Opinion
No. COA11–992.
2012-07-17
STATE of North Carolina v. Rickey KEARNEY, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Derrick C. Mertz, for the State. Merritt, Webb, Wilson & Caruso, PLLC, by Andrew L. Farris, for defendant-appellee.
Attorney General Roy Cooper, by Assistant Attorney General Derrick C. Mertz, for the State. Merritt, Webb, Wilson & Caruso, PLLC, by Andrew L. Farris, for defendant-appellee.
GEER, Judge.
Appeal by the State from order entered 22 March 2011 by Judge Orlando F. Hudson, Jr. in Durham County Superior Court. Heard in the Court of Appeals 8 February 2012.
The State appeals from the trial court's order granting defendant's motion to suppress evidence obtained subsequent to the concededly lawful stop of defendant for driving with a revoked license and for a revoked license tag. The trial court's order does not resolve all the material conflicts in the evidence. We must, therefore, vacate the order and remand for further findings of fact and conclusions of law regarding the issues whether (1) defendant's consent to search was voluntary, and (2) if the consent was not voluntary, whether the officer had reasonable suspicion to extend the traffic stop.
Facts
At the hearing on defendant's motion to suppress, the State presented the following evidence. Investigator Brandon Parrott of the Durham Police Department was part of a highway drug interdiction team and a canine officer. Investigator Parrott's patrol car had the back seat replaced by a dog kennel. At the beginning of each work day, Investigator Parrott would check under the front seat of his car to make sure that no one had left anything under his seat. On the morning of 8 September 2009, Investigator Parrott checked under the seat of his car as usual.
Investigator Parrott was driving northbound on I–85 when he noticed a green Dodge Ram pickup also travelling northbound. His attention was drawn to the truck because the license plate was obscured by a tinted license plate cover as well as a trailer hitch. Investigator Parrott ran the license tag and determined that the tag had been revoked by the Department of Motor Vehicles. He also learned that Mr. Kearney's driver's license had been revoked, that he had no insurance on the truck, and that he was on probation.
Investigator Parrott stopped defendant at 7:21 a.m., although defendant took longer than expected to pull over. Investigator Parrott walked to the passenger side of the truck and asked defendant for his driver's license and registration. Defendant made movements as though he were reaching for documents, but, according to Investigator Parrott, defendant “wasn't really opening anything or manipulating anything to look.” Eventually, defendant retrieved his wallet from the door pocket in the truck door and his registration from the center console in the truck's armrest.
We note that the trial court's order indicates that the events in question occurred in the p.m. However, the testimony and other evidence in the case indicate that the events occurred in the a.m. We reference the actual times of the events without regard to the trial court's typographical error.
When Investigator Parrott asked defendant where he was headed, defendant said he was going to see a relative at Wake Medical Center in Raleigh. Defendant's response struck Investigator Parrott as odd because defendant was actually driving away from Raleigh toward Creedmoor or Oxford, North Carolina. Investigator Parrott also observed that defendant had two cell phones and five air fresheners in the truck with him. According to Investigator Parrott, “the odor of air fresheners coming out of the vehicle ... was somewhat overwhelming.”
Investigator Parrott knew based on experience and training that people involved in drug activity often have several air fresheners or other means by which to hide the smell of the drugs. He also knew that it is common for those engaged in illegal activity to have one cell phone that they use as a personal phone and another that is a “burner,” which they will throw away if apprehended.
When Investigator Parrott asked defendant if he had ever been arrested, defendant claimed that he had not. Investigator Parrott knew that defendant was not being truthful because of the results of his earlier search of defendant's license tag. Investigator Parrott then asked defendant again if he had been arrested, and defendant admitted having been arrested for passing a bad check and for possession of cocaine.
Investigator Parrott returned to his car to compare the insurance paperwork that defendant had provided to him with the insurance company information shown on his computer because Investigator Parrott thought they were different. He also compared defendant's criminal record with his responses. Investigator Parrot then called for a backup officer.
Investigator Parrott asked defendant to step out of his car and requested permission to pat him down for weapons. That pat down did not uncover anything unusual. Investigator Parrott then asked defendant to sit in the front seat of his patrol car so that he could explain the reason his license tag and driver's license were being confiscated. Investigator Parrott gave defendant a receipt for his driver's license and license tag.
