Court of Appeals Reconsiders State v. Reed and Again Finds a Fourth Amendment Violation

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The court of appeals decided another significant Rodriguez case yesterday, ruling (again) in State v. Reed that the highway patrol trooper who stopped the defendant for speeding on Interstate 95 detained the defendant for longer than necessary to carry out the mission of the stop without reasonable suspicion of other criminal activity.

The friendly pit bull case. When Trooper Lamm of the State Highway Patrol approached the car David Reed was driving, he saw energy drinks, trash, air fresheners, and dog food scattered on the floor of the vehicle. Reed’s fiancée, Usha Peart, was sitting in the front passenger seat and held a female pit bull in her lap. She told Trooper Lamm the dog was friendly, and he petted the dog. Meanwhile, Reed retrieved his New York driver’s license along with the registration and rental agreement for the vehicle.

Please exit the vehicle. Trooper Lamm told Reed to get out of the car and to come sit in the patrol car. When Reed got out of the car, the trooper frisked him and found a pocket knife.

Reed sat in the front seat of the patrol car. Trooper Lamm’s K-9 was in the back seat. Reed initially sat with the door open and one leg outside of the car. Lamm told him to close the door. Reed said he was scared to do so. Lamm said: “‘Shut the door.  I’m not asking you, I’m telling you to shut the door. I mean you’re not trapped, the door [is] unlocked. Last time I checked we were the good guys.’” (Slip op. at 4.) Reed responded, “‘I’m not saying you’re not,’” to which Lamm replied, “‘You don’t know me, don’t judge me.’”

Where are you headed? Trooper Lamm questioned Reed while he checked his record. Reed admitted that he had previously been arrested for robbery; he said he was in North Carolina to visit family in Fayetteville. When Lamm noticed that the rental agreement listed a different car than the one Reed was driving, he got out of the patrol car to ask Peart for the correct agreement. He told Reed to “‘sit tight.’” (Slip op. at 5.) Peart explained that the rental agreement listed a different car because the original vehicle had been struck and they were driving a replacement vehicle. The trooper called the rental company, which confirmed this information. Peart, like Reed, said the two were traveling to Fayetteville to visit family.

Mind if I ask a few questions? While Reed was still sitting in the front of the patrol car, Trooper Lamm returned his paperwork and driver’s license and issued a warning ticket for speeding. Lamm said he was “‘completely done with the traffic stop,’” but wanted to ask Reed additional questions. Lamm said Reed nodded his head in response. By this time, another trooper had arrived on the scene and had parked his vehicle, with the blue lights activated, behind Lamm’s. This trooper stood outside the passenger door of the patrol car where Reed was sitting.

Sit tight. Lamm asked Reed for permission to search the car. Reed said he should ask Peart and added:  “‘I’m just saying, I’ve got to go to the bathroom, I want to smoke a cigarette, we’re real close to getting to the hotel so that we can see our family, like, I don’t, I don’t see a reason why.’” Lamm told Reed to “‘sit tight,’” and went back to the rental car. By this time, a third trooper was on the scene.

Peart initially said Lamm could not search the car, but subsequently acquiesced to his repeated requests. Lamm found cocaine under the back passenger seat.

Procedural history. Reed was charged with trafficking cocaine. He moved to suppress the evidence discovered in the search of the rental car. The trial court denied the motion. Reed pled guilty, preserving his right to appeal the denial of his motion to suppress, and was sentenced to 70 to 93 months imprisonment. Reed appealed.

The court of appeals in State v. Reed, __ N.C. App. __, 791 S.E.2d 486 (2016), reversed, holding that the trial court’s findings did not support its conclusion that Trooper Lamm had reasonable suspicion of criminal activity to extend the traffic stop and conduct a search after it concluded. The State petitioned for a writ of supersedeas, which the state supreme court granted. The North Carolina Supreme Court subsequently vacated the court of appeals’ opinion and remanded the case for reconsideration in light of State v. Bullock, __ N.C. __, 805 S.E.2d 671 (2017) (discussed here). State v. Reed, ___ N.C. ___, 805 S.E.2d 670 (2017).

Legal backdrop. The United States Supreme Court held in Rodriguez v. United States, __ U.S. __, 135 S.Ct. 1609 (2015), that a traffic stop becomes unlawful if it is prolonged beyond the time reasonably required to accomplish its mission. Specifically, Rodriguez held that a traffic stop may not be extended for even a de minimis period to carry out activities, such as a dog sniff, that are unrelated to the mission of the stop, unless that delay is supported by reasonable suspicion to believe that criminal activity is afoot.

