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NO. COA10-738
NORTH CAROLINA COURT OF APPEALS
* * * * * * * * * * * * * * * * *
STATE OF NORTH CAROLINA, )Plaintiff )
)v. ) From Iredell County
)NORMA ANGELICA WILLIAMS, )
Defendant ))
* * * * * * * * * * * * * * * * *
DEFENDANT-APPELLANT’S BRIEF
* * * * * * * * * * * * * * * * *
TABLE OF CONTENTS
QUESTIONS PRESENTED..........................................................................................1
STATEMENT OF THE CASE.................................................................................2
STATEMENT OF GROUNDS FOR APPELLATE REVIEW................................3
STATEMENT OF THE FACTS...............................................................................4
ARGUMENT..........................................................................................................11
I. THE TRIAL COURT LACKED COMPETENT EVIDENCE TO SUPPORT ITS FINDINGS OF FACT NUMBERS FOUR, FIVE, AND NINE.........................................................................................11
1. Ms. Perez immediately told Sgt. Cass that she had flown into Houston. She did not know the name of the city that she had recently left..........................................12
2. Ms. Perez was able to indicate, in general terms, where she was headed....................................................14
3. Ms. Williams produced identification cards from Texas and Arizona. She did not produce any driver’s license and informed Sgt. Cass that she did not have a license.............................................................................15
II. SGT. CASS WAS NOT CONSTITUTIONALLY ENTITLED TO DETAIN MS. WILLIAMS AFTER HIS INVESTIGATION OF A TINTED WINDOW VIOLATION WAS COMPLETE. THE FRUITS OF THAT UNLAWFUL DETENTION SHOULD HAVE BEEN SUPPRESSED.........................................................................15
1. The Initial Stop........................................................16
2. The Extended Detention..........................................17
CONCLUSION.......................................................................................................28
CERTIFICATE OF WORD COUNT.....................................................................28
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CERTIFICATE OF SERVICE AND FILING........................................................29
APPENDIX TO DEFENDANT-APPELLANT’S BRIEF......................................30
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TABLE OF AUTHORITIES
CASES
In re Appeal of the Greens of Pine Glen Ltd. P'ship, 356 N.C. 642, 576 S.E.2d 316
(2003)...................................................................................................................11
State v. Edwards, 185 N.C. App. 701, 649 S.E.2d 646, disc. rev. denied, 362 N.C.
89, 656 S.E.2d 281 (2007)...................................................................................11
State v. Fisher, 141 N.C. App. 448, 539 S.E.2d 677 (2000), disc. review denied,
353 N.C. 387, 547 S.E.2d 420 (2001)................................................17, 18, 25, 27
State v. Flana, 129 N.C. App. 813, 501 S.E.2d 358 (1998).............................24, 26
State v. Hernandez, 170 N.C. App. 299, 612 S.Ed.2d 420 (2005)..........................11
State v. Jackson, __ N.C. App. __, 681 S.E.2d 492 (2009).....................................16
State v. Kincaid, 147 N.C. App. 94, 555 S.E.2d 294 (2001)...................................18
State v. McClendon, 130 N.C. App. 368, 502 S.E.2d 902 (1998), aff’d, 350 N.C.
630, 517 S.E.2d 128 (1999).....................................................................17, 25, 26
State v. Myles, 188 N.C. App. 42, 654 S.E.2d 752, aff'd per curiam, 362 N.C. 344,
661 S.E.2d 732 (2008).........................................................................................18
State v. Parker, 183 N.C. App. 1, 644 S.E.2d 235 (2007).......................................16
State v. Pearson, 348 N.C. 272, 498 S.E.2d 599 (1998)........................23, 24, 25, 26
Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889 (1968)..................................................16
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U.S. v. Sokolow, 490 U.S. 1, 104 L.Ed.2d 1 (1989)...............................................16
STATUT ES
N.C. Gen. Stat. §15A-1444.......................................................................................3
CONSTITUTIONAL PROVISIONS
Article I, § 20 of the Constitution of North Carolina..............................................15
Fourth Amendment to the United States Constitution............................................15
NO. COA10-738
NORTH CAROLINA COURT OF APPEALS
* * * * * * * * * * * * * * * *
STATE OF NORTH CAROLINA, )Plaintiff )
)v. ) From Iredell County
)NORMA ANGELICA WILLIAMS, )
Defendant )
* * * * * * * * * * * * * * * * *
DEFENDANT-APPELLANT’S BRIEF
* * * * * * * * * * * * * * * * *
QUESTIONS PRESENTED
I. DID THE TRIAL COURT ERR IN DENYING MS. WILLIAMS’ MOTION TO SUPPRESS EVIDENCE DISCOVERED AS A RESULT OF AN UNLAWFUL EXTENSION OF A VALID TRAFFIC STOP?
II. WERE THE TRIAL COURT’S FINDINGS OF FACT NUMBERS FOUR, FIVE, AND NINE UNSUPPORTED BY THE EVIDENCE PRESENTED?
III. DID SGT. CASS LACK REASONABLE, ARTICULABLE SUSPICION TO EXTEND MS. WILLIAMS’ DETENTION BEYOND THE SCOPE OF AN OTHERWISE VALID TRAFFIC STOP?
