STATE OF NORTH CAROLINA v. DAVID MICHAEL REED

At 8:18 a.m. on 9 September 2014, Defendant drove a rented Nissan Altima

faster than the posted 65 mph speed limit on Interstate 95 (“I-95”) in Johnston

County, North Carolina. His fiancée, Usha Peart, rode in the front passenger seat

and held a female pit bull in her lap. Trooper John W. Lamm, of the North Carolina

State Highway Patrol, was parked in the median of I-95. Trooper Lamm used his

radar to determine Defendant was traveling 78 mph, and performed a traffic stop for

Defendant’s speeding infraction. Trooper Lamm’s patrol car had a camera that faced

forwards towards the hood of the vehicle, and recorded audio inside and outside of

the patrol car. Defendant pulled over on the right shoulder of I-95, Trooper Lamm pulled

behind him, and Trooper Lamm approached the passenger side of the Nissan.

Trooper Lamm saw energy drinks, trash, air fresheners, and dog food scattered on

yhe floor of the vehicle. He asked if the dog in Peart’s lap was friendly and Defendant

and Peart said that the dog was friendly.

Trooper Lamm stuck his arm inside the vehicle to pet the dog and asked

Defendant for his driver’s license and the rental agreement. Defendant gave Trooper

Lamm his New York driver’s license, a registration card, and an Enterprise rental

car agreement. The rental agreement listed Peart as the renter and Defendant as an

authorized driver. Trooper Lamm told Defendant “come on back here with me”

motioning towards his patrol car.

Defendant exited the Nissan and Trooper Lamm asked if he had any guns or

knives on his person. Defendant asked Trooper Lamm why the frisk was necessary,

and Trooper Lamm replied, “I’m just going to pat you down for weapons because

you’re going to have a seat with me in the car.” Trooper Lamm found a pocket knife,

said it was “no big deal,” and put it on the hood of the Nissan

Trooper Lamm opened the passenger door of his patrol car. His K-9 was in the

back seat of the patrol car at that time. Defendant sat in the front passenger seat

with the door open and one leg outside of the car. Trooper Lamm told Defendant to

close the door. Defendant hesitated and said he was “scared” to close the door; Lamm

replied, “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.” Defendant said, “I’m not saying you’re not,” and Trooper Lamm said, “You

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don’t know me, don’t judge me.” Defendant said he was stopped before in North

Carolina, but he was never taken to the front passenger seat of a patrol car during a

stop. Following Trooper Lamm’s orders, Defendant closed the front passenger door.

Trooper Lamm ran Defendant’s New York license through record checks on his

mobile computer. While doing so, Trooper Lamm asked Defendant about New York,

and “where are y’all heading to?” Defendant said he was visiting family in

Fayetteville, North Carolina. Trooper Lamm noted the rental agreement restricted

travel to New York, New Jersey, and Connecticut, but told Defendant the matter

could likely be resolved with a phone call to the rental company.

Then, Trooper Lamm asked Defendant about his criminal history. Defendant

admitted he was arrested for robbery in the past, when he was in the military.

Trooper Lamm asked Defendant about his living arrangements with Peart, and

whether he or Peart owned the dog in the Nissan. Trooper Lamm noticed the rental

agreement was drafted for a Kia Rio not a Nissan Altima. Trooper Lamm exited the

patrol car to ask Peart for the correct rental agreement, and told Defendant to “sit

tight.”

Trooper Lamm approached the front passenger side of the Nissan Altima and

asked Peart for the correct rental agreement. He asked about her travel plans with

Defendant and the nature of their trip. She said they were visiting family in

Fayetteville but might also travel to Tennessee or Georgia. She explained the first

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rental car they had, the Kia Rio, was struck by another car and the rental company

gave them the Nissan Altima as a replacement. She could not find the rental

agreement for the Nissan Altima and continued to look for it. Trooper Lamm told

Peart he was going to issue Defendant a speeding ticket and the two would “be on

[their] way.”

