NO. COA97-863
NORTH CAROLINA COURT OF APPEALS
Filed:
4 August 1998
STATE OF NORTH CAROLINA
v.
PAUL DENNIS McCLENDON, JR.
Appeal by defendant from judgment entered 14 October 1996 by
Judge Thomas W. Ross in Guilford County Superior Court.
Heard in
the Court of Appeals 2 April 1998.
Attorney General Michael F. Easley, by Assistant Attorney
General William B. Crumpler, for the State.
Clifford, Clendenin, O’Hale & Jones, LLP, by Locke T. Clifford
and Walter L. Jones, for defendant-appellant.
WALKER, Judge.
The defendant was indicted on 10 June 1996 on charges of
trafficking
and
conspiracy
to
traffick
by
transporting
and
possessing more than fifty pounds but less than one hundred pounds
of marijuana.
On 19 August 1996, the defendant filed a motion to
suppress evidence.
After a hearing on the matter, the trial court
denied the motion. Subsequently, on 14 October 1996, the defendant
pled guilty pursuant to a plea agreement in which he reserved the
right to appeal the denial of his suppression motion.
The charges
were consolidated and the trial court sentenced the defendant to
25-35 months in prison and imposed a $15,000.00 fine.
The evidence at the suppression hearing tended to show the
following: On 21 February 1996, Trooper T.L. Cardwell (Cardwell),
a
member
of
the
North
Carolina
Highway
Patrol,
observed
the
defendant driving a station wagon on Interstate 85 in Guilford
County at a speed of approximately 72 miles per hour in a 65 miles
per hour speed limit zone and following closely behind the mini-van
in front of him.
Cardwell had been involved in drug interdiction
activities since 1987.
During the afternoon hours that day, Cardwell pulled up in the
lane beside the defendant and made eye contact with the defendant
who decreased his speed. Cardwell then pulled up beside the driver
of the mini-van and made eye contact.
The driver of the mini-van,
however, did not slow down and continued speeding.
observations,
Cardwell
traveling together.
determined
that
the
two
From his
vehicles
were
At this point, Cardwell radioed Trooper Brian
Lisenby (Lisenby), who was in the vicinity, for assistance in
stopping both vehicles.
Both vehicles were stopped between 4:05-
4:10 p.m.
Cardwell questioned the driver of the mini-van, who produced
a Texas driver’s license and identified himself as Tony Contreras
(Contreras).
Contreras offered no explanation for his speeding;
however, he told Cardwell that the mini-van was owned by his
brother who he was meeting at the Greensboro airport.
Contreras
explained that his brother would soon be opening a furniture store
in Texas and that they were going to visit area furniture stores
looking for suppliers. When asked, Contreras could not name any of
the stores that he and his brother were supposed to visit nor could
he explain why he was driving his brother’s mini-van while his
brother was flying from Texas to Greensboro. Contreras also denied
that
he
was
traveling
with
the
defendant.
Cardwell
issued
Contreras a warning ticket for speeding and obtained a signed
consent
form
authorizing
him
to
search
the
mini-van.
The
conversation between Cardwell and Contreras took approximately ten
minutes.
Meanwhile, Lisenby questioned the defendant who produced his
Tennessee driver’s license and a title to the vehicle he was
driving.
Lisenby noticed that the defendant’s hand was trembling
and that defendant was unable to locate the registration to the
station wagon.
The title to the vehicle was in the name of Jema
Ramirez. Lisenby noticed that the title contained the same address
as the defendant’s driver’s license.
Defendant told Lisenby that
the station wagon belonged to his girlfriend; however, when asked
what his girlfriend’s name was, the defendant did not respond to
the question. Instead, he made a nervous chuckle, began fidgeting,
and looked straight ahead instead of making eye contact with
Lisenby.
At this point, Lisenby asked the defendant to step out of
the vehicle and come back to his patrol car.
Before the defendant
exited his vehicle, Lisenby asked whether he was traveling with the
mini-van stopped by Cardwell and the defendant replied that he was
not and that he did not know the driver of the mini-van.
Once in the patrol car, Lisenby asked the defendant where he
was traveling from and what his destination was.
The defendant
told him that he had come from Georgia and was going to Greensboro.
He stated that he was just passing through Georgia and never gave
a definite location in Greensboro.
Lisenby testified that as the
conversation progressed, the defendant became more nervous and was
breathing heavily.
His eyes were darting back and forth, he would
not make eye contact, and he could not sit still.
At one point,
Lisenby inquired as to whether he was okay.
