              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA16-424

                              Filed: 20 December 2016

Guilford County, No. 14 CRS 071249

STATE OF NORTH CAROLINA

             v.

JUAN ANTONIA MILLER, Defendant.


      Appeal by defendant from judgment entered 15 December 2015 by Judge Eric

C. Morgan in Guilford County Superior Court. Heard in the Court of Appeals 21

September 2016.


      Attorney General Roy Cooper, by Assistant Attorney General John G.
      Batherson, for the State.

      Yoder Law PLLC, by Jason Christopher Yoder, for defendant.


      ELMORE, Judge.


      Police ordered Juan Antonia Miller (defendant) out of a vehicle during a traffic

stop and searched him, finding a small bag of cocaine in his pocket. The cocaine,

defendant argues, was the fruit of an unconstitutional seizure and the trial court

committed plain error by failing to exclude it from evidence at trial. Upon plain error

review, we hold that (1) the officer unlawfully extended the traffic stop; (2) assuming

the seizure was lawful, defendant’s consent was not valid; and (3) admitting the
                                   STATE V. MILLER

                                   Opinion of the Court



evidence at trial prejudiced defendant and seriously affects the integrity and public

reputation of judicial proceedings. Defendant is entitled to a new trial.

                                   I. Background

      On the evening of 18 March 2014, Officer H.B. Harris was patrolling “problem

areas” with the Vice and Tactical Narcotics Team of the Greensboro Police

Department. He observed a vehicle turn left from Darden Road onto Holden Road

and position itself in front of his unmarked patrol car. Officer Harris followed the car

to Interstate 85 and decided to run its license plate through the DMV database. The

search indicated that a “hold” had been placed on the tag because the owner had not

paid the insurance premiums.

      Officer Harris, who was wearing a body-mounted camera, pulled the vehicle

over and approached the passenger-side window. The owner of the vehicle, Derick

Sutton, was in the passenger’s seat; defendant was in the driver’s seat. Officer Harris

asked defendant for his driver’s license before informing the two occupants that he

had stopped them for speeding and a potential tag violation. When he learned that

Sutton was the registered owner of the vehicle, Officer Harris inquired about the

status of his insurance. Sutton handed Officer Harris an insurance card to show that

he had recently purchased car insurance. At Officer Harris’s request, Sutton also

produced his driver’s license and told the officer that they were “coming from a

friend’s house on Randleman Road.” Officer Harris testified that this “piqued his



                                          -2-
                                     STATE V. MILLER

                                     Opinion of the Court



interest” because he “knew . . . they did not get on the interstate from Randleman

Road, and Holden Road is a little distance away from Randleman Road.” He then

ordered Sutton to step out of the vehicle.

      As Sutton complied, Officer Harris asked Sutton if he had any weapons or

drugs on him. Sutton said he did not, and was then motioned to stand with another

officer who had arrived on the scene. Officer Harris proceeded toward the driver’s

side and asked defendant to step out of the vehicle. As defendant complied, Officer

Harris asked defendant if he had any weapons or drugs on him. Defendant also said

he did not. According to Officer Harris’s testimony, he then asked defendant, “Do you

mind if I check?” to which defendant responded, “No,” and placed his hands on the

trunk of the vehicle. Officer Harris searched defendant and found a plastic corner-

bag of cocaine in his left pocket.

      The footage from the body camera was published to the jury at trial and, at the

jury’s request, once more during deliberations.             Defendant was found guilty of

possession of cocaine and sentenced to an active term of six to seventeen months of

imprisonment. He gave notice of appeal in open court.

                                      II. Discussion

      Defendant argues on appeal that Officer Harris unlawfully extended the traffic

stop and evidence of the cocaine should have been excluded as the fruit of an

unconstitutional seizure.    Defendant filed no motion to suppress and raised no



                                            -3-
                                    STATE V. MILLER

                                    Opinion of the Court



objection to the evidence at trial but contends on appeal that the admission of the

cocaine and Officer Harris’s testimony thereof amounted to plain error.

