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.