or seven minutes for a dog sniff. The officer was patrolling the road based on complaints about drug activity and had been advised by the SBI to be on the lookout for the defendant based upon reports that he was bringing large quantities of methamphetamine to a supplier who lived off of the road. After the officer stopped the defendant’s vehicle, he identified the defendant as the person noted in the lookout warning. The defendant was confused, spoke so quickly that he was hard to understand, and began to stutter and mumble. The defendant did not make eye contact with the officer and his nervousness was “much more extreme” than a typical stopped driver. His eyes were bloodshot and glassy and the skin under his eyes was ashy. Based on his training and experience, the officer believed the defendant’s behavior and appearance were consistent with methamphetamine use. The defendant told the officer he was going to “Rabbit’s” house. The officer knew that “Rabbit” was involved with methamphetamine and that he lived nearby. When the defendant exited his car, he put his hand on the car for stability. These facts alone would have given the officer reasonable suspicion. But additionally, a woman the officer knew had given drug information to law enforcement in the past approached and told the officer she had talked to Rabbit and the defendant had “dope in the vehicle.” These facts were more than sufficient to give the officer a reasonable suspicion that the defendant had drugs in his vehicle and justify extension of the stop for a dog sniff.

An officer had reasonable suspicion to prolong the traffic stop. A six-year officer who had received training in identification of drugs and had participated in 100 drug arrests pulled into the parking lot of a Motel 6, a high crime area. When he entered the lot, he saw two men sitting in a car. After the officer passed, the vehicle exited the lot at high speed. The officer stopped the car after observing a traffic violation. The vehicle displayed a temporary license tag. When the officer approached for the driver’s information, the driver was “more nervous than usual.” The officer asked why the two were at the motel, and the driver stated that they did not enter a room there. The passenger—the defendant—did not have any identifying documents but gave the officer his name. The officer went to his patrol car to enter the information in his computer and called for backup, as required by department regulations when more than one person is in a stopped vehicle. While waiting for backup to arrive, he entered the vehicle’s VIN number in a 50-state database, not having a state registration to enter. He determined that the vehicle was not stolen. Although neither the driver nor the passenger had outstanding warrants, both had multiple prior drug arrests. Shortly after, and 12 minutes after the stop began, the backup officer arrived. The two discussed the stop; the stopping officer told the backup officer that he was going to issue the driver a warning for unsafe movement but asked the backup officer to approach the defendant. The two approached the vehicle some 14 minutes after the stop was initiated. The stopping officer asked the driver to step to the rear the vehicle so that they could see the intersection where the traffic violation occurred while the officer explained his warning. The officer gave the driver a warning, returned his documents and asked to search the vehicle. The driver declined. While the stopping officer was speaking with the driver, the backup officer approached the defendant and saw a syringe in the driver’s seat. He asked the defendant to step out of the car and the defendant complied, at which point the officer saw a second syringe in the passenger seat. Four minutes into these conversations, the backup officer informed the stopping officer of the syringe caps. The stopping officer asked the driver if he was a diabetic and the driver said that he was not. The stopping officer then searched the vehicle, finding the contraband at issue. On appeal, the court held that the stop was not improperly extended. It noted that the stopping officer was engaged in “conduct within the scope of his mission” until the backup officer arrived after 12 minutes. Database searches of driver’s licenses, warrants, vehicle registrations, and proof of insurance all fall within the mission of a traffic stop. Additionally the officer’s research into the men’s criminal histories was permitted as a precaution related to the traffic stop, as was the stopping officer’s request for backup. Because officer safety stems from the mission of the traffic stop itself, time devoted to officer safety is time that is reasonably required to complete the mission of the stop. Even if a call for backup was not an appropriate safety precaution, here the backup call did not actually extend the stop because the stopping officer was still doing the required searches when the backup officer arrived. By the time the backup officer arrived, the stopping officer had developed a reasonable suspicion of criminal activity sufficient to extend the stop. The stopping officer was a trained officer who participated 100 drug arrests; he saw the driver and passenger in a high crime area; after he drove by them they took off at a high speed and made an illegal turn; the driver informed the officer that the two were at the motel but did not go into a motel room; the driver was unusually nervous; and both men had multiple prior drug arrests. These facts provided reasonable suspicion to extend the stop. Even if these facts were insufficient, other facts support a conclusion that reasonable suspicion existed, including the men’s surprise at seeing the officer in the motel lot; the titling of the vehicle to someone other than the driver or passenger; the driver’s statement that he met a friend at the motel but did not know the friend’s name; and the fact that the officer recognized the defendant as someone who had been involved in illegal drug activity. Finally, drawing on some of the same facts, the court rejected the defendant’s argument that any reasonable suspicion supporting extension of the stop was not particularized to him. The court also noted that an officer may stop and detain a vehicle and its occupants if an officer has reasonable suspicion that criminal activity is afoot.

