Court of Appeals Strictly Limits Scope of Traffic Stops

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Yesterday, the court of appeals decided a very important traffic stop case. Its ruling strictly limits officers to pursuing the original justification for a traffic stop, and prohibits officers from extending the stop even briefly for most other investigative activity. This is an area of the law that has been muddled in North Carolina, and this case – whether the ruling stands or is modified by the state supreme court – may help bring clarity to the issue. I’ll revise my paper on traffic stops to reflect the decision.

The case is State v. Cottrell. It began when a Winston-Salem officer stopped the defendant for driving at 11:37 p.m. with his headlights off. The officer had also heard loud music coming from either the defendant’s car or another that was nearby. The officer asked the defendant for his license and registration, and the defendant provided them. The officer didn’t notice any signs that the defendant was impaired, extremely nervous, or otherwise suspicious. The officer ran a computer check and determined that the defendant’s license and registration were valid, but that he had a history of “drug charges and various felonies.”

The officer then returned to the defendant’s car. He did not return the defendant’s license and registration. He reminded the defendant to keep his music turned down. During the conversation, the officer smelled a strong fragrance, like incense, that he believed was a “cover scent” used to mask the smell of marijuana. He asked the defendant about it, and the defendant produced a small bottle of what he said was body oil.

The officer asked the defendant for consent to search his car. At first the defendant said no, but when the officer threatened to call a drug dog to the scene, the defendant then consented to the search. Four minutes had elapsed since the stop began. The officer found a gun and drugs in the car.

The defendant was charged with several offenses. He moved to suppress, arguing that the officer unduly prolonged the stop without reasonable suspicion. A superior court judge denied the motion, and the defendant pled guilty and appealed.

The court of appeals reversed, in a decision by Judge Geer, joined by Judges Stephens and Ervin. The court quoted State v. Jackson, 199 N.C. App. 236 (2009), for the proposition that “[o]nce the original purpose of the stop has been addressed, in order to justify further delay, there must be grounds which provide the detaining officer with additional reasonable and articulable suspicion or the encounter must have become consensual.” Applying that principle to this case, the court assumed that the officer stopped the defendant both for the lack of headlights and the loud music. The court determined that “that once [the officer] told defendant to keep his music down, the officer had completely addressed the original purpose for the stop. Defendant had turned on his headlights, he had been warned about his music, his license and registration were valid, and he had no outstanding warrants.”

Further, the court ruled, the officer did not have reasonable suspicion to justify continued detention of the defendant. It held that “a strong incense-like fragrance . . . and a known felony and drug history are not, without more, sufficient to support a finding of reasonable suspicion.” Thus, the officer should have returned the defendant’s license and registration and allowed him to depart if he was unwilling to engage in a consensual encounter.

Finally, the court considered the State’s argument that the brief extension of the stop to bring a drug dog to the scene or to ask for consent to search was justified under the de minimis analysis of State v. Brimmer, 187 N.C. App. 451 (2007) (“[I]f the detention is prolonged for only a very short period of time, the intrusion is considered de minimis. As a result, even if the traffic stop has been effectively completed, the sniff is not considered to have prolonged the detention beyond the time reasonably necessary for the stop.”). The court rejected the argument, stating: “We do not believe that the de minimis analysis applied in Brimmer and [State v. Sellars, __ N.C. App. __, 730 S.E.2d 208 (2012)] should be extended to situations when, as here, a drug dog was not already on the scene.” The court ruled that because the officer was not entitled to prolong the stop to summon a drug dog, the officer procured the defendant’s consent to search by threatening something unlawful.

In the alternative, the court observed that the evidence presented at the suppression hearing suggested that getting a drug dog to the scene would have required an extension of the stop by between seven and twelve minutes. This, it stated, would not be de minimis in any event. The court therefore reversed the suppression ruling and remanded the case.

