              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA16-302

                              Filed: 7 February 2017

Johnston County, No. 11 CRS 54463

STATE OF NORTH CAROLINA

             v.

GLENWOOD EARL DOWNEY


      Appeal by defendant from order entered 16 September 2015 by Judge Thomas

H. Lock and judgment entered 1 October 2015 by Judge Reuben F. Young in Johnston

County Superior Court. Heard in the Court of Appeals 8 September 2016.


      Attorney General Joshua H. Stein, by Special Deputy Attorney General Richard
      E. Slipsky, for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender Michele A.
      Goldman, for defendant.


      DIETZ, Judge.


      Defendant Glenwood Earl Downey appeals the denial of his motion to

suppress. Downey argues that law enforcement impermissibly extended the duration

of his traffic stop without reasonable suspicion that he committed some other crime.

      As explained below, there is ample competent evidence in the record to support

the trial court’s findings on various factors that this Court (and others) have found

sufficient to establish reasonable suspicion. Before and during the time in which the

officer prepared the warning citation, the officer observed the following: Downey’s

nervous behavior; Downey’s use of a particular brand of powerful air freshener
                                     STATE V. DOWNEY

                                     Opinion of the Court



favored by drug traffickers; Downey’s prepaid cellphone; the fact that Downey’s car

was registered to someone else; Downey’s vague and suspicious answers to the

officer’s questions concerning what he was doing in the area; and Downey’s prior

conviction on a drug offense. These findings, supported by the record, readily support

the trial court’s conclusion that the officer had reasonable suspicion to detain Downey

before the traffic stop concluded.

                          Facts and Procedural History

      On 26 July 2011, Deputy Brian Clifton of the Johnston County Sherriff’s Office

stopped Defendant Glenwood Earl Downey for a traffic violation. Deputy Clifton

approached Downey’s vehicle and asked to see his driver’s license and registration.

As Downey handed over the requested documentation, Deputy Clifton noticed that

Downey’s hands were shaking, that his breathing was rapid, and that he failed to

make eye contact.

      Deputy Clifton also noticed a prepaid cellphone inside the vehicle and a Black

Ice air freshener hanging from the rearview mirror. Deputy Clifton had received

special training in drug interdiction, during which he learned that Black Ice air

fresheners, because of their strong scent, are frequently used by drug traffickers. As

a result of that same training, he also knew that prepaid cellphones were commonly

used by persons involved in narcotics trafficking.




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                                   Opinion of the Court



      Deputy Clifton further noted that the car was not registered to Downey. Based

on his training, Deputy Clifton had learned that third-party vehicles are often used

by drug traffickers because it makes it more difficult for police to track those

individuals or tie them to a specific address.

      Deputy Clifton asked Downey to exit the vehicle and accompany him to his

patrol car. Once inside the patrol car, Deputy Clifton asked Downey why he was in

the area. Downey vaguely responded that he was searching for a place to rent.

Deputy Clifton asked Downey his motive for moving and offered the high cost of living

in Downey’s current town as a potential motive. Downey indicated that the expensive

cost of living in his current town was indeed the reason he wanted to move. When

Deputy Clifton further inquired as to whether Downey was able to find any places for

rent, he vaguely responded that he had seen a few places on “what’s that, 231?”

      Based on indicators gleaned from a warrants check, Deputy Clifton also asked

Downey about his criminal history. Downey responded (honestly) that he had served

prison time for several breaking and entering convictions and that he had a cocaine-

related drug conviction.

      Deputy Clifton issued Downey a warning ticket for the traffic violation and

returned his documentation. But Deputy Clifton continued to question Downey about

his criminal history and eventually asked Downey for consent to search his vehicle.




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Downey declined to give consent. Deputy Clifton then asked Downey if he would

consent to a canine sniff of the exterior of the vehicle. Again, Downey declined.