Because the trial court’s findings of fact do not support its conclusion that the defendant was legally seized at the time consented to a search of his person, the court reversed the trial court’s order denying the defendant’s motion to suppress contraband found on his person. Officers were conducting surveillance on a known drug house. They noticed the defendant leave the residence in a truck and return 20 minutes later. He parked his truck in the driveway and walked toward a woman in the driveway of a nearby residence. The two began yelling at each other. Thinking the confrontation was going to escalate, the officers got out of their vehicle and separated the two. One officer asked the defendant for his identification. The officer checked the defendant’s record, verifying that the defendant had no pending charges. Without returning the defendant’s identification, the officer then asked the defendant if he had any narcotics on him and the defendant replied that he did not. At the officer’s request, the defendant consented to a search of his person and vehicle. Drugs were found in his pants pocket. On appeal, the defendant argued that when the officer failed to return his identification after finding no outstanding warrants and after the initial reason for the detention was satisfied, the seizure became unlawful and the defendant’s consent was not voluntary. The court agreed. It noted that the officer failed to return the defendant’s identification before pursuing an inquiry into possession of drugs. It found that the trial court’s order failed to provide findings of fact which would give rise to a reasonable suspicion that the defendant was otherwise subject to detention. Absent a reasonable suspicion to justify further delay, retaining the defendant’s driver’s license beyond the point of satisfying the initial purpose of the detention—the escalating the conflict, checking the defendant’s identification, and verifying that he had no outstanding warrants—was unreasonable. Thus, the defendant’s consent to search his person, given during the period of unreasonable detention, was not voluntary.

(1) In this post-Rodriguez case, the court held that because no reasonable suspicion existed to prolong the defendant’s detention once the purpose of a traffic stop had concluded, the trial court erred by denying the defendant’s motion to suppress evidence obtained as a result of a consent search of her vehicle during the unlawful detention. The court found that the evidence showed only two circumstances that could possibly provide reasonable suspicion for extending the duration of the stop: the defendant was engaging in nervous behavior and she had associated with a known drug dealer. It found the circumstances insufficient to provide the necessary reasonable suspicion. Here, the officer had a legitimate basis for the initial traffic stop: addressing the defendant’s failure to dim her high beam lights. Addressing this infraction was the original mission of the traffic stop. Once the officer provided the defendant with a warning on the use of high beams, the original mission of the stop was concluded. Although some of his subsequent follow-up questions about the address on her license were supported by reasonable suspicion (regarding whether she was in violation of state law requiring a change of address on a drivers license), this “new mission for the stop” concluded when the officer decided not to issue her a ticket in connection with her license. At this point, additional reasonable suspicion was required to prolong the detention. The court agreed with the defendant that her nervousness and association with a drug dealer did not support a finding of reasonable suspicion to prolong the stop. Among other things, the court noted that nervousness, although a relevant factor, is insufficient by itself to establish reasonable suspicion. It also concluded that “a person’s mere association with or proximity to a suspected criminal does not support a conclusion of particularized reasonable suspicion that the person is involved in criminal activity without more competent evidence.” These two circumstances, the court held, “simply give rise to a hunch rather than reasonable, particularized suspicion.” (2) The defendant’s consent to search the vehicle was not obtained during a consensual encounter where the officer had not returned the defendant’s drivers license at the time she gave her consent.

