Opinion
COA21-696
12-20-2022
STATE OF NORTH CAROLINA v. LEOPOLDO ANDRADE GOMEZ, Defendant
Attorney General Joshua H. Stein, by Assistant Attorney General John H. Schaeffer, for the State. Mark L. Hayes, for Defendant-Appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Heard in the Court of Appeals 10 August 2022.
Appeal by Defendant from a judgment entered 9 December 2019 by Judge C. Winston Gilchrist in Lee County Superior Court No. 16CRS51662.
Attorney General Joshua H. Stein, by Assistant Attorney General John H. Schaeffer, for the State.
Mark L. Hayes, for Defendant-Appellant.
WOOD, Judge.
¶ 1 Defendant Leopoldo Andrade Gomez ("Defendant") appeals from a judgment entered 9 December 2019, subsequent to his entry of a no-contest plea to the charge of trafficking in cocaine by possession. Defendant's plea specifically reserved his right to appeal the trial court's order denying his motion to suppress. Defendant contends that the trial court erred in denying his motion to suppress on the basis that all 1 evidence collected during his traffic stop was unlawful. Alternatively, Defendant argues that his alleged detention was extensive, unnecessary, and had nothing to do with the traffic stop, so that it violated Defendant's Fourth Amendment Rights. After careful review, we affirm the trial court's denial of Defendant's motion to suppress.
I. Factual and Procedural Background
¶ 2 On the evening of 11 July 2016, Defendant, a truck driver from Texas, drove his semi tractor-trailer through Chatham County, North Carolina. North Carolina State Highway Patrol Trooper Brent Daniels ("Trooper Daniels") was on patrol in Chatham County that evening. At approximately 11:00 p.m., Trooper Daniels received information from dispatch that "there was a semi tractor-trailer with Texas license plates in the area that was involved in some illegal activity." Alerted to this activity, Trooper Daniels was "on the lookout for a vehicle that fit [this] description" and shortly after, observed Defendant's tractor-trailer which matched the description Trooper Daniels had been given. Both Defendant and Trooper Daniels were traveling southbound on U.S. Route 1 in Chatham County toward Lee County, and Trooper Daniels began following Defendant.
¶ 3 While following the semi tractor-trailer, Trooper Daniels observed the vehicle weaving within its lane of travel, so that the trailer traveled to the right of the solid white fog line and then back to the left of the white broken centerline several different times. Trooper Daniels activated his blue lights and the video camera feature of his 2 vehicle. Defendant slowed, pulled over onto the right shoulder of the highway, and stopped. Once engaged, the in-vehicle camera automatically records two minutes prior to the activation of the blue lights.
According to Trooper Daniels' testimony at the motion to suppress hearing, there is a two-minute pre-record when the camera system is activated by turning on the blue lights so that it "then logs back two minutes prior to . . . manually hitting what's called a trigger to activate the camera system."
¶ 4 Trooper Daniels approached Defendant's vehicle and informed Defendant that he had been pulled over for weaving inside his lane and crossing the center and fog lines of his lane. Trooper Daniels requested to see Defendant's license, registration, and logbook and asked Defendant to exit his vehicle. Trooper Daniels then conducted a consensual frisk of Defendant for weapons; no weapons were located. Trooper Daniels told Defendant that he was going to give him a warning ticket due to his driving and to "just have a seat right here," gesturing toward Trooper Daniels' highway patrol car. Trooper Daniels sat with Defendant, who was seated in the passenger seat of his patrol car while he conducted a records check. In order to assist in maintaining site security, Trooper Clapp ("Trooper Clapp") arrived on scene and positioned himself at the passenger side door on the outside of the vehicle to "mak[e] sure that . . . [D]efendant was fine." While Trooper Daniels ran Defendant's license and registration, he asked Defendant a series of questions. These questions included "How long have you been a truck driver?"; "Did it hurt you in 2008 when the fuel went 3 up?"; "You got any family or anything?"; and "What do you like most about truck driving?" During this exchange, Trooper Daniels notes that he is having computer issues, so that he might have to call in the information. Approximately seven and a half minutes later, Trooper Daniels printed a warning ticket for Defendant, but did not give it to him.