Alternatively, defendant argues that he received ineffective assistance of counsel

based on his counsel’s failure to file a motion to suppress.

      The State argues in response that plain error review is not appropriate because

the issue is constitutional, rather than evidentiary, and defendant waived any

challenge to the lawfulness of the seizure. See State v. Lawrence, 365 N.C. 506, 516,

723 S.E.2d 326, 333 (2012) (“[P]lain error review in North Carolina is normally

limited to instructional and evidentiary error.” (citations omitted)); see also State v.

Canty, 224 N.C. App. 514, 516, 736 S.E.2d 532, 535 (2012) (“Constitutional arguments

not made at trial are generally not preserved on appeal.” (citing State v. Cummings,

353 N.C. 281, 292, 543 S.E.2d 849, 856 (2001))), writ of supersedeas and disc. review

denied, 366 N.C. 578, 739 S.E.2d 850 (2013). Had defendant raised the issue below,

the State suggests, then the trial court would have scrutinized the facts and

circumstances surrounding the traffic stop in greater detail. But because defendant

remained silent at trial, the record is not sufficiently developed to reach a conclusion

on the lawfulness of the seizure.




                                           -4-
                                         STATE V. MILLER

                                         Opinion of the Court



       While we recognize the merit to the State’s position,1 this Court has applied

plain error review to similar evidentiary challenges involving unpreserved

constitutional claims. See, e.g., State v. Jones, 216 N.C. App. 225, 229–30, 715 S.E.2d

896, 900–01 (2011), appeal dismissed and disc. review denied, 365 N.C. 559, 723

S.E.2d 767 (2012); State v. Mohamed, 205 N.C. App. 470, 474–76, 696 S.E.2d 724,

729–30 (2010). In cases where we have declined to do so, our Supreme Court has

remanded for plain error review. See, e.g., State v. Bean, 227 N.C. App. 335, 336–37,

742 S.E.2d 600, 602, disc. review denied, 367 N.C. 211, 747 S.E.2d 542 (2013).

Accordingly, we must examine the evidence that was before the trial court “to

determine if it committed plain error by allowing the admission of the challenged

[evidence].” Mohamed, 205 N.C. App. at 476, 696 S.E.2d at 730.

       Plain error arises when the error is “ ‘so basic, so prejudicial, so lacking in its

elements that justice cannot have been done.’ ” State v. Odom, 307 N.C. 655, 660, 300

S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th

Cir. 1982), cert. denied, 459 U.S. 1018 (1982)).

               For error to constitute plain error, a defendant must
               demonstrate that a fundamental error occurred at trial. To
               show that an error was fundamental, a defendant must
               establish prejudice—that, after examination of the entire
               record, the error had a probable impact on the jury’s
               finding that the defendant was guilty. Moreover, because

1  We also note that footage from an officer’s body camera may not reveal the totality of the
circumstances giving rise to a traffic stop. In some cases, however, it may be the best evidence of the
interaction between an officer and a defendant. Because the footage was included in the record on
appeal, it helps to alleviate concerns of reviewing an undeveloped record.

                                                 -5-
                                   STATE V. MILLER

                                   Opinion of the Court



             plain error is to be applied cautiously and only in the
             exceptional case, the error will often be one that seriously
             affects the fairness, integrity or public reputation of
             judicial proceedings.


Lawrence, 365 N.C. at 518, 723 S.E.2d at 334 (alterations, citations, and internal

quotation marks omitted).

