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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA06-1487


Filed: 18 September 2007


v .                         New Hanover County
                            No. 03 CRS 021888-89
                             03 CRS 021891-92

    Appeal by defendant from order signed 1 October 2004 by Judge Jay D. Hockenbury in Superior Court, New Hanover County. Heard in the Court of Appeals 21 August 2007.

    Attorney General Roy Cooper, by Assistant Attorney General Douglas W. Corkhill, for the State.

    D. Tucker Charns, for defendant-appellant.

    WYNN, Judge.

    After concluding a traffic stop, a police officer “must have reasonable suspicion, based on specific and articulable facts, that criminal activity is afoot” to continue detaining an individual.   (See footnote 1)  Because we find that the defendant's nervousness, shaking, labored breathing, and lack of eye contact with the state trooper, as well as her all-night drive from New York and her vehicle's registration to a third party, are facts sufficiently “specific and articulable” to constitute reasonable suspicion as a matter of law, we affirm the trial court's denial of the defendant's motion to suppress evidence gathered in a search of her vehicle.     At approximately 8:30 a.m. on 27 October 2003, Trooper J. G. Ludlum of the North Carolina Highway Patrol, while traveling eastbound on Interstate 40 near Wilmington, North Carolina, observed a green Mazda automobile going at a high rate of speed, which he clocked by radar gun at ninety-two miles per hour. Trooper Ludlum stopped the Mazda and found Defendant Terri West driving, with a male asleep in the front passenger seat and another female asleep in the backseat. Defendant told Trooper Ludlum that she was going fast because she was tired. For safety reasons, Trooper Ludlum had Defendant sit in the front seat of his patrol car while he wrote her a citation for speeding and careless and reckless driving.
    Trooper Ludlum later testified that Defendant acted nervous when he stopped her, and that even ten minutes after they had gotten into his patrol car, “[h]er breathing was still labored, she was still shaking, . . . she still wouldn't look at me. She looked out the window . . . . She never established eye contact with me[.]” After checking Defendant's registration, Trooper Ludlum learned that the Mazda was not in the name of anyone in the car. Defendant told Trooper Ludlum that the automobile was registered in a neighbor's name because it was cheaper. Defendant also told Trooper Ludlum that she was tired because she had driven all night from New York City, stopping only for gasoline along the way.
    After Trooper Ludlum had finished writing the citation and informed Defendant that she was free to leave, Defendant reached for the door handle to the patrol car, and Trooper Ludlum asked herif she had anything illegal in her vehicle. She said that she did not but denied Trooper Ludlum's request for permission to search the vehicle. When Defendant asked Trooper Ludlum why he wanted permission to search her vehicle, he informed her that there was a “host of criminal indicators” present that would justify a vehicle search. He told Defendant that she had the right to refuse, but that if she did, he would contact the drug K-9 unit for a search. Defendant again denied permission, and Trooper Ludlum contacted the K-9 unit. While they were waiting for the officer and dog to arrive, Trooper Ludlum observed that Defendant's demeanor remained nervous, with shaking, labored breathing, and lack of eye contact.
    During the drug dog's external sniff of the vehicle, the dog “indicated” at the right passenger side of the car; the door was opened, allowing for an internal sniff, and the dog went immediately to bags on the back left passenger seat near where the female passenger had been seated. Numerous small packages of narcotics were then found, containing six hundred glassine bags holding 25.6 grams of heroin. Defendant and the two passengers were placed under arrest.
    On 1 September 2004, Defendant went on trial for trafficking in heroin by possession, trafficking in heroin by transportation, possession with intent to sell or deliver heroin, and maintaining a vehicle for keeping, selling, or delivering heroin. Defendant made a motion to suppress the evidence gathered in her vehicle following the drug dog search. After a voir dire hearing, the trial court denied her motion to suppress the evidence. Defendantthen pled guilty to two counts of trafficking in heroin and one count of possession with intent to sell or deliver heroin. As part of the plea agreement, the State dismissed the charge of maintaining a dwelling. The sentences were consolidated into a single judgment, and the trial court sentenced Defendant to a minimum term of ninety months and a maximum term of one hundred seventeen months in prison, as well as a fine of $100,000.