Trooper Lamm returned to the patrol car, explained Peart could not locate the

correct rental agreement, and continued to question Defendant about the purpose of

the trip to Fayetteville. Then, Trooper Lamm called the rental company and the

rental company confirmed everything was fine with the Nissan Altima rental, but

informed Trooper Lamm that Peart still needed to call the company to correct the

restricted travel condition concerning use of the car in New York, New Jersey, and

Connecticut. After the call, Trooper Lamm told Defendant that his driver’s license

was okay and he was going to receive a warning ticket for speeding. Trooper Lamm

issued a warning ticket and asked Defendant if he had any questions.

Then, Trooper Lamm told Defendant he was “completely done with the traffic

stop,” but wanted to ask Defendant additional questions. Defendant did not make an

audible response, but at the suppressing hearing, Trooper Lamm testified Defendant

nodded his head. Trooper Lamm did not tell Defendant he was free to leave.

Trooper Lamm asked Defendant if he was carrying a number of controlled

substances, firearms, or illegal cigarettes in the Nissan Altima. Defendant

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responded, “No liquor, no nothing, you can break the car down.” Trooper Lamm

continued questioning Defendant and said, “I want to search your car, is that okay

with you?” Defendant hesitated, mumbled, and told Trooper Lamm to ask Peart.

Defendant stated, “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.” Trooper Lamm responded, “[W]ell let me go talk to

her then, sit tight,” and walked to the front passenger side of the Nissan Altima. By

this time, two additional officers were present at the scene.

Trooper Lamm told Peart everything was fine with the rental agreement and

asked her the same series of questions he asked Defendant, whether the two were

carrying controlled substances, firearms, or illegal cigarettes. Trooper Lamm asked

Peart if he could search the car. Peart hesitated, expressed confusion, and stated,

“No. There’s nothing in my car, I mean . . . .” Trooper Lamm continued to ask for

consent, Peart acquiesced and agreed to sign a written consent form. Trooper Lamm

searched the Nissan Altima and found cocaine under the back passenger seat.

II. Standard of Review

Our review of a trial court’s denial of a motion to suppress is “strictly limited

to determining whether the trial judge’s underlying findings of fact are supported by

competent evidence, in which event they are conclusively binding on appeal, and

whether those factual findings in turn support the judge’s ultimate conclusions of

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law.” State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). “The trial court’s

conclusions of law . . . are fully reviewable on appeal.” State v. Hughes, 353 N.C. 200,

208, 539 S.E.2d 625, 631 (2000).

III. Analysis

Defendant contends the trial court made findings of fact that are not supported

by competent evidence because his “initial investigatory detention was not properly

tailored to address a speeding violation.” Further, he contends Trooper Lamm seized

him without consent or reasonable suspicion of criminal activity when Trooper Lamm

told him to “sit tight” in the patrol car. Defendant contends Trooper Lamm

unlawfully seized items from the car during the search, and these items are fruit of

the poisonous tree that must be suppressed. After carefully reviewing the record and

video footage of the traffic stop, we agree.

On appeal, Defendant challenges the following findings of fact and conclusion

of law:

FINDINGS OF FACT 11. That the Defendant complied with Trooper Lamm’s request1 to accompany him back to the patrol vehicle where Trooper Lamm told the Defendant, while the Defendant was still outside the vehicle, that he was stopped for speeding, which the Defendant acknowledged stating that he “was running about 84” . . . .

21. That while Ms. Peart looked for the current rental 1 Defendant contends the trial court’s “determination of [Trooper] Lamm’s statement to be a ‘request’ rather than a command or order is actually a conclusion of law . . . because it requires the exercise of judgment.”

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agreement, which was never found, Trooper Lamm engaged her in casual conversation and learned from her that she was unsure of their travel plans, but believed they were visiting family in “Fayetteville or maybe Tennessee or Georgia. . . .”

26. That after asking the Defendant if he could search his car, the [D]efendant expressed reluctance before directing Trooper Lamm to ask Ms. Peart since she was the lessee of the vehicle. At which time, Trooper Lamm left the patrol car, asked the Defendant to sit tight, and went to ask Ms. Peart. . . .