Lisenby then ran a check on the defendant’s driver’s license
and on the registration of the vehicle.
address
for
the
vehicle’s
registration
He ascertained that the
corresponded
address on the defendant’s license and the title.
with
the
Lisenby again
asked the defendant for his girlfriend’s name and for the name on
the vehicle’s registration.
The defendant glanced at Lisenby,
looked down at the floorboard, took a deep breath and said, “Anna.”
Lisenby responded, “Anna?”
or something to that effect.
The defendant then said, “I think so”
The name “Anna” did not appear on the
title and the defendant gave no other information about Anna.
While Lisenby was talking with the defendant, he radioed to
Cardwell and advised him of the information obtained from the
defendant.
Cardwell instructed Lisenby to issue the defendant a
warning ticket for speeding and for following too close.
Lisenby
issued the warning ticket and then asked the defendant whether
there were any weapons or narcotics in the car.
Lisenby noticed
that as he asked these questions, the defendant would chuckle
nervously and sigh deeply after Lisenby asked each question.
Defendant also looked down at the floorboard, took a deep breath
and mumbled “No” in response to the questions.
Lisenby then asked
if he could search the defendant’s vehicle and the defendant
refused.
Upon the defendant’s refusal to consent to a search of the
vehicle, Lisenby got out of his patrol car and related this
information to Cardwell.
Cardwell then got into Lisenby’s patrol
car and spoke with the defendant.
Upon being asked by Cardwell, the defendant denied he was
traveling with the mini-van.
He stated that he was going to
Greensboro for a couple of days and then back home to Tennessee.
He further stated that he had spent the night in Atlanta after
having been in Houston for a couple of days.
The defendant
appeared to Cardwell to be nervous as he was breathing rapidly and
sweat was forming on his forehead.
Cardwell also noted that the
defendant was fidgety, vague and evasive when answering questions.
He then advised the defendant that he intended to call a trained
dog for an external sniff of the station wagon.
Cardwell contacted Detective Johnnie Ferrell of the High Point
Police Department at approximately 4:30 p.m. to request assistance.
Ferrell arrived at the scene with Shadow, a narcotics detection
dog, around 4:45 p.m.
Shadow began to sniff and alerted to an odor
of controlled substances by scratching and biting at the rear of
the defendant’s vehicle.
Cardwell advised the defendant that
Shadow had indicated the presence of controlled substances and that
Shadow would be placed inside the vehicle.
Shadow then did an internal sniff of the car and alerted the
officers to the rear cargo floor where a spare tire is usually
kept.
Cardwell searched this area and found marijuana.
Lisenby
advised the defendant of his rights using a Miranda rights form,
which was signed at 4:55 p.m.
The
trial
court
made
findings
consistent
with
aforementioned facts and subsequently concluded the following:
the
First, Court would conclude that Sgt. Cardwell
had both reasonable and articulable suspicion
to stop the white mini van and white Chevrolet
station wagon, having observed them proceeding
on Interstate 85 highway at a speed greater
than the posted speed limit and had an
additional basis for the stop of the station
wagon that it was following too closely behind
the van.
That, indeed, Sgt. Cardwell had
probable cause to stop the vehicles for the
purpose of the traffic violations observed.
That after the stop of the vehicles, that the
defendant was detained in connection with the
valid traffic stop until such time as he was
given a warning ticket. That he was detained
thereafter for a period of time of at least 15
to 20 minutes before probable cause was found-before probable cause existed to search the
defendant’s vehicle. That Court would further
conclude that Sgt. Cardwell had reasonable and
articulable suspicion to detain the defendant
for the period of time after the warning
ticket was issued until the external search of
the vehicle by the canine Shadow.
That the
reasonable and articulable suspicion was based
on the following factors, and is judged under
the totality of the circumstances. That the
factors included the opinion of Sgt. Cardwell
that the van and station wagon were traveling
in tandem, and that the van appeared to be a
decoy vehicle for the station wagon.
That
that was a reasonable opinion based upon Sgt.
Cardwell’s training and experience in drug
interdiction. That as an additional factor,
Trooper Cardwell knew prior to the period of
detention beginning, following the issuing of
the warning ticket, that the defendant had
been unable to produce a registration for the
vehicle.
That the defendant had provided
inconsistent information about the ownership
of the vehicle, having indicated it was owned
by his girlfriend, whose name he provided to
be Anna, which was different from that
appearing on the title.
That the defendant
had appeared nervous, breathing heavy, with
sweat forming on his forehead. That he would
not make eye contact with Trooper Lisenby
during questions placed to him about the
ownership of the vehicle. And further, Sgt.
Cardwell knew that both the vehicle operated
by the defendant and the van operated by Mr.
