State v. McClendon

• Decision Date: 23 July 1999
• Docket Number: No. 392A98.,392A98.
• Citation: 350 N.C. 630,517 S.E.2d 128
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Paul Dennis McCLENDON, Jr.

517 S.E.2d 128

350 N.C. 630

STATE of North Carolina v. Paul Dennis McCLENDON, Jr.

No. 392A98.

Supreme Court of North Carolina.

July 23, 1999.

Michael F. Easley, Attorney General, by William B. Crumpler, Assistant Attorney General, for the State.

Locke T. Clifford and Walter L. Jones, Greensboro, for defendant-appellant.

Mebane Rash Whitman, Raleigh, on behalf of the American Civil Liberties Union of North Carolina Legal Foundation, amicus curiae.

MITCHELL, Chief Justice.

In June and July 1996, defendant was indicted for trafficking in marijuana by transporting more than fifty pounds but less than one hundred pounds, trafficking in marijuana by possession of more than fifty pounds but less than one hundred pounds, and conspiracy to traffic in a controlled substance by possession and transportation. Defendant moved to suppress evidence found as a result of a search of his vehicle. The trial court denied defendant's motion to suppress. Defendant subsequently pled guilty to all of the charges pursuant to a plea agreement in which he reserved the right to appeal the denial of his motion to suppress. All of the charges were consolidated for judgment, and the trial court sentenced defendant to a term of twenty-five to thirty-five months' imprisonment and imposed a fine of $15,000. The Court of Appeals, with one judge dissenting, affirmed the trial court. Defendant appealed to this Court as a matter of right based on the dissent below. On 30 December 1998, we also allowed his petition for discretionary review of additional issues.

The testimony before the trial court at the suppression hearing tended to show the following: On 21 February 1996, Sergeant T.L. Cardwell of the North Carolina Highway Patrol was on duty patrolling Interstate 85 in Greensboro. He noticed two cars traveling at a speed of seventy-two miles per hour, seven miles over the posted speed limit. One vehicle was a minivan. Following closely behind it was a station wagon driven by defendant. Sergeant Cardwell drove his car alongside the station wagon and made eye contact with defendant, who decreased his speed. Sergeant Cardwell did the same thing with the driver of the minivan, but that driver did not slow down. Sergeant Cardwell then radioed for assistance, and Trooper Brian Lisenby responded. The officers stopped both vehicles. At the suppression hearing, Sergeant Cardwell gave three reasons for stopping the vehicles: (1) they were in violation of the posted speed limit; (2) defendant was following the minivan too closely; and (3) Sergeant Cardwell had formed the opinion that the lead vehicle was a decoy vehicle intended to distract police attention from the second vehicle, the station wagon driven by defendant.

Sergeant Cardwell questioned the driver of the minivan, Tony Contreras, who had a Texas driver's license and said that the minivan belonged to his brother. Contreras said he was meeting his brother at the Greensboro airport so that they could visit some area furniture stores in search of supplies for the furniture store they planned to open in Texas. Contreras could not name any of the stores that they were supposed to visit, nor did he have an explanation for why he drove to North Carolina while his brother took a flight. He denied traveling with defendant. Sergeant Cardwell issued a warning ticket charging Contreras with speeding and then searched the vehicle after Contreras signed a consent form.

At the same time, Trooper Lisenby was busy questioning defendant. Lisenby testified that defendant appeared nervous, did not make eye contact, and was breathing heavily. Defendant produced his Tennessee driver's license and the title to the station wagon, but he did not have the registration for the vehicle. Defendant said that his girlfriend owned the car, but he could not give Trooper Lisenby her name even though the address on defendant's driver's license and the address on the title to the station wagon were the same. Defendant also denied knowing or traveling with the driver of the minivan.

At this point, Trooper Lisenby told defendant to get into his patrol car, where the questioning continued. Defendant explained that he had come from Georgia and was on his way to Greensboro. Trooper Lisenby testified that as defendant answered the questions, his nervousness increased. Defendant was "fidgety," evasive with his answers, and appeared very uncomfortable. When questioned again about the name on the car's registration and his girlfriend's name, defendant mumbled something, which Trooper Lisenby thought sounded like "Anna." Although the name Anna did not appear on the title to the station wagon, a radio check by Lisenby revealed no problems with the registration of the station wagon or defendant's driver's license. The name on the title to the station wagon was Jema Ramirez.

