State v. CastilloÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-855
Filed: 3 May 2016
Durham County, No. 14 CRS 59340
STATE OF NORTH CAROLINA
v.
JEFFREY CASTILLO
Appeal by the State from order entered 22 April 2015 by Judge Richard Allen
Baddour Jr. in Durham County Superior Court. Heard in the Court of Appeals
15 December 2015.
Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde,
for the State.
Sutton & Lindsay PLLC, by Kerstin Walker Sutton and Stephen P. Lindsay,
for the defendant-appellant.
McCULLOUGH, Judge.
The State appeals from an order allowing Jeffrey Castillo’s (“defendant’s”)
motion to suppress the search of his vehicle entered by the trial court on
22 April 2015. After careful review, we reverse.
I. Background
On 26 September 2014, Officer Roy Green, a 15-year veteran Durham Police
Department officer assigned to the highway interdiction division of the special
operations division was parked on an exit ramp monitoring the southbound lanes of
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I-85 near the Durham-Orange county border. Officer Green testified that he patrols
the I-85 corridor looking for people who might be using that route to move contraband,
money, or engage in human trafficking while also stopping and citing routine traffic
violators. Officer Green further testified that he has had specialized interdiction
training beginning in 2006. The interdiction training teaches him how to look for
verbal and non-verbal indicators that the person stopped for a traffic violation might
also be engaged in other criminal activity.
During his shift, Officer Green positioned his vehicle, a marked unit with no
roof light system, on the exit ramp of Highway 70 which provided him with a clear
view of the I-85 South traffic lanes. He noticed a green car traveling at what he
estimated as a high rate of speed, so the officer began to follow the car to determine
how fast the car was travelling. Officer Green had tested his speedometer and radar
to ensure the accuracy of his speedometer at the beginning of the shift, which was
important since there was too much traffic at the location he was monitoring for him
to use his radar. After pacing defendant’s vehicle for enough time and distance to
calculate defendant’s speed as 72 mph in a 60 mph zone, Officer Green activated his
emergency lights and stopped defendant’s vehicle. When defendant observed the
officer’s lights he abruptly pulled over to the shoulder of the road, startling Officer
Green and requiring him to brake to avoid collision.
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Officer Green approached defendant’s vehicle from the passenger side and
asked for his license and registration. Officer Green noticed defendant’s hand was
shaking uncontrollably as he handed the license to him. Officer Green also smelled
a mild odor of air freshener emanating from the interior of the vehicle and observed
that defendant was operating the vehicle with a single key, which indicated to Officer
Green that defendant might not be the owner of the car. Officer Green explained that
people who loan someone a car will often not give out all of their keys. This was
corroborated later during the investigation as the officer validated that an individual
from the Jackson Heights or Queens area of New York City was the owner of the
vehicle. Upon noticing defendant’s extreme nervousness, Officer Green asked
defendant where he was going and where was he coming from. Instead of answering,
defendant would respond with “huh,” requiring Officer Green to re-ask the question.
Officer Green testified that he believed this indicated defendant was stalling so that
he could think of what to say. Officer Green testified he knew that defendant clearly
heard the question as he had asked defendant to roll up the driver side window to
screen the traffic noise from I-85 and make it quieter for their conversation. After
the question was asked again, defendant informed Officer Green that he was coming
from Queens, New York. Officer Green then asked defendant again about his
destination and received another “huh” as his answer. Upon the second or third time
defendant was asked about his destination, defendant claimed he did not know where
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he was going but had an address in the GPS of his phone. Defendant could not even
provide the city where that address was located. Officer Green then asked if
defendant had been to North Carolina before, to which defendant replied that this
was his first trip.
Officer Green again asked where he was going and defendant could not, or
would not, tell Officer Green his destination. At that point Officer Green concluded
that defendant clearly did not want to tell him where he was going. Officer Green
testified that he felt this was very strange for in 15 years of stopping people, they
always knew where they were coming from and where they were going. Officer Green
testified this was the first time someone ever told him that they did not know their
destination, but had a destination address locked into the GPS on their phone. Officer
Green testified that defendant informed him it was Big Tree Way, but he did not
know the city in which this address was located; defendant only knew it was about
an hour away. Given the facts that defendant had answered his questions with “huh”
repeatedly and could not, or would not, disclose his destination, Officer Green began
to believe that there was criminal activity involved. This belief arose before Officer
Green asked defendant to exit his vehicle, submit to a pat down for weapons, and sit
in his patrol vehicle.
