Appeal by defendant from judgment entered 26 September 2006 by
Judge Kenneth F. Crow in Craven County Superior Court. Heard in
the Court of Appeals 29 August 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Derrick C. Mertz, for the State.
McAfee Law, P.A., by Robert J. McAfee, for defendant-
Defendant pled guilty to one count of possession with intent
to sell or deliver marijuana and one count of maintaining a vehicle
for selling controlled substances, but reserved the right to appeal
the trial court's denial of his motion to suppress evidence
obtained as a result of a vehicle stop. Although defendant doesnot contest the validity of the initial stop, he contends that a
subsequent drug dog sniff constituted an unlawful detention without
reasonable suspicion. Based on Illinois v. Caballes, 543 U.S. 405,
160 L. Ed. 2d 842, 125 S. Ct. 834 (2005), and State v. Branch, 177
N.C. App. 104, 627 S.E.2d 506, disc. review denied, 360 N.C. 537,
634 S.E.2d 220 (2006), we hold that the trial court properly denied
the motion to suppress.
On 24 January 2006, Officer Todd Conway was traveling behind
defendant's vehicle. As he routinely does while on duty, Officer
Conway ran defendant's license tag to check for valid registration
and insurance. Before Officer Conway received a response from the
Division of Motor Vehicles ("DMV"), defendant made a left turn onto
another street. Officer Conway kept driving straight, but five to
six seconds later, he learned that defendant's tags were registered
to a Cadillac rather than the Lexus that defendant was driving. At
that point, Officer Conway turned around, located defendant, and
Officer Conway told defendant that he was being stopped on
suspicion of having fictitious tags. Defendant explained that his
mother had just purchased the car and gave Officer Conway the
transfer of title tags and his driver's license. The officer told
defendant that he was going to issue a written warning.
As Officer Conway walked back to his car with defendant's
paperwork, he recognized the name on defendant's driver's license
as a name he had heard mentioned over the radio by narcoticsofficers. Officer Conway called the on-duty narcotics officer, who
confirmed that defendant was suspected of narcotics involvement.
Officer Conway then requested that a canine officer come to the
scene in order to conduct a drug dog sniff.
Officer Conway was out of warning tickets, but borrowed
another officer's warning ticket book. About seven minutes after
the stop began, as Officer Conway began to walk back to defendant's
vehicle with the warning ticket, Officer Copeland, the canine
officer, arrived. When Officer Conway reached defendant's vehicle,
defendant began to attempt to get out of his car. Although Officer
Conway allowed defendant to exit the car, he asked defendant if he
could pat him down to make sure he had no weapons. After defendant
consented to the frisk, Officer Conway had defendant step away from
the car while the officer finished talking to him.
Officer Conway then returned defendant's driver's license and
registration and asked defendant if there was anything illegal in
the car. When defendant responded "no," Officer Conway explained
to him that he was going to have a dog walk around the car. The
dog sniff took a minute and a half to two minutes to conduct.
Officer Copeland reported to Officer Conway that the dog, Nick, had
alerted to the passenger side of the vehicle. From the time
Officer Copeland arrived at the scene until the time Nick alerted,
approximately four minutes elapsed. The officers then obtained
defendant's keys, searched the car, and found a large quantity of
marijuana. Defendant was indicted on charges of possession with intent to
sell or deliver marijuana and maintaining a vehicle for selling
controlled substances. On 21 September 2006, defendant filed a
motion to suppress the evidence found in his car. At the 26
September 2006 hearing on the motion, the State presented the
testimony of Officers Conway and Copeland. Defendant presented no
evidence. After the trial court denied the motion to suppress,
defendant pled guilty, but reserved his right to appeal the denial
of the motion. The trial court sentenced defendant to six to eight
months imprisonment, suspended the sentence, and placed defendant
on unsupervised probation for 24 months.
The sole issue presented on appeal is whether the trial court
erred in denying defendant's motion to suppress. Defendant does
not dispute the lawfulness of the traffic stop. Instead, defendant
contends that the State lacked reasonable suspicion to conduct the
Defendant first argues that because a dog sniff was not
necessary to verify the validity of defendant's license plate, the
officer was required to have reasonable suspicion to justify the
need for a dog sniff apart from the traffic stop. This argument is
foreclosed by Caballes
, the controlling authorities with
respect to canine sniffs.
, a state trooper stopped the defendant for
speeding. When the officer radioed the police dispatcher to report
the stop, a canine officer immediately headed to the scene. 543U.S. at 406, 160 L. Ed. 2d at 845, 125 S. Ct. at 836. Upon
arrival, the canine officer walked the dog around the car while the
other officer was writing the defendant a warning ticket. Id.
L. Ed. 2d at 846, 125 S. Ct. at 836. After the dog alerted to the
trunk of the car, the officers searched the trunk and found
The entire incident took less than 10 minutes.
