State v. Cottrell

NO. COA13-721

NORTH CAROLINA COURT OF APPEALS

Filed: 1 July 2014

STATE OF NORTH CAROLINA

v. Forsyth County

Nos. 12 CRS 6423

ANTHONY DUWANE COTTRELL, 12 CRS 6424

Defendant. 12 CRS 55278

Appeal by defendant from judgment entered 11 February 2013

by Judge Susan E. Bray in Forsyth County Superior Court. Heard

in the Court of Appeals 21 November 2013.

Attorney General Roy Cooper, by Associate Attorney General

Gayle Kemp and Assistant Attorney General Joseph L. Hyde,

for the State.

Appellate Defender Staples Hughes, by Assistant Appellate

Defender Katherine Jane Allen, for defendant-appellant.

GEER, Judge.

Defendant Anthony Duwane Cottrell pled guilty to possession

of a firearm by a felon, possession of a schedule II controlled

substance, and possession of up to one-half ounce of marijuana.

He also admitted being a habitual felon. On appeal, he contends

that the trial court erred in denying his motion to suppress.

He argues that he was unconstitutionally seized when the

investigating officer extended a traffic stop after addressing

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its original purpose without (1) a reasonable and articulable

suspicion of criminal activity or (2) defendant's consent to

being further detained. We agree with defendant and hold that,

under State v. Myles, 188 N.C. App. 42, 654 S.E.2d 752, aff'd

per curiam, 362 N.C. 344, 661 S.E.2d 732 (2008), because the

officer continued to detain defendant after completing the

original purpose of the stop without having reasonable,

articulable suspicion of criminal activity, defendant was

subjected to a seizure in violation of the Fourth Amendment.

Since defendant's consent to the search of his vehicle, given

during the unlawful seizure, was necessarily invalid, the trial

court should have granted defendant's motion to suppress.

Facts

At 11:37 p.m. on 28 May 2012, Officer Jordan Payne of the

Winston-Salem Police Department observed defendant driving a

Dodge Intrepid with the car's headlights off. Officer Payne

initiated a traffic stop, and defendant pulled into a nearby

parking lot. The dashboard video camera on Officer Payne's

patrol car recorded the subsequent stop.

Officer Payne approached defendant's car and asked

defendant, who was the car's sole occupant, for his license and

registration. The officer told defendant that if everything

checked out, defendant would soon be cleared to go. Defendant

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did not smell of alcohol, he did not have glassy eyes, he was

not sweating or fidgeting, and he made no contradictory

statements to Officer Payne.

Officer Payne then returned to his patrol car, ran

defendant's identification, and learned that defendant's license

and registration were valid. Officer Payne also checked

defendant's criminal history and learned that defendant had a

history of "drug charges and various felonies." Officer Payne

returned to defendant's car and asked defendant to keep his

music down since the officer had heard loud music coming from

either defendant's car or the car in front of defendant's car as

they drove down the street.

While Officer Payne spoke to defendant, he smelled an

extremely strong odor coming from defendant's car that the

officer described as "like a fragrance, cologne-ish," but "more

like an incense than what someone would wear." Officer Payne

believed the odor was a "cover scent" -- a fragrance released in

a vehicle to cover the smell of drugs like marijuana. Officer

Payne asked defendant about the odor, and defendant showed him a

small, clear glass bottle with some liquid in it and a roll-on

dispenser. Defendant stated it was an oil he put on his body.

Officer Payne told defendant that fragrances were typically used

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to mask the odor of marijuana, but defendant claimed he was not

trying to hide any odors.

Officer Payne, who still had possession of defendant's

license and registration, then asked for consent to search

defendant's car. When defendant refused to give consent,

Officer Payne said defendant was not being honest with him and

indicated he could call for a drug-detection dog to sniff

defendant's car. Defendant replied that he did not want the

officer to call for a dog and that he just wanted to go home.

When Officer Payne insisted he was going to call for the dog,

defendant then consented to a search of the car.

Officer Payne had defendant step out of the car and frisked

defendant for weapons, finding none. Officer Payne began

searching defendant's car at 11:41 p.m., roughly four minutes

after he first observed defendant's car driving down the street.

He looked first in the driver's side and then went around to the

passenger's side. He removed the key from the ignition and

unlocked the glove box with it. When the officer opened the

glove box, a handgun and a baggy containing a white powdery

substance, later determined to be cocaine, fell out. Officer

Payne then placed defendant under arrest. After defendant was

arrested, he admitted to Officer Payne that he had a small

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baggie of marijuana in his sock. The officer never returned

defendant's license and registration to defendant.

Defendant was indicted for possession of a firearm by a

felon, possession of a schedule II controlled substance,

possession of up to one-half ounce of marijuana, and being a

habitual felon. Defendant filed a motion to suppress on 30

January 2013 and an amended motion to suppress on or about 4

February 2013.

