              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA15-731

                                 Filed: 10 May 2016

Durham County, No. 12 CRS 61997

STATE OF NORTH CAROLINA

             v.

MICHAEL ANTONIO BULLOCK, Defendant.


      Appeal by defendant from judgment entered 30 July 2014 by Judge Orlando F.

Hudson in Durham County Superior Court.          Heard in the Court of Appeals 17

November 2015.


      Attorney General Roy Cooper, by Assistant Attorney General John A. Payne, for
      the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defendant Jon H.
      Hunt, for defendant-appellant.


      GEER, Judge.


      Defendant Michael Antonio Bullock was indicted for trafficking in heroin by

possession, trafficking in heroin by transportation, and possession with the intent to

sell or deliver a Schedule I controlled substance (heroin). Following the denial of

defendant’s motion to suppress evidence obtained by law enforcement as a result of a

search of his vehicle following a traffic stop, defendant pled guilty to the charged

offenses. On appeal, defendant argues that the trial court erred in denying his motion

to suppress because its findings of fact establish that the officer unlawfully extended

the stop, making the subsequent search unlawful. In light of the United States
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                                  Opinion of the Court



Supreme Court’s decision in Rodriguez v. United States, ___ U.S. ___, 191 L. Ed. 2d

492, 135 S. Ct. 1609 (2015), we agree and hold, based on the trial court’s findings of

fact, that the officer unlawfully extended the stop and that defendant’s consent to the

search did not, therefore, justify the search. Accordingly, we reverse.

                                        Facts

      The State presented evidence at the motion to suppress hearing that tended to

show the following facts. On 27 November 2012, defendant was traveling south on I-

85 through Durham. Officer John McDonough of the Durham Police Department was

stationary on the side of the interstate when defendant drove past him in the far left

lane in a white Chrysler, traveling approximately 70 mph in a 60 mph zone. Officer

McDonough observed defendant change lanes to the middle lane “even though there

was no car in front of him.”

      Officer McDonough began following defendant and paced him for about a mile,

as defendant continued to maintain a speed of 70 mph, although the speed limit

increased to 65 mph. Officer McDonough, while following defendant in a marked

patrol car, observed defendant apply the brakes twice and cross over the white

shoulder line. He also observed defendant following a truck too closely, coming within

approximately one and a half car lengths of it.

      Officer McDonough initiated a traffic stop and approached defendant’s car

from the passenger side. Officer McDonough asked how defendant was doing and for



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his driver’s license and registration. Defendant already had his driver’s license out

when Officer McDonough approached and his hand was trembling a little. Officer

McDonough observed two cell phones in the center console of defendant’s vehicle.

Officer McDonough understood defendant as saying that he was going to Century

Oaks Drive to meet a girl, but that he had missed his exit.

      Officer McDonough asked defendant for the rental agreement for the vehicle

once defendant indicated that the car was a rental. The rental agreement specified

that the car was rented by an “Alicia Bullock,” and “it looked like [defendant] had

written his name in at the date part down where the renter signed her name.”

However, the only authorized user on the rental agreement was Alicia Bullock.

      Officer McDonough asked defendant to step back to his patrol car while he ran

defendant’s driver’s license. He shook hands with defendant and told him that he

would give him a warning for the traffic violation. He then asked if he could briefly

search defendant for weapons before he got into his patrol car. Defendant agreed and

lifted his arms up in the air -- Officer McDonough found only cash on him. Defendant

later stated that the cash totaled about $372.00. Defendant told Officer McDonough

that he was about to go shopping.

      While defendant was seated in his patrol car, Officer McDonough ran

defendant’s North Carolina driver’s license through his mobile computer. Officer

McDonough’s K-9 was located in the back of his police car. Defendant claimed that



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he had just moved down from Washington, but Officer McDonough learned by

running his license that the license was issued back in 2000 and that defendant had

been arrested in North Carolina in 2001. Defendant later admitted he had been in

the area for a while and claimed he was going to meet a girl he met on Facebook for

the first time. However, defendant also mentioned that the same woman would

sometimes come up to Henderson to meet him. In addition, when Officer McDonough

misidentified the street that defendant had claimed he was traveling to, defendant

did not correct him.

      Officer McDonough thought defendant looked nervous while he was

questioning him in the police car. He noted that defendant was “breathing in and out

in his stomach” and was not making much eye contact. Officer McDonough then

asked defendant if there were any weapons or drugs in the car and if he could search

the vehicle. Defendant gave consent for Officer McDonough to search the car, but not

his personal belongings in the car. Defendant clarified that his personal belongings

included a bag, some clothes, and some condoms. Officer McDonough called for a

backup officer and explained to defendant that he could not conduct a search of a car

without a backup officer present. Officer McDonough testified that it took Officer

Green around three to five minutes to arrive, although the surveillance tape indicates

closer to 10 minutes elapsed.