      Deputy Clifton then called for a K-9 unit. The K-9 team arrived fourteen

minutes after Deputy Clifton retuned Downey’s documentation and issued him the

warning citation. A dog sniffed the exterior of the vehicle and alerted to the presence

of drugs inside.   Officers searched the vehicle and found a digital scale, several

cellphones in the glove compartment, and a paper napkin containing approximately

3.2 grams of crack cocaine in the center console ashtray area.

      On 6 September 2011, the State indicted Downey for possession with intent to

sell and deliver cocaine, maintaining a place to keep controlled substances, possession

of drug paraphernalia, and attaining habitual felon status.

      On 21 September 2012, Downey filed a motion to suppress all evidence

obtained from his traffic stop. On 3 December 2012, the trial court held a hearing on

Downey’s motion to suppress and, on 31 December 2012, issued an order denying the

motion.

      Downey pleaded guilty but reserved his right to appeal the denial of his motion

to suppress. He then timely appealed.

      On 3 March 2015, in an unpublished opinion, this Court vacated the trial

court’s judgment and instructed the trial court on remand to determine whether

Deputy Clifton had developed reasonable articulable suspicion of criminal activity



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                                  Opinion of the Court



before the officer returned Downey’s documentation and issued the warning citation.

State v. Downey (Downey I), __ N.C. App. __, 771 S.E.2d 633 (2015) (unpublished).

      On remand, both parties agreed that no further evidence was necessary for the

court to determine the issue. On 16 September 2015, the trial court issued a new

order denying Downey’s motion to suppress. On 30 September 2015, Downey again

pleaded guilty while reserving his right to appeal the denial of his motion to suppress

and timely appealed.

                                      Analysis

      Downey argues that the trial court’s findings on remand from this Court do not

support its conclusion that the officer had reasonable suspicion to extend his traffic

stop. We disagree.

      “On review of a motion to suppress evidence, an appellate court determines

whether the trial court’s findings of fact are supported by the evidence and whether

the findings of fact support the conclusions of law.” State v. Haislip, 362 N.C. 499,

499, 666 S.E.2d 757, 758 (2008). “The trial court’s findings of fact are conclusive on

appeal if supported by competent evidence, even if the evidence is conflicting. The

conclusions of law, however, are reviewed de novo.” Id. at 500, 666 S.E.2d at 758.

      When a law enforcement officer initiates a valid traffic stop, as happened here,

the officer may not extend the duration of that stop beyond the time necessary to

issue the traffic citation unless the officer has reasonable, articulable suspicion of



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                                  Opinion of the Court



some other crime. State v. Bedient, __ N.C. App. __, __, 786 S.E.2d 319, 323 (2016).

This Court vacated and remanded the trial court’s initial order denying Downey’s

motion to suppress for the trial court to make findings concerning whether the officer

had reasonable suspicion to extend the stop. Downey I, __ N.C. App. __, 771 S.E.2d

633.

       On remand, the trial court made the following pertinent findings in support of

its conclusion that the officer had reasonable suspicion:

             16. Deputy Clifton formed the suspicion that Defendant
             was engaged in illegal drug activity at that time based on:
             Defendant’s nervousness, rapid breathing, and lack of eye
             contact; the presence of the Black Ice air freshener in the
             BMW automobile Defendant was driving; the fact that the
             BMW was registered to a third person; the presence of the
             Boost prepaid cell phone in the BMW; Defendant’s
             statements as to his reason for being in the area; and
             Defendant’s admission that he had been arrested and
             imprisoned for possession of cocaine in the past.

             17. At 2:45 p.m., Deputy Clifton issued a written warning
             citation to Defendant for driving left of the center line.

             18. Deputy Clifton formed the suspicion that Defendant
             was engaged in illegal drug activity before he issued the
             written warning citation to Defendant and returned
             Defendant’s driver’s license and the vehicle registration
             card to Defendant.

       Downey first challenges the trial court’s finding concerning his nervousness

during the traffic stop. Downey contends that the trial court failed to specify whether

the nervousness on which the court relied occurred before or after the officer issued



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                                   Opinion of the Court



the citation. As explained below, we hold that the trial court’s finding addressed

Downey’s nervousness before the officer issued the traffic citation, and that finding

is supported by competent evidence in the record.