    Defendant now appeals the denial of her motion to suppress, arguing that the trial court erred in concluding that Trooper Ludlum had reasonable suspicion based on the totality of the circumstances to detain her and have a drug dog search her car. Defendant specifically contends that her nervousness, lack of eye contact with Trooper Ludlum, driving a car registered to a neighbor, and statements as to an all-night drive from New York to Wilmington were insufficient to constitute reasonable suspicion.   (See footnote 2)  We disagree.
    When reviewing a trial court's ruling on a motion to suppress, “the trial court's findings of fact are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting.” State v. Buchanan, 353 N.C. 332, 336, 543 S.E.2d 823, 826 (2001) (internal quotation and citation omitted). However, we review de novo a trial court's conclusions of law regarding whether an officer had reasonable suspicion to detain adefendant. State v. Munoz, 141 N.C. App. 675, 682, 541 S.E.2d 218, 222, cert. denied, 353 N.C. 454, 548 S.E.2d 534 (2001); see also State v. Brooks, 337 N.C. 132, 141, 446 S.E.2d 579, 585 (1994). Moreover, we emphasize that we “accord[] great deference to the trial court's ruling on a motion to suppress because the trial court is entrusted with the duty to hear testimony (thereby observing the demeanor of the witnesses) and to weigh and resolve any conflicts in the evidence.” State v. Johnston, 115 N.C. App. 711, 713, 446 S.E.2d 135, 137 (1994).
    Our state Supreme Court has 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.” State v. McClendon, 350 N.C. 630, 636, 517 S.E.2d 128, 132-33 (1999). Such reasonable suspicion is determined by “the totality of the circumstances - the whole picture.” Alabama v. White, 496 U.S. 325, 330, 110 L. Ed. 2d 301, 309 (1990) (quoting United States v. Cortez, 449 U.S. 411, 417, 66 L. Ed. 2d 621, 629 (1981)); see also State v. Watkins, 337 N.C. 437, 441-42, 446 S.E.2d 67, 70 (1994) (holding that whether a basis for reasonable suspicion exists is to be determined from the totality of the circumstances).
    Moreover, “[t]he stop must be based on specific and articulable facts, as well as the rational inference from those facts, as viewed through the eyes of a reasonable, cautious officer, guided by his experience and training.” Id. at 441, 446 S.E.2d at 70 (citing Terry v. Ohio, 392 U.S. 1, 21-22, 20 L. Ed. 2d889, 906 (1968), and State v. Thompson, 296 N.C. 703, 706, 252 S.E.2d 776, 779, cert. denied, 444 U.S. 907, 62 L. Ed. 2d 143 (1979)). “The only requirement is a minimal level of objective justification, something more than an 'unparticularized suspicion or hunch.'” Id. at 442, 446 S.E.2d at 70 (quoting United States v. Sokolow, 490 U.S. 1, 7, 104 L. Ed. 2d 1, 10 (1989).
    In the instant case, Trooper Ludlum testified:
        [T]he vehicle has been coming from New York, which is a high drug area . . . That the vehicle was _ belonged to a third party, that she was extremely nervous, that she would not look at me, she was _ would not look at me when we were talking, and that her breathing was labored. Those are what I consider the host of criminal indicators.

The trial court included each of these “indicators” in its findings of fact to support its conclusion of law that:
        Trooper Ludlum had reasonable articulable suspicion to order a drug dog sniff based on the totality of the facts in this case as follows:
            1. The extreme nervousness, shaking and labored breathing of the Defendant West over a substantial period of time.
            2. The lack of eye contact made by the Defendant West with the officer during conversations over a substantial period of time.
            3. The all night drive with only one stop for gas from Bronx, New York, which is a known location where drugs are sent to New Hanover County.
            4. The registration of the green Mazda was in the name of a person not present and the explanation was incredulous.

Under our state Supreme Court precedents, we find these facts to be sufficiently “specific and articulable” to constitute a reasonable suspicion to further detain Defendant for the drug dog search. McClendon, 350 N.C. at 636, 517 S.E.2d at 132. Accordingly, this assignment of error is overruled.
    Judges HUNTER and BRYANT concur.
    Report by Rule 30(e).

Footnote: 1
     State v. McClendon, 350 N.C. 630, 636, 517 S.E.2d 128, 132-33 (1999).
Footnote: 2
     Defendant does not challenge the initial stop of her vehicle by Trooper Ludlum for speeding and careless and reckless driving, nor does she assert that her temporary detention prior to the drug dog search was improper.

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