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      While they were waiting for Officer Green, defendant asked what they were

waiting for, and Officer McDonough explained that he could get in trouble if he

searched the car without another officer present.             Defendant asked Officer

McDonough what would happen if he did not consent to a search of the car, and

Officer McDonough stated that he would then deploy his K-9 dog to search the car.

At that time, defendant and Officer McDonough spoke some more about the girl

defendant was going to see and other matters unrelated to the traffic stop. Defendant

then asked again, “What are we waiting for now?” He also expressed concern to

Officer McDonough that he was “going to make me miss this.”

      Once Officer Green arrived, Officer McDonough began searching the front

passenger area of the car. Officer McDonough felt that the car was still “kind of

outside the shoulder” so he moved it further off to the side of the road. Officer

McDonough rolled down the window of his patrol car in case defendant revoked

consent to search the car, but other than limiting the search to not including the bags,

defendant never revoked his consent to search his car. Officer McDonough got to the

trunk and then defendant yelled out, “it’s not my bag” and “those are not my hoodies

. . . .” Defendant explained that it was his sister’s bag and that he couldn’t give Officer

McDonough permission to search her bag.

      Officer McDonough had Officer Green remove the bag and put it on the grass.

He then got his K-9 dog out of the car. The K-9 went around the car and did not alert



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to any drugs being in the car. Officer McDonough then had his K-9 sniff the bag on

the side of the road, and the dog “immediately put his nose on the bag and came to a

sit” -- the behavior he exhibits when there is an odor of narcotics. According to Officer

McDonough, his K-9 dog has never given a false alert. Officer Green opened the bag

and found 100 bindles of heroin in it.

      Defendant was indicted on 17 December 2012 by a grand jury for trafficking in

heroin by possession, trafficking in heroin by transportation, and possession with the

intent to sell or deliver a Schedule I controlled substance. Defendant filed a motion

to suppress on 2 July 2014, arguing that the trial court should suppress all of the

evidence obtained as a result of the search of the vehicle defendant was driving. A

suppression hearing was held on 30 July 2014, and on 4 August 2014, the trial court

entered an order denying defendant’s motion.

      In its order, the trial court made the following findings of fact.         Officer

McDonough initiated a traffic stop after observing defendant “traveling 70 miles per

hour in a 60 mile per hour zone in the far left travel lane.” In addition, Officer

McDonough observed defendant “come within approximately one and a half car

lengths of a silver Ford pickup truck.” The trial court noted that Officer McDonough

requested defendant’s license and registration and that “Defendant’s hand was

trembling when handing his license over to [Officer] McDonough.” Further, the trial




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court found that defendant was the sole occupant and driver of the car and he “was

not listed as an authorized driver” on the rental agreement.

      The trial court also found “[t]hat [Officer] McDonough observed that defendant

had two cellular phones inside the Chrysler[.]” The trial court found that Officer

McDonough “asked defendant where he was traveling” and that “Defendant

responded he was going to his girlfriend’s house on Century Oaks Drive in Durham

and he just missed his exit.” The court also found that defendant claimed he just

moved from Washington, D.C. to Henderson, North Carolina and indicated that he

was using the GPS on his cellphone in order to get to his destination.

      In addition, the trial court found:

             That [Officer] McDonough requested defendant to exit the
             Chrysler and have a seat in McDonough’s patrol vehicle in
             order to check defendant’s driver’s license.       Before
             defendant sat in the passenger seat of the patrol vehicle,
             [Officer] McDonough met defendant at the rear of the
             Chrysler, shook defendant’s hand, told him he was going to
             give him a warning for the traffic violations, and briefly
             check him for weapons. While checking for weapons,
             [Officer] McDonough observed a small bundle of United
             States currency totaling $372.00 in defendant’s right side
             pants pocket. Defendant stated he was about to go
             shopping.

      Next, the trial court found that Officer McDonough told defendant he was

receiving a warning ticket and that the reason Officer McDonough did so was “to calm

[him] down to be able to gauge nervousness not caused by general fear of getting a

ticket.” The court also noted that Officer McDonough claimed he asked defendant to


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sit next to him in his patrol vehicle “to observe defendant when defendant answer[ed]

his questions.”

      The court further found “[t]hat information came back to [Officer] McDonough

from the various law enforcement databases that defendant was issued a North

Carolina driver’s license in 2000 and had a criminal history in North Carolina that

began in 2001.” Additionally, the court found that Officer McDonough requested that

another officer check in with him so that two officers would be present and able to

search the Chrysler. The court also noted that when Officer McDonough questioned

defendant about certain items, such as “whether there were any guns in the vehicle,

or a dead body in the trunk, defendant was able to make eye contact with [Officer]

McDonough while answering the question.” When asked about his girlfriend or

where he was traveling, however “defendant would not make eye contact and instead

looked out the window and away from [Officer] McDonough.” Further, “defendant’s

breathing was elevated and his stomach was rising and falling rapidly.”

