State Of North Carolina v. Blackwell
| Decision Date | 07 December 2010 |
| Docket Number | NO. COA10-132,No. 09 CRS 9885-6,COA10-132,09 CRS 9885-6 |
| Court | North Carolina Court of Appeals |
| Parties | STATE OF NORTH CAROLINA v. ARIC DEVON BLACKWELL |
Appeal by the State of North Carolina from order entered 22 September 2009 by Judge Henry W. Hight, Jr. in Wake County Superior Court. Heard in the Court of Appeals 30 August 2010.
Attorney General Roy Cooper, by Assistant Attorney General Derrick C. Mertz, for State.
Appellate Defender Staples S. Hughes, by Assistant Appellate
Defender Barbara S. Blackman, for Defendant.
The State appeals from an order entered by the trial court suppressing certain evidence seized as the result of a search of Defendant's vehicle in the aftermath of a traffic stop. After carefully considering the State's arguments in light of the record and the applicable law, we find that the trial court erred by granting Defendant's suppression motion and remand this case to the Wake County Superior Court for further proceedings not inconsistent with this opinion.
On 29 January 2009, Officer Larry Houpe of the Wendell Police Department and Officer J.J. McDonough of the Durham Police Department were parked on Highway 64 at the Rolesville Road exit in Officer Houpe's patrol cruiser "looking at traffic that was going eastbound." Officers Houpe and McDonough were participating in a training session involving the Wendell Police Department, the Durham Police Department, and the Henderson Police Department as part of a larger "highway interdiction" effort, the objective of which was to "go out on Highway 64 and try to detect some of the criminal activity that's been going on out there" by conducting "high volume traffic stops to detect criminal activity."
While parked at the Rolesville Road exit, the officers noticed a Dodge Durango driven by Defendant abruptly change lanes without signaling. After making that observation, Officer Houpe pulled his patrol vehicle onto Highway 64 and began following Defendant's Durango. As the Durango approached the Edgemont Road overpass, Officer Houpe observed it make a second abrupt lane change without signaling, move into the right lane, and "tuck[] in between two cars that were kind of close together." Officer McDonough noted that there was "really no reason [for the Durango] to change lanes" other than as part of a reaction to "com[ing] up to [a] police car." At that point, Officer Houpe initiated a traffic stop in order to investigate the vehicle's repeated "failure to signal and the getting in behind [the other vehicle] that tightly."
After Defendant's vehicle came to a stop, Officer Houpe approached the Durango and asked Defendant for his license andregistration. While looking for his registration, Defendant informed Officer Houpe that "he had been in Raleigh looking for some pressure washing jobs." Officer Houpe noted that a passenger, Defendant's girlfriend, was present in Defendant's vehicle. In addition, Officer Houpe observed a can of Black Ice air freshener on the console of Defendant's vehicle. According to Officer Houpe, air freshener is "used to mask the odor of narcotics," and can be an "indicator for the presence of narcotics."
Once Defendant located his registration, Officer Houpe requested that Defendant accompany him to the patrol vehicle so that he could Upon re-entering the patrol vehicle, Officer Houpe ran Defendant's license and registration, checked for outstanding warrants, and obtained Defendant's criminal history. During this process, Officer Houpe learned that Defendant had been previously charged with several narcotics violations and that he was currently on probation for such an offense. According to Officer Houpe, Defendant was "visibly nervous," "moving around and... not sitting still." Defendant told Officer Houpe that "he was in a hurry" since "[h]e was going to Wendell to drop his girlfriend off at work, because she was a CNA worker and she was taking care of some lady in Wendell."
While Defendant and Officer Houpe sat in the patrol vehicle, Officer McDonough walked over to Defendant's Dodge and spoke with Defendant's girlfriend. Defendant's girlfriend told Officer McDonough that she and Defendant had been in Raleigh "eating at hersister's house" and "just kind of hanging out," that they were returning home to "hang out," and that she had been unemployed for "a couple months." At the conclusion of this conversation, Officer McDonough returned to the patrol vehicle and spoke with Defendant, who told Officer McDonough that he was taking his girlfriend to work, where she was scheduled to arrive at 2:00 p.m. According to Officer McDonough, Defendant was breathing rapidly and "you could see his... heart beat in his stomach... going up and down."
At that point, Officer Houpe spoke with Officer McDonough. During this conversation, Officer McDonough informed Officer Houpe of the inconsistencies between the information that he had received from Defendant and his girlfriend. After speaking with Officer McDonough, Officer Houpe re-entered the patrol vehicle, returned Defendant's license and registration, and informed Defendant that he "wasn't going to write [Defendant] a ticket for the traffic offenses." Officer Houpe then requested Defendant's consent to search the Durango. After Defendant refused, he informed Officer Houpe that there "was nothing illegal in the vehicle" and reiterated that "he was in a hurry to get [his girlfriend] to work" and "didn't have time" for the search.
As a result of their interactions with Defendant, both Officer Houpe and Officer McDonough believed that they had sufficient basis to investigate the situation more thoroughly.1 For that reason, Officer Houpe called Sergeant Shawn Spence of the Henderson Police Department and requested that he bring his drug-sniffing dog to the scene of the traffic stop. Sergeant Spence arrived at the scene of the traffic stop in "less than two minutes." Upon arriving, Sergeant Spence had his drug dog perform a sniff of Defendant's Durango.
On 2 9 January 2 009, warrants for arrest charging Defendant with possession with intent to sell or deliver marijuana were issued. On 19 May 2009, the Wake County grand jury returned bills of indictment charging Defendant with possession with intent to sell or deliver marijuana in violation of N.C. Gen. Stat. § 90-95(a)(1) and maintaining a vehicle for keeping and selling controlled substances in violation of N.C. Gen Stat. § 90-108(a)(7).
On 8 July 2009, Defendant filed a motion seeking to suppress any and all physical evidence collected by investigating officers as a result of the 29 January 2009 search of Defendant's vehicle. On 31 August 2009, Defendant's suppression motion came on for hearing before the trial court. At the close of this hearing, the trial court orally granted Defendant's suppression motion. A written order granting Defendant's motion was filed on 22 September 2009. In its written order, the trial court made the following findings of fact:
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