Opinion
No. COA14–816.
03-03-2015
STATE of North Carolina v. Glenwood Earl DOWNEY.
Attorney General Roy Cooper, by Special Deputy Attorney General David Efird, for the State. Michele Goldman, for Defendant.
Attorney General Roy Cooper, by Special Deputy Attorney General David Efird, for the State.
Michele Goldman, for Defendant.
McGEE, Chief Judge.
Johnston County Sheriff's Deputy Brian Clifton (“Deputy Clifton”) was traveling southbound on Highway 96 in Johnston County when he observed a black BMW (“the BMW”) approaching in the northbound lane. Deputy Clifton testified that he witnessed both tires on the driver's side of the BMW cross the yellow center line of Highway 96. Deputy Clifton turned around, activated his blue lights, and initiated a stop based upon the observed traffic violation. The fact that Deputy Clifton initiated a legal traffic stop is not in dispute. The stop occurred at approximately 2:37 p.m. on 26 July 2011.
When Deputy Clifton activated his blue lights, a video and audio recorder in his police cruiser (“the cruiser”) was automatically activated. This device simultaneously recorded the exterior immediately in front of the cruiser and the interior of the cruiser. Deputy Clifton exited the cruiser, approached the BMW on foot, and communicated with the driver and sole occupant of the BMW, Glenwood Earl Downey (“Defendant”). The video recording of the area in front of the cruiser captured Deputy Clifton approaching the BMW and interacting with Defendant, but Defendant was not visible on the video while he remained in the BMW. Deputy Clifton asked Defendant if the BMW belonged to Defendant, and Defendant told Deputy Clifton that the BMW belonged to his girlfriend. Deputy Clifton asked for Defendant's license and registration. Deputy Clifton testified that Defendant was breathing rapidly, did not make eye contact, and that Defendant's hands were shaking when he handed Deputy Clifton his license and the registration. While at the BMW, Deputy Clifton noticed that there was a Christmas tree-shaped “Black Ice” brand air freshener hanging from the rearview mirror of the BMW. Deputy Clifton also noticed a “Boost” brand pre-paid cell phone in the BMW.
Deputy Clifton asked Defendant to step out of the BMW and come sit in the cruiser, which Defendant did without incident. Defendant sat in the front passenger side of the cruiser next to Deputy Clifton as Deputy Clifton ran Defendant's documents through standard police checks and prepared a written warning citation for the violation of crossing the center line. The interior audio and video camera recorded the entire encounter, though Deputy Clifton was mostly outside the view of the camera. Deputy Clifton asked Defendant a number of questions concerning what Defendant was doing in the area, and made other general conversation. When Deputy Clifton ran Defendant's license, a response came back indicating that Defendant had some form of criminal history. Deputy Clifton testified at trial: “It doesn't say whether they're on probation or they've been in prison.” Deputy Clifton then asked Defendant if he had a criminal record, and Defendant responded that he did. Defendant indicated that he had some convictions for breaking and entering, and when Deputy Clifton asked Defendant if he had any drug convictions, Defendant indicated that he did have prior convictions for cocaine.
Although it is not possible to verify much of Deputy Clifton's testimony from the video, Deputy Clifton testified that, while Defendant was in the cruiser, he sometimes made eye contact but sometimes did not, and that at “[c]ertain points in the video, [Defendant] readjusted himself. When we got to talking about the drug convictions, he [Defendant] scratches.” Deputy Clifton also testified that at certain times while Defendant was in the cruiser, his breathing was elevated.