      The trial court then described what happened after Officer McDonough asked

defendant if he could search his vehicle, finding “[t]hat [Officer] McDonough asked

defendant if he had a problem with him searching the vehicle” and that defendant

responded “ ‘yeah, I don’t want you to go in my stuff.’ ” But, defendant said Officer

McDonough could check the car if he wanted. The court indicated “[t]hat at no time

did defendant state that he changed his mind and that he did not want [Officer]



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McDonough to search the Chrysler.” Finally, the court found, in Finding of Fact No.

18, that 1,500 bindles of heroin were found in defendant’s bag.

      Ultimately, the trial court concluded that Officer McDonough had reasonable,

articulable suspicion to conduct the traffic stop because defendant was speeding and

following another vehicle too closely. Additionally, the court concluded:

             That [Officer] McDonough had reasonable, articulable
             suspicion to extend the traffic stop based on his
             observations that: defendant was driving on an interstate
             where illegal drugs are transported; defendant was
             operating a rental vehicle which he was not authorized to
             drive; defendant possessed two cellphones and a small
             bundle of United States currency; defendant was obviously
             nervous, deceptive, and evasive as noted in his trembling
             hands, elevated breathing, and lack of eye contact; and
             defendant made multiple inconsistent statements
             regarding his destination, who he was going to meet, and
             how long he had lived in North Carolina.

      After the trial court denied defendant’s motion to suppress, he pled guilty to

the charged offenses, and the trial court sentenced him to a term of 225 to 279 months

imprisonment. Defendant timely appealed to this Court.

                                     Discussion

      On appeal, defendant argues that the trial court erred in denying his motion

to suppress because the officer unlawfully extended the traffic stop, making the

subsequent search unlawful.     In reviewing a trial court’s ruling on a motion to

suppress, this Court “determine[s] only whether the trial court’s findings of fact are

supported by competent evidence, and whether these findings of fact support the


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court’s conclusions of law.” State v. Pulliam, 139 N.C. App. 437, 439-40, 533 S.E.2d

280, 282 (2000). Conclusions of law are, however, reviewable de novo. State v.

Kincaid, 147 N.C. App. 94, 97, 555 S.E.2d 294, 297 (2001).

      This appeal is controlled by Rodriguez. In addressing the reasonableness of

the duration of a traffic stop, the Supreme Court explained:

                     A seizure for a traffic violation justifies a police
             investigation of that violation. A relatively brief encounter,
             a routine traffic stop is more analogous to a so-called Terry
             stop than to a formal arrest. Like a Terry stop, 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. Because addressing the infraction
             is the purpose of the stop, it may last no longer than is
             necessary to effectuate that purpose. Authority for the
             seizure thus ends when tasks tied to the traffic infraction
             are -- or reasonably should have been -- completed.

                     Our decisions in [Illinois v.] Caballes[, 543 U.S. 405,
             160 L. Ed. 2d 842, 125 S. Ct. 834 (2005)] and [Arizona v.]
             Johnson[, 555 U.S. 323, 172 L. Ed. 2d 694, 129 S. Ct. 781
             (2009)] heed these constraints. In both cases, we concluded
             that the Fourth Amendment tolerated certain unrelated
             investigations that did not lengthen the roadside
             detention. In Caballes, however, we cautioned that a
             traffic stop can become unlawful if it is prolonged beyond
             the time reasonably required to complete the mission of
             issuing a warning ticket. And we repeated that admonition
             in Johnson: The seizure remains lawful only so long as
             unrelated inquiries do not measurably extend the duration
             of the stop. An officer, in other words, 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.


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Id. at ___, 191 L. Ed. 2d at 498-99, 135 S. Ct. at 1614-15 (second emphasis added)

(internal citations, quotation marks, brackets, and ellipses omitted).

       Before the U.S. Supreme Court’s Rodriguez decision, this Court had recognized

essentially the same principles. In State v. Myles, 188 N.C. App. 42, 45, 654 S.E.2d

752, 754 (quoting State v. Falana, 129 N.C. App. 813, 816, 501 S.E.2d 358, 360

(1998)), aff’d per curiam, 362 N.C. 344, 661 S.E.2d 732 (2008), this Court explained

that “ ‘[o]nce the original purpose of the stop has been addressed, there must be

grounds which provide a reasonable and articulable suspicion in order to justify

further delay.’ ” “To determine whether the officer had reasonable suspicion, it is

necessary to look at the totality of the circumstances.” Id. The Court emphasized

that “in order to justify [the officer’s] further detention of defendant, [the officer] must

have had defendant’s consent or ‘grounds which provide a reasonable and articulable

suspicion in order to justify further delay’ before he questioned defendant.” Id., 654

S.E.2d at 755 (quoting Falana, 129 N.C. App. at 816, 501 S.E.2d at 360).