¶ 5 Subsequently, Trooper Daniels checked Defendant's medical card and registration and reviewed Defendant's logbook to determine from where Defendant had traveled, the time at which he had crossed certain points, the time of his duty status changes, and whether Defendant had taken the required breaks. While reviewing the logbook, Trooper Daniels began to suspect that Defendant was involved in some type of criminal activity. While talking with Defendant, Trooper Daniels learned Defendant was an independent owner-operator of the truck but did not drive often. Defendant's logbook indicated he had been off-duty from 16 June to 6 July 2016. Additionally, it indicated Defendant had driven a few hours each of the preceding days but only 24 hours in the five-day 60-70-hour window available to him under the industry regulations for commercial motor vehicles. There also appeared to be an error in the logbook: Defendant reported he was in Graham, North Carolina at 2:30 p.m., drove for thirty minutes, then entered into the sleeper berth in an unknown location for close to five hours before resuming driving in Butner, North Carolina. When questioned about the details of his current service pickup, Trooper 4 Daniels observed Defendant had difficulty explaining where he was going and what he was doing. Defendant stated he delivered a load of bottled water from Dandridge, Tennessee to Food Lion distribution center in Butner, and was now on his way to Sanford, North Carolina for a pickup but could not remember the address.
¶ 6 After completing records checks for the license and registration and his examination of the logbook, Trooper Daniels returned those items to Defendant. Trooper Daniels then handed Defendant the warning ticket for unsafe movement. At this point, Defendant had been seated inside Trooper Daniels' patrol car for fourteen and a half minutes. Trooper Daniels asked Defendant if he had "any questions at all?" to which Defendant responded, "No." Trooper Daniels then asked Defendant if he would be willing to answer some more questions, to which Defendant agreed.
¶ 7 Trooper Daniels questioned Defendant about any prior arrests and whether there was any illegal contraband in Defendant's truck or trailer. Trooper Daniels observed Defendant's demeanor and behavior change and noticed that Defendant became increasingly nervous. Trooper Daniels then asked for Defendant's consent to search his tractor-trailer. Defendant agreed and was provided Defendant a written consent to search form written in Spanish, which he then read and signed. Defendant was not physically restrained in any way during this exchange.
¶ 8 After obtaining Defendant's consent, Trooper Daniels led K-9 Capers, a police dog certified in the detection of cocaine, alongside Defendant's tractor trailer. As they 5 reached the third axle of the tractor, Capers gave a head snap back to the left and sniffed the vicinity of the trailer near the third axle. Capers alerted Trooper Daniels to the presence of the odor of narcotics. Caper's alert occurred thirty-three minutes after Defendant's vehicle was first stopped and four minutes after Defendant had provided consent for the search. During this time, Defendant remained seated in the patrol car. Trooper Daniels then commenced a search of Defendant's tractor-trailer, eventually detaching the trailer, to search the part of the trailer situated right above the third axle where the tractor and trailer hitch. The search yielded thirty kilograms of cocaine in a hidden compartment on the trailer near the kingpin. Subsequently, Trooper Daniels arrested Defendant. Throughout Defendant and Trooper Daniels' exchange, Defendant repeatedly denied he had drugs in his tractor-trailer.
¶ 9 Defendant was indicted on 13 February 2017 for Trafficking in Cocaine in violation of N.C. Gen. Stat. § 90-95(h)(3). Defendant filed a motion to suppress on 12 June 2018. On 28 August 2018, Defendant's motion to suppress hearing was held before the Honorable Judge Charles Gilchrist in Lee County Criminal Superior Court, and on 4 March 2019, the trial court issued an order denying Defendant's motion to suppress. On 9 December 2019, Defendant entered a no-contest plea to the charge of trafficking in cocaine by possession, with his plea specifically reserving his right to appeal the ruling on his motion to suppress. Defendant was sentenced to a minimum of 175 months and a maximum of 222 months. Defendant gave oral notice of appeal 6 at the sentencing hearing, followed by written notice on 18 December 2019.
II. Appellate Review
¶ 10 In his plea of no contest to the charge, Defendant preserved his right to appeal the denial of his motion to suppress. An order "denying a motion to suppress evidence may be reviewed upon an appeal from a judgment of conviction, including a judgment entered upon a plea of guilty." N.C. Gen. Stat. § 15A-979(b) (2021); see State v. Griffin, 366 N.C. 473, 475, 749 S.E.2d 444, 445 (2013) (The North Carolina Supreme Court considered a defendant's appeal on the merits of the denial of his motion to suppress when he preserved that right to appeal in his plea of no contest).
III. Discussion
¶ 11 Defendant brings several arguments on appeal related to his traffic stop and detention that followed. We address each in turn.
A. Standard of Review.
¶ 12 The standard of review in evaluating the denial of a motion to suppress is whether the trial court's findings of fact are supported by competent evidence 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). The trial court's findings, if not challenged on appeal, are deemed to be supported by competent evidence and are therefore binding on appeal. Id. at 168, 712 S.E.2d at 878 (quoting State v. Baker, 312 N.C. 34, 37, 320 S.E.2d 670, 673 (1984)). Conclusions of law are reviewed de 7 novo. Id. Under a de novo review, the Court considers the matter anew and freely substitutes its own judgment for that of the trial court. State v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008) (citations omitted).