At a 5 February 2013 hearing on the motion to suppress, the

State presented the testimony of Officer Payne and the video and

audio recording of the stop taken by the patrol car's dashboard

camera. Defendant testified in support of his motion. After

the trial court denied the motion to suppress, defendant pled

guilty to the charges and admitted being a habitual felon. The

trial court consolidated the charges into a single judgment and

sentenced defendant to a mitigated-range term of 76 to 104

months imprisonment. After entry of the judgment, defendant

gave oral notice of appeal from the denial of his motion to

suppress and filed written notice of appeal.

I

We must initially address this Court's jurisdiction over

this appeal. "An order finally denying a motion to suppress

evidence may be reviewed upon an appeal from a judgment of

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conviction, including a judgment entered upon a plea of guilty."

N.C. Gen. Stat. § 15A-979(b) (2013). Our Supreme Court has held

that "when a defendant intends to appeal from the denial of a

suppression motion pursuant to this section, he must give notice

of his intention to the prosecutor and to the court before plea

negotiations are finalized; otherwise, he will waive the appeal

of right provisions of the statute." State v. Tew, 326 N.C.

732, 735, 392 S.E.2d 603, 605 (1990). Further, since "[a]

Notice of Appeal is distinct from giving notice of intent to

appeal" the denial of a motion to suppress, a defendant who has

properly preserved his right to appeal the denial of a

suppression motion must also properly appeal the subsequent

judgment pursuant to Rule 4 of the Rules of Appellate Procedure.

State v. McBride, 120 N.C. App. 623, 625, 463 S.E.2d 403, 405

(1995), aff'd per curiam, 344 N.C. 623, 476 S.E.2d 106 (1996).

In other words, in order to properly appeal the denial of a

motion to suppress after a guilty plea, a defendant must take

two steps: (1) he must, prior to finalization of the guilty

plea, provide the trial court and the prosecutor with notice of

his intent to appeal the motion to suppress order, and (2) he

must timely and properly appeal from the final judgment. In

this case, defendant concedes that he did not properly give the

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required notice of his intent to appeal the denial of his motion

to suppress.1

Defendant has, however, filed a petition for writ of

certiorari with this Court to which he has attached affidavits

from his trial counsel and the prosecutor, both of which

indicate that defense counsel gave the prosecutor verbal notice

that if the motion to suppress was denied, defendant would enter

a plea of guilty and appeal the denial of the motion to

suppress. In addition, during the plea colloquy, defense

counsel generally advised the trial court of defendant's intent

to appeal without referencing the motion to suppress.

The State has filed a motion to dismiss defendant's appeal,

asserting that there is no dispute that defendant waived his

right to appeal by failing to properly give notice of his intent

to appeal the denial of his suppression motion. Based on

defendant's concession, we grant that motion and dismiss

defendant's appeal. See McBride, 120 N.C. App. at 625, 626, 463

S.E.2d at 405 (dismissing appeal from denial of suppression

motion followed by guilty plea for failure to properly give

1

We note that the record does contain some notice of

defendant's intent to appeal prior to entry of the guilty plea,

but since defendant has not argued that the notice given was

adequate, we do not address that issue. See Viar v. N.C. Dep't

of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005) ("It

is not the role of the appellate courts . . . to create an

appeal for an appellant.").

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State and trial court notice of intent to appeal denial of

suppression motion). Nevertheless, because it is apparent that

the State was aware of defendant's intent to appeal the denial

of the motion to suppress prior to the entry of defendant's

guilty pleas and because defendant has lost his appeal through

no fault of his own, we exercise our discretion to grant the

petition for writ of certiorari and address the merits of

defendant's appeal. See State v. Atwell, 62 N.C. App. 643, 645,

303 S.E.2d 402, 404 (1983) (dismissing appeal but issuing writ

of certiorari to reach merits of defendant's appeal from denial

of suppression motion since, although record did not demonstrate

proper notice of intent to appeal, "[t]here [was] at least some

evidence that the district attorney's office and the Court had

notice of a possible appeal of the denial of the suppression

motion before the guilty plea").

II

Defendant's sole argument on appeal is that the trial court

erred in denying his motion to suppress. Defendant contends

that, while the traffic stop was valid, Officer Payne violated

the Fourth Amendment when he detained defendant further after

determining that defendant's license and registration were valid

and defendant had no outstanding warrants. Defendant argues

that Officer Payne had no reasonable, articulable suspicion of

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criminal activity sufficient to justify detaining defendant once

the purpose of the traffic stop was completed.

Our review of a trial court's denial of a motion to

suppress is "strictly limited to determining whether the trial

judge's underlying findings of fact are supported by competent

evidence, in which event they are conclusively binding on

appeal, and whether those factual findings in turn support the

judge's ultimate conclusions of law." State v. Cooke, 306 N.C.

