by Michael Lowrey
Got a new story out for Carolina Journal on a recent N.C. Court of Appeals ruling limiting the police’s the circumstances under which the police can call in a drug dog to sniff a car:
RALEIGH — In a significant ruling involving the Fourth Amendment to the U.S. Constitution, North Carolina’s second highest court has limited the instances in which a police dog can be called in to perform a drug sniff in traffic stop cases.
The N.C. Court of Appeals ruled that police officers making a traffic stop who have completed their initial investigation and found nothing wrong cannot extend the stop without the driver’s consent unless the officers have a “reasonable and articulable suspicion of criminal activity.”
Shortly before midnight on May 28, 2012, officer Jordan Payne of the Winston-Salem Police Department spotted Anthony Cottrell driving a Dodge Intrepid with its headlights off. Payne pulled the car over and asked Cottrell for his driver’s license and registration.
Cottrell did not smell of alcohol or have glassy eyes, was not sweating or fidgeting, and did not make any contradictory statements. The officer ran Cottrell’s documents and determined they were valid. Payne also checked Cottrell’s criminal history and learned that he had a history of “drug charges and various felonies.”
As the officer was returning Cockrell’s documents, he smelled a strange odor coming from the car, like “like a fragrance, cologne-ish,” but “more like an incense than what someone would wear.”
Payne believed the odor was a “cover scent” used to mask the smell of marijuana. Cottrell denied that, claiming it was body oil and showed the officer a small glass bottle with some liquid in it and a roll-on dispenser.
The officer then asked Cottrell for consent to search his car. Cockrell said no. Payne then told Cottrell that he would call for a drug-detection dog to sniff his car. Cottrell said he just wanted to go home. When Payne insisted that he was going to call for a drug dog, Cottrell consented to a search of his car. Payne found in the glove compartment a handgun and a powdery substance later determined to be cocaine. Payne also found in Cottrell’s sock a small plastic bag containing marijuana.
Cottrell was charged with possession of a firearm by a felon, cocaine and marijuana possession, and being a habitual felon. At trial, he moved to suppress the results of the search. After a Superior Court judge ruled against him, Cottrell pleaded guilty to the charges and received a prison sentence of between 76 months and 104 months.
On appeal, Cottrell renewed his challenge to the search, claiming again that it violated the Fourth Amendment’s prohibition on unreasonable searches and seizures, saying the officer had no good reason to continue detaining him once the purpose of the traffic stop was completed.
The Court of Appeals agreed.
“We hold that once Officer Payne told defendant to keep his music down, the officer had completely addressed the original purpose for the stop. Defendant had turned on his headlights, he had been warned about his music, his license and registration were valid, and he had no outstanding warrants,” wrote Judge Martha Geer for the appeals court.
She said Payne needed “defendant’s consent or ‘grounds which provide a reasonable and articulable suspicion in order to justify further delay’ before” he could question Cottrell further.
That did not end the court’s analysis. The U.S. Supreme Court has held that a drug sniff during an otherwise legal traffic stop does not violate the Fourth Amendment. And the N.C. Court of Appeals has ruled that officers can extend a traffic stop for a “de minimis” (minimal) amount of time even without reasonable suspicion or consent to conduct such a drug sniff.
But the appeals court drew a key distinction between those cases and Cottrell’s.
“We do not believe that the de minimis analysis … should be extended to situations when, as here, a drug dog was not already on the scene,” wrote Geer.
Geer based her analysis on the U.S. Supreme Court’s original holding, which drew a distinction between a dog sniff during a routine traffic stop and one occurring during an “unreasonably prolonged traffic stop.” In addition, in a 2012 ruling the N.C. Supreme Court did not apply a de minimis analysis in a case much like Cottrell’s in which a traffic stop was extended by 14 minutes.
The appeals court also rejected the state’s contention that Cottrell’s consented to the search. Generally, such consent is valid if the state is threatening to do something it has the legal right to do. The Court of Appeals noted that the state offered no evidence as to how long it would take for an officer with a drug dog to arrive at the scene and conduct a search, and thus hadn’t demonstrated that it could even conduct the search in such a de minimis period.
“The state has cited no case suggesting that consent may properly be obtained by a threat to perform an act that might or might not be legal depending on how the threatened event hypothetically could unfold. The State has, therefore, failed to prove that defendant’s consent was valid,” wrote Geer.
The appeals court awarded Cottrell a new trial and excluded as evidence the drugs and gun Payne found.
The case is State v. Cottrell, (13-721).