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STATEMENT OF THE CASE
This case came on for a suppression hearing on 5 August, 2009, during the
3 August 2009 Criminal Session of the Superior Court of Iredell County before the
Honorable Christopher Collier, Judge presiding. On that date, Judge Collier
denied Ms. Williams motion to suppress. (T pp 87-90)1 On 1 September 2009,
Ms. Williams filed written notice of her right to appeal the denial of her motion to
suppress and preserving that right following the entry of a guilty plea. (R pp 21-
22) On 28 October 2009, pursuant to a plea agreement, Ms. Williams pled guilty
to one count of trafficking marijuana in excess of 10 pounds but less than 50
pounds. In exchange for her plea, the State dismissed a second count and
stipulated to the mandatory minimum sentence prescribed by statute. (10/28/09 T
pp 3-9) (R pp 23-27) At that hearing, based on Ms. Williams’ pending appeal, the
trial court continued Prayer for Judgment until the appeal was resolved. (9/1/09 T
p 8)
On 3 November 2009, at the apparent request of defense counsel out of
concern for perfecting the appeal, Judge Collier entered a judgment and
commitment order sentencing Ms. Williams to 25 to 30 months confinement in the
Department of Corrections. Judge Collier stayed the sentence pending the
1 There are three transcripts in this case. The transcript of the suppression hearing from 5 August 2009 will be referred to merely as “T p” in this brief. The other two transcripts, the transcript of the plea entered on 1 September 2009 and the transcript of the sentencing hearing on 28 October 2009 will be referred to as “9/1/09 T p” and “10/28/09 T p,” respectively.
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outcome of Ms. William’s appeal and signed appellate entries appointing the
Office of the Appellate Defender. (11/3/09 T pp 2-3) (R pp 28-32)
On 7 January 2010 Judge Collier signed an Amended Appellate Entries
ordering an additional transcript. The transcripts ordered by this Amended
Appellate Entries order were timely filed. (R pp 33-34, 36-27) Undersigned
counsel received a thirty day extension from the trial court for service of the
proposed record on appeal. That proposed record was timely served on 3 May
2010 and was settled by stipulation. (R pp 41-42)2
The Record on Appeal was timely filed on 17 June 2010 and docketed by
this Court on 24 June 2010. On 27 August 2010, Defendant-Appellant filed a
Petition for Writ of Certiorari. Following this Court’s granting of two extensions,
Defendant-Appellant’s brief is due to be filed with this Court on 13 September
2010.
STATEMENT OF GROUNDS FOR APPELLATE REVIEW
Appeal from denial of a motion to suppress evidence is a matter of right
pursuant to N.C. Gen. Stat. §15A-979(b).
2 A subsequent transcript was ordered of the sentencing hearing. That transcript was referenced in the proposed record on appeal and was submitted to the court as part of the record. (R p 5)
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STATEMENT OF THE FACTS
On 21 May 2008 at approximately 10:55 am, Sgt Randy Cass of the Iredell
County Sheriff’s office, who was working on Interstate 77, pulled over an SUV for
a tinted window violation. He requested that the driver, Michelle Perez, get out of
the car and accompany him to the space between the front of his car and the back
of the SUV. The front seat passenger, Norma Williams, remained in the car. The
entire encounter between Sgt. Cass, Ms. Perez and Ms. Williams was recorded on a
video camera located in Sgt. Cass’ patrol car. (T pp 3-4, 44-45, 59) (Exhibit 3)3
In his initial contact with Ms. Perez, Sgt. Cass asked her, “Is this your
vehicle?” Ms. Perez responded, “No, it’s my friend’s. I’m driving for her because
she doesn’t have a license and she’s gonna go D.J. somewhere.” Sgt. Cass then
asked, “Where y’all coming from?” Ms. Perez replied, “From Houston. I flied
[sic] out because she wanted me to drive for her. So that’s why I flew out because
we’re driving, umm, I’m not even sure where we’re driving to. Ask her because
she knows everything because it’s her gig.” When Sgt. Cass asked Ms. Perez,
“Houston what,” Ms. Perez did not know and explained that it was the first time
she had flown to Houston. Ms. Perez also indicated that her passenger used to live
in Arizona. (Exhibit 3, 10:57:44 through 10:58:33)
3 Exhibit 3 is the video tape that was made of the encounter and played during the hearing on the motion to suppress evidence. The date and time stamp appear on the bottom of the video. The tape contains the recordings of other stops in addition to the one at issue here. The relevant portion of the tape begins on 5/21/08 at 10:56:12 as Sgt. Cass initiates the stop. Citations in this brief will refer to the time stamp on the Exhibit where appropriate.
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Sgt. Cass then asked Ms. Perez where the two were headed. Ms. Perez
indicated that she had the destination circled on a map in the car. (Exhibit 3,
10:58:47)
Before concluding his initial conversation with Ms. Perez, Sgt Cass inquired
as to the origin of her last name:
Sgt Cass: “Perez. What’s Perez?”
Ms. Perez: “What do you mean, ‘What’s Perez?’”