132, 134, 291 S.E.2d 618, 619 (1982). "The trial court's

conclusions of law . . . are fully reviewable on appeal." State

v. Hughes, 353 N.C. 200, 208, 539 S.E.2d 625, 631 (2000).

Defendant does not challenge any of the trial court's

findings of fact and they are, therefore, binding on this Court.

See State v. Robinson, 187 N.C. App. 795, 797, 653 S.E.2d 889,

891 (2007) (explaining that unchallenged findings of fact are

"conclusive and binding on appeal"). Defendant, however,

challenges the following conclusions of law made by the trial

court:

3. Generally, an initial stop concludes

after the officer returns the

detainee's license and registration.

State v. Jackson, 199 N.C. App. 236[,

681 S.E.2d 492] (2009)[;] State v.

Kincaid, 147 N.C. App. 94[, 555 S.E.2d

294] (2001). In this case, because the

initial seizure had not concluded (no

return of Defendant Cottrell's

license), a [State v.] McClendon[, 350

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N.C. 630, 517 S.E.2d 128 (1999)]

analysis about developing reasonable,

articulable suspicion that criminal

activity is afoot is inapplicable. . .

.

. . . .

5. Officer Payne was going to call for a

dog to sniff Defendant Cottrell's car.

This was permissible, so long as dog

[sic] would get there in under five

minutes. However, Defendant then

consented to search.

6. Defendant's consent was not coerced.

Officer Payne was not threatening

something (a dog sniff) he didn't have

the right to do. The threat to do what

an officer has a legal right to do does

not constitute duress. It is not

duress to take any measure authorized

by law and the circumstances of the

case. . . .

This Court has held that, "'[g]enerally, the scope of the

detention must be carefully tailored to its underlying

justification. Once the original purpose of the stop has been

addressed, there must be grounds which provide a reasonable and

articulable suspicion in order to justify further delay.'"

Myles, 188 N.C. App. at 45, 654 S.E.2d at 754 (quoting State v.

Falana, 129 N.C. App. 813, 816, 501 S.E.2d 358, 360 (1998)). We

must, therefore, first address whether the initial purpose of

the stop was completed prior to the time defendant gave consent

to search.

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In Myles, the officer conducted a traffic stop for weaving,

indicating possible impaired driving. Id., 654 S.E.2d at 755.

The car stopped by the officer was rented by the defendant

passenger. Id. at 43, 654 S.E.2d at 753. During the stop, the

officer detected no odor of alcohol and described the driver and

the defendant as cooperative. Id. at 45, 654 S.E.2d at 755.

The officer did not find any weapons or contraband on the driver

when he frisked him, and the driver had a valid driver's

license. Id. The officer issued a warning ticket. Id. at 43,

654 S.E.2d at 753. The officer then proceeded to question the

defendant, separately from the driver, about his travel plans

and the rental car agreement. Id., 654 S.E.2d at 754.

On appeal, this Court in Myles observed that since there

was no evidence to indicate that either the driver or the

defendant was impaired, the officer "considered the traffic stop

'completed' because he had 'completed all [his] enforcement

action of the traffic stop.'" Id. at 45, 654 S.E.2d at 755.

The Court, therefore, held that "in order to justify [the

officer's] further detention of defendant, [the officer] must

have had defendant's consent or 'grounds which provide a

reasonable and articulable suspicion in order to justify further

delay' before he questioned defendant." Id. (quoting Falana,

129 N.C. App. at 816, 501 S.E.2d at 360).

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Here, the trial court has misapplied this Court's decisions

in Jackson and Kincaid. In each of those cases, this Court held

that once an officer returned the defendant's license and

registration, the seizure had ended because the defendant was

free to go, and any further communications between the officer

and the defendant were, as a result, consensual. See Jackson,

199 N.C. App. at 243, 681 S.E.2d at 497 ("Generally, an initial

traffic stop concludes and the encounter becomes consensual only

after an officer returns the detainee's driver's license and

registration."); Kincaid, 147 N.C. App. at 100, 555 S.E.2d at

299 ("A reasonable person, under the circumstances, would have

felt free to leave when [his license and registration] were

returned. Therefore, the first seizure concluded when [the

officer] returned the documents to defendant.").

While Jackson and Kincaid hold that return of a person's

license and registration may mean that the traffic stop has

concluded, nothing in Jackson and Kincaid suggests that the

officer may prolong a traffic stop, after the original purpose

of the stop has been completed, simply by not returning the

driver's documentation. Indeed, Jackson sets out the applicable

rule overlooked by the trial court: "Once the original purpose

of the stop has been addressed, in order to justify further

delay, there must be grounds which provide the detaining officer

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with additional reasonable and articulable suspicion or the

encounter must have become consensual." Jackson, 199 N.C. App.

at 241-42, 681 S.E.2d at 496.

