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Scope of Traffic Stop in North Carolina

Yesterday, the North Carolina Court of Appeals decided the case State v. Cottrell and held that an officer is strictly limited to the original purpose of a traffic stop and may not extend the stop, even briefly, without either the defendant’s consent or reasonable and articulable suspicion of criminal activity.

In Cottrell, the defendant was stopped at 11:37 p.m. for driving with his headlights off. Once the officer stopped the defendant, he asked for the defendant’s license and registration and “told defendant that if everything checked out, defendant would soon be cleared to go.” The defendant “did not smell of alcohol, he did not have glassy eyes, he was not sweating or fidgeting, and he made no contradictory statements.” When the officer ran the defendant’s license and registration, they were both valid. The officer also checked the defendant’s criminal history and found out that the defendant had various felonies and drug charges.

When the officer returned to the defendant’s car, he asked the defendant to turn down his music. He also “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,”  and which the officer suspected was “a fragrance released in a vehicle to cover the smell of drugs like marijuana.” The officer asked the defendant about the smell, and the defendant showed the officer “a small, clear glass bottle with some liquid in it and a roll-on dispenser,” which the defendant described as “an oil he put on his body.”

At this point, the officer was still holding the defendant’s license and registration and then asked to search the defendant’s car. The defendant first refused, but when the officer threatened to bring in a drug-detection dog, the defendant consented to a search of his car. The officer began searching the defendant’s car roughly four minutes after he first saw the defendant’s car driving down the street.

Upon searching the defendant’s car, the officer found drugs and a gun and placed the defendant under arrest. The defendant moved to suppress the evidence found during the search. The trial court denied this motion.

On appeal, the defendant argued that “while the traffic stop was valid, [the officer] 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” because the officer “had no reasonable, articulable suspicion of criminal activity sufficient to justify detaining defendant once the purpose of the traffic stop was completed.”

The Court of Appeals has held previously 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.

The first question the Court of Appeals addressed in Cottrell was “whether the initial purpose of the stop was completed prior to the time defendant gave consent to search.” The court relied on an earlier Court of Appeals case, State v. Myles (2008), in which a driver was stopped for weaving. The car that the driver was driving was rented by the defendant in that case, who was a passenger in the vehicle. The driver did not exhibit other signs of impairment and was cooperative. The officer issued the driver a warning ticket. After the officer issued the warning ticket, the officer began to question the defendant about his travel plans. The court held that once the officer determined that the driver was not impaired, the traffic stop was completed and the officer was required to have either the defendant’s consent or “reasonable and articulable suspicion in order to justify further delay” before questioning the defendant.

By contrast, two other Court of Appeals cases held that once an officer returns a driver’s license and registration, the seizure is complete “and the encounter becomes consensual” because “[a] reasonable person, under the circumstances, would have felt free to leave.” However, these cases do not allow an officer to “prolong a traffic stop, after the original purpose of the stop has been completed, simply by not returning the driver's documentation.”

In beginning its analysis of the facts of Cottrell, the court assumed that the officer’s purpose in stopping the defendant was “both the headlights infraction and the potential noise violation” of the loud music. The court held that once the officer told the defendant to turn down his music, he had completed the initial purpose of the stop since the “[d]efendant had turned on his headlights, he had been warned about his music, his license and registration were valid, and he had no outstanding warrants.” At that point, the officer was required to have either the defendant’s consent or “reasonable and articulable suspicion in order to justify further delay” before questioning the defendant.

The next question for the Court of Appeals was whether the officer “had a reasonable and articulable suspicion of criminal activity in order to extend the stop beyond its original scope.” The North Carolina Supreme Court has held that reasonable and articulable suspicion should “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.”

Looking at the facts, the court held that a strong odor which an 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.”

The court then looked at whether the defendant consented to the search of his car. The court determined that the detention never became consensual because

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.

Because the defendant continued to be seized throughout the encounter, the State argued that the detention after the original purpose was “a "de minimis" extension of a traffic stop for the purpose of conducting a drug dog sniff.” The U.S. Supreme Court has held 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." In Cottrell, the court refused to the apply the de minimus analysis to a case where “a drug dog was not already on the scene” before the completion of the initial purpose of the stop.

The court then addressed the State’s argument that even in the absence of reasonable and articulable suspicion to extend the stop, the “defendant's consent to a search was valid because it was obtained by [the officer] threatening to have a dog sniff defendant's car.” The State argued that the officer was permitted to obtain the defendant’s consent in this manner because “'[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.” However, the court noted that there is no evidence that the officer “had a legal right to conduct a dog sniff at the time that defendant gave his consent to a search” because he did not have a dog at his “immediate disposal” and he could not have completed the dog sniff in a de minimus amount of time. Therefore, the defendant’s consent was not valid.

If you have been charged with DWI, contact a lawyer at Rosensteel Fleishman, PLLC (704) 714-1450.

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