       Applying Rodriguez and Myles to this case, the mission of the stop was to issue

a traffic infraction warning ticket to defendant for speeding and following a truck too

closely. Officer McDonough’s stop of defendant could, therefore, last only as long as

necessary to complete that mission and certain permissible unrelated “checks,”

including checking defendant’s driver’s license, determining whether there were

outstanding    warrants    against    defendant,     and    inspecting   the   automobile’s



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registration and proof of insurance. Rodriguez, ___ U.S. at ___, 191 L. Ed. 2d at 499,

135 S. Ct. at 1615.

      Officer McDonough completed the mission of the traffic stop when he told

defendant that he was giving defendant a warning for the traffic violations as they

were standing at the rear of defendant’s car. With respect to the permissible checks,

Officer McDonough checked the car rental agreement -- the equivalent of inspecting

a car’s registration and proof of insurance -- before he asked defendant to exit his 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.” Id. at ___, 191 L. Ed. 2d at 499, 135 S. Ct. at 1615.

      Rather than taking the license back to his patrol car and running the checks,

Officer McDonough required defendant to exit his car, subjected him to a pat down

search, and had him sit in the patrol car while the officer ran his checks. The trial

court’s findings of fact set out the reason Officer McDonough proceeded in this

manner. He told defendant that he was giving him just a warning so he could

“attribute nervousness to something other than general anxiety from a routine traffic

stop.” In addition, the trial court found that Officer “McDonough [had] defendant sit

in the passenger seat next to him to observe defendant when defendant answer[ed]

his questions.” Then, apart from just checking defendant’s license and checking for



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warrants, Officer McDonough ran “defendant’s name through various law

enforcement databases” while he questioned defendant at length about subjects

unrelated to the traffic stop’s mission.

      Under existing case law, an officer may, during a traffic stop, lawfully ask the

driver to exit the vehicle. See, e.g, State v. McRae, 154 N.C. App. 624, 629, 573 S.E.2d

214, 218 (2002) (“When an officer has lawfully detained a vehicle based on probable

cause to believe that a traffic law has been violated, he may order the driver to exit

the vehicle.”). In Pennsylvania v. Mimms, 434 U.S. 106, 111, 54 L. Ed. 2d 331, 337,

98 S. Ct. 330, 333 (1977), the United States Supreme Court found that the “additional

intrusion” into the personal liberty of the driver by the officer asking him to step out

of the car was, at most, “de minimis.”              Although “prior to Rodriguez, many

jurisdictions -- including North Carolina -- applied a de minimis rule, . . . the holdings

in these cases to the extent that they apply the de minimis rule have been overruled

by Rodriguez.” State v. Warren, ___ N.C. App. ___, ___, 775 S.E.2d 362, 365 (2015),

aff’d per curiam, ___ N.C. ___, 782 S.E.2d 509 (2016). Thus, under Rodriguez, even a

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

complete the mission. ___ U.S. at ___, 191 L. Ed. 2d at 500-01, 135 S. Ct. at 1616.

      The Rodriguez Court considered Mimms and made comparisons to a dog sniff,

noting that while ordering an individual to exit a car can be justified as being for

officer safety, a dog sniff could not be justified on the same basis. Id. at ___, 191 L.



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Ed. 2d at 500, 135 S. Ct. at 1616. Even so, the Court noted that the “critical question

. . . is not whether the dog sniff occurs before or after the officer issues a ticket, . . .

but whether conducting the sniff ‘prolongs’ -- i.e., adds time to -- ‘the stop[.]’ ” Id. at

___, 191 L. Ed. 2d at 501, 135 S. Ct. at 1616. Moreover, the Court focused on whether

the imposition or interest “stems from the mission of the stop itself[,]” noting: “On-

scene investigation into other crimes . . . detours from that mission. So too do safety

precautions taken in order to facilitate such detours.” Id. at ___, 191 L. Ed. 2d at 500,

135 S. Ct. at 1616 (internal citations omitted).

       Even assuming Officer McDonough had a right to ask defendant to exit the

vehicle while he ran defendant’s license, his actions that followed certainly extended

the stop beyond what was necessary to complete the mission.              The issue is not

whether Officer McDonough could lawfully request defendant to exit the vehicle, but

rather whether he unlawfully extended and prolonged the traffic stop by frisking

defendant and then requiring defendant to sit in the patrol car while he was

questioned. To resolve that issue, we follow Rodriguez and focus again on the overall

mission of the stop. We hold, based on the trial court’s findings of fact, that Officer

McDonough unlawfully prolonged the detention by causing defendant to be subjected

to a frisk, sit in the officer’s patrol car, and answer questions while the officer

searched law enforcement databases for reasons unrelated to the mission of the stop

and for reasons exceeding the routine checks authorized by Rodriguez.