The trial court erred, therefore, in basing its decision on

the premise that because the officer had not yet returned

defendant's license, the underlying purpose of the stop was not

yet complete, and the officer could continue to detain

defendant. See also State v. Jarrett, 203 N.C. App. 675, 676,

682-83, 692 S.E.2d 420, 422, 426 (2010) (holding initial purpose

for stop at checkpoint "was addressed when defendant produced a

valid North Carolina driver's license and registration" even

though that occurred "[b]efore [the officer] return[ed]

defendant's documentation").

Turning to the question of when Officer Payne completed the

purpose of the underlying stop in this case, the trial court

found that Officer Payne had observed defendant driving without

headlights and that the officer, during the stop, had told

defendant to keep his music down because "he had heard loud

music from either Defendant's car or the one in front of

Defendant as they drove down Trade Street, and that this would

violate a local noise ordinance." For the purposes of our

analysis, we assume that Officer Payne stopped defendant for

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both the headlights infraction and the potential noise

violation.

With respect to the two reasons given for the officer's

stop, the trial court found that defendant had turned his

headlights on before he actually stopped and that defendant told

the officer he realized his headlights had not been on and

apologized for having them off. The trial court found that upon

taking defendant's license and registration, Officer Payne told

defendant that "if everything checked out, he would be [sic]

soon be cleared to go." Officer Payne then determined that

defendant's license and registration were valid and defendant

had no outstanding warrants. When the officer returned to

defendant's car, the officer asked defendant to make sure to

keep his music down because of the noise ordinance. The officer

then smelled a strong fragrance, and all of the officer's

questions and statements after that point had to do with the

fragrance, whether defendant had drugs in the car, whether

defendant would consent to a search, and whether the officer was

going to call for a drug-sniffing dog.

Given the facts found by the trial court, we hold that once

Officer Payne told defendant to keep his music down, the officer

had completely addressed the original purpose for the stop.

Defendant had turned on his headlights, he had been warned about

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his music, his license and registration were valid, and he had

no outstanding warrants. Consequently, Officer Payne was then

required to have "defendant's consent or 'grounds which provide

a reasonable and articulable suspicion in order to justify

further delay' before" asking defendant additional questions.

Myles, 188 N.C. App. at 45, 654 S.E.2d at 755 (quoting Falana,

129 N.C. App. at 816, 501 S.E.2d at 360).

The trial court erred in concluding otherwise. See also

Jackson, 199 N.C. App. at 242, 681 S.E.2d at 496-97 (holding

stop was unlawfully extended beyond original purpose of

determining whether driver had valid driver's license when,

after officer had dispelled suspicion of invalid license, she

asked driver whether there was anything illegal in vehicle).

Turning next to whether Officer Payne had a reasonable and

articulable suspicion of criminal activity in order to extend

the stop beyond its original scope, our Supreme Court has

explained:

Reasonable suspicion is a less

demanding standard than probable cause and

requires a showing considerably less than

preponderance of the evidence. The standard

is satisfied by some minimal level of

objective justification. This Court

requires that [t]he stop . . . be based on

specific and articulable facts, as well as

the rational inferences from those facts, as

viewed through the eyes of a reasonable,

cautious officer, guided by his experience

and training. Moreover, [a] court must

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consider the totality of the circumstances -

- the whole picture in determining whether a

reasonable suspicion exists.

State v. Styles, 362 N.C. 412, 414, 665 S.E.2d 438, 439-40

(2008) (internal citations and quotation marks omitted). In

addition, "[t]he requisite degree of suspicion must be high

enough 'to assure that an individual's reasonable expectation of

privacy is not subject to arbitrary invasions solely at the

unfettered discretion of officers in the field.'" State v.

Fields, 195 N.C. App. 740, 744, 673 S.E.2d 765, 767 (2009)

(quoting State v. Murray, 192 N.C. App. 684, 687, 666 S.E.2d

205, 208 (2008)).

Here, the trial court found that as of the time Officer

Payne told defendant about the noise ordinance, the officer knew

that defendant's license and registration were valid, defendant

had no outstanding warrants, defendant had turned his headlights

back on prior to being stopped and had apologized, defendant had

no odor of alcohol or glassy eyes, defendant was not sweating or

fidgeting, and defendant did not make contradictory statements.

The court also found that Officer Payne knew defendant "had a

history of 'drug charges and various felonies'" and the officer,

upon speaking with defendant after checking defendant's

documents, "noticed an extremely strong odor coming from the

vehicle." The trial court found that the officer "described it

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as 'like a fragrance, cologne-ish, strong[,]'" and "more like an

incense than what someone would wear." Officer Payne also

"believed the odor was what is commonly referred to as a cover

scent -- a fragrance or air freshener typically sprayed or

released in a vehicle to mask or cover the smell of drugs like

marijuana."