The patrol vehicle was outfitted with both an in-car camera system to record
the inside of the patrol vehicle and a forward-facing camera system to record what
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the driver would see in front of the patrol vehicle. The entire video of Officer Green’s
interaction with defendant was entered into evidence and played for the trial court
judge.
That video showed that while in the process of entering defendant’s
information and that of the registered owner, Officer Green asked defendant about
the odor of marijuana that he now detected. Defendant answered that he had smoked
about three days ago and that some of his friends smoked, and that is what Officer
Green might have smelled. Then later, while the officer is still processing the
defendant’s name, registration, and routine information, defendant volunteered that
he had been arrested for DUI in New York due to his driving while under the
influence of marijuana, an experience defendant said he had learned from. While in
the patrol vehicle, Officer Green also had defendant repeat his story about not
knowing the city of his destination but that he had an address locked into the GPS of
his phone and he was about an hour away. Officer Green then asked who defendant
was going to see and defendant said “Eric.” But when asked Eric’s last name,
defendant said he did not know. Defendant explained that he was going to see Eric,
hang out for a few days, and go back to New York in the car he had borrowed from
another friend. All of this occurred well before Officer Green learned from dispatch
that there were no warrants for defendant.
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Officer Green further testified that he had to change to the police channel in
case the department was doing a safety check and then go back to dispatch to get
information about warrants. Officer Green also ran the names of the owner of the
vehicle and defendant through the El Paso Intelligence Center (“EPIC”) before
printing out a warning ticket, although Officer Green had already informed
defendant that he was going to receive a warning ticket long before the ticket was
actually printed.
As Officer Green handed defendant the warning ticket, Officer Green asked
defendant if he had any marijuana in the car, noting that he had smelled marijuana
on defendant and defendant had admitted to the marijuana-based DUI. Defendant
denied there was any marijuana in the car and said, “[y]ou can search, if you want to
search.” The ensuing search discovered a quantity of heroin and cocaine in a trap
door under the center console. As the officers are locating the drugs, defendant is
heard muttering “they found it” on the video recording.
After his arrest, defendant was indicted on 3 November 2014 and a suppression
hearing was held on 20 April 2015. The trial court entered an order allowing
defendant’s suppression motion on 22 April 2015, from which the State now appeals.
The trial court ruled that Officer Green unnecessarily extended the traffic stop
without reasonable suspicion and that defendant had not given clear and unequivocal
consent to search his vehicle.
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II. Standard of Review
“The standard of review for a motion to suppress is whether the trial court's
findings of fact are supported by the evidence and whether the findings of fact support
the conclusions of law.” State v. Wainwright, __ N.C. App. __, __, 770 S.E.2d 99, 104
(2015) (internal quotation marks and citation omitted).
Whether a defendant has voluntarily consented to a search is determined after
a review of the totality of the circumstances surrounding the obtaining of consent.
State v. Smith, 346 N.C. 794,798, 488 S.E.2d 210, 213 (1997). Consent in the context
of searches and seizures “means a statement to the officer, made voluntarily and in
accordance with the requirements of [N.C. Gen. Stat. §] 15A-222, giving the officer
permission to make a search.” N.C. Gen. Stat. § 15A-221(b) (2015).
III. Analysis
Here, the trial court properly found that Officer Roy Green, a 15-year veteran
of the Durham Police Department serving in the interdiction unit of the special
operations division, stopped a vehicle driven by defendant with reasonable suspicion
that defendant was speeding in violation of N.C. Gen. Stat. § 20-141. The validity of
the initial traffic stop is not at issue in this case. The problem with the trial court’s
order stems from a misunderstanding of the United States Supreme Court’s recent
decision in Rodriguez v. United States, __ U.S. __, 191 L. Ed. 2d 492 (2015), which
held that even a de minimis extension of a valid traffic stop is a violation of the Fourth
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Amendment’s prohibition against unreasonable searches and seizures absent
reasonable suspicion. Understanding exactly what Rodriguez permits and what
Rodriguez prohibits is important. Thus, we re-visit the facts of Rodriguez and the
legal standards applied in the Eighth Circuit at the time of the Rodriguez traffic stop.
