State v. McDaniels, No. 9010SC993

• Decision Date: 09 April 1991
• Docket Number: No. 9010SC993
• Citation: 103 N.C.App. 175,405 S.E.2d 358
• Court: North Carolina Court of Appeals
• Parties: , 60 USLW 2046 STATE of North Carolina v. Michael Ray McDANIELS, Defendant/Appellant. . Heard

Page 358

405 S.E.2d 358

103 N.C.App. 175, 60 USLW 2046

STATE of North Carolina v. Michael Ray McDANIELS, Defendant/Appellant.

No. 9010SC993.

Court of Appeals of North Carolina.

Heard April 9, 1991.

Decided June 18, 1991.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Francis W. Crawley, Raleigh, for State.

Cheshire, Parker, Hughes & Manning by Joseph Blount Cheshire, V, and George Bullock Currin, Raleigh, for defendant-appellant.

PARKER, Judge.

Defendant pled guilty to charges of trafficking in cocaine by conspiracy, trafficking in cocaine by possession and trafficking in cocaine by transportation. Pursuant to N.C.G.S. § 15A-979(b) defendant reserved his right to appeal the lower court's denial of his motion to suppress. The evidence presented by the State on voir dire tended to show that defendant traveled with a companion by private charter plane from Raleigh-Durham International Airport (herein "RDU") to the New York City area late on a Saturday night. The two men returned to RDU a few hours later. Acting upon information from a concerned citizen, two agents of the State Bureau of Investigation (herein "SBI") made inquiries and suspected criminal activity. The agents arranged for additional officers to assist and waited for defendant and his companion to return from their trip. For reasons to be discussed later, the agents decided not to stop the two men until they started driving their vehicle away from RDU. The SBI enlisted the assistance of the highway patrol for this stop. An identity check during the stop revealed that the car's driver and defendant passenger had chartered their flight under fictitious names. Two SBI agents asked the driver and defendant to step out of the car. After the men had been pat down searched, one of the agents asked for consent to search the vehicle. The driver indicated that the officers could search the car.

In the search, an agent located a handgun in the glove box, from which defendant had been observed withdrawing his hand after the car had been stopped. The agent also picked up a briefcase from the floor and asked both the driver and defendant if the case was his. Defendant stated that the case belonged to his cousin and objected to a search of the case without a warrant. The agent placed the case on the back seat and advised the driver that the SBI wished to use its drug detection dog, which had been brought to the scene. Neither defendant nor his companion objected. The dog was put through its standard routine and ultimately gave a positive reaction to the briefcase. Knowing that this dog signals, by scratching and biting, only in the presence of the odor of controlled substances it has been trained to recognize, the agents placed defendant and his companion under arrest. The agents then procured a search warrant before opening the briefcase, which contained two kilograms of cocaine. Additional facts will be detailed in discussion of the issues raised on appeal.

Defendant appeals denial of his motion to suppress on five grounds: (i) the drug agents making the investigative stop of the car lacked reasonable, articulable suspicion; (ii) defendant's detention was an intrusion even more serious than an investigative stop, requiring probable cause; (iii) there was no valid consent to the search of the car; (iv) sniffing of the briefcase by a drug detection dog was an illegal search; and (v) the warrant to search the briefcase was not based on probable cause. We find that the court's findings of fact were clearly supported by the evidence presented at an extensive suppression hearing and its conclusions of law are, therefore, conclusive for purposes of appellate review. State v. Thompson, 296 N.C. 703, 252 S.E.2d 776, cert. denied, 444 U.S. 907, 100 S.Ct. 220, 62 L.Ed.2d 143 (1979). The trial judge properly denied the suppression motion.

I.

As to defendant's first assignment of error, the existence of reasonable suspicion establishes the constitutionality of a temporary investigative, warrantless seizure. Id. at 706, 252 S.E.2d at 779. The warrantless seizure of a person does not violate the Fourth Amendment so long as the officer is "able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968); see also State v. Sugg, 61 N.C.App. 106, 300 S.E.2d 248, disc. rev. denied, 308 N.C. 390, 302 S.E.2d 257 (1983). Similarly, objective facts and circumstantial evidence, leading a trained officer to conclude that criminal activity may be occurring, are "a sufficient basis to justify an investigative stop" of a moving vehicle. United States v. Cortez, 449 U.S. 411, 413, 101 S.Ct. 690, 692, 66 L.Ed.2d 621, 625 (1981).