B. Validity of the Traffic Stop
¶ 13 First, Defendant contends that the evidence collected during the traffic stop cannot be used against him because the traffic stop itself was invalid. Defendant argues that he was pulled over without reasonable suspicion, so that all evidence collected during the alleged unlawful stop must be suppressed. Specifically, Defendant challenges the trial court's conclusion that "Daniels had a reasonable, articulable suspicion for stopping Defendant's vehicle based on the vehicle weaving across the center and fog lines." Defendant argues that Trooper Daniels' dash cam video clearly shows Defendant did not drive his vehicle unsafely or recklessly, and he did not commit a traffic violation. We disagree that the traffic stop was invalid.
¶ 14 "Both the Fourth Amendment to the Constitution of the United States and article 1, section 20 [sic] of the North Carolina Constitution protect private citizens against unreasonable searches and seizures." State v. Johnson, 378 N.C. 236, 2021-NCSC-85, ¶ 16 (citing State v. Otto, 366 N.C. 134, 136, 726 S.E.2d 824, 827 (2012)). "Traffic stops are considered seizures subject to the strictures of these provisions and are 'historically reviewed under the investigatory detention framework first articulated in Terry v. Ohio.'" Id. (quoting Otto, 366 N.C. at 136-37, 726 S.E.2d at 827). 8 "Law enforcement officers may initiate a traffic stop if the officer has a reasonable, articulable suspicion that criminal activity is afoot." Id. (cleaned up). That criminal activity may include violations of traffic laws. State v. Styles, 362 N.C. 412, 415, 665 S.E.2d 438, 440 (2008).
¶ 15 In order to meet the standard of reasonable, articulable suspicion, "an officer simply must 'reasonably . . . conclude in light of his experience that criminal activity may be afoot.'" State v. Bullock, 370 N.C. 256, 258, 805 S.E.2d 671, 674 (2017) (quoting Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889, 911 (1968)). "To determine whether reasonable suspicion exists, courts must look at the totality of the circumstances as viewed from the standpoint of an objectively reasonable police officer." Bullock, 370 N.C. at 258, 805 S.E.2d at 674 (cleaned up).
¶ 16 While Defendant argues that Trooper Daniels' dash cam video shows his tractor-trailer only touching the center and fog lines, so as not to constitute a violation, the video demonstrates several "crossing" incidents prior to and after Trooper Daniels' activating his blue lights. Specifically, we note Trooper Daniels was following Defendant for longer than the two minutes recorded by the dash camera prior to the activation of the blue lights and that Trooper Daniels testified about his observations during the entire time he followed Defendant's vehicle, including observations not captured on video. We further note that during the video at 1:10, 1:23, 1:39, and 2:03, the video shows Defendant's vehicle crossing the broken 9 centerline and at 1:20 and 1:47, the video shows the vehicle crossing the fog line. From the vantage point of Trooper Daniels' patrol car following directly behind Defendant, an objectively reasonable law enforcement officer could determine that the driver left the lane of traffic on multiple occasions.
¶ 17 Considering Trooper Daniels' experience, there was sufficient competent evidence to support the officer's reasonable suspicion and belief that criminal activity was afoot. As the trial court noted in its unchallenged finding of fact, "Daniels is a federal motor carrier examiner. He works with motor carrier records and has specialized experience in this field." The record and transcript tend to demonstrate Trooper Daniels' specialized experience and specific training in the rules and regulations pertaining to tractor-trailer drivers, including the number of hours they are permitted to drive and the breaks they must take. At the hearing, Trooper Daniels testified that initially, he was concerned about Defendant's physical state. The video footage documented Trooper Daniels asking Defendant if he was sleepy, diabetic, or had any alcohol which could explain the tractor-trailer's weaving. Because Trooper Daniels possesses special training and knowledge of the driving habits of and regulations governing commercial truck drivers, his observation of Defendant's driving lane incidents is sufficient to establish a reasonable suspicion. Based upon the totality of the circumstances, there is competent evidence to support the trial court's conclusion that Trooper Daniels possessed a reasonable articulable 10 suspicion for conducting a traffic stop on Defendant.
C. Detention of Defendant after the Traffic Stop
¶ 18 Alternatively, Defendant argues that even if this Court determines that his traffic stop was initially lawful, it quickly devolved into an unreasonable delay and unconstitutional detention so that Defendant's consent for his vehicle to be searched and the subsequent dog sniff and vehicle search were invalid. Defendant contends several of the trial court's findings of fact were not supported by the evidence and the conclusions of laws which rested on these findings were, by extension, also unsupported.