In Rodriguez, a canine police officer, who had his dog with him in his patrol
vehicle, stopped a vehicle after observing it veer slowly onto the shoulder of the road
and then “jerk” back onto the road. Id. at __, 191 L. Ed. 2d at 1612. The defendant
in Rodriguez was driving the vehicle and there was a passenger in the front passenger
seat. Id. Upon approaching the passenger side of the vehicle, the officer inquired
why the defendant had driven onto the shoulder and the defendant replied that he
had swerved to avoid a pothole. Id. at __, 191 L. Ed. 2d at 1613. Resolving the
separate issue of whether the officer had reasonable suspicion to extend the traffic
stop, an issue the majority did not reach and sent back for consideration by the Eighth
Circuit, Justice Thomas added that “[the defendant’s] story could not be squared with
[the officer’s] observation of the vehicle slowly driving off the road before being jerked
back onto it.” Id. at __, 191 L. Ed. 2d at 1622 (Thomas, J., dissenting). The officer
then took the defendant’s license, registration, and proof of insurance to his patrol
vehicle and ran a records check on the defendant. Id. at __, 191 L. Ed. 2d at 1613.
Upon completion of the records check on the defendant, the officer returned to the
defendant’s vehicle, asked the passenger for his driver’s license, and questioned the
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passenger concerning their route and reason for traveling. Id. The passenger
responded that they had gone to Omaha to look at a vehicle for sale and were
returning to Norfolk. Id. The officer then returned to his patrol vehicle to run a
records check on the passenger. Id. The officer also called for a second officer at that
time. Id. Upon completion of the second records check, the officer wrote a warning
ticket for the defendant for driving on the shoulder and returned to the defendant’s
vehicle to issue the warning ticket. Id. After issuing and explaining the warning
ticket and returning the defendant’s and the passenger’s documents, the officer then
asked for permission to walk his dog around the defendant’s vehicle, a request the
defendant refused. Id. At that time, the officer directed the defendant to turn off and
exit the vehicle. Id. When a deputy sheriff arrived a few minutes later, the officer
retrieved his dog from his patrol vehicle and led the dog around the defendant’s
vehicle. Id. The dog alerted and drugs were discovered during a subsequent search
of the defendant’s vehicle. Id.
The district court denied the defendant’s motion to suppress, noting that “in
the Eighth Circuit, 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.” Id. at __, 191 L. Ed. 2d at 1613-14 (internal quotation marks omitted).
The Eighth Circuit affirmed that the delay in the traffic stop “constituted an
acceptable de minimis intrusion on [the defendant’s] personal liberty” and declined
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to address whether the officer had reasonable suspicion to extend the stop. Id. at __,
191 L. Ed. 2d at 1614 (internal quotation marks omitted). The U.S. Supreme Court
granted certiorari and then vacated the judgment of the Eighth Circuit and remanded
the case for the Eighth Circuit to consider whether there was reasonable suspicion to
detain the defendant beyond the completion of the traffic stop. Id. at __, 191 L. Ed.
2d at 1616-17. Upon remand the Eighth Circuit applied the “good-faith exception”
and upheld the defendant’s conviction. United States v. Rodriguez, 799 F.3d 1222 (8th
Cir. 2015).
It is important to examine exactly what guidance the Court provided in
Rodriguez. There Justice Ginsburg explained:
A seizure for a traffic violation justifies a police
investigation of that violation. A relatively brief encounter,
a routine traffic stop is more analogous to a so-called “Terry
stop” than to a formal arrest. Like a Terry stop, the
tolerable duration of police inquiries 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. Because addressing the
infraction is the purpose of the stop, it may last no longer
than is necessary to effectuate that purpose. Authority for
the seizure thus ends when tasks tied to the traffic
infraction are – or reasonably should have been –
completed.
Our decisions in Caballes and Johnson heed these
constraints. In both cases, we concluded that the Fourth
Amendment tolerated certain unrelated investigations
that did not lengthen the roadside detention. In Caballes,
however, we cautioned that a traffic stop can become
unlawful if it is prolonged beyond the time reasonably
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required to complete the mission of issuing a warning
ticket. And we repeated that admonition in Johnson: The
seizure remains lawful only so long as unrelated inquiries
do not measurably extend the duration of the stop. An
officer, in other words, may conduct certain unrelated
checks during an otherwise lawful traffic stop. But . . . he
may not do so in a way that prolongs the stop, absent the
reasonable suspicion ordinarily demanded to justify
detaining an individual.