      To be sure, the record indicates that Downey displayed significant nervousness

throughout the encounter, including after the traffic stop concluded. But the trial

court’s reference to Downey’s nervousness “at that time” in the relevant finding

demonstrates that the court considered only nervousness evident before the officer

issued the warning citation.     The preceding paragraphs of the court’s findings

indicate that “at that time” referred to the time period “[w]hile preparing the warning

citation.” Moreover, the trial court’s finding concerning nervousness is contained

within a list of other factors—including the type of air freshener in the car, the third-

party vehicle registration, and the prepaid cellphone—all of which the officer

observed before, and only before, issuing the citation.

      Finally, in the initial appeal, this Court expressly instructed the trial court on

remand to determine if reasonable suspicion existed before the officer issued the

warning citation, citing applicable Fourth Amendment jurisprudence concerning

extension of a traffic stop. This Court presumes that the trial court knows the law.

State v. Newson, 239 N.C. App. 183, 195, 767 S.E.2d 913, 920 (2015). Thus, we are

confident that the trial court’s finding addressed Downey’s nervousness before the

traffic stop concluded, as this Court instructed in its mandate. See id.



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                                   Opinion of the Court



      Downey next argues that the record does not support the trial court’s finding

of nervousness before the traffic stop concluded. Again, we disagree. The officer

testified that Downey’s “hands were shaking as he handed [him] his documents,

driver’s license and registration” and confirmed that timing later in his testimony:

             Q. Deputy Clifton, you’ve testified that what you described
             in your testimony concerning that his hands were shaky
             and that he was breathing heavy, that was when you first
             approached the vehicle?

             A. Yes, sir.

      The officer also testified that, when Downey initially got into the officer’s patrol

car, while the officer still was preparing to issue the citation, Downey “didn’t make

eye contact and his breathing was elevated.” This testimony provides sufficient

competent evidence to support the trial court’s finding that Downey exhibited nervous

behavior before the traffic stop terminated. We are therefore bound by this finding,

regardless of whether there is other, conflicting evidence in the record. See Haislip,

362 N.C. at 500, 666 S.E.2d at 758.

      Finally, Downey argues that, even if the record supports the trial court’s

findings concerning nervousness, all of the court’s findings, taken together, are

insufficient to support its conclusion that the officer developed reasonable suspicion

before the traffic stop ended. Once again, we disagree.

      In addition to the trial court’s finding that Downey exhibited “nervousness,

rapid breathing, and lack of eye contact” during the traffic stop, the trial court made


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                                  STATE V. DOWNEY

                                   Opinion of the Court



a number of other, unchallenged findings concerning factors that contributed to the

officer’s reasonable suspicion. The court found that Downey’s car had a specific brand

of air freshener that the officer testified was “a trend that is involved in the drug

smuggling community” because of the strength of its odor. The court also found that

Downey used a prepaid cellphone and was driving a car registered to a third party,

both of which, in the officer’s experience and based on training he had received, were

indicators of potential drug trafficking. The court also found that Downey admitted

he had a previous drug conviction. Finally, the court found that the officer relied on

“Defendant’s statements as to his reason for being in the area,” which the officer

testified were vague and suspicious.

      These six factors taken together—Downey’s nervous behavior, his use of a

particular type of air freshener favored by drug traffickers, his prepaid cellphone, his

use of a car registered to someone else, his suspicious responses to Deputy Clifton’s

questioning, and his prior drug conviction—are sufficient to support the trial court’s

conclusion that reasonable suspicion existed. See State v. Castillo, __ N.C. App. __,

__, 787 S.E.2d 48, 55–56 (2016) (finding reasonable suspicion based on defendant’s

unusual story regarding travel; a masking odor; third-party car registration;

nervousness; and defendant’s prior drug convictions); State v. Euceda-Valle, 182 N.C.