The officer asked defendant if he had any drugs on his person or in his truck. Defendant answered that he did not. At 7:38 a.m., Investigator Parrott asked defendant if he could “check.” Defendant answered, “Sure, go ahead.” This exchange was recorded on Investigator Parrott's in-car video. However, after Investigator Parrott obtained defendant's consent for a search, he then continued to gather information, including speaking on the radio at 7:41 a.m. about defendant's drug history.
At 7:43 a.m., Investigator Parrott had his dog, Nigel, circle around the car twice and then enter the car. The dog did not alert to the presence of narcotics, but did begin behaving as though he could smell the odor of narcotics but could not identify the location of the narcotics. Investigator Parrott put Nigel back in his patrol car and conducted a hand search of the truck. He discovered an empty gun holster behind the driver's seat as well as Viagra tablets wrapped in plastic baggie corners in the center console.
At 8:02 a.m., Investigator Parrott returned to his patrol car and asked defendant to kick off his shoes so that he could look inside the shoes and on the bottoms of defendant's feet to ensure there was no contraband there. Defendant complied. Investigator Parrott then told his backup officer that he could leave because Investigator Parrott had decided he would just write defendant a citation and let him go. Although driving with a revoked license is an offense for which defendant could have been arrested, Investigator Parrott chose not to arrest him.
Investigator Parrott told defendant he was not under arrest. He explained to defendant that defendant was receiving a citation for driving with license revoked. Investigator Parrott returned defendant's paperwork to him except for the driver's license. Investigator Parrott also seized defendant's license plate.
After the officer had finished speaking with defendant, defendant began to return to his truck. Investigator Parrott walked to the passenger side of his patrol car and looked under the passenger-side seat. He saw a plastic bag containing white powder that had not been there earlier in the day. Defendant was the only other person that had been in Investigator Parrott's car that day. A field test of the substance revealed that it contained cocaine. Investigator Parrott arrested defendant for possession of cocaine. After defendant was taken into custody, officers also found more than 4 ounces of heroin in his possession.
Defendant was indicted for two counts of possession of a Schedule II substance, trafficking in heroin by possession, trafficking in heroin by transportation, and possession of drug paraphernalia. Defendant made a pre-trial motion to suppress the evidence obtained as a result of the traffic stop. Following a hearing at which the State presented the testimony of Investigator Parrott as well as the video from his in-car video camera, the trial court granted defendant's motion to suppress. The State timely appealed to this Court.
Discussion
Our review of a trial court's 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).
The trial court made the following relevant conclusion of law:
Investigator Parrott's detention of Defendant during the extended search of the vehicle after 7:41 [a.m.] violated Defendant's rights under the Fourth Amendment of the United States Constitution and applicable sections of the North Carolina Constitution and the Laws of the State of North Carolina.
The trial court then concluded that the evidence seized during the unlawful detention and as a result of the arrest arising out of the detention was fruit of the unlawful detention and, therefore, should be suppressed.
The conclusion that the detention was unconstitutional is not, however, supported by the trial court's findings of fact. As the conclusion indicates, the trial court determined that the unlawfully extended detention began at 7:41 a.m. The court, however, found that at 7:38 a.m.—while defendant was still lawfully detained—defendant consented to a search of his truck and person: “At 7:38 [a.m.], Investigator Parrott obtained Defendant's permission to search Defendant's truck, as well as his person.” The trial court then found that “[i]mmediately after obtaining consent for the search, Investigator Parrott gathered information for a citation for Driving While License Revoked, but did not serve Defendant with any citation .”
The court then made its ultimate finding: “For the following 23 minutes, from 7:41 to 8:04 [a.m.,] Investigator Parrott did not address any issue related to the traffic matters that justified the traffic stop.” In short, based on the trial court's findings of fact, defendant consented to the search three minutes before any unlawful detention occurred.
It has long been the law that “[t]he Fourth Amendment protects citizens from unreasonable searches and seizures, but permits searches to which a suspect consents.” State v. Stone, 362 N.C. 50, 53, 653 S.E.2d 414, 417 (2007). “[B]y waiver and consent to search ‘free from coercion, duress or fraud, and not given merely to avoid resistance,’ a defendant relinquishes the protection of the Fourth Amendment, against an unlawful search and seizure.” Id. (quoting State v. Little, 270 N.C. 234, 239, 154 S.E.2d 61, 65 (1967)). Thus, because defendant consented to the search at 7:38 a.m ., he was not unlawfully detained during the search of the truck and his person.