Id. at __, 191 L. Ed. 2d at 1614-15 (internal quotation marks, citations, brackets, and
ellipses omitted) (emphasis added).
At the outset it should be noted that while a person has been seized during a
traffic stop, that seizure is permissible when based upon reasonable suspicion and
statements made during the course of a traffic stop are not custodial statements
requiring Miranda warnings. Berkemer v. McCarty, 468 U.S. 420, 437-42, 82 L. Ed.
2d 317, 332-36 (1984). While such has long been the law, defense counsel in the
present case argued that Officer Green should have given defendant a Miranda
warning before asking any questions. The trial court then issued Conclusion of Law
12, which provides, “[Officer] Green did not advise defendant of his rights pursuant
to Miranda, and defendant did not waive them.” Miranda, however, is inapplicable
under the circumstances of this case as defendant was not asked any questions post-
arrest. All of the questions asked of defendant were during the traffic stop itself and,
for the most part, related to the traffic stop, such as route information, vehicle
ownership, purpose of the trip, odors emanating from defendant, or responses to
questions from defendant, such as whether there were deer along the highway.
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In reviewing the guidance from Rodriguez, it is clear that a traffic stop may
not be unnecessarily extended, “absent the reasonable suspicion ordinarily demanded
to justify detaining an individual.” Rodriguez, __ U.S. at __, 191 L. Ed. 2d at 1615
(emphasis added). In determining whether a stop was unnecessarily extended, the
purpose of the stop is paramount. Unrelated investigation is not necessarily
prohibited, but extending the stop to conduct such an investigation is prohibited. The
question then arises, “When does reasonable suspicion arise?” In Rodriguez, the
majority opinion made no determination on the issue of reasonable suspicion and
remanded the case to the Eighth Circuit to consider the issue. Id. at __, 191 L. Ed.
2d at 1616-17.
“[A] trial court's conclusions of law regarding whether the officer had
reasonable suspicion [or probable cause] to detain a defendant is reviewable de novo.”
State v. Hudgins, 195 N.C. App. 430, 432, 672 S.E.2d 717, 718 (2009) (internal
quotation marks and citations omitted). Thus, we review de novo the trial court’s
conclusion in this case that Officer Green lacked reasonable suspicion prior to
running the defendant’s name through other databases after learning there were no
warrants for defendant.
Our Supreme Court has long recognized that “reasonable suspicion” is a
relatively low threshold and should be viewed through the eyes of a reasonable officer,
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giving the officer credit for his training and experience. In State v. Williams, 366
N.C. 110, 726 S.E.2d 161 (2012), our Supreme Court explained:
An officer has reasonable suspicion if a reasonable,
cautious officer, guided by his experience and training,
would believe that criminal activity is afoot based on
specific and articulable facts, as well as the rational
inferences from those facts. A reviewing court must
consider the totality of the circumstances – the whole
picture. This process allows officers to draw on their own
experience and specialized training to make inferences
from and deductions about the cumulative information
available to them that might well elude an untrained
person. While something more than a mere hunch is
required, the reasonable suspicion standard demands less
than probable cause and considerably less than
preponderance of the evidence.
Id. at 116-17, 726 S.E.2d at 167 (internal quotation marks and citations omitted).
Applying this reasonable suspicion standard to the circumstances in Williams, our
Supreme Court determined the officers involved had reasonable suspicion to justify
extending a stop until a canine unit arrived where the occupants of a car they stopped
gave inconsistent and unlikely travel information, could not explain where they were
going, gave inconsistent statements concerning their familial relationship, and the
vehicle with illegally tinted windows was owned by a third person. Id. at 117, 726
S.E.2d at 167. The Court further explained that while the factors may not support a
reasonable suspicion of criminal activity when viewed individually and in isolation,
when “viewed as a whole by a trained law enforcement officer who is familiar with
drug trafficking and illegal activity on interstate highways, the responses were
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sufficient to provoke a reasonable articulable suspicion that criminal activity was
afoot[.]” Id.
Another case demonstrating that a series of innocent factors, when viewed
collectively, may rise to the level of reasonable suspicion is State v. Fisher, 219 N.C.
App. 498, 725 S.E.2d 40 (2012), disc. rev. denied, 366 N.C. 425, 759 S.E.2d 83 (2013).