Deputy Clifton issued Defendant a warning citation at 2:45 p.m. on 26 July 2011. Deputy Clifton also returned Defendant's documents to him at this time. Right before handing Defendant his documents, Deputy Clifton asked Defendant about his job as a cook at Red Robin. Immediately after handing Defendant his documents, Deputy Clifton asked Defendant how long ago he was charged with his last cocaine conviction, and Defendant answered that he was charged in 2004. Deputy Clifton did not indicate to Defendant that he was free to leave, and continued questioning Defendant concerning his prior cocaine conviction. Deputy Clifton then asked Defendant if he had any cocaine in the BMW or on his person. Defendant stated that he did not. Defendant also responded that he was not carrying any large amounts of money. Deputy Clifton then asked Defendant if he could search the BMW. This request to search the BMW occurred at 2:48 p.m., approximately three minutes after Deputy Clifton had completed the stop, issued the warning citation, and returned Defendant's documents. Defendant said Deputy Clifton would have to ask his girlfriend since it was her car. Deputy Clifton then told Defendant about drug-sniffing dogs, and asked Defendant if it would be alright if a drug dog (“K–9”) was brought out to sniff around the BMW. Defendant answered: “That's up to you. I mean, it's not my car.” Deputy Clifton called for a K–9 at 2:49 p.m., and one arrived ten minutes later. The K–9 indicated to the potential presence of narcotics and the BMW was then manually searched. Recovered from the search of the BMW were 3.2 grams of crack cocaine, a digital scale, and small plastic bags. Defendant was arrested for possession of cocaine with the intent to sell or deliver, for maintaining a vehicle for the purpose of keeping or selling a controlled substance, and for possession of drug paraphernalia.
Defendant filed a motion to suppress on 21 September 2012, arguing that “after the initial stop, the detention and seizure of the Defendant was unreasonable under the circumstances and was without reasonable and articulable suspicion that criminal activity was afoot.” Defendant also argued that “after Deputy Clifton's initial interaction with Defendant and issuance of a warning ticket, the request to search and subsequent detention to allow for a search by a K–9 unit was unreasonable and without sufficient reasonable suspicion.” Defendant asked that all physical evidence recovered as a result of the search of the BMW be suppressed.
This matter was heard on 3 December 2012. The trial court entered its order denying Defendant's motion to suppress on 31 December 2012. Following the denial of his motion to suppress, Defendant entered a guilty plea to the charges of possession of cocaine with intent to sell or deliver, maintaining a vehicle for the purpose of selling narcotics, and having attained habitual felon status. Defendant reserved his right to appeal the denial of his motion to suppress. Defendant was sentenced to an active term of fifty to sixty-nine months. Defendant appeals.
Defendant argues that certain findings of fact were not supported by competent evidence, and that Defendant's constitutional rights were violated because he was illegally detained subsequent to the completion of the underlying traffic stop. Because we find the 31 December 2012 order insufficient for appellate review, we vacate and remand.
“The standard of review in evaluating the denial of a motion to suppress is whether competent evidence supports the trial court's findings of fact and whether the findings of fact support the conclusions of law.” State v. Biber, 365 N.C. 162, 167–68, 712 S.E.2d 874, 878 (2011) (citation omitted). Conclusions of law are reviewed de novo. Id.at 168, 712 S.E.2d at 878. Motions to suppress in superior court are governed by N.C. Gen.Stat. § 15A–977, which states in relevant part:
(d) If the motion is not determined summarily the judge must make the determination after a hearing and finding of facts. Testimony at the hearing must be under oath.
....
(f) The judge must set forth in the record his findings of facts and conclusions of law.
N.C. Gen.Stat. § 15A–977 (2013).
“The language of [N.C. Gen.Stat. § ] 15A–977 has been interpreted as mandatory to the trial court unless(1) the trial court provides its rationale from the bench, and(2) there are no material conflicts in the evidence at the suppression hearing.” State v. Williams,[195] N.C.App. 554, 555, 195 N.C.App. 554, 673 S.E.2d 394, 395 (2009) (emphasis added).
State v. O'Connor,––– N.C.App. ––––, ––––, 730 S.E.2d 248, 253 (2012) (citations omitted).
“ ‘[T]he general rule is that [the trial court] should make findings of fact to show the bases of [its] ruling. If there is a material conflict in the evidence ... [the trial court] must do so in order to resolve the conflict.’ ... ‘Findings and conclusions are required in order that there may be a meaningful appellate review of the decision’ on a motion to suppress.' “ “When 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. Remand is necessary because it is the trial court that ‘is entrusted with the duty to hear testimony, weigh and resolve any conflicts in the evidence, find the facts, and, then based upon those findings, render a legal decision, in the first instance, as to whether or not a constitutional violation of some kind has occurred.’ “
Id.at ––––, 730 S.E.2d at 252 (citations omitted).