Based on these findings, the trial court noted that, "[f]or

argument's sake," it "would find that Officer Payne did not have

reasonable, articulable suspicion that criminal activity was

afoot -- mere cologne odor and previous felony conviction aren't

enough." The court further noted there was "[n]o evidence of

extreme nervousness, failure to maintain eye contact, [or]

conflicting stories about registration[] [or] destination," and

there were "no invalid documents."

We agree with the trial court that a strong incense-like

fragrance, which the officer believes to be a "cover scent," and

a known felony and drug history are not, without more,

sufficient to support a finding of reasonable suspicion of

criminal activity. Instead, our case law tends to show that

some additional evidence of criminal activity is necessary for

an officer to develop a reasonable and articulable suspicion.

Compare Myles, 188 N.C. App. at 47, 50, 51, 654 S.E.2d at 756,

758 (holding no reasonable suspicion existed to extend traffic

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stop when rental car occupants' stories did not conflict, there

was no odor of alcohol, officer found no contraband or weapons

upon frisking driver, and driver's license was valid, despite

fact that driver's "heart was beating unusually fast" and rental

car was one day overdue), Jackson, 199 N.C. App. at 242-43, 681

S.E.2d at 497 (holding officer did not have reasonable suspicion

to extend traffic stop when "occupants of the vehicle had been

cooperative with the officers throughout the stop," officer

"confirmed 'there were no problems with any of these folks'"

while checking validity of driver's license, and "there were no

pending warrants for any of the vehicle's occupants"), State v.

Sinclair, 191 N.C. App. 485, 491, 663 S.E.2d 866, 871 (2008)

(holding no reasonable suspicion existed where only facts

tending to show criminal activity were that officers "'received

information about drug activity[,]'" "scene of the attempted

stop was a known drug activity area," and officer "had made

prior drug arrests in the area") with State v. Fisher, ___ N.C.

App. ___, ___, 725 S.E.2d 40, 45 (2012) (holding reasonable

suspicion present based on defendant's nervousness, "smell of

air freshener, inconsistency with regard to travel plans," and

"driving a car not registered to the defendant"), cert. denied,

___ U.S. ___, 187 L. Ed. 2d 279, 134 S. Ct. 420 (2013); State v.

Euceda-Valle, 182 N.C. App. 268, 274-75, 641 S.E.2d 858, 863

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(2007) (holding reasonable suspicion present based on

defendant's extreme nervousness, refusal to make eye contact,

smell of air freshener from vehicle, and conflict in defendant's

and passenger's stories about their trip), and State v.

Hernandez, 170 N.C. App. 299, 309, 612 S.E.2d 420, 426, 427

(2005) (holding reasonable suspicion present based on

defendant's acting "'very nervous,'" defendant giving

conflicting statements, and trooper's observation of several air

fresheners in vehicle giving off "'strong odor'").

Thus, the trial court correctly determined that Officer

Payne did not have reasonable, articulable suspicion to extend

the traffic stop after the original purposes for the stop had

been completely addressed. We note that although the State does

not expressly challenge the trial court's determination that

Officer Payne did not have reasonable suspicion to extend the

stop, the State does argue that, given the court's findings

about the fragrance and the loud music, the officer's

"observations . . . required investigation" and that "Officer

Payne would have been remiss in his duties had he not asked

questions to complete his investigation." To the extent that

the State contends that the officer could, under the

circumstances of this case, continue to question defendant in

the absence of reasonable suspicion or consent, the State's

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argument is foreclosed by Myles and the Supreme Court's decision

in State v. Williams, 366 N.C. 110, 116, 726 S.E.2d 161, 166

(2012) ("[T]o detain a driver beyond the scope of the traffic

stop, the officer must have the driver's consent or reasonable

articulable suspicion that illegal activity is afoot.").

Since Officer Payne did not have reasonable suspicion to

extend the stop, we next address whether defendant consented to

further detention after Officer Payne had fully addressed the

initial purpose of the stop. The trial court concluded that up

until the time defendant consented to the search, he remained

seized by Officer Payne. In support of its conclusion, the

trial court found that Officer Payne never returned defendant's

license. The court also found that defendant denied consent to

search, indicated he did not want the officer to call a drug

dog, and "told the officer he just wanted to go home." Further,

defendant "confirmed he didn't get his license back and never

felt free to leave." The State does not contend that defendant

was free to leave at any point.

"Generally, an initial traffic stop concludes and the

encounter becomes consensual only after an officer returns the

detainee's driver's license and registration." Jackson, 199

N.C. App. at 243, 681 S.E.2d at 497. Indeed, at times, even the

return of documentation is not sufficient to make further

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detention during a traffic stop consensual. See id.