In Fisher, the State argued the following factors established reasonable suspicion
that the defendant was transporting contraband:
(1) there was an overwhelming odor of air freshener coming
from the car; (2) defendant's claim that he made a five hour
round trip to go shopping but had not purchased anything;
(3) defendant's nervousness; (4) defendant had pending
drug related charges and was known as a distributor of
marijuana and cocaine in another county; (5) defendant
was driving in a pack of cars; (6) defendant was driving a
car registered to someone else; (7) defendant never asked
why he had been stopped; (8) defendant was “eating on the
go”; and (9) there was a handprint on the trunk indicating
that something had recently been placed in the trunk.
Id. at 502-03, 725 S.E.2d at 44. This Court explained that
[t]he specific and articulable facts, and the rational
inferences drawn from them, are to be viewed through the
eyes of a reasonable, cautious officer, guided by his
experience and training. In determining whether the
further detention was reasonable, the court must consider
the totality of the circumstances. Reasonable suspicion
only requires a minimal level of objective justification,
something more than an unparticularized suspicion or
hunch. We emphasize that because the reasonable
suspicion standard is a commonsensical proposition,
[c]ourts are not remiss in crediting the practical experience
of officers who observe on a daily basis what transpires on
the street.
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Id. at 502, 725 S.E.2d at 43 (internal quotation marks and citations omitted). Then,
upon review of the factors argued by the State, and despite noting that some of the
factors could be construed as innocent behavior, this Court held the trial court erred
in determining reasonable suspicion did not exist because multiple other factors
present in the case were sufficient to establish reasonable suspicion. Id. at 504, 725
S.E.2d at 45. Specifically, the trial court noted “nervousness, the smell of air
freshener, inconsistency with regard to travel plans, and driving a car not registered
to the defendant.” Id. (internal citations omitted).
Federal reasonable suspicion cases are also instructive in the present case.
Two of those cases are United States v. Carpenter, 462 F.3d 981 (8th Cir. 2006), and
United States v. Ludwig, 641 F.3d 1243 (10th Cir. 2011).
In Carpenter, a defendant driving a vehicle with Texas plates exited the
interstate highway in Phelps County, Missouri immediately after a sign warned of a
drug check point ahead. 462 F.3d at 983. The defendant then drove for a distance
before pulling to the shoulder of the road. Id. When an officer approached the
defendant, the defendant claimed he was looking to refuel even though he had a
quarter of a tank of gas and there were no service stations at the exit. Id. at 983-84.
The defendant also claimed to be traveling from Austin, Texas, to New York, but the
rental agreement for the vehicle showed the vehicle was rented in El Paso. Id. After
another deputy arrived with a trained drug detection dog, the dog was walked around
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the defendant’s vehicle and alerted. Id at 984. The officer than searched the vehicle
and found cocaine, leading to the defendant’s arrest. Id. In reviewing whether there
was reasonable suspicion, the Eighth Circuit explained as follows:
We consider the totality of circumstances in evaluating
whether there was reasonable suspicion that criminal
activity was afoot. Reasonable suspicion is a lower
threshold than probable cause and it requires considerably
less than proof of wrongdoing by a preponderance of the
evidence. The behavior on which reasonable suspicion is
grounded, therefore, need not establish that the suspect is
probably guilty of a crime or eliminate innocent
interpretations of the circumstances. Factors consistent
with innocent travel, when taken together, can give rise to
reasonable suspicion, even though some travelers
exhibiting those factors will be innocent. To justify a
seizure, however, the officer must have a minimal level of
objective justification and something more than an
inchoate and unparticularized suspicion or hunch. And the
ultimate test is not what the seizing officer actually
believed, but what a hypothetical officer in exactly the
same circumstances reasonably could have believed.
Id. at 986 (internal citations and quotation marks omitted). The Court then held that
the totality of the facts in the case provided reasonable suspicion to justify the
detention of the defendant until the drug dog arrived. Id. at 987.
In Ludwig, a Wyoming state trooper initiated a stop of the defendant’s car for
speeding. 641 F.3d at 1246. The defendant pulled onto the shoulder of the highway
but, strangely, continued driving for a considerable distance on the shoulder before
stopping. Id. When the trooper approached the car, he smelled a strong odor of
cologne and noticed the defendant was trembling so badly that he had difficulty
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producing his driver’s license. Id. The trooper then had the defendant accompany
him to his patrol car while he wrote the defendant a speeding ticket, during which
time the trooper asked about the defendant’s travel plans. Id. The defendant advised
he was an “IT administrator” and had traveled from New Jersey to San Jose,
California, to deal with a “server problem” and was now returning to New Jersey. Id.