In the present case, the trial court did not identify its rationale from the bench, and there were unresolved conflicting evidentiary issues. Although Deputy Clifton was the only witness to testify at the hearing, the video of the stop was entered into evidence. Defendant contended that the video did not show the nervousness and certain bodily reactions, such as elevated breathing, that the State alleged. Therefore, the trial court was required to include sufficient, and correct, findings of fact and conclusions of law in order for this Court to conduct meaningful appellate review. The trial court made the following relevant findings of fact:
6. Deputy Clifton detected the strong odor of “Black Ice” brand air freshener from the BMW. Based on his training and experience, Deputy Clifton knew that Black Ice air freshener often is used by individuals engaged in the illegal drug trade to mask the scent of illegal drugs.
7. Deputy Clifton observed that the BMW vehicle was registered to a third person, Shelley Ann Evans of Wendell. Defendant said that Evans was his girlfriend. Based on his training and experience, Deputy Clifton knew that individuals engaged in the illegal drug trade will operate vehicles registered to other people to make it harder for law enforcement officers to associate them with particular vehicles or addresses.
8. Deputy Clifton observed a “Boost” brand prepaid cell phone in plain view in the BMW. Based on his training and experience, Deputy Clifton knew that individuals engaged in the illegal drug trade often will use prepaid cell phones and frequently change such phones to make it difficult for law enforcement officers to track them through cellular telephone usage.
....
12. Deputy Clifton observed that [D]efendant was nervous, that his breathing was rapid, and his hands were shaking. Based on his training and experience, Deputy Clifton knew that such behavior sometimes is indicative of deception.
13. Using his patrol vehicle's computer, Deputy Clifton ran a computerized criminal history on [D]efendant. Deputy Clifton then asked [D]efendant about his criminal record, and [D]efendant stated that he had been arrested and imprisoned for possession of cocaine.
The trial court made the following relevant conclusions of law:
2. The use of the qualified drug dog to sniff [D]efendant's vehicle for the presence of illegal drugs while Deputy Clifton was detaining [D]efendant for the issuance of a warning traffic citation was constitutionally permissible. See Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005). Moreover, the length of time spent awaiting the drug dog's arrival and conducting the sniff with the dog was not unreasonable. See State v. Brimmer, 187 N.C.App. 451, 653 S.E.2d 196 (2007).
....
5. None of [D]efendant's federal or state constitutional rights were violated by the stop of his vehicle, his subsequent detention, the sniff of his vehicle by a dog trained in the detection of illegal drugs, the search of his vehicle, or his arrest.
Defendant objects to the portion of the trial court's conclusion of law two stating that Defendant was still being detained for the purpose of issuing a warning citation at the time the K–9 conducted the sniff search. We agree with Defendant.
It is clear from Defendant's motion to suppress and the arguments at the suppression hearing that Defendant was not contesting the legitimacy of the underlying stop. The contested issue was whether Defendant was being legally detained at the time the K–9 alerted to possible narcotics in the BMW. The trial court cited Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005), in support of its conclusion that “[t]he use of the qualified drug sniffing dog to sniff [D]efendant's vehicle for the presence of illegal drugs while Deputy Clifton was detaining [D]efendant for the issuance of a warning traffic citation was constitutionally permissible.” Caballesheld:
[T]he use of a well-trained narcotics-detection dog—one that “does not expose noncontraband items that otherwise would remain hidden from public view,” during a lawful traffic stop,generally does not implicate legitimate privacy interests. In this case, the dog sniff was performed on the exterior of respondent's car while he was lawfully seized for a traffic violation.Any intrusion on respondent's privacy expectations does not rise to the level of a constitutionally cognizable infringement.
Caballes, 543 U.S. at 409, 160 L.Ed.2d at 847 (emphasis added).