The North Carolina Supreme Court in Bullock, ___ N.C. ___, 805 S.E.2d. 671 (2017), considered whether a traffic stop in which the officer ordered the driver to get out of his vehicle and into the patrol car, frisked him, and ran record checks while the defendant was seated in the patrol car, was lawful. The court determined that none of these activities unlawfully prolonged the stop and that, by the time the database checks were complete, the officer had developed reasonable suspicion to prolong the stop so that a dog sniff could be performed. The defendant’s nervous behavior, contradictory and illogical statements, possession of large amounts of cash and multiple cell phones, and his driving of a rental car registered to another person provided reasonable suspicion of criminal activity.

Analysis. The court in Reed determined that Bullock resolved several issues in the case. Under Bullock, Trooper Lamm’s actions of requiring Reed to get out of his car, frisking Reed, and making Reed sit in the patrol car while Lamm checked his record and questioned him did not unlawfully extend the stop. Nevertheless, the court said the case was distinguishable from Bullock because after Trooper Lamm returned Reed’s paperwork and issued the warning ticket, Reed “‘remained unlawfully seized in the patrol car.’” (Slip op. at 10.)

The court explained that while the return of a person’s driver’s license and other paperwork normally marks the end of a traffic stop and the commencement of a consensual encounter, a reasonable person in Reed’s position when the paperwork was returned would not have believed that he was free to terminate the encounter. Reed remained seated in the patrol car. Trooper Lamm continued to question him. When Lamm left the patrol car to ask Peart for consent to search the rental car, he told Reed to “‘sit tight.’” (Slip op. at 10.) In addition, another trooper stood directly outside the car door where Reed was seated. Lamm himself admitted that Reed was not free to leave. This continued detention was not, in the court’s view, consensual nor was it supported by reasonable suspicion that criminal activity was afoot.  Instead, the facts known to the officer, which included Reed’s nervous appearance, the dog, the dog food, and the detritus in the car were, the court said, “legal activity consistent with lawful travel.”

Thus, the court concluded that, even after considering Bullock, the trial court erred in denying the defendant’s motion to suppress.

The dissent. Judge Dillon, who dissented from the first court of appeals decision in Reed, likewise dissented from yesterday’s opinion. Dillon reasoned that Reed consent to the search of the vehicle after the traffic stop concluded and that, even if one assumed he had not, Trooper Lamm had reasonable suspicion of separate, independent criminal activity to support the extension of the stop.

Stay tuned. The dissent provides the State with an appeal of right to the state supreme court. If the State exercises that option, Reed will continue to serve the sentence for which he has been imprisoned since July 2015 and the North Carolina Supreme Court will again be called upon to further define the parameters of Rodriguez as applied to North Carolina traffic stops. If that happens, we’ll be sure to write all about it. Next time, though, I can skip the facts and just remind you that this is the friendly pit bull case.

The picture. Raleigh-attorney Brad Bannon, who is the current president of the North Carolina Advocates for Justice, kindly gave me permission to share this photo of his friendly—and decidedly distinguished—dog, Max.

10 comments on “Court of Appeals Reconsiders State v. Reed and Again Finds a Fourth Amendment Violation

  1. “detritus”… nice.

  2. No question this was a 4th Amendment violation, and Rodriguez was ignored. I cannot imagine a dissent in this case; what other evidence was there? A messy car and dog food for people traveling who are not super tidy is not RAS of criminal activity. Police rely on the ” inchoate hunches or suspicions ” seen as inadequate in Terry v. Ohio. Most people are too frightened of the police to assert rights, even among those few who actually know them. Stuck in a patrol car with a trooper blocking any exit and told to ” sit tight ” is a seizure, no question. God forbid Rodriguez gets gutted by bit’s and pieces.

    • Actually, it is standard practice for drug traffickers to have dog food and/ or a dog in the car. The thought process is that it will be distracting to a drug dog and prevent them from finding the drugs. This is part of the training that officers receive, and something they would know to look for. Air fresheners, garbage, other animals: all things designed to mask odors. Sounds like RAS based on training and experience to me!

      • So, all dog ow Why bother ners that have an air freshener and are untidy are now subject to extended stops, intrusive interrogations and delays followed by demands for consent to search, in your opinion? Since you state that it is ” standard practice ” for those transporting drugs to have a dog, you must have statistics to offer. How many drug transporters found to have contraband during a stop had dogs solely for the purpose of avoiding a search? Are stats kept on such practices? Or is this just another common and innocent activity used as yet another excuse for avoiding the probable cause or warrant requirements? The police will claim ANY factor as suspicious if it gets them into your car, as long as some court swallows their hook. If you avoid eye contact, you are guilty. If you look at them you are also suspicious. Like the aroma of pine or cherry, you are suspicious, and God forbid you have a dog AND an air freshener, that equals RAS!! What most people who favor unfettered police powers do not realize is that the perfect world for the police is a police state, where reasons matter not a whit, only results. Without strict oversight by courts, the police would turn into our masters…cruel and without regard for privacy and rights, all in the name of ” protecting ” the public from ” the criminals “. I fear the loss of my rights as far more dangerous than any criminal, and I know that allowing searches based on commonly innocent factors combined with ” inchoate hunches and suspicions ” ( from Terry v. Ohio ” is a formula for disaster.