Contreras had come from Texas based upon the
information provided by Mr. Contreras and the
defendant. That Sgt. Cardwell had information
provided to him by Mr. Contreras of his
purpose of his travel and his travel plans,
and that the information provided was vague
and not specific. And further, Sgt. Cardwell
knew
that
the
defendant
had
provided
information to Trooper Lisenby with regard to
his travel, and that information provided was
not specific and appeared unreasonable. That
further, Sgt. Cardwell knew that the defendant
had conducted himself in a nervous fidgety
manner, failing to make eye contact upon being
questioned about the vehicle, about the
ownership of the vehicle, about his travel
itinerary, and about his girlfriend. Further,
the Court would conclude that the stop of the
defendant’s vehicle on February 21, 1996 on
Interstate 85 was reasonable and based upon
articulable suspicion of, and indeed, probable
cause of a violation of the traffic laws.
That his detention thereafter exceeded the
scope of a normal traffic detention. That the
scope of the additional detention of some 20
minutes was reasonable and was based on
articulable suspicion of additional criminal
activity. That based upon the conduct and the
training and experience of Officer Ferrell and
the canine Shadow, that Trooper Cardwell, the
Court concludes, had probable cause to search
the vehicle after the canine Shadow had
alerted on the exterior of the vehicle. That
the search of the vehicle and seizure of items
found therein was a reasonable search and
seizure
conducted
after
a
reasonable
detention,
not
in
violation
of
the
Constitution of the United States or the
Constitution of the State of North Carolina.
The defendant first argues that the stop of his vehicle, under
the
pretext
of
a
traffic
offense,
was
in
violation
of
his
constitutional rights under both the United States and the North
Carolina Constitutions.
The circumstances of the initial stop of the defendant’s
vehicle are similar to those in this Court’s recent opinion in
State v. Hamilton, 125 N.C. App. 396, 481 S.E.2d 98 (1997).
In
Hamilton, the defendant argued that “the stop of the vehicle in
which he was a passenger for the stated purpose of issuing a
citation
for
a
seat
belt
violation
was
a
mere
pretext
for
investigating the defendant for possession of illegal drugs” and
thus in violation of the Fourth Amendment.
Id. at 399, 481 S.E.2d
at 100.
This Court cited the United States Supreme Court’s decision in
United States v. Whren, 517 U.S. 806, 135 L. Ed. 2d. 89 (1996)
which
held
that
“the
temporary
detention
of
a
motorist
upon
probable cause to believe that he has violated a traffic law is not
inconsistent
with
the
Fourth
Amendment’s
prohibition
against
unreasonable seizures, even if a reasonable officer would not have
stopped the motorist.”
Id. at 399, 481 S.E.2d at 100.
Therefore,
under the United States Constitution, any “ulterior motives” for
the traffic stop are immaterial and “the inquiry...is no longer
what a reasonable officer would do, but instead what the officer
could do.”
Id. at 399-400, 481 S.E.2d at 100.
This Court went on to find that in North Carolina “an officer
may stop a [vehicle] and issue a citation to any motorist who ‘he
has probable cause to believe has committed a misdemeanor or
infraction.’” Id. (quoting N.C. Gen. Stat. § 15A-302(b)(1988)).
Thus, we held the officer had probable cause to stop the vehicle in
which the defendant passenger was not wearing his seat belt as our
statute provides that front seat passengers, 16 years of age or
older, are required to wear a seat belt if the vehicle is in
forward motion.
Id.
See N.C. Gen. Stat. § 20-135.2A (a)(1993).
Moreover, the Court concluded that “[t]he stop of the vehicle was
therefore not inconsistent with the Fourth Amendment, even though
a reasonable officer may not have made the stop.”
Id.
In the instant case, the evidence supports the trial court’s
findings that both the mini-van driven by Contreras and the station
wagon driven by the defendant were traveling in excess of the
posted speed limit in violation of N.C. Gen. Stat. § 20-141 (1993)
and that the defendant was following the mini-van too closely in
violation of N.C. Gen. Stat. § 20-152 (1993).
Therefore, it is
evident that Cardwell had probable cause to stop the defendant’s
vehicle
and
thus,
according
to
Hamilton,
the
stop
was
“not
inconsistent with the Fourth Amendment, even though a reasonable
officer may not have made the stop.”
The defendant next argues that even if this Court should find
the initial stop of the vehicle was not unreasonable, the continued
restrictions on his departure were beyond the scope of the traffic
stop and therefore unreasonable.
Generally, “‘the scope of the detention must be carefully
tailored to its underlying justification.’”
State v. Morocco, 99
N.C. App. 421, 427-28, 393 S.E.2d 545, 549 (quoting Florida v.