I would be surprised if the State didn’t seek further review of this case. There’s considerable tension between the court’s analysis and the analysis in Brimmer and Sellars. Federal case law also tends to allow officers greater leeway under the de minimis rationale. On the other hand, we seem to be at a moment in history when officers’ conduct during traffic stops is receiving more scrutiny than ever before. Cottrell may reflect that increased sensitivity to the possibility of overreaching by officers.

23 comments on “Court of Appeals Strictly Limits Scope of Traffic Stops

  1. Outcome aside, footnote 2 is pretty unjudicial. The parties, the attorneys, and our jurisprudence deserve better. Additionally, it’s cringe-inducing that the Court would dismiss an appeal but then grant cert and issue a sweeping 32-page decision. The Rules of Appellate Procedure were ice cold under Viar, but apparently are quite flexible now.

  2. The court seemed to be concerned with the fact that the officer was holding on to the driver’s license when he asked for consent. Do you think anything about the case would be different if that was not the case? If the driver had consented to a drug dog search and waited for the dog to arrive, all the while having everything he needs to leave the scene at any time, would the outcome have been different?

  3. The officer should not have threatened with drug dog. Never worth losing the case and having evidence suppressed and bad guy winning. We will get them next time because they will screw up.

  4. The Court of Appeals got it right. To uphold that seizure as a de minimis seizure would have been intellectually dishonest.

  5. At this point, why bother pulling anyone over anymore…just turn the other way since the courts are limiting what officers can do. I am waiting for the one time when an officer like the one in this case does as he/she is told…let’s the guy go even with reasonable suspicion and only a 10 minute delay of getting the dog…then the bad guy shoots 5 people. Someone with a cell phone videos the original car stop, posts it online and now the officer and department are sued for failing to stop this person when they had the opportunity but the courts thought a 10 minute wait for a dog was too much. Hope it doesn’t happen.

    • This is everything that is wrong with policing in the US. The purpose of a traffic stop is not to justify random 4th amendment violations, it is to deal with issues related to traffic; If someone is driving after dark without their headlights on, you pull them over because they’re driving without their headlights on. You’re not pulling them over because it’s a great opportunity to rummage around in their car looking for evidence of random wrongdoing.

      If preventing people from driving after dark without their headlights (or speeding or following too closely or changing lanes unsafely) is insufficient reason to pull someone over by itself then do something else.

      • Agreed, we need more protection of our due process rights and less arbitrary infringements on all our private rights secured by the law (supposedly).

    • So you are willing to forgo your full 4th amendment rights on the off chance that someone, somewhere, may possibly, commit a crime?

    • ‘then the bad guy shoots 5 people’

      Ah the ‘just in case’ justification

      Stop everyone after 2200hrs ‘just in case’

      Stop all teens ‘just in case’

      Stop all gun owners ‘just in case’

      Stop all mentally ill people ‘just in case’

      Stop all Muslims ‘just in case’

      Stop all Black people ‘just in case’

      Stop everyone ‘just in case’

  6. In my opinion, this will cause a lot of arguments in court (and the hall ways), but if they take the time to read this, they will see that the biggest two problems were:
    1. The officer did not stop when the defendant denied consent.
    2. The officer did not articulate any observations of excessive nervousness, etc.
    Some will argue the point that the officer didn’t return the license and registration prior to asking for consent. Although the court mentioned this, it was not their main point.

    Finally, we still got a firearm and drugs off the street.

  7. Concerning possible drug stops. We’ve been told for several years now to return the defendant’s license and registration, end the initial stop, and then begin a conversation with the driver about the drug suspicions. Had the officer simply not held the license and registration this stop would have been a non-issue. Granted, the evidence wouldn’t have been found. But its gone anyway. All we have now is further scrutiny of LEO’s.

  8. Tina, the five person-murdering bad guy is the cop… right?

    • in your case you will always have the right to be an idiot…so happy for you!

  9. Couldn’t agree more. Don’t bother pulling citizens for trivial excuses to interrogate or investigate them for something you did not pull them for.