("'Furthermore, the return of documentation would render a

subsequent encounter consensual only if a reasonable person

under the circumstances would believe he was free to leave or

disregard the officer's request for information.'" (quoting

Kincaid, 147 N.C. App. at 99, 555 S.E.2d at 299)).

Since defendant was not given his license back; defendant

was not told he could leave; defendant was continuously

questioned by the officer after the original purpose for the

stop had been addressed until defendant ultimately consented to

a search, despite defendant's statements that he wanted to go

home and that he did not want a drug dog called; and defendant

was told the officer was going to call a drug dog to sniff

defendant's car, the trial court correctly found that

defendant's detention never became consensual in this case. See

id. ("As a reasonable person under the circumstances would

certainly not believe he was free to leave without his driver's

license and registration, [the officer's] continued detention

and questioning of [the driver] after determining that [the

driver] had a valid driver's license was not a consensual

encounter.").

Recognizing that defendant remained seized throughout the

encounter and that Officer Payne did not have reasonable,

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articulable suspicion that defendant was engaged in criminal

activity, the trial court concluded, and the State argues on

appeal, that this case is controlled by this Court's precedent

allowing for a "de minimis" extension of a traffic stop for the

purpose of conducting a drug dog sniff even without reasonable

suspicion or consent. See State v. Brimmer, 187 N.C. App. 451,

455, 653 S.E.2d 196, 198 (2007) (adopting rule that if detention

is prolonged for very short period of time in order to complete

a dog sniff, intrusion is considered de minimis); State v.

Sellars, ___ N.C. App. ___, ___, 730 S.E.2d 208, 212 (2012)

(following Brimmer and applying de minimis rule), appeal

dismissed and disc. review denied, 366 N.C. 395, 736 S.E.2d 489,

cert. denied, ___ U.S. ___, 187 L. Ed. 2d 317, 134 S. Ct. 471

(2013). We disagree.

The United States Supreme Court held in Illinois v.

Caballes, 543 U.S. 405, 410, 160 L. Ed. 2d 842, 848, 125 S. Ct.

834, 838 (2005), that "[a] dog sniff conducted during a

concededly lawful traffic stop that reveals no information other

than the location of a substance that no individual has any

right to possess does not violate the Fourth Amendment." This

Court subsequently followed Caballes in State v. Branch, 177

N.C. App. 104, 108, 627 S.E.2d 506, 509 (2006) ("[B]ased on

Caballes, once [the defendant] was detained to verify her

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driving privileges, [the two deputies] needed no heightened

suspicion of criminal activity before walking [the drug dog]

around her car.").

In Brimmer, this Court adopted the United States Court of

Appeals for the Eighth Circuit's interpretation of Caballes in

United States v. Alexander, 448 F.3d 1014 (8th Cir. 2006), and

held that if a traffic stop is prolonged for only a very short

period of time in order to conduct a dog sniff, the intrusion is

considered "de minimis" such that "even if the traffic stop has

been effectively completed, the sniff is not considered to have

prolonged the detention beyond the time reasonably necessary for

the stop." 187 N.C. App. at 455, 653 S.E.2d at 198. Since the

dog sniff in Brimmer only extended the stop for slightly over

one and a half minutes, the Court held that the extension was de

minimis, and the officer needed no reasonable suspicion or

consent in order to prolong the stop for the dog sniff. Id. at

457, 458, 653 S.E.2d at 199, 200. This Court again applied the

de minimis rule in Sellars and held that the extension of a

traffic stop for four minutes and 37 seconds for the purpose of

a dog sniff was de minimis and did not violate the defendant's

Fourth Amendment rights. ___ N.C. App. at ___, 730 S.E.2d at

213.

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We do not believe that the de minimis analysis applied in

Brimmer and Sellars should be extended to situations when, as

here, a drug dog was not already on the scene. Brimmer was

based, in part, on Caballes' holding that a dog sniff conducted

during an otherwise lawful stop did not implicate the Fourth

Amendment, 543 U.S. at 410, 160 L. Ed. 2d at 848, 125 S. Ct. at

838, and the reasoning of that holding is inapplicable in the

absence of an actual dog sniff or the immediate availability of

a drug dog.

As this Court noted in Sellars, the Court's earlier

decision in Falana, 129 N.C. App. at 816, 501 S.E.2d at 360,

held that an officer could not conduct a dog sniff after the

original purpose of a traffic stop had been completed without

grounds providing reasonable and articulable suspicion. The

Sellars Court concluded, however, that "[t]he difference between

Falana and Brimmer is that Brimmer incorporated the analysis

contained in later United States Supreme Court and federal cases

that were not in existence at the time Falana was decided," with

the "[m]ost significant" being Caballes and "subsequent federal

District Court and Court of Appeals decisions interpreting

Caballes." ___ N.C. App. at ___, 730 S.E.2d at 211.

