State v. Reed, No. COA 16-33-2

• Docket Nº: No. COA 16-33-2
• Citation: 810 S.E.2d 245, 257 N.C.App. 524
• Case Date: January 16, 2018
• Court: Court of Appeal of North Carolina (US)

257 N.C.App. 524
810 S.E.2d 245

STATE of North Carolina
v.
David Michael REED, Defendant.

No. COA 16-33-2

Court of Appeals of North Carolina.

Filed: January 16, 2018

Attorney General Roy Cooper, by Special Deputy Attorney General E. Burke Haywood, for the State.

Patterson Harkavy LLP, by Paul E. Smith, for Defendant-Appellant.

HUNTER, JR., Robert N., Judge.

257 N.C.App. 525

David Michael Reed ("Defendant") filed a motion to suppress evidence found during a traffic stop. On 14 July 2015, the trial court entered an order denying Defendant's motion to suppress. On 21 July 2015, Defendant pleaded guilty to trafficking more than 200 grams but less than 400 grams of cocaine by transportation, and trafficking more than 200 grams but less than 400 grams of cocaine by possession. The trial court sentenced Defendant to 70 to 93 months imprisonment and imposed a $100,000.00 fine and $3,494.50 in court costs. On appeal, this Court held the trial court committed reversible error by denying Defendant's motion to suppress.

On 5 October 2016, the State filed a petition for writ of supersedeas and a motion for temporary stay with the Supreme Court of North Carolina. The same day, the Supreme Court allowed the State's motion for temporary stay. On 25 October 2016, the State filed notice of appeal, pursuant to the dissenting opinion. On 2 November 2016, the court allowed Defendant's petition for writ of supersedeas . In an opinion filed 3 November 2017, the court vacated the opinion of this Court and remanded for reconsideration in light of the Supreme Court's recent decision in State v. Bullock , 370 N.C. 256, 805 S.E.2d 671 (2017) (194A16). On remand, after reviewing Bullock and the arguments advanced by the parties, we reverse the decision of the trial court.

I. Factual and Procedural Background

At 8:18 a.m. on 9 September 2014, Defendant drove a rented Nissan Altima faster than the posted sixty-five miles per hour speed limit on Interstate 95 ("I-95") in Johnston County, North Carolina. His fiancée, Usha Peart, rode in the front passenger seat and held a female pit bull in her lap. Trooper John W. Lamm, of the North Carolina State Highway Patrol, was parked in the median of I-95. Trooper Lamm used his radar to determine Defendant was traveling seventy-eight miles per hour, and performed a traffic stop for Defendant's speeding infraction. Trooper Lamm's patrol car had a camera that faced forwards towards the hood of the vehicle, and recorded audio inside and outside of the patrol car.

810 S.E.2d 247

257 N.C.App. 526

Defendant pulled over on the right shoulder of I-95, Trooper Lamm pulled behind him, and Trooper Lamm approached the passenger side of the Nissan. Trooper Lamm saw energy drinks, trash, air fresheners, and dog food scattered on the floor of the vehicle. He asked if the dog in Peart's lap was friendly and Defendant and Peart said the dog was friendly.

Trooper Lamm stuck his arm inside the vehicle to pet the dog and asked Defendant for his driver's license and the rental agreement. Defendant gave Trooper Lamm his New York driver's license, a registration card, and an Enterprise rental car agreement. The rental agreement listed Peart as the renter and Defendant as an authorized driver. Trooper Lamm told Defendant "come on back here with me" motioning towards his patrol car.

Defendant exited the Nissan and Trooper Lamm asked if he had any guns or knives on his person. Defendant asked Trooper Lamm why the frisk was necessary, and Trooper Lamm replied, "I'm just going to pat you down for weapons because you're going to have a seat with me in the car." Trooper Lamm found a pocket knife, said it was "no big deal," and put it on the hood of the Nissan.

Trooper Lamm opened the passenger door of his patrol car. His K-9 was in the back seat of the patrol car at that time. Defendant sat in the front passenger seat with the door open and one leg outside of the car. Trooper Lamm told Defendant to close the door. Defendant hesitated and said he was "scared" to close the door; Lamm replied, "Shut the door. I'm not asking you, I'm telling you to shut the door. I mean you're not trapped, the door [is] unlocked. Last time I checked we were the good guys." Defendant said, "I'm not saying you're not," and Trooper Lamm said, "You don't know me, don't judge me." Defendant said he was stopped before in North Carolina, but he was never taken to the front passenger seat of a patrol car during a stop. Following Trooper Lamm's orders, Defendant closed the front passenger door.