App. 268, 274–75, 641 S.E.2d 858, 863 (2007) (finding reasonable suspicion based on

defendant’s nervousness; smell of air freshener coming from vehicle; vehicle not



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                                   STATE V. DOWNEY

                                   Opinion of the Court



registered to occupants; occupants’ suspicious responses when questioned about

travel plans); see also United States v. Valenzuela-Rojo, 139 F. Supp. 3d 1252, 1260

(D. Kan. 2015) (noting that “[t]he following may contribute to reasonable suspicion

for extending a traffic stop: an officer’s knowledge that drug couriers frequently use

rental cars; a motorist’s extreme nervousness”; “[s]trong odors” potentially “being

used to mask the smell of drugs”; and the use of a type of cellphone that the officer

“knows to be commonly used as [a] ‘burner’ phone[] in the drug trade”).

       The dissent, citing State v. Bullock, ___ N.C. App. ___, ___, 785 S.E.2d 746, 751,

writ of supersedeas allowed, ___ N.C. ___, 786 S.E.2d 927 (2016), contends that “the

tolerable duration of the traffic stop ended when Deputy Clifton communicated he

was issuing Defendant a warning citation for the violation, not when Deputy Clifton

actually issued the warning citation.” This is a misreading of Bullock. Bullock does

not hold that, once an officer tells the defendant he will receive a citation and then

returns to the patrol car to prepare it, the stop is over and the defendant is free to

drive away without waiting to receive it. Bullock merely holds, as Rodriguez v.

United States, __ U.S. __, 135 S. Ct. 1609 (2015) requires, that an officer may not

delay issuing a traffic ticket (or warning citation), or delay returning a suspect’s

driver’s license or registration, beyond the time reasonably necessary to complete the

traffic stop:

                Officer McDonough completed the mission of the traffic
                stop when he told defendant that he was giving defendant


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                                         Opinion of the Court



               a warning for the traffic violations as they were standing
               at the rear of defendant’s car. . . . Officer McDonough was
               still permitted to check defendant’s license and check for
               outstanding warrants. But, he was not allowed to do so in
               a way that prolong[ed] the stop, absent the reasonable
               suspicion ordinarily demanded to justify detaining an
               individual.

Bullock, __ N.C. App. at __, 785 S.E.2d at 751 (second alteration in original)

(emphasis added).

       Here, the record does not contain any evidence that the officer delayed the

preparation of the warning citation in order to further question Downey. Indeed, the

video recording of the officer’s interaction with Downey inside the patrol car appears

to show him diligently preparing the warning citation as he questions Downey. And,

in any event, this is not an argument Downey made, either in his appellate briefs or

in the trial court; it is newly raised by the dissent. This Court does not address

constitutional arguments not raised by a criminal defendant in his appellate briefing.

State v. Allen, 360 N.C. 297, 308, 626 S.E.2d 271, 281 (2006).1

       The dissent also contends that all of the factors identified by the trial court are

“consistent with innocent travel.” That is certainly true. And any one of those factors,

or perhaps even several together, might not be enough to constitute reasonable




       1   We also note that Downey has never asserted—either in this appeal or his previous appeal—
that it was unconstitutional for the officer to instruct Downey to get out of his car and accompany the
officer to the patrol car, where Downey could be questioned while the officer prepared the citation. So,
again, this argument is waived. See Allen, 360 N.C. at 308, 626 S.E.2d at 281.


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                                   STATE V. DOWNEY

                                   Opinion of the Court



suspicion. But all six factors taken together are sufficient, as this Court and others

repeatedly have held. See Castillo, __ N.C. App. at __, 787 S.E.2d at 55–56; Euceda-

Valle, 182 N.C. App. at 274–75, 641 S.E.2d at 863; Valenzuela-Rojo, 139 F. Supp. 3d

at 1260.

      The reasonable suspicion test, by its nature, will rely on factors that are

suspicious, but which could be associated with innocent behavior, as well as criminal

behavior. United States v. Sokolow, 490 U.S. 1, 9–10 (1989). Were we to require

otherwise, as the dissent suggests, reasonable suspicion would become synonymous

with probable cause. Fourth Amendment jurisprudence distinguishes these two tests

for a reason. See Alabama v. White, 496 U.S. 325, 329–31 (1990).