In Caballes, the Supreme Court was addressing a dog sniff

that occurred during the course of a lawful traffic stop. The

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Court, however, specifically noted a distinction between a dog

sniff occurring during a routine traffic stop and one occurring

during an "unreasonably prolonged traffic stop." 543 U.S. at

407, 160 L. Ed. 2d at 846, 125 S. Ct. at 837 (citing People v.

Cox, 202 Ill.2d 462, 782 N.E.2d 275 (2002)).

In addition, the federal decisions on which Brimmer relied

in adopting the de minimis exception limited that exception to

situations in which the officer "ha[d] at his immediate disposal

the canine resources to employ this uniquely limited

investigative procedure" of a drug sniff. United States v.

$404,905.00 in U.S. Currency, 182 F.3d 643, 649 (8th Cir. 1999)

(emphasis added). In that case, the canine was already on the

scene at the time of the stop. Id. at 645-46. Likewise, in

Alexander, 448 F.3d at 1015-16, the defendant was stopped by a

canine officer who had his drug-sniffing dog in his patrol car,

and the stop was prolonged by only four minutes to conduct a dog

sniff after the defendant was notified that he would receive a

warning ticket.

Consequently, Brimmer must be limited to the situation in

which a drug-sniffing dog is available at the scene of the

traffic stop prior to completion of the purpose of the stop.

Indeed, no North Carolina appellate court has held, as the trial

court ruled here, that the de minimis exception applies when a

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canine has not already been called to the scene prior to

completion of the lawful stop. In Brimmer, 187 N.C. App. at

453, 653 S.E.2d at 197, the canine had arrived prior to

completion of the lawful purpose of the stop, while in Sellers,

___ N.C. App. at ___, 730 S.E.2d at 209, the dog was present in

the back of the patrol car during the entire stop.

Moreover, in Williams, the Supreme Court specifically

considered the constitutionality of an officer's extending a

stop after its lawful purpose was completed by (1) asking

questions, (2) requesting consent to search the defendant's car,

(3) subsequently calling for a drug-sniffing canine, and (4)

having a drug sniff conducted. 366 N.C. at 112, 116-18, 726

S.E.2d at 164, 166-68. Although the officer's conduct only

extended the stop by 14 minutes, the Supreme Court did not

conduct a de minimis analysis, but rather held that the

extension, including the drug sniff, was only permissible if

supported by reasonable, articulable suspicion or consent. Id.

at 116, 726 S.E.2d at 166. In support of this holding, the

Court, id., 726 S.E.2d at 166-67 (emphasis added), cited Florida

v. Royer, 460 U.S. 491, 498, 75 L. Ed. 2d 229, 236, 103 S. Ct.

1319, 1324 (1983), as "declaring that, absent consent to a

voluntary conversation or to a search, a law enforcement officer

may not detain a person 'even momentarily without reasonable,

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objective grounds for doing so.'" Thus, when the dog was

summoned after completion of the purpose of the traffic stop,

the Supreme Court required a showing of reasonable, articulable

suspicion for the stop to be prolonged in order to conduct the

dog sniff.

Here, however, the State appears to be arguing that even in

the absence of reasonable, articulable suspicion, defendant's

consent to a search was valid because it was obtained by Officer

Payne threatening to have a dog sniff defendant's car -- an

action the State contends, based on the de minimis cases, that

Officer Payne was constitutionally allowed to do. As this Court

has acknowledged, "'[a]s a general rule, it is not duress to

threaten to do what one has a legal right to do. Nor is it

duress to threaten to take any measure authorized by law and the

circumstances of the case.'" State v. Paschal, 35 N.C. App.

239, 241, 241 S.E.2d 92, 94 (1978) (quoting 25 Am. Jur. 2d.,

Duress & Undue Influence, § 18, p. 375).

The State has not, however, shown that Officer Payne had a

legal right to conduct a dog sniff at the time that defendant

gave his consent to a search. "'[A]t the suppression hearing,'"

the State has the burden "'of demonstrating with particularity a

constitutionally sufficient justification of the officers'

search. . . .'" State v. Crews, 66 N.C. App. 671, 675, 311

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S.E.2d 895, 897 (1984) (second emphasis added) (quoting Cooke,

306 N.C. at 136, 291 S.E.2d at 620).

First, Officer Payne did not have a canine at his

"immediate disposal" since he had not yet called for a canine.

$404,905.00 in U.S. Currency, 182 F.3d at 649. While in Brimmer

and Sellars, the canine was already on the scene, Officer Payne

testified at the suppression hearing that "[a]s a general rule,

it typically takes no more than ten minutes, typically five,

sometimes less" for a canine unit to arrive at the scene after

it has been called. Since Brimmer approved extension of a stop

for only slightly over one and a half minutes, 187 N.C. App. at

457, 653 S.E.2d at 199, and Sellars approved only an extension

of four minutes and 37 seconds, ___ N.C. App. at ___, 730 S.E.2d

at 213, just the projected time for arrival of the canine, in

this case, was substantially in excess of the time periods

previously found to be de minimis by North Carolina courts.

