State v. Jordan, ___ N.C. App. ___, 2022-NCCOA-214 (Apr. 5, 2022)

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.