The defendant also stated that he chose to drive instead of flying, had stayed in
California for only four days, and had spent the last night in his car. Id. The
registration and proof of insurance for the defendant’s car were not in defendant’s
name. Id. The trooper found the circumstances suspicious and after writing a ticket,
detained the defendant for further investigation. Id. A drug dog then alerted to the
defendant’s car and drugs were found during a search. Id. In reviewing the district
court’s denial of the defendant’s motion to dismiss, the Tenth Circuit held that the
combination of considerations which have been recognized in other cases to contribute
to reasonable suspicion led it to hold the reasonable suspicion standard was satisfied.
Id. at 1248-50 (citing United States v. Villa-Chaparro, 115 F.3d 797, 799, 802 (10th
Cir. 1997) (failure to promptly stop); United States v. Ortiz-Ortiz, 57 F.3d 892, 895
(10th Cir. 1995) (masking odors); United States v. Turner, 928 F.2d 956, 959 (10th
Cir. 1991) (third-party registration); United States v. White, 584 F.3d 935, 943, 951
(10th Cir. 2009) and United States v. Sokolow, 490 U.S. 1, 9, 104 L. Ed. 2d 1, __ (1989)
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(suspect travel schedule); United States v. Williams, 271 F.3d 1262, 1269 (10th Cir.
2001) (extreme nervousness)).
As stated earlier, the determination of reasonable suspicion is a conclusion of
law which we review de novo. In analyzing the facts of the case at bar, we note that
a number of factors deemed relevant in Carpenter, Ludwig, and other cases cited
herein were present and were known to Officer Green before he had defendant join
him in the patrol vehicle – an unusual story regarding his travel as he did not know
his destination or was concealing it, United States v. White, supra; a masking odor,
United States v. Ortiz-Ortiz, supra; third-party registration, United States v. Turner,
supra; and nervousness, United States v. Williams, supra. These factors were known
to Officer Green while he stood on the roadside before defendant joined him in the
patrol vehicle. Then while running defendant’s name for warrants in the patrol
vehicle, an action permitted in Rodriguez, the officer smelled marijuana on
defendant’s person and learned from defendant that defendant had a DUI based on
his own marijuana usage. The trial court’s conclusion that Officer Green lacked
reasonable suspicion despite all of these factors discussed herein is incorrect. It bears
repeating that reasonable suspicion is a common sense determination made by a
reasonable officer, giving the officer credit for his training and experience and viewing
the totality of the circumstances. While there might be someone who would borrow
a car, drive eleven hours to “hang out” with a friend named Eric at an unknown
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location, spend a few days and return, it is a rather bizarre story. Reasonable
suspicion does not depend on a proven lie, but is based on the totality of the
circumstances. Based on defendant’s bizarre travel plans, his extreme nervousness,
the use of masking odors, the smell of marijuana on his person, and the third-party
registration of the vehicle, it is reasonable that even an untrained person would doubt
defendant’s story, much less a fifteen-year veteran with interdiction training. Thus,
we hold that Officer Green had reasonable suspicion to extend the stop and could run
such ancillary records checks as he believed reasonable until his investigation was
complete. The time it took for him to complete what is described in his testimony as
a “pipeline” check and an EPIC check were both done relatively quickly and, when
the warning ticket was issued, there had been no unreasonable extension of the stop.
The trial court issued conclusions of law that were phrased in the alternative
and, thus, are somewhat confusing. For instance, Conclusion of Law 4 provides:
4. Even if the stop was reasonable in scope and
duration up to the point of the issuance of the warning
ticket, the extension of the stop after the issuance of the
warning ticket was also unreasonable in both scope and
duration, without reasonable suspicion to believe that
criminal activity was afoot.
This conclusion of law is expressly overruled as we have held that the evidence clearly
showed that Officer Green had reasonable suspicion from the time he and defendant
sat down in the patrol car.
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Not only did Officer Green not unreasonably extend the stop, shortly after the
warning ticket was written and as Officer Green handed the ticket to defendant,
Officer Green, in light of smelling marijuana and defendant’s admission to using
marijuana, asked whether there was any marijuana in defendant’s vehicle.