The Illinois Supreme Court, in holding that the dog sniff
constituted an unlawful seizure, reasoned that the use of the dog
converted the lawful traffic stop into a drug investigation, and
because the shift in purpose was not supported by any reasonable
suspicion that respondent possessed narcotics, it became unlawful,
at 408, 160 L. Ed. 2d at 847, 125 S. Ct. at 837 _ the same
reasoning relied upon by defendant in this case.
In reversing the Illinois Supreme Court, however, the United
States Supreme Court specifically held: "In our view, conducting a
dog sniff would not change the character of a traffic stop that is
lawful at its inception and otherwise executed in a reasonable
manner, unless the dog sniff itself infringed respondent's
constitutionally protected interest in privacy. Our cases hold
that it did not." Id.
The Court explained that "any interest in
possessing contraband cannot be deemed legitimate, and thus,
governmental conduct that only
reveals the possession of contraband
compromises no legitimate privacy interest." Id.
quotation marks omitted). The Court, therefore, concluded that
"[a] dog sniff conducted during a concededly lawful traffic stop
that reveals no information other than the location of a substancethat no individual has any right to possess does not violate the
Fourth Amendment." Id.
at 410, 160 L. Ed. 2d at 848, 125 S. Ct. at
This Court first applied Caballes
, in which this
Court had initially held, prior to the filing of Caballes
reasonable suspicion was required before an officer conducted a
canine sniff of a suspect's lawfully stopped vehicle. See State v.
, 162 N.C. App. 707, 714, 591 S.E.2d 923, 927 (2004), disc.
review improvidently allowed
, 359 N.C. 406, 610 S.E.2d 198,
, 546 U.S. 931, 163 L. Ed. 2d 314, 126 S. Ct. 411 (2005).
The United States Supreme Court, however, vacated that decision for
reconsideration in light of Caballes
, 177 N.C. App. at
105, 627 S.E.2d at 507.
, police officers, who had stopped the defendant at
a driver's license checkpoint, conducted a dog sniff of the
defendant's car while another officer was obtaining information
regarding the defendant over the radio. In response to the
defendant's contention that even though the initial stop was
lawful, the officers lacked reasonable suspicion to conduct the dog
sniff, this Court held on remand:
[O]nce the lawfulness of a person's detention
is established, Caballes
instructs us that
officers need no additional assessment under
the Fourth Amendment before walking a
drug-sniffing dog around the exterior of that
individual's vehicle. . . . Thus, based on
, once [the defendant] was detained to
verify her driving privileges, Deputies . . .
needed no heightened suspicion of criminal
activity before walking [the dog] around her
at 108, 627 S.E.2d at 509.
Accordingly, in this case, based on Caballes
because the initial traffic stop was lawful, the officers needed no
further justification in order to conduct the dog sniff.
Nonetheless, defendant argues that once he was issued the warning
ticket, Officer Conway was required to have reasonable suspicion to
prolong the detention in order to complete the dog sniff.
, the Supreme Court warned that "[a] seizure that
is justified solely by the interest in issuing a warning ticket to
the driver can become unlawful if it is prolonged beyond the time
reasonably required to complete that mission." 543 U.S. at 407,
160 L. Ed. 2d at 846, 125 S. Ct. at 837. Courts applying Caballes
have held, however, that if 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.
United States v. Alexander
, 448 F.3d 1014 (8th Cir. 2006),
, __ U.S. __, 166 L. Ed. 2d 715, 127 S. Ct. 929 (2007),
involves facts similar to those in this case. In Alexander
a traffic stop based on probable cause, an officer told the
defendant that he would give him a written warning and then asked
the defendant whether there was anything illegal in his car and
whether he would consent to a search of the car. Id.
After the defendant refused to give consent, the officer told the
defendant that the officer was going to conduct a drug dog sniffand if the dog did not alert, then the defendant would be free to
go. The dog alerted four minutes after the defendant was told of
the warning ticket and 16 minutes after the traffic stop commenced.
In reviewing the trial court's denial of a motion to suppress,
the Eighth Circuit first noted the rule that "[o]nce an officer has
decided to permit a routine traffic offender to depart with a
ticket, a warning, or an all clear, the Fourth Amendment applies to
limit any subsequent detention or search." Id.
The court added:
"We recognize, however, that this dividing line is artificial and
that dog sniffs that occur within a short time following the
completion of a traffic stop are not constitutionally prohibited if
they constitute only de minimis
intrusions on the defendant's
Fourth Amendment rights." Id.
The court then pointed to the
holding in Caballes
that "'conducting a dog sniff would not change
the character of a traffic stop that is lawful at its inception and
otherwise conducted in a reasonable manner.'" Id.
at 1017 (quoting
, 543 U.S. at 408, 160 L. Ed. 2d at 847, 125 S. Ct. at
837). According to the Eighth Circuit, "[i]t is precisely this
reasonableness inquiry" that led it to recognize "that the
artificial line marking the end of a traffic stop does not
foreclose the momentary extension of the detention for the purpose
of conducting a canine sniff of the vehicle's exterior." Id.