Sgt. Cass: “Your name.”
Ms. Perez: “Michelle Perez.”
Sgt Cass: “Perez?”
Ms. Perez: “Perez.”
Sgt. Cass: “Where’s that from?”
Ms. Perez: “Where’s that from?”
Sgt. Cass: “I mean like Spanish, or. . .”
Ms. Perez: “Yeah. Spanish.”
Sgt. Cass: “Okay. From where. . . Where’s your family from?”
Ms. Perez: “No. I’m from Arizona.”
Sgt. Cass: “Really? Just the name Perez. Okay.”
(Exhibit 3, 10:58:58-10:59:18)
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Sgt Cass left Ms. Perez standing in front of his patrol car and approached the
passenger’s side window of the SUV to speak with Ms. Williams. When asked
whether the vehicle was hers, Ms. Williams explained that it was not, but that she
planned to make payments on it. She provided Sgt. Cass with the vehicle
registration and proof of insurance. She gave her name as Norma Williams and
provided state issued identification cards from Arizona and Texas as she did not
have a driver’s license. She explained that she was originally from Arizona, but
had moved to Texas for her work in the music business. When Sgt. Cass asked
where she was going, Ms. Williams responded that she was on her way to a club
called Club Kryptonite in Myrtle Beach. She showed Sgt. Cass a map to Myrtle
Beach and asked for his help with directions. Ms. Williams also stated that they
were coming from Louisville, Kentucky. She identified the driver as her cousin,
Michelle Perez. (Exhibit 3, 10:59:40-11:02:58) (T pp 47-48)
Sgt. Cass then went back to Ms. Perez and continued his interrogation:
Sgt. Cass: “Okay. Now you flew up from where to where? Where did
you fly from?”
Ms. Perez: “From Tucson, Arizona.”
Sgt. Cass: “To meet her and drive her?”
Ms. Perez: “Yes.”
Sgt. Cass: “Okay. How do you know her?”
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Ms. Perez: “She’s . . . We’re cousins.”
Sgt. Cass: “How are you cousins?”
Ms. Perez: “Well, her and her . . . Well, we say that we’re cousins because
we’ve known each other since we were yea high. We went to church
together.”
Sgt. Cass: “So you are not really cousins.”
Ms. Perez: “No, but we say we are.”
Sgt. Cass: “Alright. Okay.”
Ms. Perez: “We’re like family, pretty much.”
(Exhibit 3, 11:03:04 through 11:03:34)
Sgt. Cass went back to Ms. Williams and asked her further questions about
her relation to Michelle Perez:
Sgt. Cass: “How are you all cousins?”
Ms. Williams: “Dad’s side.”
Sgt. Cass: “Dad’s side.”
Ms. Williams: “Well, our grandmothers are . . . Basically, we grew up
together. So, it’s not by blood, but I’ve known her [inaudible].
(Exhibit 3, 11:03:40 through 11:03:55) (T p 48)
Following this conversation, Sgt. Cass asks Ms. Perez to have a seat in his
patrol car. Sgt. Cass testified that initially, upon getting into his patrol car, Ms.
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Perez became fidgety and told him that she was nervous because of seeing cars
getting hit on the TV. Ms. Perez spent approximately ten minutes in the patrol car
with Sgt. Cass discussing a variety of topics. During this time, Sgt Cass confirmed
that neither Ms. Williams nor Ms. Perez had a warrant for their arrest, and that the
registered owner of the car matched the documentation Ms. Williams had provided
to him. (Exhibit 3, 11:04:07 through 11:13:49) (T p 65)
While Ms. Perez sat in the patrol car, Sgt. Cass contacted another officer,
Sgt. Hawkins, to come and assist with a search. (T p 52) Prior to allowing Ms.
Perez to leave the patrol car, Sgt. Cass again questioned her about where her
journey began:
Sgt. Cass: “Let me ask you a question. Why did you fly out of Houston?”
Ms. Perez: “What? No. I flew out of Tucson to Houston.”
Sgt. Cass: “To Houston?”
Ms. Perez: “Yeah.”
Sgt. Cass: “And then you picked her up . . . or you got with her?”
Ms. Perez: “I got with her. She picked me up at the airport.
[inaudible]
Sgt. Cass: “That was what was throwing me off awhile ago. I was like
that ain’t makin’ sense. You don’t even know where you are at here.
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Ms. Perez: “Yeah, and then she’s like just drive me and I don’t know. I
haven’t been out of. . . I only went to Houston . . . I only went to California
. . . From Tucson, I’ve only been to California and to Houston.
Sgt. Cass: “Right.”
Ms. Perez: “And that’s my only places I’ve been, anywhere. Everything’s
new to me right here.”
(Exhibit 3 11:13:49 through11:14:35)
Following this exchange, Sgt. Cass again approached the SUV to speak with
Ms. Williams while Ms. Perez remained in the patrol car:
Sgt. Cass: “Okay. Here’s your ID back. Where did y’all get
hooked up at on your trip?”
Ms. Williams: “She flew in.”
Sgt. Cass: “Flew in where?”
Ms. Williams: “To Houston.”