  3. Sarah, as a law-abiding citizen who travels with garbage, pets (pet food sometimes) and sometimes an air freshener I would like to know exactly WHAT you believe constitutes a reasonable suspicion of a crime based upon the facts of this case. I don’t see it at all from my viewpoint. I travel regularly with these things and I have done so in a rental car from time to time as needed. I just can’t imagine that my conduct would constitute reasonable suspicion of criminal activity.

    • Will, when you travel in a rental car, do you regularly pay for the rental car in cash, operate a different rental car than the one stated on your rental agreement, and operate the vehicle outside of the approved area of travel stated in the rental agreement?

      When you sometimes travel with an air freshener, how many do you have in your car? Is it one hanging from the rearview mirror, or is it multiple air fresheners scattered throughout the car?

      When you travel with dog food sometimes, is it in a bag, or do you have dog food thrown around all over the floor of the car?

      These facts matter, they’re the difference between “normal situation” and “unusual situation that would give a trained officer who knows about practices for masking the scent of drugs reasonable suspicion that criminal activity is afoot.”

      • So let me see if I follow your reasoning here. The fact that some enterprising criminals (i.e. – a very small percentage of the population) attempt to conceal their criminal activity by mimicking the behavior of innocent people (i.e. – the vast majority of the population) means that an officer has RAS to stop/search anyone engaging in the same, apparently innocent behavior? The purpose of the 4th Amendment is to restrict the conduct of the government in order to protect the freedom of the citizenry, not to justify governmental excesses.

        • My whole point was that the behavior of the people in this case did not mimic the behavior of innocent people. If you reduce the facts of this case to “Dog + rental car + air freshener + dog food = RAS” then of course it will sound ridiculous. There are specific circumstances (present in this case) that render these otherwise innocent circumstances suspicious. Is it suspicious to have dog food in a car? No, but if you have it thrown all over the car rather than in a bag, yeah, that’s a little odd. Is it weird to have an air freshener in a car? No, but if you have a bunch scattered around the car, yeah, that’s strange.

          Combine those specific circumstances with the rental car situation, the dog in the car, the nervous behavior of the driver, and the officer’s training and experience regarding the methods drug traffickers user to mask scents, and that can provide reasonable articulable suspicion of criminal activity afoot.

          • Something being odd, weird, strange, etc. does not equal RAS. It may be different. It may not be the way you or I would do it. It may lead to an officer having a subjective “hunch” that something is going on, but that’s not the standard, and it does not rise to RAS.

          • Eric Eller: You are absolutely right. If the police had it their way, any conduct or state of dress or deportment that does not fit each and every officer’s idea of what ” normal ” is would qualify as RAS. Police use hunches all the time, with a suspicious and critical eye toward finding any alleged ” irregularity ” that might justify a more lengthy or intrusive encounter. Detailed interrogation of people not only assumes that the citizen ‘s time is of no importance but that most people want to share personal information with some stranger just because he or she has a badge. Asking a driver : where are you headed? Who are you seeing? Is there anything in your car I can use to cage you? Can I search your car without a warrant or probable cause? Oh, the dog that always alerts is finally here…step out please.

            Not only does questioning not related to the purpose of the stop prolong the encounter to some degree but it more ominously conditions the public that we are somehow beholden or obligated, even if only out of courtesy, to submit to roadside interrogations and end up perceiving the police not as public servants and peace keepers, but as masters and our bosses, who we dare not resist. It is the rare citizen who knows the law and their rights and declines to be intimidated and bluffed. After presenting legally required documents, there is really no need for a single word to be spoken by the accused. Your documents contain all that is needed by the officer and absent any RAS that the paperwork is not in order no exchange is necessary, and any and all questioning is designed to be used against you, so chatting about anything with the police is a risk with no possible reward . Being polite is always good, but answering questions by the police is what lawyers are for. How many attorney’s are at this very moment telling a client: ” If only you had kept your mouth shut…if only you had refused that consent search…”

            If not kept in check, there will soon be no innocent circumstances; they simply take 5 or 10 completely innocent factors and claim ” totality of the circumstances ” and infer some criminal intent to it. I think the founding fathers would be appalled at what the courts have done to their vision.

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