      Thus, “the trial court’s findings support the conclusion that the officer had

developed reasonable suspicion of illegal drug activity during the course of his

investigation of the traffic offense and was therefore justified to prolong the traffic

stop to execute the dog sniff.” State v. Warren, __ N.C. App. __, __, 775 S.E.2d 362,

365 (2015), aff’d per curiam, 368 N.C. 756, 782 S.E.2d 509 (2016). Accordingly, the

trial court properly denied Downey’s motion to suppress.

                                     Conclusion

      We affirm the trial court.

      AFFIRMED.

      Judge McCULLOUGH concurs.



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                         STATE V. DOWNEY

                         Opinion of the Court



Judge HUNTER, JR. dissents by separate opinion.




                                 13
 No. COA16-302 – State v. Downey


       HUNTER, JR., Robert N., Judge, dissenting in a separate opinion.


       I respectfully dissent from the majority affirming the trial court’s denial of

Defendant’s motion to suppress. Instead, I would reverse the trial court.

       This Court recently addressed the tolerable duration of a traffic stop and the

requirements to extend a traffic stop in State v. Reed, ___ N.C. App. ___, 791 S.E.2d

486 (2016). See also State v. Bullock, ___ N.C. App. ___, 785 S.E.2d 746 (2016), writ

of supersedeas allowed, 786 S.E.2d 927 (2016); State v. Bedient, ___ N.C. App. ___,

786 S.E.2d 319 (2016). Reed, Bullock, and Bedient provided guidance to our courts

based on the United States Supreme Court’s decision in Rodriguez v. United States,

___ U.S. ___, 191 L. Ed. 2d 492 (2015).

       “[T]he tolerable duration of police inquires in the traffic-stop context is

determined by the seizure’s ‘mission’—to address the traffic violation that warranted

the stop, and attend to related safety concerns.” Bedient, ___ N.C. App. at ___, 786

S.E.2d at 322 (quoting Rodriguez, ___ U.S. at ___, 191 L. Ed. 2d at 498 (internal

citations omitted) (brackets in original)). “In addition to deciding whether to issue a

traffic ticket, a law enforcement officer’s ‘mission’ includes ‘ordinary inquires incident

to the traffic stop.’” Reed, ___ N.C. App. at ___, 791 S.E.2d at 491 (quoting Bedient,

___ N.C. App. at ___, 791 S.E.2d at 322). “This inquiry typically includes checking

the driver’s license, determining if the driver has any outstanding warrants,

inspecting the vehicle’s registration and proof of insurance . . . .” Id. at ___, 791 S.E.2d

at 491 (citing Bedient, ___ N.C. App. at ___, 786 S.E.2d at 322–23; Bullock, ___ N.C.
                                   STATE V. DOWNEY

                          HUNTER, JR., Robert N., J., dissenting



App. at ___, 785 S.E.2d at 751). However, an officer is not allowed to conduct his

inquiry “in a way that prolongs the stop, absent the reasonable suspicion ordinarily

demanded to justify detaining an individual.” Rodriguez, ____ U.S. at ____.

      An officer has completed the mission of the traffic stop when the officer

communicates he is giving a citation. See Bullock, ___ N.C. App. at ___, 785 S.E.2d

at 751. To detain a driver beyond a traffic stop, an officer must have “reasonable

articulable suspicion that illegal activity is afoot.” State v. Williams, 366 N.C. 110,

116, 726 S.E.2d 161, 166–67 (2012) (citing Florida v. Royer, 460 U.S. 491, 497–98, 75

L. Ed. 2d 229, 236 (1983)).

      The trial court found “Deputy Clifton formed the suspicion that Defendant was

engaged in illegal drug activity before he issued the written warning citation to

Defendant and returned Defendant’s driver’s license and the vehicle registration card

to Defendant.”