Moreover, at the time defendant consented to a search,

approximately two minutes had already elapsed since the purpose

for the traffic stop had been achieved. Consequently, even if

Brimmer and Sellars could apply despite the failure to summon a

canine unit before the traffic stop was completed, the State's

evidence indicated that the stop would have to be extended by

between seven and 12 minutes in order for the canine to arrive.

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In other words, just waiting for the canine would have more than

doubled the length of the stop. In addition, the State

presented no evidence regarding how long it would take for the

canine to deploy and alert.

Thus, even assuming that the de minimis rule could apply in

the absence of immediate availability of a dog, the State did

not present evidence that Officer Payne obtained defendant's

consent to search by threatening to do something -- a dog sniff

-- that he had a legal right to do. Based on the State's

evidence, Officer Payne did not have the legal right to conduct

a dog sniff because he did not have a canine at his immediate

disposal and, in any event, the State did not establish that

Officer Payne could have completed the dog sniff in a de minimis

period of time. The State has cited no case suggesting that

consent may properly be obtained by a threat to perform an act

that might or might not be legal depending on how the threatened

event hypothetically could unfold.2 The State has, therefore,

failed to prove that defendant's consent was valid.

2

We also note that the State's argument requires that we

review the videotape of the encounter with a stopwatch in hand

calculating the minutes and seconds elapsing for each stage of

the stop and then adding to the time by which the stop was

actually extended estimates of the additional time that might

typically be necessary for a canine unit to arrive. Then, we

must determine how many additional minutes of detention are too

many. Is seven minutes waiting for a dog too much? Eight

minutes? Nine minutes? What is the basis for making that

-30-

The State nonetheless cites State v. Barden, 356 N.C. 316,

572 S.E.2d 108 (2002), State v. McMillan, 214 N.C. App. 320, 718

S.E.2d 640 (2011), and State v. Cummings, 188 N.C. App. 598, 656

S.E.2d 329 (2008), in support of its argument that defendant's

consent to search was valid in this case. However, in Barden,

McMillan, and Cummings, there was no indication that the

respective defendants were unconstitutionally seized when they

gave consent to searches or seizures of items. See Barden, 356

N.C. at 341, 572 S.E.2d at 125-26 (holding defendant's consent

to seizure of his shoes was valid when defendant voluntarily

drove to site of police interview and voluntarily gave

statements concerning crime); McMillan, 214 N.C. App. at 331,

718 S.E.2d at 648 (holding defendant's consent to seizure of

physical items was valid when defendant voluntarily went to

sheriff's department, was informed he was under "'investigative

detention,'" and was told he could either consent to seizure of

items or officers would detain him until they could prepare and

execute search warrant for items, since officers "reasonably

believed they had sufficient probable cause" to obtain search

warrant); Cummings, 188 N.C. App. at 603-04, 656 S.E.2d at 332-

decision? Constitutional rights should not hinge on such

arbitrary calculations and determinations. With Brimmer and

Sellars, since the dog was already there and the stop was

extended only by the time necessary for the dog to sniff the

vehicle and alert, such arbitrariness was not present.

-31-

33 (holding defendant's consent to search of his vehicle

voluntarily given when defendant agreed to go to law enforcement

headquarters for questioning and while at headquarters, signed

consent form for search of vehicle). Those cases are,

therefore, inapplicable here.3

In sum, after Officer Payne had addressed the original

purpose for the traffic stop, he continued to detain defendant

without either (1) defendant's valid consent or (2) reasonable,

articulable suspicion of criminal activity. Accordingly, the

officer's continued detention of defendant violated defendant's

Fourth Amendment right against unreasonable seizures and

defendant's subsequent consent to a search of his car was

involuntary as a matter of law. See Myles, 188 N.C. App. at 51,

654 S.E.2d at 758 ("Since [the officer's] continued detention of

defendant was unconstitutional, defendant's consent to the

search of his car was involuntary.").

Because defendant's consent to search his car was the

product of an unconstitutional seizure, the trial court erred in

denying defendant's motion to suppress. Accordingly, we reverse

3

Although the State also cites State v. Wrenn, 316 N.C. 141,

146, 147, 340 S.E.2d 443, 447, 448 (1986), the defendant in

Wrenn was lawfully arrested at the time his car was searched,

and the search was, therefore, a valid search incident to the

defendant's arrest.

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and remand to the trial court for entry of an order vacating

defendant's guilty pleas.

Reversed and remanded.

Judges STEPHENS and ERVIN concur.