CONCLUSIONS OF LAW 2. That Trooper Lamm was at all times casual and conversational in his words and manner.

“[T]he tolerable duration of police inquires in the traffic-stop context is

determined by the seizure’s ‘mission’—to address the traffic violation that warranted

the stop, and attend to related safety concerns.” State v. Bedient, ___ N.C. App. ___,

786 S.E.2d 319, 322 (2016) (quoting Rodriguez v. United States, ___ U.S. ___, ___, 135

S.Ct. 1609, 1614 (2015) (internal citations omitted)). In addition to deciding whether

to issue a traffic ticket, a law enforcement officer’s “mission” includes “‘ordinary

inquires incident to the traffic stop.’” Bedient, ___ N.C. App. at ___, 786 S.E.2d at 322

(quoting Rodriguez, ___ U.S. at ___, 135 S.Ct. at 1615). This inquiry typically includes

checking the driver’s license, determining if the driver has any outstanding warrants,

inspecting the vehicle’s registration and proof of insurance, or a rental agreement for

a rental car, which is the equivalent of inspecting a vehicle’s registration and proof of

insurance. See Bedient, ___ N.C. App. at ___, 786 S.E.2d at 322–23 (quoting

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Rodriguez, ___ U.S. at ___, 135 S.Ct. at 1615); See also State v. Bullock, ___ N.C. App.

___, 785 S.E.2d 746, 751 (2016), writ of supersedeas allowed, 786 S.E.2d 927 (2016).

The trial court held its suppression hearing 1 June 2015 and issued an order

denying Defendant’s motion to suppress on 10 July 2015. If the trial court had the

benefit of this Court’s guidance in Bullock, ___ N.C. App. ___, 785 S.E.2d 746, it may

have ruled in Defendant’s favor.

In Bullock, this Court examined a fact pattern that is nearly identical to the

case sub judice and applied the principles of Rodriguez, ___ U.S. ___, 135 S.Ct. 1609.

In Bullock, the defendant sped and followed another vehicle too closely on the

highway. Bullock, ___ N.C. App. at ___, 785 S.E.2d at 747–48. When the officer

pulled Bullock over, he asked for Bullock’s license and rental agreement. Id., ___

N.C. App. at ___, 785 S.E.2d at 748. The rental agreement did not list Bullock’s name,

though it appeared he wrote his name on the form below the renter’s signature. Id.

The officer saw two cell phones in the car and noticed Bullock’s hands were “trembling

a little.” Id. The officer asked Bullock where he was traveling. Id. Bullock said he

was driving to meet a girl and missed his exit on the highway. Id. The officer “asked

[Bullock] to step back to his patrol car while he ran [Bullock’s] driver’s license.” Id.

The officer “shook hands with [Bullock] and told him that he would give him a

warning for the traffic violation.” Id. The officer “then asked if he could briefly search

[Bullock] for weapons before he got into his patrol car.” Id. Bullock “agreed and lifted

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his arms up in the air . . . .” Id. Bullock sat in the front seat of the patrol car as the

officer ran his driver’s license through a mobile computer. Id. The officer’s K-9 was

in the back seat. Id. While the officer and Bullock sat in the front seats, the officer

questioned Bullock. Id. The officer thought Bullock “looked nervous while he was

questioning him . . .” and saw he was “‘breathing in and out in his stomach’ and not

making much eye contact.” Id. The officer attributed this nervousness “to something

other than general anxiety from a routine traffic stop” because he already told Bullock

he was going to issue a warning ticket. Id., ___ N.C. App. at ___, 785 S.E.2d at 751.

The officer asked Bullock “if there were any weapons or drugs in the car and if he

could search the vehicle.” Id., ___ N.C. App. at ___, 785 S.E.2d at 748. Bullock

consented to the search except for his personal belongings, which included a bag,

some clothes, and condoms. Id. The officer called for a backup officer and explained

he could not search without another officer present. Id. While they waited

approximately ten minutes for a backup officer to arrive, Bullock asked “what would

happen if he did not consent to a search of the car,” and the officer stated “he would

then deploy his K-9 dog to search the car.” Id. “At that time, [Bullock] and [the

officer] spoke some more about the girl [Bullock] was going to see and other matters

unrelated to the traffic stop.” Id. The backup officer arrived, searched the car, and

found 100 bindles of heroin. Id., ___ N.C. App. at ___, 785 S.E.2d at 749.