Royer, 460 U.S. 491, 500, 75 L. Ed. 2d 229, 238 (1983)).
the
instant
case,
the
initial
detention
of
the
Thus, in
defendant
by
Cardwell and Lisenby must have been tailored to the underlying
justification of issuing a warning citation.
A similar issue was discussed in State v. Hunter, 107 N.C.
App. 402, 420 S.E.2d 700 (1992), disc. review denied, 333 N.C. 347,
426 S.E.2d 711 (1993), overruled on other grounds by State v.
Pipkins, 337 N.C. 431, 446 S.E.2d 360 (1994). There, the defendant
was stopped by Trooper Lowry for the purpose of issuing a warning
ticket for improper parking.
Id. at 406, 420 S.E.2d at 703.
The
defendant
argued
that
the
subsequent
exceeded the scope of the stop.
investigation
by
Lowry
This Court noted that although the
scope of the investigation must be tailored to the stop, “‘the
officer may ask the detainee a moderate number of questions to
determine his identity and to try to obtain information confirming
or dispelling the officer’s suspicion.’” Id. at 407, 420 S.E.2d at
704 (quoting Berkemer v. McCarty, 468 U.S. 420, 439, 82 L. Ed. 2d.
317, 334 (1984).
In Hunter, this Court found that Lowry’s questions were
“legitimately
aimed
at
confirming
the
defendant’s
identity
particularly in light of the rental contract being in the name of
another person.”
Id.
The Court then concluded that Lowry’s
initial investigation was “reasonably related to the purpose of
issuing a warning ticket for illegal parking and that asking for
permission to search the defendant’s vehicle did not exceed the
scope of his investigation.”
Id.
Likewise, we find that Lisenby’s initial investigation of the
defendant
issuance
in
of
the
a
instant
warning
case
ticket
was
for
reasonably
speeding
and
related
to
the
following
too
closely.
Here, the evidence shows that upon approaching the vehicle
driven by the defendant, Lisenby requested his driver’s license and
vehicle registration. The defendant produced his driver’s license,
at which time Lisenby noticed that defendant’s hand was shaking.
The defendant was unable to locate the vehicle’s registration but
did produce the vehicle’s title which contained the name of Jema
Ramirez. Lisenby noted, however, that the address on the title and
the address on the defendant’s license were the same. When Lisenby
questioned
the
defendant
about
the
ownership
of
the
car,
he
indicated that the car belonged to his girlfriend but did not
respond when Lisenby asked him for his girlfriend’s name.
Lisenby
then requested that defendant accompany him to his patrol car while
he checked the defendant’s license.
Once inside the patrol car, Lisenby again inquired as to who
owned the vehicle that defendant was driving.
Defendant again
appeared nervous, looked straight ahead, made no eye contact with
Lisenby and then indicated that the car belonged to his girlfriend.
At this time, Lisenby also noticed sweat forming on the defendant’s
forehead. The defendant finally acknowledged that his girlfriend’s
name was Anna; however, the name Anna did not appear on the title
to the vehicle.
Lisenby then advised Cardwell of this information
and Cardwell instructed Lisenby to issue the defendant a warning
ticket.
We
find
that
the
questioning
engaged
in
by
Lisenby
was
legitimately aimed at confirming the defendant’s identity in light
of
the
fact
that
he
was
unable
to
produce
the
vehicle’s
registration and was unable to identify the name of the person
listed on the vehicle’s title despite the fact that the address on
the title was the same as that on his driver’s license.
Further,
we find the questions concerning the defendant’s travels and his
relationship with the driver of the mini-van were reasonably
related to the purpose of issuing the defendant a warning ticket
for following the mini-van too closely.
As such, the initial
investigation of the defendant by Lisenby did not exceed the
permissible scope of his investigation.
Next, the defendant argues that his detention subsequent to
the issuance of the warning ticket was unconstitutional as it was
not supported by reasonable suspicion or probable cause.
Our Supreme Court in State v. Watkins, 337 N.C. 437, 441-42,
446
S.E.2d
67,
69-70
(1994),
set
out
the
law
concerning
investigatory stops as follows:
The Fourth Amendment protects the “right of
the people...against unreasonable searches and
seizures.”
U.S. Const. amend. IV.
It is
applicable to the states through the Due
Process Clause of the Fourteenth Amendment.
Mapp v. Ohio, 367 U.S. 643, 655, 6 L. Ed. 2d
1081, 1090 (1961). It applies to seizures of
the person, including brief investigatory
detentions such as those involved in the
stopping of a vehicle. Reid v. Georgia, 448
U.S. 438, 440, 65 L. Ed. 2d 890, 893 (1980).