It is undisputed that the K–9 search was initiated approximately fourteen minutes after Deputy Clifton issued Defendant the warning citation and returned Defendant's documents. Once the citation and documents were handed to Defendant, the stop pursuant to the moving violation was complete and Deputy Clifton had no right to continue detaining Defendant absent a reasonable suspicion that criminal activity was afoot. State v. McClendon, 350 N.C. 630, 636, 517 S.E.2d 128, 132 (1999) (“As we have stated previously, Article I, Section 20 of our North Carolina Constitution, like the Fourth Amendment, protects against unreasonablesearches and seizures. 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.”) (citations omitted).
However, in this case, when Deputy Clifton returned Defendant's documents and handed over the warning citation, Deputy Clifton continued to question Defendant about his prior criminal record while Defendant was in Deputy Clifton's police cruiser. Deputy Clifton did not indicate to Defendant that he was free to leave. Approximately three to four minutes after Deputy Clifton returned Defendant's documents, he asked for consent to search the BMW, which Defendant denied. Deputy Clifton then asked if Defendant would allow him to use a dog to sniff the vehicle for drugs and Defendant responded: “That's up to you.” Assuming arguendothat Defendant's response to Deputy Clifton's request to bring in the K–9 constituted consent, it occurred more than three minutes after Deputy Clifton had issued the warning citation and returned Defendant's documents, and while Defendant was still being questioned and detained by Deputy Clifton in the police cruiser. Deputy Clifton did not have the right to continue detaining Defendant after the return of Defendant's documents unless he had already formed a reasonable articulable suspicion that criminal activity was afoot by the time Defendant's documents were returned.
Caballesinvolved the use of a drug-sniffing dog while the defendant in that case was still being properly detained for a legal traffic stop. Caballesdid not involve any detention of the defendant beyond the completion of the purpose of the stop; therefore, there was no analysis in Caballesconcerning reasonable suspicion. Caballes, 543 U.S. at 407, 160 L.Ed.2d at 846 (“The question on which we granted certiorari ... is narrow: ‘Whether the Fourth Amendment requires reasonable, articulable suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop.’ Thus, we proceed on the assumption that the officer conducting the dog sniff had no information about respondent except that he had been stopped for speeding; accordingly, we have omitted any reference to facts about respondent that might have triggered a modicum of suspicion.”).
It appears that the trial court erroneously based its ruling on the Caballesholding that use of a drug-sniffing dog during a legal traffic stop does not violate a defendant's constitutional rights. Though the trial court included some findings of fact that would be relevant to a reasonable suspicion analysis, there is not sufficient evidence in the order indicating that the trial court conducted any reasonable suspicion analysis. We do not find that the general statement from the trial court that “[n]one of [D]efendant's federal or state constitutional rights were violated by the stop of his vehicle, [or] his subsequent detention” alleviates this concern.
We do not make any holding concerning the legality of the continued detention of Defendant on these facts, as we believe that particular analysis should be determined by the finder of fact in the first instance, supported by findings of fact and conclusions of law clearly demonstrating what analysis was conducted and the basis for the ruling made.
[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. Remand is necessary because it is the trial court that “is entrusted with the duty to hear testimony, weigh and resolve any conflicts in the evidence, find the facts, and, then based upon those findings, render a legal decision, in the first instance, as to whether or not a constitutional violation of some kind has occurred.”
State v. Salinas, 366 N.C. 119, 124, 729 S.E.2d 63, 67 (2012) (citations omitted); see also State v. Miller,––– N.C. ––––, ––––, 766 S.E.2d 289, 296–97 (2014).
We therefore vacate the order entered 31 December 2012 and the judgment entered 7 March 2014, remand to the trial court for entry of a new order determining Defendant's motion to suppress, and for any additional appropriate action. The trial court may, in its discretion, conduct a new hearing and take additional evidence.
Vacated and remanded.
Judges CALABRIA and McCULLOUGH concur.
Report per Rule 30(e).
Opinion
Appeal by Defendant from order entered 31 December 2012 by Judge Thomas H. Lock and judgment entered 7 March 2014 by Judge Richard T. Brown in Superior Court, Johnston County. Heard in the Court of Appeals 20 January 2015.