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The Bullock Court applied the United States Supreme Court’s guidance in

Rodriguez and held the officer could check Bullock’s license and rental agreement,

but he “was not allowed to ‘do so in a way that prolonged the stop, absent the

reasonable suspicion ordinarily demanded to justify detaining an individual.’” Id.,

___ N.C. App. at ___, 785 S.E.2d at 751 (quoting Rodriguez, ___ U.S. at ___, 135 S.Ct.

at 1615). This Court held, “[the officer] completed the mission of the traffic stop when

he told [Bullock] that he was giving [Bullock] a warning for the traffic violations as

they were standing at the rear of [Bullock’s] car.” Id.

Here, Trooper Lamm’s authority to seize Defendant for the speeding infraction

ended “when tasks tied to the traffic infraction [were]—or reasonably should have

been—completed.” Rodriguez, ___ U.S. at ___, 135 S.Ct. at 1614 (emphasis added)

(citation omitted). At the very latest, this occurred when Trooper Lamm told

Defendant he was going to issue a warning ticket and gave him a hard copy of the

warning ticket. See Bullock, ___ N.C. App. at ___, 785 S.E.2d at 751. Beyond this

identifiable point in time, this Court notes an officer may not delay telling a driver

they are going to receive a ticket (or warning ticket), withhold writing or providing a

written copy of the ticket (or warning ticket), withhold the driver’s license, car

registration, rental agreement, or other pertinent documents, in such a way that

prolongs “‘the stop, absent the reasonable suspicion ordinarily demanded to justify

detaining an individual.’” Id. (quoting Rodriguez, ___ U.S. at ___, 135 S.Ct. at 1615).

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Prior to Rodriguez, it was well settled that an officer may ask a driver to exit

a vehicle during a traffic stop. See State v. McRae, 154 N.C. App. 624, 629, 573 S.E.2d

214, 218 (2002) (citations omitted). Historically, the de minimis intrusion of asking

a driver to exit a vehicle was outweighed by “the government’s ‘legitimate and

weighty’ interest in officer safety . . . .” Rodriguez, ___ U.S. at ___, 135 S.Ct. at 1615

(quoting Pennsylvania v. Mimms, 434 U.S. 106, 110–11 (1977) (per curiam)).

However, “under Rodriguez, even a de minimis extension is too long if it prolongs the

stop beyond the time necessary to complete the mission.” Bullock, ___ N.C. App. at

___, 785 S.E.2d at 752. Therefore, an officer may offend the Fourth Amendment if he

unlawfully extends a traffic stop by asking a driver to step out of a vehicle. See Id.

The same is true of an officer who unlawfully extends a traffic stop by asking a driver

to sit in his patrol car, thereby creating the need for a weapons pat down.2 It is also

possible for an officer to unlawfully extend a traffic stop by telling a driver to close

the patrol car’s front passenger door, while the officer questions the driver about

matters unrelated to the traffic stop. Further, this Court notes officer safety is put

at risk an increased number of times when an officer adds additional steps to delay

the traffic stop, such as ordering the driver to step out of the vehicle, patting the

2 “By requiring defendant to submit to a pat-down search and questioning in the patrol car unrelated to the purpose of the traffic stop, the officer prolonged the traffic stop beyond the time necessary to complete the stop’s mission and the routine checks authorized by Rodriguez.” Bullock, ___ N.C. App. at ___, 785 S.E.2d at 753 (citing State v. Castillo, ___ N.C. App. ___, 787 S.E.2d 48 (2016)).

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driver down, having the driver sit in the patrol car, and sitting next to the driver to

ask them questions and observe their demeanor.