¶ 19 A routine traffic stop is a "relatively brief encounter" which is more closely akin to a Terry stop than a formal arrest. Knowles v. Iowa, 525 U.S. 113, 117, 119 S.Ct. 484, 488, 142 L.Ed.2d 492, 498 (1998). "Normally, the [traffic] stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave." Arizona v. Johnson, 555 U.S. 323, 333, 129 S.Ct. 781, 783, 172 L.Ed.2d 694, 704 (2009) (citation omitted). Traffic stops "remain lawful only so long as unrelated inquiries do not measurably extend the duration of the stop." Bullock, 370 N.C. at 262, 805 S.E.2d at 676-77 (cleaned up). Therefore, the "duration of a traffic stop must be limited to the length of time that is reasonably necessary to accomplish the mission of the stop, . . . unless reasonable suspicion of another crime arose before that mission was completed." Id. at 257, 805 S.E.2d at 673 (citations omitted). 11
¶ 20 Trooper Daniels asked Defendant to exit his vehicle and join him in the patrol car while he conducted multiple checks on Defendant's license, registration, medical card, and log records. As our Supreme Court has stated, the exercise of "police diligence includes more than just the time needed to issue a citation." Johnson, ¶ 23 (citation and internal quotation marks omitted). The proper duration of a traffic stop includes time spent to attend to safety concerns. Requesting "a stopped driver to step out of his or her car improves an officer's ability to observe the driver's movements" because officer safety is a "legitimate and weighty" concern. Bullock, 370 N.C. at 262, 805 S.E.2d at 676 (citation and internal quotation marks omitted). Beyond determining whether a citation is warranted, an officer ordinarily queries databases to determine the status of the drivers license, vehicle registration, proof of insurance and whether the driver has outstanding warrants. State v. Reed, 373 N.C. 498, 509, 838 S.E.2d 414, 423 (2020) (citing Bullock, 370 N.C. at 257, 805 S.E.2d at 673). Such routine queries take time, and the record video evidence captured Trooper Daniels commenting about the time it was taking.
¶ 21 An officer may form the basis of a reasonable suspicion that illegal activity is afoot during the normal course of his investigation subsequent to the initial stop. "To prolong a detention 'beyond the scope of a routine traffic stop,'" an officer must "possess a justification for doing so other than the initial traffic violation that 12 prompted the stop in the first place[,]" requiring "either the driver's consent or a 'reasonable suspicion' that illegal activity is afoot." Reed, 373 N.C. at 510, 838 S.E.2d at 423 (citing United States v. Branch, 537 F.3d 328, 336 (4th Cir. 2008)). Here, Trooper Daniels possessed both reasonable suspicion and obtained Defendant's consent.
1. The Driver's Log
¶ 22 First, Defendant argues finding of fact 9 misrepresents his drive from Graham, North Carolina to Butner, North Carolina. The finding states, "The July 11, 2016 log entry showed the [D]efendant in Graham, NC[,] at 2:30 p.m. and resuming driving four to five hours later in Butner, NC[,] a substantial distance from Graham. No explanation was recorded as to how the truck got from Graham to Butner." Defendant argues his logbook delineates a clear timeline and "presents no mystery" as to how Defendant traveled between these two locations. We disagree. Defendant's logbook indicates he made an on duty stop in Graham, North Carolina at 2:30 p.m., proceeded to drive for forty-five minutes, and then stopped and entered the sleeperberth in an unknown location at 3:30 p.m. The logbook does not provide the location at which Defendant stopped and purportedly remained in the sleeper-berth for nearly five hours, and therefore, provides no explanation for how Defendant arrived at the location in Butner, North Carolina, where he records the delivery of his load. Therefore, the competent record evidence supports the trial court's finding. 13 Defendant's argument is overruled.
2. The Nature of the Questions
¶ 23 Next, Defendant challenges finding of fact 15 which states, "Daniels reviewed the truck log in detail and asked Defendant questions about it. Daniel's [sic] questions were related to the log and Defendant's conduct while driving and did not require an unreasonable amount of time. The logs gave the address for the carrier as Brownsville, Texas, and Defendant said he lived in the same city." Defendant argues that while he was in Trooper Daniels' patrol car, he was asked at least 110 questions, the vast majority of which had nothing to do with his driving or the logbook. Defendant alleges these questions were irrelevant and asked solely for the purpose of delay.