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        With respect to Officer McDonough’s decision, as the trial court found, to

“briefly check [defendant] for weapons,” it is well established that “[d]uring a lawful

stop, ‘an officer may conduct a pat down search, for the purpose of determining

whether the person is carrying a weapon, when the officer is justified in believing that

the individual is armed and presently dangerous.’ ” State v. Johnson, ___ N.C. App.

___, ___ S.E.2d ___, 2016 WL 1319083, at *10, 2016 N.C. App. LEXIS 341, at *28-29

(April 5, 2016) (No. COA15-29) (quoting State v. Sanders, 112 N.C. App. 477, 480, 435

S.E.2d 842, 844 (1993)) (emphasis added). Here, however, the trial court made no

findings suggesting that Officer McDonough was justified in believing that defendant

might be armed and presently dangerous.            Thus, Officer McDonough’s frisk of

defendant for weapons, without reasonable suspicion that he was armed and

dangerous, unlawfully extended the stop.

        The dissent argues that defendant consented to the pat down search. We need

not decide, however, whether defendant consented, because the moment Officer

McDonough asked if he could search defendant’s person, without reasonable

suspicion that defendant was armed and dangerous, he unlawfully prolonged the

stop.   Under Rodriguez, other than running permissive checks, any additional

amount of time Officer McDonough took that was unrelated to the mission of the stop

unlawfully prolonged it.




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      Officer McDonough then extended the stop further when he had defendant get

into his patrol vehicle and ran defendant’s name through numerous databases while

being questioned, as this went beyond an authorized, routine check of a driver’s

license or for warrants.      The only basis found by the trial court for Officer

McDonough’s decision to have defendant get into his patrol vehicle was so that he

could “observe defendant when defendant answer[ed] his questions.” In other words,

the officer was prolonging the detention to conduct a check unrelated to the traffic

stop. Under Rodriguez, he could “not do so in a way that prolong[ed] the stop absent

the reasonable suspicion ordinarily demanded to justify detaining an individual.” ___

U.S. at ___, 191 L. Ed. 2d at 499, 135 S. Ct. at 1615. Consequently, given the trial

court’s finding of fact and Rodriguez, Officer McDonough was required to have

reasonable suspicion before asking defendant to go to his patrol vehicle to be

questioned.

      By requiring defendant to submit to a pat-down search and questioning in the

patrol car unrelated to the purpose of the traffic stop, the officer prolonged the traffic

stop beyond the time necessary to complete the stop’s mission and the routine checks

authorized by Rodriguez. As this Court has recently emphasized in State v. Castillo,

___ N.C. App. ___, ___ S.E.2d ___, 2016 WL _____, 2016 N.C. App. LEXIS ____ (May

3, 2016) (No. COA15-855), under Rodriguez, investigation unrelated to the mission of




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the traffic stop “is not necessarily prohibited, but extending the stop to conduct such

an investigation is prohibited.”

       The question is, then, did Officer McDonough have reasonable articulable

suspicion that criminal activity was occurring prior to the extended detention? See

Rodriguez, ___ U.S. at ___, 191 L. Ed. 2d at 499, 135 S. Ct. at 1615 (holding that while

officer may engage in checks unrelated to traffic stop, “he may not do so in a way that

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

detaining an individual”); Castillo, ___ N.C. App. at ___, ___ S.E.2d at ___, 2016 WL

___, at *__, 2016 N.C. App. LEXIS ___, at *___ (in determining whether officer had

reasonable suspicion to extend detention, Court looked at “factors . . . known to [the

officer] while he stood on the roadside before defendant joined him in the patrol

vehicle”).

       “ ‘[A] trial court’s conclusions of law regarding whether the officer had

reasonable suspicion [or probable cause] to detain a defendant is reviewable de

novo.’ ” State v. Hudgins, 195 N.C. App. 430, 432, 672 S.E.2d 717, 718 (2009) (quoting

State v. Wilson, 155 N.C. App. 89, 93-94, 574 S.E.2d 93, 97 (2002)). Thus, we review

de novo the trial court’s conclusion in this case that Officer McDonough had

reasonable, articulable suspicion to extend the defendant’s detention.