Defendant denied there was anything in the car stating, “you can search if you want
to search.” The trial court found that Castillo stated that the officer could search, yet
concluded consent was not freely given. It appears the trial court may have concluded
that consent was not freely given because the trial court judge misunderstood the law
and did not have the sequence of events in their correct order. The trial court’s order
contains the following findings of fact:
31. Approximately seventeen minutes into the stop,
Green received word from Durham dispatch that there
were no outstanding warrants for the driver.
32. Approximately thirty-seven minutes into the stop,
Green printed out a warning ticket for speeding.
33. At that point, Green told defendant to sit tight or
otherwise indicated he wished him to remain in the vehicle.
Green did not seek or gain consent for the extension of this
stop. There was no point throughout the encounter in
which Green indicated, verbally or otherwise, that
defendant was not required to remain with the officer. At
no point did Green let defendant know he was free to leave.
The trial judge then made Finding of Fact 34, which provides in pertinent part that
“Green asked defendant if there was any marijuana in the car, but did not specifically
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seek permission to search the vehicle. The defendant responded negatively, and told
the officer, ‘you can search if you want to search.’ ”
In making these findings, the trial judge had the sequence of events out of
order. In fact, it was after defendant informed Officer Green that the officer could
search if he wanted to that Officer Green told defendant to “sit tight[,]” as recounted
in Finding of Fact 33. If the officer had in fact detained defendant without reasonable
suspicion and ordered him to “sit tight[,]” perhaps one could conclude that consent
was not freely and unequivocally given. While the issue of valid consent may be an
issue of fact, that determination must be founded upon a correct factual basis.
Ultimately these facts must support a conclusion of law that consent was or was not
freely given. See State v. Brown, 306 N.C. 151, 169-71, 293 S.E.2d 569, 581-82 (1982).
In the case at bar, the defendant clearly stated “you can search, if you want to
search[,]” after which, not before, Officer Green tells defendant to “sit tight” and
retrieves his gloves from the back seat of his patrol vehicle before beginning the
search of defendant’s vehicle. Thus, the trial court’s Conclusion of Law 9, wherein
the court concluded defendant’s consent was not clear and unequivocal, is premised
on both incorrect facts and a misunderstanding of the law. As such, the court’s
conclusion of law is clearly erroneous. See State v. Smith, 346 N.C. 794, 799-800, 488
S.E.2d 210, 213-14 (1997). In Smith, our Supreme Court held the trial court erred in
concluding the defendant’s consent was not voluntary because it appeared that the
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STATE V. CASTILLO
Opinion of the Court
trial judge believed that the “knock and talk” law enforcement technique was
unconstitutional. Id. Furthermore, the Court reversed because the trial court did
not make a specific finding that consent was voluntary. Id. In the present case, it
appears the trial judge believed that Officer Green lacked reasonable suspicion to
extend the stop and the unlawful extension impinged on defendant’s ability to
consent. Additionally, it appears the trial court misunderstood the correct sequence
of events. As a result, the trial court’s factual findings do not support the conclusion
of law that “defendant did not give lawful consent for the search.” The trial court’s
conclusion is subject to reversal.
The case at bar is very similar to that of U.S. v. Cardenas-Alatorre, 485 F.3d
1111, 1118-20 (10th Cir. 2007), in which the Court held the district court’s finding of
voluntary consent was not clearly erroneous based on video of the encounter that
showed no evidence of coercion and that the defendant continued to respond to
officer’s questions. 485 F.3d at 1118-20. Similarly, the entire encounter between
Officer Green and defendant in this case was recorded on video. On the video,
defendant can be clearly heard telling Officer Green he can search and talking to
Officer Green and other officers during the search. There is no evidence to suggest
defendant’s consent was anything but voluntary and, therefore, we hold the trial
court’s conclusion that “defendant did not give lawful consent” is clearly erroneous.
IV. Conclusion
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STATE V. CASTILLO
Opinion of the Court
In conclusion, we hold Officer Green had reasonable suspicion to extend the
traffic stop prior to entering his patrol vehicle with defendant. Thus, the traffic stop
was not unlawfully extended. We also hold the trial court’s conclusion that
defendant’s consent was not clear and unequivocal was based on a misapprehension
of both the law and the factual sequence of events and, thus, was clearly erroneous.
Consequently, we reverse the trial court’s order suppressing the evidence in this case
and remand the case to Durham County Superior Court for trial.
REVERSED.
Judges BRYANT and GEER concur.
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