Following the questioning, Trooper Lisenby radioed Sergeant Cardwell and gave him the information about defendant. Cardwell told Lisenby to issue defendant a warning ticket for speeding and following too closely. Trooper Lisenby did so, then asked defendant if he had weapons or narcotics in the vehicle. Defendant sighed deeply, chuckled nervously, looked down, and finally muttered "No." Trooper Lisenby asked defendant for permission to search his vehicle which defendant refused to give. Lisenby then left the patrol car and gave this information to Sergeant Cardwell, who got in the patrol car and continued to question defendant. Sergeant Cardwell testified that defendant was sweating and that his breathing was rapid. When asked by Cardwell, defendant again refused to give permission to search his vehicle.

Sergeant Cardwell called the High Point Police Department to secure a drug detecting dog. The dog was permitted to examine the exterior of the station wagon to detect any odor of controlled substances and "alerted" toward the rear of the vehicle. The dog was then placed inside the vehicle and alerted the officers to the rear cargo floor where the spare tire is usually stored. Sergeant Cardwell searched there and found marijuana. Defendant was advised of his rights and signed a Miranda rights form. From the time defendant was issued a warning citation until the time the canine unit arrived, approximately fifteen to twenty minutes had elapsed.

In affirming the trial court's denial of defendant's motion to suppress, the majority in the Court of Appeals concluded that Sergeant Cardwell had probable cause to stop defendant's vehicle and that the questioning of defendant by Trooper Lisenby did not exceed the permissible scope of the traffic stop. The Court of Appeals further concluded that, "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." State v. McClendon, 130 N.C.App. 368, 378, 502 S.E.2d 902, 908 (1998). The dissent in the Court of Appeals contended that because reasonable suspicion that criminal activity was afoot did not exist, the officers were not justified in detaining defendant for further questioning after he was given the warning citation. For the reasons that follow, we affirm the decision of the majority in the Court of Appeals.

As a preliminary matter, we address the question of whether the rule set out in Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), is also required by the North Carolina Constitution. In Whren, the United States Supreme Court 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 for the violation. Id. This decision established that police action related to probable cause should be judged in objective terms, not subjective terms. Provided objective circumstances justify the action taken, any "ulterior motive" of the officer is immaterial. As the Court of Appeals stated below, Whren conclusively established that the inquiry is no longer what a reasonable officer would do but what a reasonable officer could do, and in effect put an end to issues involving whether the existence of probable cause for a traffic stop has been used by officers as a pretext for stopping defendant for other reasons. McClendon, 130 N.C.App. at 374,502 S.E.2d at 906.

Defendant first contends that Article I, Section 20 of the North Carolina Constitution affords broader protection to citizens than the Fourth Amendment, and therefore, the Whren rule should not be applied. As we said in State v. Arrington, 311 N.C. 633, 319 S.E.2d 254 (1984),

the language of Article [I], Section 20 of the Constitution of North Carolina differs markedly from the language of the Fourth Amendment to the Constitution of the United States....

Whether rights guaranteed by the Constitution of North Carolina have been provided and the proper tests to be used in resolving such issues are questions which can only be answered with finality by this Court.

Id. at 643, 319 S.E.2d at 260. Furthermore, we are "not bound by opinions of the Supreme Court of the United States construing even identical provisions in the Constitution of the United States." Id. at 642, 319 S.E.2d at 260.

However, we find the reasoning of the Supreme Court in Whren to be compelling, and we adopt it here. Moreover, this Court has previously recognized the principle that, in general, police action related to probable cause should be judged in objective terms, not subjective terms. See State v. Peck, 305 N.C. 734, 741, 291 S.E.2d 637, 641-42 (1982)

("The officer's subjective opinion is not material.... The search or seizure is valid when the objective facts known to the officer meet the standard required."). Therefore, for situations arising under our state Constitution, we hold that an objective standard, rather...