(Exhibit 3, 11:14:55 through 11:15:05)
Following this conversation, Sgt. Cass motioned for Ms. Perez to come to
him. He handed her a warning citation for the tinted windows, and as she started
to go, he stopped her to ask for her consent to search the car. She declined. He
then had her wait by the hood of his patrol car while he asked Ms. Williams
whether there was anything illegal in the car. She told him there was not. Sgt.
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Cass informed Ms. Williams that he was going to call a canine to walk around the
car and had her get out of the SUV. (T pp 55-57)
Sgt. Cass called for Sgt. Elliott to come with his dog to search the exterior of
the SUV. It took about 10 minutes for Sgt. Elliott to arrive. (T pp 71-72) Sgt.
Elliott believed that his dog “indicated on the vehicle,” and so it was pulled further
off the road and searched. During the search, the officers found what they believed
to be marijuana which formed the basis for the charges against Ms. Williams. (T p
58)
Following argument by counsel, Judge Collier, in an oral decision, denied
Ms. William’s motion to suppress the evidence seized during the search of the
SUV. In so ruling, the court held that, “the officer did in fact have a reasonable
and articulable suspicion based on the totality of the circumstances to call for the
canine unit to do an exterior search of the vehicle.” (T p 90)4
4 The portion of the transcript containing Judge Collier’s ruling is attached to this brief as an appendix.
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ARGUMENT
Standard of Review for Arguments I and II
When reviewing a trial court’s ruling on a motion to suppress evidence, an
appellate court determines whether challenged findings of fact are supported by
competent evidence and whether those findings support the trial court’s
conclusions of law. “However, the trial court's conclusions of law are reviewed de
novo and must be legally correct State v. Edwards, 185 N.C. App. 701, 702, 649
S.E.2d 646, 648, disc. rev. denied, 362 N.C. 89, 656 S.E.2d 281 (2007); (internal
citations and quotation omitted), State v. Hernandez, 170 N.C. App. 299, 304, 612
S.Ed.2d 420, 423 (2005) “Under a de novo review, the court considers the matter
anew and freely substitutes its own judgment for that of the [trial court].” In re
Appeal of the Greens of Pine Glen Ltd. P'ship, 356 N.C. 642, 647, 576 S.E.2d 316,
319 (2003) (citation omitted)
I. THE TRIAL COURT LACKED COMPETENT EVIDENCE TO SUPPORT ITS FINDINGS OF FACT NUMBERS FOUR, FIVE, AND NINE.
At the conclusion of the suppression hearing, the trial court made three
findings that were, to some extent, inaccurate given the evidence presented at the
hearing. These findings were as follows:
4. The officer had Perez step to the front of his vehicle and asked where they were coming from. Perez eventually stated they were coming from Houston, Texas, even though they were traveling south on the interstate.
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5. That during this conversation Perez could not articulate their destination, even in general terms, even though she was driving the vehicle. Perez further stated that she and the defendant were cousins.
* * *9. Ms. Williams produced driver’s licenses from the states of Arizona and Texas and had indicated the car was owned by a friend of hers, that she intended to purchase it. The officer then at 11:04 AM told Perez that she was going to get a warning ticket, at which time she was seated in the vehicle.
(T pp 88-89) (Emphasis added to reflect the portions Ms. Williams contends are
not supported by competent evidence.)
1. Ms. Perez immediately told Sgt. Cass that she had flown into Houston. She did not know the name of the city that she had recently left.
At the very beginning of his first conversation with Ms. Perez, Sgt. Cass
asked where she and her passenger were coming from. Ms. Perez explained that
she had flown out to Houston to drive for her friend who did not have a license.
When Sgt. Cass prompted Ms. Perez to name the state that Houston was located in,
Ms. Perez was unable to oblige him. She explained that it was her first time flying
out to Houston. (Exhibit 3, 10:57:44-10:58:32) When Sgt. Cass expressed
confusion as to her point of origin based on her direction of travel, Ms. Perez
explained that she did not know where they were coming from:
Q. [by the State] And what had Ms. Perez told you about where they were
coming from?
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A. [by Sgt. Cass] She didn’t know.
THE COURT: Well, I thought you said Houston, Texas.
THE WITNESS: That’s what she originally said, that she had flown
into Houston. And when I started saying Houston is here, you know, you’re
coming south, she couldn’t tell me where she was coming from.
(T p 49)
Sgt. Cass also testified that when he asked Ms. Perez where she was coming
from, “she said that she had just flew out of Houston and not sure where she was
coming from.” 5 (T p 47)
The additional testimony and video made clear that the trip had originated in
Houston. Both Ms. Perez and Ms. Williams stated repeatedly that Ms. Perez had
flown into Houston to drive for Ms. Williams who did not have a driver’s license.
Ms. Perez explained her lack of familiarity with local geography. She told Sgt.
Cass that she lived in Tucson and had only traveled to California and Houston.
Given this limited exposure, she stated that, “[e]verything’s like new to me here.”