       Based on the trial court’s findings, the only information that Officer

McDonough had to raise suspicion prior to the officer subjecting defendant to the



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Terry pat down was: (1) defendant was driving on I-85, an interstate used for the

transport of drugs; (2) defendant was operating a rental vehicle that he was not

authorized to drive; (3) defendant possessed two cellphones; (4) defendant’s hand

trembled when he handed the officer his license; (5) defendant told the officer he was

going to Century Oaks Drive, but had missed his exit, when in fact he had passed

three major exits that would have allowed defendant to reach his claimed destination;

and (6) defendant, when first observed, was traveling in the far left hand lane and

did not appear to be intending to exit off of I-85. However, these circumstances,

considered together, give rise to only a hunch and not the particularized suspicion

necessary to justify detaining defendant. See State v. Fields, 195 N.C. App. 740, 744,

673 S.E.2d 765, 767-68 (2009) (holding that “police officer must develop more than an

unparticularized suspicion or hunch before he or she is justified in conducting an

investigatory stop” (internal quotation marks omitted)).

      Officer McDonough’s testimony and the trial court’s findings that the officer

told defendant he would get a warning ticket so that the officer would then be able to

distinguish between nervousness over receiving a ticket and nervousness for other

reasons shows that the nervousness before the warning -- the hand tremble -- was

not enough to raise a suspicion. See Myles, 188 N.C. App. at 49, 654 S.E.2d at 757

(noting that the Supreme Court has held “that a defendant’s extreme nervousness

may be taken into account in determining whether reasonable suspicion exists”).



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Mere trembling of a hand when handing over a driver’s license cannot be considered

“extreme nervousness,” id., and, therefore, this tremble is not relevant to the totality

of the circumstances. See also State v. Pearson, 348 N.C. 272, 276, 498 S.E.2d 599,

601 (1998) (noting that “[t]he nervousness of the defendant is not significant” because

“[m]any people become nervous when stopped by a state trooper”).

      The other circumstances, without more, describe innocent behavior that even

collectively does not raise a particularized suspicion of criminal activity. See Myles,

188 N.C. App. at 47, 50, 51, 654 S.E.2d at 756, 758 (holding no reasonable suspicion

existed to extend traffic stop when rental car occupants’ stories did not conflict, rental

car was rented by passenger rather than driver, there was no odor of alcohol although

car had weaved in lane, officer found no contraband or weapons upon frisking driver,

and driver’s license was valid, although driver’s “heart was beating unusually fast”

and rental car was one day overdue).

      Indeed, the trial court’s finding of reasonable suspicion depended substantially

on circumstances that arose after Officer McDonough had extended the stop,

including the discovery that defendant had $372.00 in cash, defendant’s elevated

breathing and lack of eye contact, and his multiple inconsistent statements regarding

his destination, who he was going to meet, and how long he had lived in North

Carolina. Although both the trial court and Officer McDonough, in his testimony,

relied substantially on inconsistencies in defendant’s story that developed while he



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was questioned in the officer’s patrol car, defendant’s initial explanation for missing

his exit -- he was talking on his cell phone -- presented no inconsistent statement and

was not implausible without consideration of the further questioning. The State has

pointed to no authority that suggests that in the absence of the post-extension

circumstances, the circumstances present in this case prior to the frisk were sufficient

to give rise to reasonable suspicion.

      However, we find the Fourth Circuit’s decision in United States v. Digiovanni,

650 F.3d 498 (4th Cir. 2011), persuasive.          In Digiovanni, the Fourth Circuit

acknowledged that “[t]he Supreme Court has recognized that factors consistent with

innocent travel can, when taken together, give rise to reasonable suspicion.” Id. at

511. On the other hand, “[t]he articulated innocent factors collectively must serve to

eliminate a substantial portion of innocent travelers before the requirement of

reasonable suspicion will be satisfied.” Id. (internal quotation marks omitted).

      The officer in Digiovanni claimed to have developed reasonable suspicion to

prolong the traffic stop due to 10 factors, including that: (1) the car was a rental car;

(2) the car was coming from a known drug-supply state (Florida); (3) the car was

travelling on I-95, a known drug corridor; (4) the car was clean; (5) two shirts hanging

in the back; (6) toiletry bag in backseat; (7) the defendant’s hands trembled; (8) the

defendant’s response to questions; (9) the defendant’s travel itinerary; and (10) the

defendant said, “ ‘oh boy’ ” when the officer asked if he had any luggage in the car and



                                          - 20 -
                                  STATE V. BULLOCK

                                   Opinion of the Court



if everything in the car belonged to him. Id. at 512. The Fourth Circuit dismissed

the officer’s reliance on the clean car, the two shirts, and the toiletry bag as absurd

and accepted the district court’s finding that the defendant’s “ ‘oh boy’ ” statement

referred to the heat. Id.

      Turning to the remaining circumstances, the Fourth Circuit reasoned:

                    With regard to the car rental, the traveling on I-95,
             and the traveling from Florida factors, there is little doubt
             that these facts enter the reasonable suspicion calculus.
             With regard to [the defendant’s] travel itinerary, [the
             officer] certainly was entitled to rely, to some degree, on its
             unusual nature in determining whether criminal activity
             was afoot.