Because the defendant's detention in Alexander
was, at most,
extended four minutes beyond the point when the defendant was told
of the warning ticket, the Eighth Circuit held that the dog sniffwas legal, and the trial court properly denied the motion to
suppress. Id. See also United States v. Williams
, 429 F.3d 767,
772 (8th Cir. 2005) ("[A] brief five to six minute wait for the
drug-sniffing dog is well within the time frame for finding that
the stop was not unreasonably prolonged.").
The Florida District Court of Appeal applied the Alexander
reasoning in State v. Griffin
, 949 So. 2d 309 (Fla. Dist. Ct.
App.), disc. review denied
, 958 So. 2d 920 (2007). A canine
officer had stopped the defendant for speeding and failure to
maintain a single lane. Id.
at 311. The officer called for a
second officer to assist at the scene because his department's
procedure required the presence of a second officer prior to
conducting a dog sniff. Id.
When the second officer arrived five
to 10 minutes later, the first officer stopped writing the
defendant's citation and walked his dog around the car. Id.
dog sniff lasted for only 20 to 90 seconds, and the defendant was
arrested 15 minutes after the stop began. Id.
Relying upon the
analysis, the court concluded that the stop was not
conducted in an "unreasonable manner or improperly delayed" and any
intrusion upon the defendant's liberty interests resulting from the
interruption of the writing of the citation was "de minimis
therefore, not unconstitutional." Id.
at 315. See also Hugueley
v. Dresden Police Dep't
, 469 F. Supp. 2d 507, 513 (W.D. Tenn. 2007)
(holding that the plaintiff's "two and one-half minute detention
following the traffic stop while [the officer] conducted a
dog-sniff on the exterior of his vehicle was de minimis
, and it didnot convert the valid traffic stop into an unreasonable seizure in
violation of the Fourth Amendment").
In this case, the canine unit arrived prior to Officer
Conway's giving the warning ticket to defendant. Officer Conway
then proceeded to explain to defendant that Officer Copeland was
going to conduct a dog sniff of the exterior of defendant's car.
The court found that it took the dog a minute and a half to
complete the sniff. Thus, the stop was extended only for the time
necessary to explain about the dog sniff and the one-and-a-half
minutes of the actual sniff. We find the reasoning of Alexander
persuasive and hold that this very brief additional time did not
prolong the detention beyond that reasonably necessary for the
Our Supreme Court's decision in State v. McClendon
, 350 N.C.
630, 517 S.E.2d 128 (1999), predating Caballes
, and this Court's
decision in State v. Euceda-Valle
, 182 N.C. App. 268, 641 S.E.2d
858, appeal dismissed, disc. review denied, and cert. denied
N.C. 698, ___ S.E.2d ____, (2007), are not to the contrary. In
, the Supreme Court "address[ed] the question of whether
the further detention of defendant from the time the warning ticket
was issued until the time the canine unit arrived went beyond the
scope of the stop and was unreasonable." Id.
at 636, 517 S.E.2d at
132. The Court held that "[i]n order to further detain a person
after lawfully stopping him, an officer must have reasonable
suspicion, based on specific and articulable facts, that criminal
activity is afoot." Id.
The officer in that case, however, calledfor a canine unit only after he had already issued the defendant a
warning ticket, and the canine unit did not arrive until 15 to 20
minutes later. Id.
at 634, 517 S.E.2d at 131. Because of the
lengthy detention after the undisputed conclusion of the traffic
stop, the Court had no reason to consider whether _ as in this case
_ a de minimis
extension of the traffic stop required additional
, this Court applied McLendon
when a dog sniff
occurred immediately after a warning ticket had been given to the
defendant following a lawful traffic stop. 182 N.C. App. at 270-
71, 641 S.E.2d at 862. Because the Court concluded that the trial
court properly found the existence of reasonable articulable
suspicion, this Court did not need to address the issue presented
in this case. Id.
at 270-71, 641 S.E.2d at 863. Further, the
defendant was required to remain in the officer's patrol car while
the drug sniff took place. Id.
at 270-71, 641 S.E.2d at 862. The
trial court specifically found that the defendant was, during this
period of time, required to remain "in [the police officer's]
In this case, in contrast to McLendon
defendant chose, on his own initiative, to exit his car and talk
with the police officer after the canine unit had already arrived.
Defendant's own actions in leaving the car necessarily prolonged
the stop for the modest period of time necessary to be frisked, to
talk with the officer, and _ in the absence of the dog sniff _ to
return to his car. The dog sniff added only a minute and a halfbeyond defendant's conversation with the officer. We hold that the
trial court properly concluded that such a very brief addition of
time did not extend the legitimate traffic stop so as to require
application of the principle set forth in McLendon
Defendant does not dispute that once Nick, the drug dog,
alerted to the presence of contraband, the officers then had
probable cause to conduct a search of the vehicle. See Caballes
543 U.S. at 409, 160 L. Ed. 2d at 847, 125 S. Ct. at 838. We,
therefore, affirm the trial court's denial of defendant's motion to
Judges CALABRIA and JACKSON concur.
*** Converted from WordPerfect ***