The trial court found the entire eyewitness testimony of three SBI agents and a State trooper "credible and worthy of belief," despite defense counsel's rigorous cross-examination of those witnesses at the hearing. That testimony disclosed the following facts supporting the officers' reasonable suspicion that defendant was involved in ongoing criminal activity. The facts known to the officers at the time of the stop "must be viewed through the eyes of a reasonable and cautious police officer on the scene, guided by experience and training." State v. Harrell, 67 N.C.App. 57, 61, 312 S.E.2d 230, 234 (1984).

Receiving information that an air charter agent suspected drug smuggling activity, the SBI learned that defendant and another man, using the names "Mr. Smith" and "Mr. Jones" without first names, had arranged to charter a plane from Carolina Charter Service (herein "Carolina") to fly late at night to a location in New Jersey only a taxicab ride away from New York City. The officers knew that the New York City area is the source of about ninety percent of the illegal drugs brought into central North Carolina. The two men had made an identical trip the weekend before out of RDU, using a different airline charter service; the men had been referred to Carolina when they attempted to hire the service again and it had no available planes. Dressed in "shiny," "silky," "flashy" business suits, the two men took off around 6:30 p.m. and landed back in North Carolina at 1:30 a.m. Sunday. The men paid $1,270.00 in cash for their flight. Businessmen using private charter services usually pay by business check or credit card; the officers testified that paying by cash is "a very common practice by people traveling as drug couriers." Drug smugglers are known to carry large amounts of cash; defendant carried a briefcase that the chief SBI agent surmised to be transporting cash to the New York area.

Further, the men gave Carolina two telephone numbers, which the SBI attempted to verify without success. One of the numbers was disconnected and the other did not show a separate phone listing for either a Smith or a Jones. An officer testified that "[s]omeone who might be involved in narcotics trafficking does not tend to want to put down his correct phone number." Upon its arrival at RDU the car in which defendant was riding, with heavily tinted glass, first circled the parking area for Carolina and then drove away from the parking area before returning five to ten minutes later to park. The officers believed that the car's occupants might have been watching out for police. A police check on the parked car, made during the time the men were on their trip, revealed that the license plate was in the name of a Durham woman named Frye but was assigned to a different car and that the vehicle identification number was registered to an owner named neither Smith nor Jones in another part of the State. Finally, while the briefcase suggested a business transaction, late on Saturday night seemed to the SBI agents an unusual time to conduct business when combined with the other suspicious factors in the case.

At the suppression hearing the prosecutor asked the main SBI agent on the case if he considered these factors "individually, or did you consider [the factors] altogether in making this decision?" The agent responded that "it was the totality of everything." He later expanded on that point.

Q. [T]o what extent if any was there one particular factor that you've listed that by itself made you suspicious?

A. I don't know that there was one factor. There were a number of factors, and they continued right up through the time that we talked to [the two men] on the side of the road once we discovered that they were traveling under fictitious names, we discovered that with certainty.

We agree with the trial court that these particularized facts raised a reasonable suspicion permitting the officers to make a forcible stop, for purposes of dispelling or confirming the agents' suspicions of criminal activity. It has long been the law that

[a] brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.

Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612, 617 (1972); see also Florida v. Royer, 460 U.S. 491, 502, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229, 239 (1983) (articulable suspicion to stop suspected drug courier in order to check identity, with subsequent discovery that suspect was traveling under an assumed name); State v. Allen, 90 N.C.App. 15, 28-29, 367 S.E.2d 684, 691-92 (1988) (facts supporting articulable suspicion for police encounter with defendant outside airport terminal); State v. Perkerol, 77 N.C.App. 292, 335 S.E.2d 60 (1985), disc. rev. denied, 315 N.C. 595, 341 S.E.2d 36 (1986) (courier trafficking in cocaine). We, therefore overrule defendant's first assignment of error.

II.

Next, defendant argues that the detention of the car and its two occupants was tantamount to an arrest, requiring probable cause, given...