¶ 24 A review of the patrol car's dash cam video during Trooper Daniels and
Defendant's interaction shows Trooper Daniels was having difficulty with his computer while conducting ordinary inquiries incident to the traffic stop. The computer malfunction delayed Trooper Daniels' ability to run Defendant's driving records. We note that at the 9:55 mark in the video, Trooper Daniels states, "I can't get my computer to come back so I might have to call it in, but we'll see if you've got the medical card on paper." During the time Trooper Daniels was having difficulty with the computer, the video further shows he asked Defendant a variety of questions, as if to make small talk in this interim waiting period. A law enforcement 14 officer's questions and actions while conducting tasks associated with the traffic stop "need not be solely and exclusively focused on the purpose of that detention." Id. at 509, 838 S.E.2d at 423 (citation and internal quotation marks omitted). In fact, "[a]n officer is permitted to ask a detainee questions unrelated to the purpose of the stop 'in order to obtain information confirming or dispelling the officer's suspicions.'" Id. (quoting State v. Williams, 366 N.C. 110, 116, 726 S.E.2d 161, 166 (2012)). The video demonstrates Trooper Daniels engaging in ordinary inquiries incident to the traffic stop, including reviewing Defendant's logbook. The video further indicates that all of the questions asked by Trooper Daniels from 18:35 until he hands Defendant the warning ticket at 21:56 were related to Defendant's logbook and driving. These questions were not irrelevant or delaying as they were related to Trooper Daniel's mission of executing a traffic stop. Id. Therefore, the trial court's finding is supported by competent evidence, and Defendant's argument is overruled.
3. The Restraint of Defendant
¶ 25 Next, Defendant challenges findings of fact 17, 19, 31 and conclusion of law 5.
Finding of fact 17 states, "Defendant was not physically restrained in any way during his encounter with Daniels before being placed under formal arrest at the end of the encounter." The trial court found in finding of fact 19:
Upon Defendant being given his warning ticket, Daniels asked him, 'Can I ask you some questions?' Defendant said that Daniels could. Defendant was not required to remain15
or answer questions. Defendant continued to talk with Daniels. Defendant was free to leave once he received his ticket but chose to remain and engage Daniels in conversation.
Finding of fact 31 provides, "Defendant was not in custody at the time he gave permission for Daniels to search the truck or at any time before his formal arrest." Conclusion of law 5 provides, "Defendant freely and voluntarily consented to remain in Trooper Daniel's [sic] patrol car and answer additional questions after a warning ticket was issued to Defendant."
¶ 26 Tying the above findings together, Defendant argues they are unsupported by the record because he was "not 'free to leave'" by any measure. According to Defendant, he suffered restraint as he was "flanked by police officers in a patrol car, after being commanded to sit there[,] [a]n officer guarded the door," Defendant was never told he could leave at any time, and "was not even allowed to exit [the patrol car] to urinate." We are not persuaded.
¶ 27 While a "traffic stop is a seizure even though the purpose of the stop is limited and the resulting detention quite brief[,]" a defendant is not unlawfully seized while an officer engages in the ordinary inquiries incident to a traffic stop. Bullock, 370 N.C. at 257, 805 S.E.2d at 673 (citation and internal quotation marks omitted) (The conversation between a police officer and a defendant which occurred while database checks were running enabled the officer to constitutionally extend the traffic stop's 16 duration.). Therefore, Defendant was not unlawfully restrained as he sat in the patrol car and spoke with Trooper Daniels while his driving records, medical card, logbook, license, and registration were being reviewed. Although the record indicates that Trooper Clapp positioned himself next to the patrol car's passenger door during Defendant and Trooper Daniels' conversation, this action, standing alone, does not constitute restraining Defendant because Trooper Daniels was performing the "fundamental tasks . . . inherent in a routine, thorough traffic stop." Reed, 373 N.C. at 510, 838 S.E.2d at 423.
¶ 28 As this Court aptly noted in State v. Heien,
[g]enerally, the return of the driver's [sic] license or other documents to those who have been detained indicates the investigatory detention has ended. The fact that the documents have been returned does not mean that the officer loses all right to communicate with the motorist. Thus, non-coercive conversation is still permitted. An officer may ask questions or request consent to search so long as the individual freely and voluntarily consents to answer questions or to allow his or her property to be searched. So long as an individual is aware that he is free to leave or free to refuse to answer questions, there is no bright-line rule requiring police to refrain from requesting consent to speak to an individual or request consent to search his or her person or property.226 N.C.App. 280, 287, 741 S.E.2d 1, 5-6 (2013) (cleaned up). Here, the video from the dash cam shows that once Trooper Daniels returned Defendant's documentation and handed him a warning ticket at the 21:50 mark, a non-coercive conversation 17 continued between Defendant and Trooper Daniels. At 22:53, Trooper Daniels, after thanking Defendant for his politeness and cooperation, asks Defendant "can I ask you some questions?" Without hesitation, Defendant answers, "Sure." The video further shows that Trooper Daniels' tone and manner were conversational and non-confrontational, Defendant was unrestrained in the patrol car, and there is no indication in the record that the car's doors were locked during this interaction.
