Jeff has written before about whether a traffic stop may be prolonged to allow time for a drug-sniffing dog to arrive on the scene and sniff about the car (which itself is not a Fourth Amendment search, see Illinois v. Caballes, 543 U.S. 405, 409 (2005)). As Jeff noted in his paper, it is unclear whether a brief delay to allow time for a canine unit to arrive is permissible absent reasonable suspicion of criminal activity; however, it is well-established that an extended delay to await a drug dog’s arrival must be supported by reasonable suspicion. The North Carolina Court of Appeals in State v. Fisher, ___ N.C. App. ___ (March 20, 2012), recently considered whether a 20 to 25 minute detention of a defendant after he was stopped for a seatbelt violation was supported by the requisite suspicion. The case struck me as worth blogging about both because of the court’s view that any detention of the defendant beyond the issuance of the citation must be supported by reasonable suspicion and the ordinariness of the factors the State relied upon as evidence of criminal activity. Some, but not all, of those factors were accepted by the court as appropriate factors to consider in a reasonable suspicion analysis (hence, the title of this post).
The defendant in Fisher attracted the attention of a local police officer and drug investigator because he was not wearing his seatbelt and was driving “diligent[ly],” with “both hands on the wheel” in a “pack of traffic” traveling approximately 70 miles per hour along highway 70 West near Goldsboro. Slip op. at 2. The officer followed the defendant in his unmarked car for about three miles, during which time he ran the tag number on the vehicle, determining that it was registered to an elderly woman in Bayboro, N.C. The officer also saw a handprint on the trunk of the car, which was dirty. The officer considered suspicious the defendant’s driving, the registration of the car to someone else (since “90 percent of [his] drug seizures [came] from third party vehicles, meaning that the person driving the car is not the registered owner of the vehicle”) and the handprint, which indicated something had recently been placed in the trunk, “another indicator that defendant was a drug courier.” Slip op. at 2-3. The officer stopped the vehicle for the seatbelt violation.
When he approached the car, the officer noticed a strong odor of air freshener, which he also considered a sign of a drug courier. Defendant said he was going to Bayboro after a shopping trip to a mall in Smithfield. The officer thought this was suspicious since there were no bags in the car. The defendant said he went to shop for clothes, but nothing fit. Adding to the officer’s suspicion was that the defendant did not ask why he had been stopped. Furthermore, the officer considered it suspicious that the defendant had a fast food bag in the car, which he considered an indicator that the “person is in a hurry” and “does not want to leave their car unattended.” Slip. op. at 3.
After the defendant had been stopped for five or six minutes, the officer called for a canine unit because he believed the defendant was transporting drugs. He subsequently told the defendant that he would be given a warning ticket for the seatbelt violation and that he believed the defendant was transporting contraband. The defendant refused the officer’s request to search.
While he was waiting for the canine unit, the officer called the Pamlico County Sheriff’s Department (Bayboro is in Pamlico County) to ask about the defendant. A narcotics officer there told him that the defendant was “a known marijuana and cocaine distributor with pending drug charges.” Slip op. at 4. The officer further noted that defendant appeared nervous throughout the encounter “even after being told that he was only going to receive a warning.” Id.
When Emmy the drug dog arrived, she signaled to the officers that there were drugs in the defendant’s car. The officers found two pounds of marijuana in the trunk. In his trial on the drug charges that ensued, the defendant moved to suppress the evidence resulting from the search of the vehicle. The trial court granted the defendant’s motion, concluding that though the stop was justified, “there are not enough factors after the stop to continue with the detention of this defendant absent a search warrant.” Slip. op. at 7-8. The court of appeals reversed, finding that reasonable suspicion existed to detain the defendant beyond the time necessary to issue the warning citation for the seatbelt violation. The court’s analysis assumes that reasonable suspicion is required to detain a person stopped for a traffic infraction beyond the time necessary to issue a warning citation, a proposition espoused by the state’s appellate courts in several earlier opinions, see State v. McLendon, 350 N.C. 630 (1999); State v. Parker, 183 N.C. App. 1 (2007); State v. Euceda-Valle, 182 N.C. App. 268, 274 (2007), though somewhat at odds with the court of appeals’ holding in State v. Brimmer, 187 N.C. App. 451, 458 (2007), that reasonable suspicion was not required to extend a traffic stop for the time necessary for an officer to explain to the defendant a dog was going to walk around the car and the one-and-a-half minutes of the actual sniff, since “this very brief additional time did not prolong the detention beyond that reasonably necessary for the traffic stop.”
The court then noted that several of the factors identified as suspicious in Fisher—the defendant’s nervousness, the inconsistency in his explanation that he had been shopping two hours away but had made no purchases, the smell of an air freshener, and the defendant’s driving of a car registered to someone else—were similar to factors considered as among those establishing reasonable suspicion in earlier cases and were sufficient to establish the reasonable suspicion necessary for the officer to detain the defendant beyond the time necessary to issue the warning citation. And while the defendant’s pending drug charges did not support the prolonged detention at its inception, since the officer learned about those while he was awaiting arrival of the canine unit, the court held that this knowledge provided additional support for the reasonable suspicion required to justify the continued detention of the defendant.
As to the more ordinary factors relied upon by the officer, the court assumed, for the sake of argument, that driving in the flow of traffic, and having a handprint on the trunk and a fast food bag in in the car were not proper factors to consider in a reasonable suspicion analysis. So, at least for now, road trips with my family (which nearly always involve driving a dirty, hand-print laden car in a pack of traffic while consuming fast food) don’t give rise to a suspicion that criminal activity is afoot. Plus, we’ll all be wearing our seat belts.