                     Nevertheless, we agree with the district court that
             reasonable suspicion was not present to turn this routine
             traffic stop into a drug investigation. The articulated facts,
             in their totality, simply do not eliminate a substantial
             portion of innocent travelers. . . . It is true that [the
             defendant’s] travel itinerary is unusual -- not many people
             are flying from Boston to Miami for the weekend, renting a
             car for the return trip to Boston, traveling part of the way
             on the Auto Train, and stopping in New York to pick up
             some paintings. The problem for the government is that
             this unusual travel itinerary is not keyed to other
             compelling suspicious behavior. In this case, other than
             [the defendant’s] unusual travel itinerary, there is nothing
             compellingly suspicious about the case. There is no
             evidence of flight, suspicious or furtive movements, or
             suspicious odors, such as the smell of air fresheners,
             alcohol, or drugs. All the government can link to the
             unusual travel itinerary are the facts that [the defendant]
             rented a car from a source state, was stopped on I-95, and
             was initially nervous. Such facts, without more, simply do
             not eliminate a substantial portion of innocent travelers.



                                          - 21 -
                                  STATE V. BULLOCK

                                   Opinion of the Court



Id. at 512-13 (internal citations omitted).

      We find Digiovanni remarkably similar to this case.          As in Digiovanni,

defendant was driving a rental car, was stopped on I-85, and his hand trembled. The

issue with defendant’s travel itinerary -- missing multiple exits for his supposed

destination while talking on the phone -- was less unusual than that in Digiovanni.

In addition, defendant had two cell phones, but, just as in Digiovanni, there was no

compelling suspicious behavior. These circumstances considered together, “without

more, simply do not eliminate a substantial portion of innocent travelers[,]” id. at

513, and, therefore, do not give rise to reasonable, articulable suspicion. See also

United States v. Williams, 808 F.3d 238, 246 (4th Cir. 2015) (holding that “the

relevant facts articulated by the officers and found by the trial court, after an

appropriate hearing, must in their totality serve to eliminate a substantial portion of

innocent travelers” (internal quotation marks omitted)).

      In this Court’s decision in Castillo, by contrast, the Court found that the trial

court properly determined that an officer had reasonable suspicion to extend a traffic

stop based on “defendant’s bizarre travel plans, his extreme nervousness, the use of

masking odors, the smell of marijuana on his person, and the third-party registration

of the vehicle . . . .” ___ N.C. App. at ___, ___ S.E.2d at ___, 2016 WL ___, at *___,

2016 N.C. App. LEXIS ___, at *___. The evidence in this case does not rise to the

same level. See also State v. Cottrell, ___ N.C. App. ___, ___, 760 S.E.2d 274, 281



                                          - 22 -
                                  STATE V. BULLOCK

                                  Opinion of the Court



(2014) (holding that officer unlawfully extended stop when he based detention on only

strong incense-like fragrance and defendant’s felony and drug history). Accordingly,

we hold that the trial court erred in concluding that Officer McDonough had

reasonable articulable suspicion to extend the traffic stop.

      However, the trial court also concluded that defendant voluntarily consented

to the search of his vehicle. In its order denying defendant’s motion to suppress, the

trial court concluded “[t]hat defendant gave knowing, willing, and voluntary consent

to search the vehicle” and “[t]hat at no point after giving his consent did defendant

revoke his consent to search the vehicle.” Since we have concluded that Officer

McDonough did not have reasonable suspicion to extend the stop, whether defendant

may have later consented to the search is irrelevant, as consent obtained during an

unlawful extension of a stop is not voluntary. See Myles, 188 N.C. App. at 51, 654

S.E.2d at 758 (“Since [the officer’s] continued detention of defendant was

unconstitutional, defendant’s consent to the search of his car was involuntary.”); see

also Cottrell, ___ N.C. App. at ___, 760 S.E.2d at 282 (holding that because officer

unlawfully extended stop, did not give defendant his license back, and continuously

questioned defendant, “the trial court correctly found that defendant’s detention

never became consensual in this case”).

      Thus, we hold that the trial court’s order denying defendant’s motion to

suppress must be reversed. We, therefore, vacate defendant’s guilty plea and remand



                                          - 23 -
                                  STATE V. BULLOCK

                                   Opinion of the Court



to the trial court for further proceedings consistent with this opinion. Since we vacate

defendant’s plea, we do not need to address his additional arguments related to

whether he entered into it knowing and voluntarily.

      REVERSED.

      Judge BRYANT concurs.

      Judge McCULLOUGH dissents in a separate opinion.




                                          - 24 -
 No. COA15-731 – STATE V. BULLOCK


       McCULLOUGH, Judge, dissent.