To detain a driver beyond a traffic stop, an officer must have “reasonable

articulable suspicion that illegal activity is afoot.” State v. Williams, 366 N.C. 110,

116, 726 S.E.2d 161, 166–67 (2012) (citing Florida v. Royer, 460 U.S. 491, 497–98

(1983)) (citation omitted). An officer is “required to have reasonable suspicion before

asking [a] defendant to go to his patrol vehicle to be questioned.” Bullock, ___ N.C.

App. at ___, 785 S.E.2d at 753. During a lawful traffic stop, an officer “may conduct

a pat down search, for the purpose of determining whether the person is carrying a

weapon, when the officer is justified in believing that the individual is armed and

presently dangerous.” State v. Sanders, 112 N.C. App. 477, 480, 435 S.E.2d 842, 844

(1993) (citing Terry v. Ohio, 392 U.S. 1, 24 (1968); Minnesota v. Dickerson, 508 U.S.

366, 373 (1993)) (emphasis added).

Here, the trial court found Trooper Lamm had “sufficient reasonable suspicion

of criminal activity to continue the traffic stop beyond the speeding enforcement

action” for the following reasons:

a. Defendant was overly nervous for a traffic stop for speeding.

b. Defendant would not close the patrol car door until ordered to do so, stating that he was “scared to do that” and had one leg out of the door.

c. Defendant gave the Trooper a rental agreement for a

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different car than he was operating and that car was paid for in cash.

d. Defendant was operating the car outside of the approved area for travel, New York, New Jersey, and Connecticut.

e. He noted the presence of numerous air fresheners in the vehicle.

f. The vehicle had a lived in look showing hard travel, such as, coffee, energy drinks, and trash.

g. The presence of a female dog in the car and dog food scattered throughout the car.

h. The driver and passenger provided inconsistent travel plans.

The trial court’s findings do not support its conclusion that Trooper Lamm had

reasonable suspicion of criminal activity to extend the traffic stop and conduct a

search after the traffic stop concluded. The various legal behaviors in the trial court’s

findings do not amount to a “reasonable articulable suspicion that illegal activity is

afoot.” Williams, 366 N.C. at 116, 726 S.E.2d at 166–67 (citing Royer, 460 U.S. at

497–98) (citation omitted). “In order to preserve an individual’s Fourth Amendment

rights, it is of the utmost importance that we recognize that the presence of [a

suspicious but legal behavior] is not, by itself, proof of any illegal conduct and is often

quite consistent with innocent travel.” State v. Fields, 195 N.C. App. 740, 745, 673

S.E.2d 765, 768 (2009) (citing United States v. Sokolow, 490 U.S. 1, 9 (1989)).

Reasonable suspicion may arise from “wholly lawful conduct.” Reid v. Georgia, 448

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U.S. 438, (1980) (citing Terry, 392 U.S. at 27–28). However, “‘the relevant inquiry is

. . . the degree of suspicion that attaches to particular types of noncriminal acts.’”

Sokolow, 490 U.S. at 10 (quoting Illinois v. Gates, 462 U.S. 213, 243–44 n. 13 (1983)).

Here, Defendant’s nervousness is “an appropriate factor to consider,” but it

must be examined “in light of the totality of the circumstances” because “many people

do become nervous when [they are] stopped by an officer . . . .” State v. McClendon,

350 N.C. 630, 638, 517 S.E.2d 128, 134 (1999) (citations omitted). The degree of

suspicion attached to Defendant’s possession of a female dog, dog food, coffee, energy

drinks, trash, and air fresheners is minimal, as it is consistent with innocent travel.

Most importantly, the trial court’s findings are based upon facts that were

discovered after the “tolerable duration” of the speeding stop expired, namely

Defendant’s nervousness and his fear about closing the front passenger door of the

patrol car. See Bedient, ___ N.C. App. at ___, 786 S.E.2d at 322 (quoting Rodriguez,

___ U.S. ___, ___, 135 S.Ct. at 1614). Rodriguez clearly changes the law and traffic

stop procedures that existed prior to its issuance on 21 April 2015. To affirm the trial

court, as the dissent suggests, is to ignore the United States Supreme Court’s

direction in Rodriguez, ___ U.S. ___, 135 S.Ct. 1609.