By its use of the word, “eventually,” the court’s factual finding number four
inaccurately describes a delay in Ms. Perez providing information that she was
coming from Houston. Further, the evidence presented at the hearing clearly
established that Ms. Perez’s reference to “Houston” described the trip’s point of
5 It is clear from State’s Exhibit 3 that Ms. Perez consistently stated that she flew to, not from Houston.
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origin and not the name of the place she had just left. As Sgt. Cass testified, Ms.
Perez was unable to provide an answer to that specific question.
The court’s factual finding misleadingly implies that Ms. Perez claimed that
she was traveling directly from Houston, an assertion that would have been
inconsistent with her direction of travel. The evidence at the hearing did not
support this interpretation of the facts. Rather, the uncontroverted evidence was
that Ms. Perez and Ms. Williams had started their journey in Houston and were
coming from someplace else, the name of which was unknown to Ms. Perez, but
which Ms. Williams identified as Louisville, Kentucky. Accordingly, the trial
court’s finding of fact number four was not supported by substantial evidence and
is thus not binding on appeal.
2. Ms. Perez was able to indicate, in general terms, where she was headed.
While Ms. Perez could not provide Sgt. Cass with the name of the city she
was driving to, she did tell him that she was driving for her friend who was going
to go DJ somewhere. She further indicated that the precise location of where she
was headed was circled on a map that she was using in the car. Thus, Ms. Perez
was able to state, in general terms, where she was headed. (T pp 46-47) (Ex. 3,
10:57:44; 10:58:47) Ms. Perez’ description of where they were going was
corroborated by Ms. Williams. When Sgt. Cass approached the car and asked Ms.
Williams where the two were headed, she indicated that they were headed to a club
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and showed him the location on a map. The trial court’s finding of fact number
five was not supported by the evidence presented at the hearing.
3. Ms. Williams produced identification cards from Texas and Arizona. She did not produce any driver’s license and informed Sgt. Cass that she did not have a license.
The trial court found that Ms. William’s produced two driver’s licenses. In
fact, the testimony and exhibits demonstrate that Ms. Williams produced two
identification cards, not licenses. (T pp 49-50) (State’s exhibits 1-2) (R p 19-20)
The production of these two identification cards corroborated her and Ms. Perez’s
testimony that she lived in Arizona and then moved to Texas, and that she did not
have a license. There is nothing in the record to support the trial court’s finding of
fact number nine that Ms. Williams had two driver’s licenses issued by different
states.
II. SGT. CASS WAS NOT CONSTITUTIONALLY ENTITLED TO DETAIN MS. WILLIAMS AFTER HIS INVESTIGATION OF A TINTED WINDOW VIOLATION WAS COMPLETE. THE FRUITS OF THAT UNLAWFUL DETENTION SHOULD HAVE BEEN SUPPRESSED.
Ms. William’s rights under the Fourth Amendment to the United States
Constitution and under Article I, § 20 of the Constitution of North Carolina were
violated when an initially lawful stop of the SUV in which she was a passenger
was extended beyond the original justification for the stop. The detaining officer
had no reasonable, articulable suspicion to support the extension. Further, no facts
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existed to transform the detention into a consensual encounter. The State bears the
burden of proof at a suppression hearing and must establish by a preponderance of
the evidence that challenged evidence is admissible. State v. Parker, 183 N.C.
App. 1, 644 S.E.2d 235 (2007). Here, the evidence in the record and the trial
court’s findings of fact did not support the trial court’s conclusions that Sgt. Cass
had reasonable articulable suspicion of criminal activity that justified extending
Ms. William’s detention. Further, the court erred in concluding that her
constitutional rights were not violated. Accordingly, all evidence discovered as a
result of Ms. William’s unlawful seizure must be suppressed as the tainted fruit
from this poisonous tree. State v. Jackson, __ N.C. App. __, 681 S.E.2d 492
(2009).
1. The Initial Stop.
It is well settled that police may stop and briefly detain a vehicle and its
occupants on less than probable cause. Such investigative stops are lawful if
supported by reasonable, articulable suspicion. Terry v. Ohio, 392 U.S. 1, 20
L.Ed.2d 889 (1968) Officers must have more than an “unparticularized suspicion
or ‘hunch’ ” to justify the stop. U.S. v. Sokolow, 490 U.S. 1, 7, 104 L.Ed.2d 1, 10
(1989). However, the stop must be limited. Officers may ask questions during the
detention to identify the defendant and to confirm or dispel the suspicions that gave
rise to the stop. State v. Fisher, 141 N.C. App. 448, 458, 539 S.E.2d 677, 684
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(2000), disc. review denied, 353 N.C. 387, 547 S.E.2d 420 (2001) (“These
questions and other similarly limited investigatory measures must be legitimately
aimed at confirming the defendant’s identity and must be reasonably related to the
purpose of issuing a warning ticket, i.e., the purpose of the underlying stop.”
(quoting State v. McClendon, 130 N.C. App. 368, 502 S.E.2d 902 (1998), aff’d,
350 N.C. 630, 517 S.E.2d 128 (1999) (internal quotation marks omitted)))
Here, Sgt. Cass initially stopped the car that Ms. William and Ms. Perez
were traveling in because he believed the tint on the car’s windows was darker
than allowed by law. Thus, Sgt. Cass had reasonable, articulable suspicion to pull
the car over. He was entitled to ask questions during the detention to identify the
driver and confirm or dispel the suspicions that gave rise to the stop. In this case,
the investigation of the tinted window violation was complete when he handed Ms.