    The more likely lawsuit is this: A clean and sober business owner who has successfully overcome a drug problem in the past forgets to turn on the headlights at night on a well-lit city street. Officer makes the stop, smells body oil that smells like incense, checks the license and registration, finds no warrants, sees the criminal record, makes the driver wait for a canine to come to the scene and a search reveals no contraband. The delay causes the driver to miss a flight to New York causing a big sale to fall through forcing the company out of business.

    The Constitution is there to protect citizens. I am thankful that this panel of the Court of Appeals is too.

  10. Tina. this is the cost of Freed/Liberty

    if you want a police state go move to china where you essentially have no rights and the police can and do do anything they please. all for your safety.

    the issue is NOT that he “did” end up getting a bad guy.

    what happens if he was INNOCENT of anything at all? you think its ok for him to have to sit their in cuffs on the side of the road while dogs and police tear apart his car on a “hunch”

    this is why we HAVE a constitution. to protect us from this.

    Just because this illegal action HAPPENED to result in stop of a criminal does not JUSTIFY the illegal action.

  11. There we go again,, another person willing to sacrifice civil liberties for the mere appearance of being kept safe…

  12. Another win for the bad guy. Sadly in this country good police work is falling to the wayside.

    • Good police work ignoring their Oath of Office and the laws that ‘govern them’ to the point of violating the private rights of the ‘Citizens’. We don’t need LEO’s that place themselves above our laws.

  13. Nice try officer Tina!

  14. The case law in North Carolina on this is inconsistent and the NC Supreme Court needs to weigh in. I would think the decision in State v. Parker (2007) NC Court of Appeals would prohibit this type of consensual search. State v. Parker (2007) stated , “If the officer’s request for consent to search is unrelated to the initial purpose for the stop, then the request must be supported by reasonable articulable suspicion of additional criminal activity.” The State openly admitted to having no reasonable suspicion so if I was the trial judge I would have suppressed it per State v. Parker. I don’t agree with the decision in Parker, but it is binding case law until overturned by the NC Supreme Court.

    This whole thing could have been avoided if the officer would have concluded the traffic stop and then asked for consent. The practice of consensual searches by law enforcement is rapidly changing. In Fayetteville, NC, by departmental policy, the officer must have a “reasonable factor” similar to reasonable suspicion present before they can even ask for consent. Then by policy written consent is required. The officer also must do that even if the traffic stop has concluded and they are just engaging in a consensual encounter.

  15. See if you can guess which ones are the prosecutors and which ones are the defense attorneys…

  16. The law is evolving for some VERY legitimate reasons. I get stopped on average 40 times a month for not wearing a seat belt. I have with me an exemption letter written by a doctor and stamped by the court. On any given stop the officer will ask to see the exemption when I have offered that I am exempt. Despite dispelling any suspicion that I was not in compliance with the law the stop usually continues by then asking for my license, registration and proof of insurance. Another 15-20 minutes go by as the officer runs the records check. So the constitutional question becomes is the officer lawfully entitled to extend the scope the stop to asking for additional documents once the reasonable suspicion has been dispelled? My guess is that he does NOT have any lawful authority, no less than randomly stopping any vehicle for nothing at all just to see their documents on demand. See State v. Penfield 106Wn.App or State v. Chatton both well founded on Terry v. Ohio.
    If the present laws do not change in favor of constitutional protections it is quite possible they could eventually extend to an unbridled authority by police. And one shining example of this are the in-country border checks stopping drivers just to check their papers and ask questions. If anyone thinks for a moment that those check-points are a legitimate way to stop aliens from coming into this country think again, because since their implementation no illegal alien has ever been caught by an in-border checkpoint.

  17. […] a de minimisdelay. The second recent case is State v. Cottrell. I wrote about Cottrell in detail here, but in a nutshell, an officer stopped a driver for failing to have his headlights on at night. The […]

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