State v. McClendon , 130 N.C. App. 368 ( 1998 )

Judge Wynn

dissenting.

To further detain a suspect after having performed an initial investigatory stop, an officer must have a reasonable articulable suspicion that criminal activity is afoot. Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889 (1968). Because our Supreme Court in State v. Pearson, 348 N.C. 272, 498 S.E.2d 599(1998) and this Court most recently in State v. Falana, 129 N.C. App. 813, 501 S.E.2d 358 found that evidence similar to that in the case at hand was insufficient to support a conclusion that the officers were justified in detaining the drivers in those cases, I dissent from the majority’s decision in this case.

In Pearson, our Supreme Court rejected arguments that the nervousness of the driver and the inconsistent story of his passenger were sufficient grounds for a more intrusive search by troopers. Such factors, the Court concluded, even when considered as a whole, did not warrant a reasonable belief that the driver was armed or dangerous so as to justify a search of his person. In Falana, Judge Walker held that neither the demeanor of the driver nor the variances in his fiancé’s statements was sufficient to warrant his detention after issuance of the ticket, even if the trooper’s suspicions were in fact genuine.

Here, as in Pearson and Falana, defendant appeared nervous and gave inconsistent statements to the officers. Moreover, his statements to the troopers that the car belonged to his girlfriend whose name did not appear on the vehicle’s title, amount to nothing more than the type of inconsistent statement found to be insufficient in Pearson. Thus, the only factor that could possibly justify the majority’s conclusion that this case “extends well beyond” those two cases was the driver’s inability to produce a registration for the vehicle. However, the driver did produce a title to the vehicle that matched the address on his driver’s license. Any reasonable suspicions on the ownership of the vehicle were therefore dispelled by the title information. Accordingly, the factors in this case, even when viewed as a whole, do not extend beyond those in Pearson and Falana.