¶ 29 Defendant asserts that Trooper Clapp's initial refusal to permit Defendant to exit the patrol car to urinate during the search of his tractor-trailer as an example of his confinement. However, we note that before Defendant made this request, he provided verbal consent to Trooper Daniels for his tractor-trailer to be searched and read, as well as signed, a consent form indicating the same. Defendant's voluntary decision to permit his tractor-trailer to be searched indicates that Defendant was not physically confined against his will or held in custody. In addition, the dash cam video reflects that Trooper Clapp was alone with Defendant, while Trooper Daniels conducted a search of Defendant's tractor-trailer. The competent evidence indicates that Trooper Clapp did not prohibit Defendant from urinating, but rather requested a few minutes delay until he could be joined again by another officer. Based on the record evidence, we hold the trial court correctly concluded, "Defendant freely and voluntarily consented to remain in Daniel's [sic] patrol car and answer additional questions after a warning ticket was issued to Defendant." 18
4. The Issuance of the Warning Ticket
¶ 30 Next, Defendant argues finding of fact 18 is unsupported by the record evidence. The contested finding states,
Daniels gave Defendant a warning ticket for unsafe movement. Daniels gave Defendant his log book [sic] and driver's [sic] license back. Daniels gave Defendant the warning ticket as soon as he completed the ticket and printed it out. Issuing the ticket was not delayed for any other purpose. Not more than twenty-two minutes elapsed between the truck being stopped and the issuance of the ticket.
Defendant argues that the ticket was delayed because of the wholly irrelevant questions that were asked of Defendant leading up to the production of the ticket and the fact that Trooper Daniels held onto the ticket an additional eight minutes after it was printed. We disagree.
¶ 31 Although Defendant contends that Trooper Daniels prepared with delay the warning ticket so that he could allegedly ask a significant number of irrelevant questions, we find this argument to be without merit. Our Supreme Court has determined that while database checks are running in the background, an officer is permitted to freely talk with the defendant as the ordinary inquiries incident to the traffic stop were conducted. See Bullock, 370 N.C. at 263, 805 S.E.2d at 677. Here, the record evidence tends to show that Trooper Daniels experienced technical difficulties with the computer in his patrol car, which caused a delay. While the dash 19 cam video indicates that Trooper Daniels appeared to print off the warning ticket at mark 15:08, due to the previous technical difficulties, he had not yet completed these normal inquiries. After the ticket printed, the dash cam video shows Trooper Daniels viewing and verifying Defendant's medical card and drivers license (16:50); conducting a database check on Defendant's tractor-trailer (16:53); and examining Defendant's commercial truck logbook (18:35). While checking Defendant's information, Trooper Daniels was free to speak with and pose questions to Defendant. After completing his review and verification of Defendant's documentation, the video indicates Trooper Daniels returning Defendant's logbook and registrations (21:48), returning his commercial drivers license (21:53), and handing the warning ticket to him (21:56). Therefore, the competent evidence in the record supports the trial court's finding that Trooper Daniels did not unreasonably delay giving the warning ticket to Defendant in order to ask more questions.
5. Defendant's Heavy Breathing
¶ 32 Next, Defendant challenges finding of fact 21, which states, "Daniels asked
Defendant about his arrest history after giving him back his license and logs. Defendant said he had been arrested before in Texas. Defendant became nervous and began breathing more heavily when asked about his arrest history." Specifically, Defendant argues that the dash cam video shows no evidence of him breathing heavily when asked about his arrest history. Defendant's argument is directed at the 20 trial court's determination of the credibility of the evidence and the weight to be given such evidence. See Knutton v. Cofield, 273 N.C. 355, 359, 160 S.E.2d 29, 33 (1968). At the hearing, Trooper Daniels testified that he observed Defendant's heart rate increase as he questioned Defendant about any prior arrests. Trooper Daniels testified Defendant's nervousness was visible by his alleged increased pulse rate, which included elevated breathing, and "the rapid rise and chest fall [that was] . . . visible through his shirt." When asked by counsel how he was aware of an increase in Defendant's heart rate, Trooper Daniels testified,
Well, you can look at the shirt, and elevated breathing, it's visible through a T-shirt. It's visible through some button-up shirts where the person starts breathing heavily. The carotid pulse gets to be to the point where a trooper on the outside of a car can look at a carotid pulse on the defendant in the passenger seat that it's elevated.