      The Fourth Amendment protects “against unreasonable searches and

seizures.” U.S. Const. amend IV. “A traffic stop is a seizure ‘even though the purpose

of the stop is limited and the resulting detention quite brief.’ ” State v. Styles, 362

N.C. 412, 414, 665 S.E.2d 438, 439 (2008) (quoting Delaware v. Prouse, 440 U.S. 648,

653 (1979)). As such, “[t]he scope of the detention must be carefully tailored to its

underlying justification.”   Florida v. Royer, 460 U.S. 491, 500 (1983); see also

Rodriguez v. United States, 135 S. Ct. 1609, 1614 (2015) (“A relatively brief encounter,

a routine traffic stop is more analogous to a so-called Terry-stop than to a formal

arrest.” (alterations, citations, and internal quotation marks omitted)).

      The Supreme Court explained in Rodriguez that “the tolerable duration of

police inquiries 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.” Rodriguez, 135 S. Ct. at 1614 (citations omitted). The stop may last no

longer than is necessary to address the infraction. Id. “Authority for the seizure thus




                                          -6-
                                   STATE V. MILLER

                                  Opinion of the Court



ends when tasks tied to the traffic infraction are—or reasonably should have been—

completed.” Id. (citation omitted).

      An officer’s mission may include “ ‘ordinary inquiries incident to the traffic

stop.’ ” Id. at 1615 (quoting Illinois v. Caballes, 543 U.S. 405, 408 (2005)). The

Supreme Court has explicitly approved certain incidental inquiries, including

“checking the driver’s license, determining whether there are outstanding warrants

against the driver, and inspecting the automobile’s registration and proof of

insurance.”   Id. (citations omitted).   It has also held that an officer may order

occupants out of a vehicle during a lawful traffic stop to complete the mission safely.

See id. (“[T]he government’s ‘legitimate and weighty’ interest in officer safety

outweighs the ‘de minimis’ additional intrusion of requiring a driver, already lawfully

stopped, to exit the vehicle.” (quoting Pennsylvania v. Mimms, 434 U.S. 106, 110–111

(1977)) (citing Maryland v. Wilson, 519 U.S. 408, 413–15 (1997))). But see State v.

Reed, ____ N.C. App. ____, ____, ____ S.E.2d ____, ____ (Sept. 20, 2016) (No. COA16-

33) (“[A]n officer may offend the Fourth Amendment if he unlawfully extends a traffic

stop by asking a driver to step out of a vehicle.” (citation omitted)), temporary stay

allowed, ____ N.C. ____, ____ S.E.2d ____ (Oct. 5, 2016) (No. 365A16-1). Measures

designed to “detect evidence of ordinary criminal wrongdoing,” on the other hand,

“lack[ ] the same close connection to roadway safety as the ordinary inquiries” and

are not part of the officer’s mission. Rodriguez, 135 S. Ct. at 1615–16.



                                         -7-
                                   STATE V. MILLER

                                  Opinion of the Court



      Before Rodriguez was decided, we held in State v. Jackson, 199 N.C. App. 236,

681 S.E.2d 492 (2009), that an officer’s questions about the presence of weapons and

drugs unlawfully extended a traffic stop which should have otherwise been

completed. Id. at 242–44, 681 S.E.2d at 496–98. The officer had stopped the vehicle

on suspicion that Roth, the registered owner, was driving without a license. Id. at

238, 681 S.E.2d at 494. Roth, who had recently moved back to North Carolina,

produced a valid Kentucky driver’s license. Id. The officer later acknowledged that

the stop “was pretty much over” after she checked his license, but she began a

separate investigation:

             [I asked Roth] if there was anything illegal in the vehicle.
             He advised no. I asked if there was, specific, like, weapons,
             marijuana, any kind of drugs. He said no. I asked him if I
             could search the vehicle. [He] replied—first he said “the
             vehicle?” as in a question. And then he replied, “You can
             search the vehicle if you want to.”


Id. at 238–39, 681 S.E.2d at 494. The interrogation, we concluded, “was indeed an

extension of the detention beyond the scope of the original traffic stop” because the

officer’s questions were “not necessary to confirm or dispel [her] suspicion that Roth

was operating without a valid driver’s license and it occurred after [the officer’s]

suspicion . . . had already been dispelled.” Id. at 242, 681 S.E.2d at 496–97.