Perez the warning ticket.
2. The Extended Detention
Any detention lasting beyond what is required to investigate the concerns
justifying the initial stop must be supported by additional reasonable articulable
suspicion. This principle applies where a detention is extended to allow for the use
of canines to sniff the perimeter of a vehicle:
“. . . although a canine sniff of the exterior of an automobile may not constitute a search, a defendant's detention during a traffic stop for the purpose of conducting a canine sniff must be justified by a reasonable
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suspicion, based on objective, specific, and articulable facts that criminal activity is afoot.
State v. Fisher, supra, at 457, 539 S.E.2d at 683-684). Absent such suspicion, the
extended stop is lawful only if it has been converted into a consensual encounter.
State v. Myles, 188 N.C. App. 42, 45, 654 S.E.2d 752, 754-755, aff'd per curiam,
362 N.C. 344, 661 S.E.2d 732 (2008). To determine whether a delay for
questioning beyond the scope of the initial stop is a detention or a consensual
encounter, our courts have applied a totality of the circumstances test. Id. at 45-46,
654 S.E.2d at 755.
a. Ms. Williams did not Consensually Remain at the Scene After Sgt. Cass Issued the Warning Ticket.
In this case, it is clear from the record that Sgt. Cass detained Ms. Williams
and Ms. Perez after he gave Ms. Perez a warning ticket and returned their
paperwork to them. "[T]he return of documentation would render a subsequent
encounter consensual only if a reasonable person under the circumstances would
believe he was free to leave or disregard the officer's request for information."
State v. Kincaid, 147 N.C. App. 94, 99, 555 S.E.2d 294, 299 (2001)(quoting
United States v. Elliott, 107 F.3d 810, 814 (10th Cir. 1997) (internal citation and
quotation marks omitted)).
Here, it is clear both from Sgt. Cass’ testimony at the suppression hearing
and in the video recording of the stop that, even after the warning citation was
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issued and all paperwork was returned, Ms. Perez and Ms. Williams were not free
to leave:
[Mr. Minor:] “After you had issued the warning ticket did you keep Norma
Williams and Michelle Perez there at the location where you stopped the
vehicle while you called other officers to come to that location?
[Sgt. Cass:] “Yes sir.”
(T p 5)
And later, in response to the prosecutor’s question regarding why he had
called for an officer to bring a canine to the scene:
[Sgt. Cass:] “At that point I didn’t want to try to infringe on anybody’s
Fourth Amendment rights and violate their rights. And who I thought was in
control of the vehicle, Ms. Perez, didn’t act like she wanted to give consent.
And from the indicators and what I felt reasonable suspicion I had to hold
the vehicle, that’s why I held the vehicle and called for a canine to walk
around it.”
(T pp 57-58) (emphasis added).
Therefore, to justify the continued detention in this case, Sgt. Cass had to
possess reasonable articulable suspicion that criminal activity was afoot.
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b. No Reasonable, Articulable Suspicion Justified the Extended Detention.
Sgt. Cass separated Ms. Perez and Ms. Williams at the beginning of the
traffic stop. Though questioned separately, Ms. Williams and Ms. Perez gave Sgt.
Cass virtually identical accounts of the history of their journey together, the origin
of their relationship, and their current destination. They both independently
explained that Ms. Perez had flown into Houston where she had met up with Ms.
Williams. Ms. Perez and Ms. Williams knew each other from Arizona where they
grew up together and considered each other family. Both told Sgt. Cass that Ms.
Williams had moved to Houston where she was a D.J... Both explained that Ms.
Williams did not have a license and the Ms. Perez had come out to drive for her.
They both told Sgt. Cass that they were on their way to a club where Ms. Williams
had a job and that the location of the club was indicated on a map in the car.
While Ms. Perez could not give the specific names of cities she was
traveling to or from, she explained her lack of geographic knowledge as a result of
the fact that she was not from the area and had never travelled to the Southeast
before. Both women were entirely cooperative with Sgt. Cass during his extended
questioning for a window tint violation. Sgt. Cass noted only one instance of
nervousness when he had Ms. Perez climb into his patrol car. She told him she
was nervous about being hit by another vehicle as she had seen happen on
television. (T p 51)
-21-
Ms. Perez provided Sgt. Cass with a valid Arizona driver’s license. Ms.
Williams provided Sgt. Cass with two identifications cards consistent with what
she had told him about being from Arizona, living in Houston, and not having a
driver’s license. Sgt. Cass checked both women to determine if either was wanted
for anything and everything came back clear. He also ran a check of the vehicle
which came back as registered April Mills. Ms. Williams had indicated she was
buying the car by making payments to a friend and provided Sgt. Cass with the
vehicle registration in the name of Ms. Mills. (T pp 8, 11-12, 52, 65-66)
In attempting to justify his extended detention of these two women, Sgt.