The trial court erred by denying the defendant’s motion to suppress where the defendant was subjected to a seizure in violation of the Fourth Amendment. Specifically, the officer continued to detain the defendant after completing the original purpose of the stop without having reasonable, articulable suspicion of criminal activity. The officer initiated a traffic stop because of a headlights infraction and a potential noise violation. The defendant turned his headlights on before he stopped and apologized to the officer for not having his headlights on. The officer asked the defendant for his license and registration and said that if everything checked out, the defendant would soon be cleared to go. The defendant did not smell of alcohol, did not have glassy eyes, was not sweating or fidgeting, and made no contradictory statements. A check revealed that the defendant's license and registration were valid. However a criminal history check revealed that the defendant had a history of drug charges and felonies. When the officer re-approached the car, he told the defendant to keep his music down because of a noise ordinance. At this point the officer smelled a strong odor that he believed was a fragrance to cover up the smell of drugs. The officer asked the defendant about the odor, and the defendant showed him a small, clear glass bottle, stating that it was a body oil. Still holding the defendant’s license and registration, the officer asked for consent to search. The defendant declined consent but after the officer said he would call for a drug dog, the defendant agreed to the search. Contraband was found and the defendant moved to suppress. The court began by following State v. Myles, 188 N.C. App. 42, aff'd per curiam, 362 N.C. 344 (2008), and concluding that the purpose of the initial stop was concluded by the time the officer asked for consent to search. The court held that once the officer returned to the vehicle and told the defendant to keep his music down, the officer had completely addressed the original purpose for the stop. It continued:

Defendant had turned on his headlights, he had been warned about his music, his license and registration were valid, and he had no outstanding warrants. Consequently, [the officer] 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.

Next, the court held that the officer had no reasonable and articulable suspicion of criminal activity in order to extend the stop beyond its original scope: “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.” Finally, the court rejected the argument that the detention of the defendant after the original purpose had ended was proper because it equated to a “de minimis” extension for a drug dog sniff. The court declined to extend the de minimis analysis to situations where—as here—no drug dog was at the scene prior to the completion of the purpose of the stop.

The trial court erred by granting the defendant’s motion to suppress on grounds that officers impermissibly prolonged a lawful vehicle stop. Officers McKaughan and Jones stopped the defendant’s vehicle after it twice weaved out of its lane. The officers had a drug dog with them. McKaughan immediately determined that the defendant was not impaired. Although the defendant’s hand was shaking, he did not show extreme nervousness. McKaughan told the defendant he would not get a citation but asked him to come to the police vehicle. While “casual conversation” ensued in the police car, Jones stood outside the defendant’s vehicle. The defendant was polite, cooperative, and responsive. Upon entering the defendant’s identifying information into his computer, McKaughan found an “alert” indicating that the defendant was a “drug dealer” and “known felon.” He returned the defendant’s driver’s license and issued a warning ticket. While still in the police car, McKaughan asked the defendant if he had any drugs or weapons in his car. The defendant said no. After the defendant refused to give consent for a dog sniff of the vehicle, McKaughan had the dog do a sniff. The dog alerted to narcotics in the vehicle and a search revealed a bag of cocaine. The period between when the warning ticket was issued and the dog sniff occurred was four minutes and thirty-seven seconds. Surveying two lines of cases from the court which “appear to reach contradictory conclusions” on the question of whether a de minimis delay is unconstitutional, the court reconciled the cases and held that any prolonged detention of the defendant for the purpose of the drug dog sniff was de minimis and did not violate his rights. [Author’s note: State v. Warren, ___ N.C. App. ___, 775 S.E.2d 362 (2015), indicates that this case was overruled by Rodriguez].

Reasonable suspicion supported the length of the stop. The officer’s initial questions regarding the defendant’s license, route of travel, and occupation were within the scope of the traffic stop. Any further detention was appropriate in light of the following facts: the defendant did not have a valid driver’s license; although the defendant said he had just gotten off work at a construction job, he was well kept with clean hands and clothing; the defendant “became visibly nervous by breathing rapidly[;] . . . his heart appeared to be beating rapidly[,] he exchanged glances with his passenger and both individuals looked at an open plastic bag in the back seat of the vehicle”; an officer observed dryer sheets protruding from an open bag containing a box of clear plastic wrap, which, due to his training and experience, the officer knew were used to package and conceal drugs; and the defendant told the officer that the car he was driving belonged to a friend but that he wasn’t sure of the friend’s name.

There were no grounds providing reasonable and articulable suspicion for extending a vehicle stop once the original purpose of the stop (suspicion that the driver was operating the vehicle without a license) had been addressed. After the officer verified that the driver had a valid license, she extended the stop by asking whether there was anything illegal in the vehicle, and the defendant gave consent to search the vehicle. The encounter did not become consensual after the officer verified that the driver was licensed. Although such an encounter could have become consensual if the officer had returned the driver’s license and registration, here there was no evidence that the driver’s documentation was returned. Because the extended detention was unconstitutional, the driver’s consent was ineffective to justify the search of the vehicle and the weapon and drugs found were fruits of the poisonous tree.