¶ 33 We note that it is the duty of the trial judge "to consider and weigh all the competent evidence before him" as he passes upon "the credibility of the witnesses and the weight to be given their testimony and the reasonable inferences to be drawn therefrom." Id. Here, the trial court was in the best position to observe Trooper Daniels' testimony and determine the veracity of the evidence. Because there is some competent evidence to support the trial court's determination of Defendant's heavy breathing, we uphold this finding.
6. The Scope of the Search 21
¶ 34 Next, Defendant challenges finding of fact 32 and conclusion of law 7 and argues that he "did not give consent for a search of his trailer. He consented to a search of his 'vehicle' only." Finding of fact 32 states, "Approximately seven minutes elapsed between Daniels handing a warning ticket for unsafe movement to Defendant and Defendant stating that Daniels could search the truck and trailer." Similarly, conclusion of law 7 provides, "In addition, Defendant freely and voluntarily consented to a search of his tractor and trailer. Allowing a drug dog to sniff the tractor and trailer he was operating fell within the scope of this consent."
¶ 35 Defendant contends that Trooper Daniels' use of the word, "vehicle," does not include his trailer. However, we note that Defendant provides no case law to suggest that the term "vehicle" is limited solely to the tractor and excludes the trailer. At the motion to suppress hearing, Trooper Daniels testified to marking the search consent form signed by Defendant, with the vehicle abbreviation code of TTT (tractor-trailer) as to the type of vehicle to be searched. Trooper Daniels explained to the court that this designated code is the recognized abbreviation for tractor-trailer, and that this abbreviation was used as opposed to TK, which would have designated only the road tractor as the vehicle type to be searched.
¶ 36 Trooper Daniels' use of the code, TTT, on the search consent form indicated his intention to search both the tractor and trailer. By Defendant voluntarily giving written consent, there was competent evidence to support the trial court's 22 determination that Defendant consented to the search of both the tractor and trailer. Defendant's argument is overruled.
7. Extension of the Stop
¶ 37 Defendant next contends that Trooper Daniels unlawfully extended his traffic stop by asking Defendant 110 questions over the course of twenty-three minutes, "after the traffic stop mission ended, after all officer safety issues were resolved and without the development of any new basis for reasonable suspicion of criminal activity." We disagree.
¶ 38 Defendant dedicates a significant portion of his brief laying out the timeline of when Trooper Daniels' allegedly irrelevant questions were asked, which he argues led to his prolonged detention. According to Defendant, from the time he entered Trooper Daniels' patrol car to the time the warning ticket was printed and then handed to Defendant, these irrelevant questions unlawfully extended the duration of the traffic stop. As discussed above, during the time period in question, Trooper Daniels asked Defendant a series of questions while simultaneously conducting tasks associated with the traffic stop. An officer conducting tasks associated with a traffic stop may ask questions not "solely and exclusively focused on the purpose of that detention[,]" and may do so in order to "obtain information confirming or dispelling the officer's suspicions." Reed, 373 N.C. at 509, 838 S.E.2d at 423 (citation and internal quotation marks omitted). The questions Trooper Daniels posed to 23 Defendant were not irrelevant or delaying as they permitted him to obtain information to confirm suspicions of criminal activity occurring. Additionally, the traffic stop was not extended during the relevant time-period as Trooper Daniels spoke with Defendant, while also engaging in ordinary inquiries incident to the traffic stop. See id.; Bullock, 370 N.C. at 263, 805 S.E.2d at 677 ("With these checks running in the background, [the officer] was free to talk with defendant at least up until the moment that all three database checks had been completed.").
¶ 39 Defendant further challenges Trooper Daniels' continued questioning of him once the warning ticket was given, arguing he was unlawfully detained because "the mission of the traffic stop was definitely over." According to Defendant, conclusion of law 6 erroneously states, "Trooper Daniels had a reasonable, articulable suspicion of criminal activity supporting the continued temporary detention of Defendant for further investigation after the warning ticket was issued. This reasonable, articulable suspicion continued until the drug dog alerted at Defendant's vehicle." As previously stated, for an officer to prolong a detention" 'beyond the scope of a routine traffic stop' . . . requires 'either the driver's consent or a "reasonable suspicion" that illegal activity is afoot.'" Reed, 373 N.C. at 510, 838 S.E.2d at 423 (citing Branch, 537 F.3d at 336). In the instant case, Trooper Daniels had both Defendant's consent and a reasonable suspicion of criminal activity. 24
¶ 40 Once Trooper Daniels returned Defendant's documentation and handed the warning ticket to him, Defendant was "free to leave or free to refuse to answer [additional] questions" as the traffic stop was completed. Heien, 226 N.C.App. at 287, 741 S.E.2d at 6. Yet, the dash cam video unequivocally shows that when Trooper Daniels asked, "Can I ask you some questions?", Defendant, without hesitation, responded, "Sure." Thus, it is clear that Trooper Daniels obtained Defendant's consent to ask additional questions relating to any prior arrests, what activities Defendant had participated in that day, and whether there was anything illegal in Defendant's tractor-trailer.