Defendant, however, contends that his consent was not sufficiently voluntary to make the continued detention consensual, citing State v. Jackson, 199 N.C.App. 236, 681 S.E.2d 492 (2009). Although defendant also made this argument before the trial court, the order contains no finding of fact or conclusion of law specifically addressing that issue. Because the trial court found that the consent was given at a time when defendant was lawfully detained, the court was required to address defendant's contention.
Whether or not a defendant's consent was voluntary is a question of fact for the trial court, and we cannot decide the issue in the first instance on appeal. See State v. Kuegel, 195 N.C.App. 310, 315, 672 S.E.2d 97, 100 (2009) (“ ‘[T]he question whether a consent to a search [is] in fact “voluntary” or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.’ “ (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2047–48, 36 L.Ed.2d 854, 862–63 (1973))). We must, therefore, remand for further findings of fact and conclusions of law regarding the voluntariness of defendant's consent. State v. Salinas, ––– N.C. ––––, ––––, 729S.E.2d 63, ––––, 2012 WL 2213685, at *4, 2012 N.C. LEXIS 412, at *11 (June 14, 2012) (“[W]hen the trial court fails to make findings of fact sufficient to allow the reviewing court to apply the correct legal standard, it is necessary to remand the case to the trial court.”).
The State further argues that Investigator Parrott had reasonable suspicion to extend the stop, an alternative argument not addressed by the trial court. Generally, the scope of a detention, including its length, “ ‘must be carefully tailored to its underlying justification.’ “ State v. Morocco, 99 N.C.App. 421, 427–28, 393 S.E.2d 545, 549 (1990) (quoting Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229, 238 (1983)). “In order to further detain a person after lawfully stopping him, an officer must have reasonable suspicion, based on specific and articulable facts, that criminal activity is afoot.” State v. McClendon, 350 N.C. 630, 636, 517 S.E.2d 128, 132 (1999). “While something more than a mere hunch is required, the reasonable suspicion standard demands less than probable cause and considerably less than preponderance of the evidence.” State v. Williams, ––– N.C. ––––, ––––, 726 S.E.2d 161, 167 (2012).
Evidence was presented at the hearing on the motion to suppress from which the trial court could make a finding that Investigator Parrott had reasonable suspicion to continue the stop. First, after Investigator Parrott attempted to pull defendant over for the traffic stop, defendant took longer to stop than the officer expected. When Investigator Parrott approached the car, he noticed, as the trial court found, that defendant had multiple air fresheners and two cell phones. Investigator Parrott testified that people engaging in drug activity often use air fresheners, while dual cell phones are often used by those engaging generally in criminal activity. In addition, defendant's explanation for where he was going was inconsistent with the direction he was travelling.
A number of these circumstances have been found, when combined with other factors, sufficient to support a finding of reasonable suspicion. See United States v. Lender, 985 F.2d 151, 154 (4th Cir.1993) (“Evasive conduct, although stopping short of headlong flight, may inform an officer's appraisal of a streetcorner encounter.”); Williams, ––– N.C. at ––––, 726 S.E.2d at 167 (holding that illogical path of travel was factor, among others, supporting reasonable suspicion); State v. Euceda–Valle, 182 N.C.App. 268, 274–75, 641 S.E.2d 858, 863 (2007) (finding that smell of air freshener coming from vehicle was one factor that supported reasonable suspicion); State v. Hernandez, 170 N.C.App. 299, 309–10, 612 S.E.2d 420, 426–27 (2005) (holding reasonable suspicion existed when defendant was nervous when talking to officer, gave conflicting explanations for where he was going, and there was odor of Christmas tree air fresheners coming from vehicle).
Consequently, on remand, the trial court should also address through findings of fact and conclusions of law whether, considering the totality of circumstances, Investigator Parrott had reasonable suspicion to extend the lawful traffic stop. The order granting the motion to suppress is, therefore, vacated, and we remand for further findings of fact and conclusions of law in accordance with this opinion.
Vacated and remanded. Judges STEELMAN and ROBERT N. HUNTER, JR. concur.
Report per Rule 30(e).