State v. Walton, ___ N.C. App. ___, 2021-NCCOA-149 (Apr. 20, 2021)

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.