¶ 41 Despite Defendant's contentions, throughout Trooper Daniels' interaction with Defendant, he formed the reasonable suspicion required to conduct a search of Defendant's tractor-trailer. Here, Trooper Daniels testified he developed a reasonable suspicion of criminal activity occurring after he had an opportunity to review Defendant's logbook. As a federally certified trained Inspector for the Motor Carrier Enforcement Section of the North Carolina State Highway Patrol, and having examined hundreds of logbooks in his career, Trooper Daniels possessed specialized knowledge, experience and training. Trooper Daniels testified that he was initially struck by how little driving Defendant did and that he had been off-duty for an extended period of time. Trooper Daniels further explained that as a professional truck driver, "if your vehicle is not moving, and not moving loaded, you're not making 25 any money." Based upon Trooper Daniels' previous training and experience with commercial motor vehicles, he reported that typical off-duty time for a professional truck driver at its maximum is 34 hours.
¶ 42 Although the dash cam video does show Defendant stating in passing that he had to make repairs to his truck for a period of time, once Defendant returned to driving, Trooper Daniels observed how little time he actually spent on the road moving loads. The logbook revealed Defendant had driven approximately 24 hours during a five-day period, in an allowed window of 60-70 hours for on duty driving. Moreover, Defendant told Trooper Daniels that he was now driving without a load. Trooper Daniels advised the trial court that drivers do not make money driving empty. Trooper Daniels testified at the hearing, "I believe that reasonable suspicion was present based on the fact that the driver's logbook clearly indicated that he was not an everyday professional driver to drive as much as possible, as much as the federal regulations would allow, so he could generate the income that he needs to generate legally."
¶ 43 Moreover, Defendant's inability to answer key questions was another factor from which Trooper Daniels formed reasonable suspicion of criminal activity. At the motion to suppress hearing, Trooper Daniels testified that Defendant was unable to provide the exact location to which he was going in Sanford, or the cargo scheduled to be picked up, despite being close to his destination city on this leg of his travel 26 route. Additionally, Trooper Daniels testified that Defendant's increased and physically obvious nervousness further caused him to suspect criminal activity may be occurring. Further, Trooper Daniels observed a dramatic change of behavior in Defendant as he answered questions about his past arrest in Texas and whether he possessed narcotics, drugs, and large amounts of U.S. currency in his tractor-trailer.
¶ 44 Finally, Defendant argues that the "anonymous tip" which caused Trooper Daniels to be on the look-out for a semi tractor-trailer matching the description of Defendant's vehicle does not rise to the level of specificity that is needed to support a finding of reasonable articulable suspicion, the State argues this issue is a "red herring." While the anonymous call may not have provided reasonable articulable suspicion on its own, our Court has held "it can be appropriately considered within the totality of the circumstances." State v. Royster, 280 N.C.App. 281, 2021-NCCOA-595, ¶ 27 (citation omitted). Although the anonymous tip is what initially drew Trooper Daniels' attention to Defendant's tractor-trailer, Trooper Daniels observed Defendant committing traffic violations that provided the trooper with reasonable suspicion to stop the vehicle. Given Defendant's traffic violations observed by Trooper Daniels, we hold that the trooper had "reasonable suspicion under the totality of the circumstances" to engage in a traffic stop of Defendant "in response to the tip identifying" a semi tractor-trailer involved in illegal activity matching the description 27 of Defendant's vehicle. Id. ¶ 23 (quoting State v. Malachi, 264 N.C.App. 233, 239, 825 S.E.2d 666, 671, appeal dismissed, 372 N.C. 702, 830 S.E.2d 830 (2019)).
IV. Conclusion
¶ 45 For the reasons stated herein, we hold the trial court did not err in denying Defendant's motion to suppress the evidence as we conclude the traffic stop was lawful and Defendant's detention in connection with the traffic stop did not violate his Fourth Amendment Rights.
AFFIRMED.
Judges ZACHARY and GRIFFIN concur. 28