      We recognize that, in contrast to Jackson, Officer Harris may not have

completed the two-part mission of the stop. But an officer cannot justify an extended



                                         -8-
                                  STATE V. MILLER

                                  Opinion of the Court



detention on his or her own artful inaction. As Rodriguez makes clear, it is not

whether the challenged police conduct “occurs before or after the officer issues a

ticket” but whether it “prolongs—i.e., adds time to—the stop.” Rodriguez, 135 S. Ct.

at 1616 (citation and internal quotation marks omitted). The more appropriate

question, therefore, is whether Officer Harris “diligently pursued a means of

investigation” designed to address the reasons for the stop. See United States v.

Sharpe, 470 U.S. 675, 686 (1985) (citations omitted).

      After reviewing the footage of the traffic stop, it is wholly evident that Officer

Harris was more concerned with discovering contraband than issuing traffic tickets.

He readily accepted Sutton’s insurance card as proof that Sutton had been paying the

premiums, and he even testified at trial that he had no way to determine if the

insurance card was invalid. Thereafter, Officer Harris took no action to issue a

citation, to address the speeding violation, or to otherwise indicate a diligent

investigation into the reasons for the traffic stop. Instead, he ordered Sutton and

defendant out of the vehicle and began an investigation into the presence of weapons

and drugs.

      Such a detour, albeit brief, can hardly be seen as a safety precaution to

facilitate the mission of the stop as much as “a measure aimed at detecting evidence

of ordinary criminal wrongdoing.” See Rodriguez, 135 S. Ct. at 1615 (citations and

internal quotation marks omitted).      And absent “the same close connection to



                                         -9-
                                   STATE V. MILLER

                                   Opinion of the Court



roadway safety as ordinary inquiries,” the exit order and extraneous questioning

cannot be justified as a de minimis intrusion outweighed by the government’s interest

in officer safety. Id. at 1615–16; see also State v. Bullock, ____ N.C. App. ____, ____,

785 S.E.2d 746, 752 (May 10, 2016) (No. COA15-731) (“[U]nder Rodriguez, even a de

minimis extension is too long if it prolongs the stop beyond the time necessary to

complete the mission.” (citation omitted)), writ allowed, ____ N.C. ____, 786 S.E.2d

927 (June 16, 2016) (No. 194A16). Rather, there must have been some alternative

basis to prolong the stop. Rodriguez, 135 S. Ct. at 1615.

      To extend a lawful traffic stop beyond its original purpose, “there must be

grounds which provide the detaining officer with additional reasonable and

articulable suspicion or the encounter must have become consensual.” Jackson, 199

N.C. App. at 241–42, 681 S.E.2d at 496 (citing State v. Myles, 188 N.C. App. 42, 45,

654 S.E.2d 752, 755, aff’d per curiam, 362 N.C. 344, 661 S.E.2d 732 (2008)); see

Rodriguez, 135 S. Ct. at 1615 (“An officer . . . may conduct certain unrelated checks

during an otherwise lawful traffic stop. But . . . he may not do so in a way that

prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify

detaining an individual.”); State v. Williams, 366 N.C. 110, 116, 726 S.E.2d 161, 166

(2012) (“[T]o detain a driver beyond the scope of the traffic stop, the officer must have

the driver’s consent or reasonable articulable suspicion that illegal activity is afoot.”

(citations omitted)); see also State v. Parker, 183 N.C. App. 1, 9, 644 S.E.2d 235, 242



                                          - 10 -
                                    STATE V. MILLER

                                   Opinion of the Court



(2007) (“Without additional reasonable articulable suspicion of additional criminal

activity, the officer’s request for consent [to search] exceeds the scope of the traffic

stop and the prolonged detention violates the Fourth Amendment.” (citations

omitted)).