Only unreasonable investigatory stops are
unconstitutional. Terry v. Ohio, 392 U.S. 1,
9, 20 L. Ed. 2d 889, 899 (1968).
An
investigatory stop must be justified by ‘a
reasonable suspicion, based on objective
facts, that the individual is involved in
criminal activity.’ Brown v. Texas, 443 U.S.
47, 51, 61 L. Ed. 2d 357, 362 (1979). A court
must
consider
‘the
totality
of
the
circumstances--the
whole
picture’
in
determining whether a reasonable suspicion to
make an investigatory stop exists.
U.S. v.
Cortez, 449 U.S. 411, 417, 66 L. Ed. 2d 621,
629 (1981).
The stop must be based on
specific and articulable facts, as well as the
rational inferences from those facts, as
viewed through the eyes of a reasonable,
cautious officer, guided by his experience and
training. Terry, 392 U.S. at 21-22, 20 L. Ed.
2d at 906; 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.’ U.S.
v. Sokolow, 490 U.S. 1, 7, 104 L. Ed. 2d 1, 10
(1989).
We first note that the trial court’s ruling on a motion to
suppress is afforded great deference upon appellate review as it
has the duty to hear testimony and weigh the evidence.
State v.
Johnston, 115 N.C. App. 711, 713, 446 S.E.2d 135, 137 (1994).
As stated above, the trial court concluded that Cardwell and
Lisenby had a reasonable, articulable suspicion that defendant was
engaged in criminal activity which would justify his detention from
the time the warning ticket was issued until the external canine
sniff of the vehicle by Shadow.
this
conclusion:
(1)
the
The following factors supported
defendant’s
inability
to
produce
a
registration card for the vehicle; (2) the defendant provided
inconsistent information about the ownership of the vehicle he was
driving, having indicated that it was owned by his girlfriend,
Anna, which was different from the name on the title; (3) the
opinion of Lisenby that the defendant appeared nervous, with sweat
forming on his forehead and heavy breathing; (4) the observations
of Cardwell that the defendant was fidgety, vague and evasive when
answering questions; (5) the defendant failed to make eye contact
upon being questioned about the station wagon, its ownership and
about his girlfriend; (6) the information that both vehicles had
come from Texas; (7) the travel information given by both the
defendant and driver of the mini-van was vague, not specific and
appeared unreasonable; and (8) the opinion of Cardwell that the two
vehicles were traveling together and that the mini-van was a “decoy
vehicle” for the defendant’s vehicle.
Moreover, the trial court
concluded that Cardwell’s opinion that the mini-van was acting as
a “decoy vehicle” was a reasonable one based on his previous
training and experience in drug interdiction.
While any one of the enumerated factors alone may not be
sufficient to show a reasonable suspicion that the defendant was
engaged in criminal activity, we conclude, based on the totality of
the circumstances here, the detention of the defendant beyond the
issuance of the warning ticket was justified and that no violation
of defendant’s constitutional rights occurred.
See State v.
Hendrickson, 124 N.C. App. 150, 476 S.E.2d 389 (1996), appeal
dismissed and disc. review improvidently allowed, 346 N.C. 273, 485
S.E.2d 45 (1997).
We distinguish the instant case from both our Supreme Court’s
recent case of State v. Pearson, ___ N.C. ___, 498 S.E.2d 599 (1998)
and this Court’s opinion in State v. Falana, ___ N.C. App. ___, ___
S.E.2d ___ (filed 16 June 1998).
In Pearson, the Court held that
the defendant’s nervousness was not significant and that a variance
in the statements of the defendant and his fiancée did not show that
criminal activity was afoot.
Pearson, 498 S.E.2d at 601.
The
circumstances in Falana were substantially similar to those in
Pearson and thus we held the defendant’s motion to suppress was
improperly denied.
Clearly the enumerated factors, as found by the
trial court in the instant case, extend well beyond those found in
Pearson and Falana and lead us to conclude that the officers had a
reasonable suspicion that the defendant was engaged in criminal
activity.
The order of the trial court denying the defendant’s motion to
suppress is
Affirmed.
Judge WYNN dissents.
Judge MARTIN, John C. concurs.
===========================
WYNN, Judge, 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.
1, 20 L.
Ed. 2d 889 (1968).
Pearson,
Terry v. Ohio, 392 U.S.
Because our Supreme Court in State v.
N.C.___, ___ S.E.2d ___(1998) and this Court most
recently in State v. Falana, ___ N.C. App. ____, ___ S.E.2d ___
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
-16more
than
the
type
of
insufficient in Pearson.
inconsistent
statement
found
to
be
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.