Trooper Lamm ran Defendant's New York license through record checks on his mobile computer. While doing so, Trooper Lamm asked Defendant about New York, and "where are y'all heading to?" Defendant said he was visiting family in Fayetteville, North Carolina. Trooper Lamm noted the rental agreement restricted travel to New York, New Jersey, and Connecticut, but told Defendant the matter could likely be resolved with a phone call to the rental company.

Then, Trooper Lamm asked Defendant about his criminal history. Defendant admitted he was arrested for robbery in the past, when he

257 N.C.App. 527

was in the military. Trooper Lamm asked Defendant about his living arrangements with Peart, and whether he or Peart owned the dog in the Nissan. Trooper Lamm noticed the rental agreement was drafted for a Kia Rio not a Nissan Altima. Trooper Lamm exited the patrol car to ask Peart for the correct rental agreement, and told Defendant to "sit tight."

Trooper Lamm approached the front passenger side of the Nissan Altima and asked Peart for the correct rental agreement. He asked about her travel plans with Defendant and the nature of their trip. She said they were visiting family in Fayetteville but might also travel to Tennessee or Georgia. She explained the first rental car they had, the Kia Rio, was struck by another car and the rental company gave them the Nissan Altima as a replacement. She could not find the rental agreement for the Nissan Altima and continued to look for it. Trooper Lamm told Peart he was going to issue Defendant a speeding ticket and the two would "be on [their] way."

Trooper Lamm returned to the patrol car, explained Peart could not locate the correct rental agreement, and continued to question Defendant about the purpose of the trip to Fayetteville. Then, Trooper Lamm called the rental company and the rental company confirmed everything was fine with the Nissan Altima rental, but informed Trooper Lamm that Peart still needed to call the company to correct the restricted travel condition concerning use of the car in New York, New Jersey, and Connecticut. After the call, Trooper Lamm told Defendant his driver's license was okay and he was going to receive

810 S.E.2d 248

a warning ticket for speeding. Trooper Lamm issued a warning ticket, returned all of Defendant's paperwork including his license and asked Defendant if he had any questions.

Then, Trooper Lamm told Defendant he was "completely done with the traffic stop," but wanted to ask Defendant additional questions. Defendant did not make an audible response, but at the suppressing hearing, Trooper Lamm testified Defendant nodded his head. Trooper Lamm did not tell Defendant he was free to leave. At this point, an additional officer, Trooper Ellerbe, was present on the scene. Trooper Ellerbe parked his patrol car behind Trooper Lamm's and left his blue lights on. He stood directly beside the passenger door of Trooper Lamm's vehicle where Defendant sat.

Trooper Lamm asked Defendant if he was carrying a number of controlled substances, firearms, or illegal cigarettes in the Nissan Altima. Defendant responded, "No liquor, no nothing, you can break the car down." Trooper Lamm continued questioning Defendant and said, "I want to search your car, is that okay with you?" Defendant hesitated,

257 N.C.App. 528

mumbled, and told Trooper Lamm to ask Peart. Defendant stated, "I'm just saying, I've got to go to the bathroom, I want to smoke a cigarette, we're real close to getting to the hotel so that we can see our family, like, I don't, I don't see a reason why." Trooper Lamm responded, "[W]ell let me go talk to her then, sit tight," and walked to the front passenger side of the Nissan Altima. By this time, two additional officers were present at the scene.

Trooper Lamm told Peart everything was fine with the rental agreement and asked her the same series of questions he asked Defendant, whether the two were carrying controlled substances, firearms, or illegal cigarettes. Trooper Lamm asked Peart if he could search the car. Peart hesitated, expressed confusion, and stated, "No. There's nothing in my car, I mean...." Trooper Lamm continued to ask for consent, Peart acquiesced and agreed to sign a written consent form. Trooper Lamm searched the Nissan Altima and found cocaine under the back passenger seat.

II. Analysis

Defendant originally argued before this Court the trial court erred in denying his motion to suppress evidence discovered pursuant to...