Cass cited the following indicators:
“...Ms. Perez’ inaccurate, or not inaccurate, but unknown story locations of where she was coming from and going to; the conflict in the stories of being family; the third party vehicle at that point, that the owner was not present at that time; the dark tinted windows which a lot of times are used to try to conceal the identity of the people going up and down the interstate of drug couriers or money launderers.”
(T p 53)
In terms of what criminal activity these factors might indicate, Sgt. Cass was
somewhat vague:
“Because at that time a lot of my training and experience with the stories, the nervousness, the unknown trip origin or location that it was going, I felt that something at that point was criminally afoot, whether it be transporting narcotics someone wanted, transporting a large amount of money. It could be several things.”
Id.
-22-
In his testimony, Sgt. Cass referred to his training to support his
determination of reasonable suspicion to detain the two young women. While he
provided information on where and from whom he “received training on these
indicators,” with the majority of indicators he listed, he never explained how they
were related to criminal activity. He did testify that he had been trained that
driving on an interstate is an indicator of transporting “. . .illegal narcotics, illegal
aliens, money, wanted persons, ...[ and] stolen property because interstates provide.
. .the quickest route from point A to point B. . .” (T pp 54-55) As quoted above,
he also tied tinted windows to criminal activity.
Beyond traveling on an interstate with tinted windows, there was no
connection made between the remaining “indicators” and criminal activity.
Further, Sgt. Cass’ characterization of the additional factors, namely 1) unknown
trip origin or destination, 2) nervousness, and 3) conflict in stories of being family
were not supported by the video tape of the encounter. As discussed above, both
women told Sgt. Cass repeatedly that their journey together began in Houston.
While Ms. Perez was unable to name the city from which they were coming, Ms.
Williams told him it was Louisville, Kentucky. Both women told him they were
headed to a club, the exact location of which was marked on a map in the car. The
nervousness referred to was brief and related to a specific concern voiced by Ms.
Perez when she was asked to get in the patrol car. As the video tape makes clear,
-23-
there was no conflict in stories about being family. Both women initially told Sgt.
Cass that they were cousins. When he asked each, independently, how they were
related, they each struggled momentarily to explain the blood connection, but each
quickly acknowledged that they were not actually blood relations. (T pp 67-68)
(Exhibit 3) As Sgt Cass agreed, there was nothing illegal about the women calling
each other cousins despite the lack of blood relationship. (T p 68)
Sgt. Cass’ reliance on these “indicators” to support the extended detention
does not withstand scrutiny. It is clear from prior decisions of this Court and of
our State Supreme Court that Sgt. Cass lacked reasonable articulable suspicion to
extend the stop in this case.
In State v. Pearson, 348 N.C. 272, 498 S.E.2d 599 (1998), our Supreme
Court overturned the Court of Appeals decision upholding the seizure of
contraband. In Pearson, the defendant was stopped at 3:00 pm on an interstate
highway. He had an odor of alcohol, acted nervous and excited, and made
statements inconsistent with his fiancée-passenger regarding their whereabouts the
night before. The State argued that these findings supported the conclusion that
the officers had reasonable articulable suspicion that the defendant might be armed
and dangerous. In rejecting the State’s contention, the Pearson court stated, “We
cannot hold that the circumstances considered as a whole warrant a reasonable
-24-
belief that criminal activity was afoot or that the defendant was armed and
dangerous.” In so holding, the Court recognized that
“The nervousness of the defendant is not significant. Many people become nervous when stopped by a state trooper. The variance in the statements of the defendant and his fiancée did not show that there was criminal activity afoot.”
Id. at 276, 498 S.E.2d at 601.
In State v. Flana, 129 N.C. App. 813, 501 S.E.2d 358 (1998), this Court,
relying on Pearson , reversed the trial court and held that, under the facts before it,
there was not reasonable, articulable suspicion to support an extension of an
otherwise lawful traffic stop. In Flana, this Court assumed that the defendant’s
initial detention pursuant to a traffic stop was valid. The Court’s opinion focused
on whether the officer lawfully extended that detention after he had completed his
investigation of the traffic offense and issued a warning ticket. As his justification
for the extended detention, the officer cited Flana’s nervousness and Flana’s
passenger’s uncertainty about which day their trip had begun. In reversing the
order denying the defendant’s motion to suppress, the Court stated:
“. . .[W]e are compelled to conclude that [the officer’s] suspicions, even if genuine, did not reach the level of ‘reasonable articulable suspicion that criminal activity was afoot’ and were insufficient to support a further detention of the defendant once the warning ticket was issued and the defendant’s papers were returned.”
Id. at 817, 501 S.E.2d at 360.
-25-
In State v. McClendon, 350 N.C. 630, 517 S.E.2d 128 (1999) our Supreme
Court distinguished Pearson and held that the officers in McClendon’s case had
reasonable, articulable suspicion to detain him beyond the issuance of a warning
ticket to allow for officers to arrive to conduct a canine sniff of McClendon’s car.