      The State does not allege—nor does the evidence show—that the encounter

had become consensual. A consensual encounter is one in which “a reasonable person

would feel free to disregard the police and go about his business.” Florida v. Bostick,

501 U.S. 429, 434 (1991) (citations omitted). Minimally, defendant could not

reasonably have felt that he was free to leave while Officer Harris still had his driver’s

license. See Jackson, 199 N.C. App. at 243, 681 S.E.2d at 497 (“Generally, an initial

traffic stop concludes and the encounter becomes consensual only after an officer

returns the detainee’s driver’s license and registration.” (citations omitted)).

      The State argues instead that Officer Harris had reasonable suspicion to

extend the stop because he observed the vehicle while patrolling “problem areas,”

defendant gave “incongruent” answers to his coming and going questions, defendant

“raised his hands in the air” as he stepped out of the vehicle, and defendant was

driving the vehicle instead of Sutton, the registered owner. “An officer has reasonable

suspicion if a ‘reasonable, cautious officer, guided by his experience and training,’

would believe that criminal activity is afoot ‘based on specific and articulable facts,

as well as the rational inferences from those facts.’ ” Williams, 366 N.C. at 116, 726



                                          - 11 -
                                   STATE V. MILLER

                                  Opinion of the Court



S.E.2d at 167 (citations omitted).    In determining whether reasonable suspicion

exists, “the totality of the circumstances—the whole picture—must be taken into

account.” United States v. Cortez, 449 U.S. 411, 417 (1981). “While something more

than a mere hunch is required, the reasonable suspicion standard demands less than

probable cause and considerably less than preponderance of the evidence.” Williams,

366 N.C. at 117, 726 S.E.2d at 167 (citations omitted).

      Officer Harris’s observation of the vehicle in a high-crime area is not sufficient,

either by itself or in conjunction with the other “factors” identified by the State, to

establish reasonable suspicion of criminal activity. See Brown v. Texas, 443 U.S. 47,

52 (1979) (holding that presence in a high-crime area, “standing alone, is not a basis

for concluding that [a defendant] was engaged in criminal conduct”). There was

nothing “incongruent” about defendant’s travel plans.         Officer Harris found it

suspicious that Sutton said they were “coming from a friend’s house on Randleman

Road” not because they were traveling in the opposite direction, but because Harris

saw them merge onto the interstate from Holden Road—“which is a little distance

away from Randleman Road.” (Emphasis added.) As Officer Harris then approached

the driver’s side of the vehicle, defendant kept his hands in plain view above the

steering wheel—a far cry from a signal of surrender and a gesture we cannot construe

as “an indicator of culpability.” And while the State notes “it is not clear why the




                                         - 12 -
                                   STATE V. MILLER

                                   Opinion of the Court



defendant was driving the vehicle when it was registered to the passenger,” it fails to

elaborate on how this is more indicative of criminal activity than innocent travel.

      Even assuming that the traffic stop was lawful up to the point when defendant

consented to the search, as told by Officer Harris, we cannot conclude that his consent

was valid. Officer Harris testified that defendant verbally agreed to the search and

placed his hands on the trunk of the vehicle, but the footage from the body camera

reveals a different version of the interaction. Officer Harris had defendant turned

around, facing the rear of the vehicle with his arms and legs spread before he asked

for defendant’s consent. This was textbook coercion. If defendant did respond to

Officer Harris’s request—and it is still not apparent that he did—it was certainly not

a free and intelligent waiver of his constitutional rights. See State v. Vestal, 278 N.C.

561, 578–79, 180 S.E.2d 755, 767 (1971).

                                   III. Conclusion

      The egregiousness of the violations in this case, apparent from the body camera

footage, demands the conclusion that a fundamental error occurred at trial which

both prejudiced defendant and seriously affects the integrity and public reputation of

judicial proceedings. Because defendant is entitled to a new trial, we need not

address his claim for ineffective assistance of counsel.

      NEW TRIAL.

      Judges STEPHENS and ZACHARY concurs.



                                          - 13 -