      Here, the tolerable duration of the traffic stop ended when Deputy Clifton

communicated he was issuing Defendant a warning citation for the violation, not

when Deputy Clifton actually issued the warning citation. See Bullock, ___ N.C. App.

at ___, 785 S.E.2d at 751. However, after Deputy Clifton communicated he was

issuing the citation, he engaged Defendant in further conversation and questioned

Defendant about Defendant’s criminal history.           Further, Deputy Clifton asked

Defendant for consent to search his vehicle. Deputy Clifton also asked Defendant if



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                                    STATE V. DOWNEY

                           HUNTER, JR., Robert N., J., dissenting



Defendant would consent to a canine sniff of the exterior of the vehicle. Lastly,

Deputy Clifton called for a K-9 unit, which arrived fourteen minutes after Deputy

Clifton issued Defendant’s citation and returned Defendant’s documentation. Thus,

for the extension, which lasted at least fourteen minutes, to be constitutional, Deputy

Clifton must have possessed reasonable articulable suspicion that illegal activity was

afoot.

         Here, the trial court’s findings do not support its conclusion that Deputy

Clifton had reasonable suspicion of criminal activity to extend the traffic stop and

conduct a search.     The behaviors in the trial court’s findings do not amount to

“reasonable suspicion that illegal activity is afoot.” Williams, 366 N.C. at 116, 726

S.E.2d at 166–67 (citation omitted). “In order to preserve an individual’s Fourth

Amendment rights, it is of the utmost importance that we recognize that the presence

of [a suspicious but legal behavior] is not, by itself, proof of any illegal conduct and is

often quite consistent with innocent travel.” State v. Fields, 195 N.C. App. 740, 745,

673 S.E.2d 765, 768 (2009) (citing United States v. Sokolow, 490 U.S. 1, 9, 104 L. Ed.

2d 1, 11 (1989)). Reasonable suspicion may arise from “wholly lawful conduct.” Reid

v. Georgia, 448 U.S. 438, 441, 65 L. Ed. 2d 890(1980) (citation omitted). However,

“‘the relevant inquiry is . . . the degree of suspicion that attaches to particular types

of noncriminal acts.’” Sokolow, 490 U.S. at 10, 104 L. Ed. 2d at 12 (citation omitted).




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                                   STATE V. DOWNEY

                          HUNTER, JR., Robert N., J., dissenting



      The majority relies on six factors in affirming the trial court—Defendant’s

“nervous behavior, his use of a particular type of air freshener favored by drug

traffickers, his prepaid cellphone, his use of a car registered to someone else, his

[“]suspicious[”] responses to Deputy Clifton’s questioning, and his prior drug

convictions . . . .” As held in Reed, “Defendant’s nervousness is ‘an appropriate factor

to consider,’ but it must be examined ‘in light of the totality of the circumstances’

because ‘many people do become nervous when [they are] stopped by an officer . . . .’”

___ N.C. App. at ___, 791 S.E.2d at 493 (quoting State v. McClendon, 350 N.C. 630,

638, 517 S.E.2d 128, 134 (1999)) (brackets in original). The degree of suspicion

attached to Defendant’s use of an air freshener, prepaid cellphone, and car registered

to someone else is minimal, as it is consistent with innocent travel. See id. at ___,

791 S.E.2d at 493.

      Notably, a case relied upon by the majority, United States v. Valenzuela-Rojo,

139 F. Supp. 3d 1252, 1260 (D. Kan. 2015), is not binding on this Court. Instead, we

are bound by the decisions of the United States Supreme Court, the North Carolina

Supreme Court, and our precedent. Moreover, Valenzuela-Rojo does not discuss or

acknowledge the Rodriquez decision.

      To affirm the trial court, as the majority does, fails to emphasize the United

States Supreme Court’s direction in Rodriquez and our Court’s holding in Reed. I




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                                  STATE V. DOWNEY

                         HUNTER, JR., Robert N., J., dissenting



recognize that search and seizure cases are sui generis and reasonable jurists can

disagree.

      Accordingly, I would reverse the trial court.




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