The factors supporting this extension of the detention included extreme
nervousness, McClendon’s lack of valid vehicle registration, and the fact that the
name he gave as the owner of the vehicle did not match the name on the title that
he provided. Also, though McClendon appeared unsure about who owned the car,
the address of the owner listed on the title and McClendon’s were the same. In
distinguishing Pearson, the McClendon Court recognized that the nervousness
described in Pearson was “not remarkable.” To the contrary, in McClendon,
“. . . [the] defendant exhibited more than ordinary nervousness; defendant was fidgety and breathing rapidly, sweat had formed on his forehead, he would sigh deeply, and he would not make eye contact with the officer. This, taken in the context of the totality of the circumstances found to exist by the trial court, gave rise to a reasonable suspicion that criminal activity was afoot.”
Id. at 639, 517 S.E.2d at 134.
Finally, in State v. Fisher, 141 N.C. App. 448, 539 S.E.2d 677 (2000), this
Court affirmed the trial court’s decision granting defendant’s motion to suppress
evidence. In Fisher the defendant had been stopped based on the officer’s
reasonable belief that he was driving on a revoked license. The defendant in Fisher
was detained beyond the scope of the initial stop to allow for canines to be brought
-26-
to the scene to search the exterior of the car. The Fisher Court rejected the State’s
attempt to justify the officers’ reasonable suspicion for the delay by reference to
one officer’s knowledge that the area of the stop was “notorious for its drug trade
and that defendant was previously involved in drug-related activity.” These two
factors alone were insufficient to justify a detention beyond the scope of the initial
stop where, as in that case, the defendant was “cooperative and nonviolent and the
officers did not observe any contraband, firearms, or other evidence related to
criminal activity during the course of the initial stop.” Id. at 459, 539 S.E.2d at
684-685.
Viewing these cases together and applying them to the facts of this case, it is
clear that Sgt. Cass lacked reasonable, articulable suspicion that criminal activity
was afoot when he detained Ms. Williams and Ms. Perez to wait for the canine
unit. Sgt. Cass’ characterization of the two women’s responses to questions
concerning their trip and their relationship as “inaccurate” or in “conflict” is
strained at best.
Even allowing, arguendo, that their responses were somehow inaccurate,
incomplete, or in conflict, there is nothing to distinguish the responses they gave to
Cass’ questions from the inconsistent or uncertain responses found insufficient to
warrant further detention in Flana and Pearson. Similarly, the nervousness
described by Sgt. Cass was not the extreme type described in McClendon. Rather,
-27-
it was, as in Pearson, a discrete episode of ordinary nervousness attributable to a
specific concern Ms. Perez had about being hit by passing traffic. Finally, Sgt.
Cass’ reliance on the fact that drug couriers and money launderers drive down the
interstate in cars with dark tinted windows can no more justify the detention than
did the officer’s knowledge in Fisher that the area of the stop was a high narcotics
area and the defendant was previously involved in drug activity. As in Fisher, Ms.
Perez and Ms. Williams were “cooperative and nonviolent and [Sgt. Cass] did not
observe any contraband, firearms, or other evidence related to criminal activity
during the course of the initial stop.” Id. Thus, Ms. Williams’ detention to
accomplish the canine sniff was an illegal seizure. The evidence found as a result
of that seizure should have been suppressed.
-28-
CONCLUSION
For all the foregoing reasons, Ms. Williams respectfully contends that the
conviction below should be vacated, the ruling denying the motion to suppress
reversed, and the matter remanded to the trial court for further proceedings.
Respectfully submitted this the 13th day of September 2010.
Michele GoldmanATTORNEY FOR DEFENDANT-APPELLANTN.C. State Bar No. 36358P.O. Box 30564Raleigh, NC 27622(919) [email protected]
CERTIFICATE OF WORD COUNT
I hereby certify that the word count of Defendant-Appellant’s Brief in COA
10-738 is less than 8,750 words including footnotes and citations.
This the 13th day of September, 2010.
Michele Goldman
ATTORNEY FOR DEFENDANT-APPELLANT
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CERTIFICATE OF SERVICE AND FILING
I hereby certify that the original of the above and foregoing
Defendant-Appellant’s Brief was filed, pursuant to Rule 26, by deposit in the
United States mail, first-class and postage prepaid, duly addressed to the Clerk of
the North Carolina Court of Appeals, Post Office Box 2779, Raleigh, North
Carolina 27602-2779.
I further certify that a copy of the Defendant-Appellant’s brief has been duly
served upon Mr. J. Allen Jernigan, Special Deputy Attorney General, North
Carolina Department of Justice, Post Office Box 629, Raleigh, North Carolina
27602, by first-class mail, postage prepaid.
This the 13th day of September 2010.
Michele GoldmanATTORNEY FOR DEFENDANT-APPELLANT
-30-
NO. COA10-738
NORTH CAROLINA COURT OF APPEALS
* * * * * * * * * * * * * * * * *
STATE OF NORTH CAROLINA, )Plaintiff )
)v. ) From Iredell County
)NORMA ANGELICA WILLIAMS, )
Defendant ))
* * * * * * * * * * * * * * * * *
APPENDIX TO DEFENDANT-APPELLANT’S BRIEF
* * * * * * * * * * * * * * * * *
Transcript of trial court’s ruling on defendant’s motion to suppress….......
………………….1