       From the majority’s conclusion that Officer John McDonough of the Durham

Police Department unnecessarily extended the traffic stop involving Michael Antonio

Bullock (“defendant”), I respectfully dissent. The facts are fully set forth in the

majority opinion and will not be repeated unless necessary to demonstrate the

reasoning of this dissent. Needless to say, traffic stops are some of the most-litigated

police-citizen encounters and have long been recognized as fraught with danger to

officers.   Thus, certain rules have evolved over the years to allow traffic law

enforcement to be conducted safely and efficiently. We grapple with those rules in

this opinion.

       In the case at bar, the majority concludes that the traffic stop in question was

extended when the officer caused defendant to exit his car, be subjected to a frisk,

and sit in the patrol car while answering questions while the officer ran various data

bases, thereby violating the traffic stop rules recently set forth by the United States

Supreme Court in Rodriguez v. U.S., __ U.S. __, 191 L. Ed. 2d 492, (2015). I disagree

and believe his actions to be reasonable, well within the parameters allowed by

Rodriguez. It is conceded by defendant that the initial traffic stop was based on

reasonable suspicion, thus we focus on what Officer McDonough’s actions were from

the time he approached the defendant’s vehicle until consent was given to search that

vehicle.
                                  STATE V. BULLOCK

                           McCULLOUGH, Judge, dissent


      As the majority opinion notes, before leaving defendant’s vehicle, the officer

was aware that the car was on I-85, but being a local vehicle and licensee, this factor

is not significant; defendant had two cell phones; was not the authorized user of the

rental car; defendant told the officer he was going to Century Oaks Drive which was

several exits previous to the one where he was stopped; when stopped defendant was

accelerating in the far left lane and thus did not appear to be seeking an exit.

Defendant had also told the officer he had been on his cell phone as an excuse for how

he missed the proper exit. The majority concludes that based on these facts the officer

did not have reasonable suspicion to extend the stop. I agree with that conclusion.

Where the majority and I disagree is whether a stop is unnecessarily extended by

having the motorist accompany the officer to the patrol car while a citation is

prepared and data bases are checked.

      Police questioning during a traffic stop is not subject to the strictures of

Miranda, Berkemer v. McCarty, 468 U.S. 420, 435-42, 82 L. Ed. 2d 317, 331-36 (1984),

and mere police questioning does not constitute a seizure. Florida v. Bostick, 501

U.S. 429, 434, 115 L. Ed. 2d 389, 398 (1991). As the majority notes, under existing

case law, a driver may be ordered to exit the vehicle. State v. McRae, 154 N.C. App.

624, 629, 573 S.E.2d 214, 218 (2002). Such orders by police without any reasonable

suspicion, but based on officer safety have long been permitted. Pennsylvania v.

Mimms, 434 U.S. 106, 111, 54 L. Ed. 2d 331, 337 (1977). The ultimate question here



                                          2
                                   STATE V. BULLOCK

                            McCULLOUGH, Judge, dissent


is can the officer, as a matter of routine, have the motorist sit in the police vehicle

while the officer prepares his citation and runs any data base checks.

       In Rodriguez, the United States Supreme Court held that a traffic stop cannot

be unnecessarily extended while an unrelated investigation is conducted, absent

reasonable suspicion. __ U.S. at __, 191 L. Ed. 2d at 496. Even a de minimis delay is

impermissible. The holding in Rodriguez is actually unremarkable and is essentially

what has been the rule for quite a while in North Carolina. See State v. Myles, 188

N.C. App. 42, 45, 645 S.E.2d 752, 754, aff’d per curiam, 362 N.C. 344, 661 S.E.2d 732

(2008).

       The majority opinion relies on two main reasons it believes the traffic stop was

unnecessarily extended. First, the majority concludes that the pat down of defendant

prior to directing him to sit in the patrol car extended the stop as the officer did not

have any reasonable suspicion that defendant was armed and he testified he did not

feel threatened. I disagree that this pat down search during which a sum of money

($372) was discovered was an unnecessary extension as the pat down was conducted

by consent. At the suppression hearing held on 30 July 2014, Officer McDonough

testified as follows:

              A.     Just the two phones, and at that point, I asked him
              to step back to my car, and we were going to run his driver’s
              license.

              Q.    Okay. And what happened when you made that
              request?


                                           3
                                  STATE V. BULLOCK

                          McCULLOUGH, Judge, dissent



            A.     He agreed and got out. I met him in the back of his
            car. I shook his hand, gave him a warning for the traffic
            violation, and then I asked him if I could search him before
            he got into my patrol car.

            Q.     Okay. And what did he say to you?

            A.     He said, yes, and he lifted his arms up in the air.

            Q.     Okay. And then what happened after that?

            A.    I searched his right pants’ pocket that had the
            currency of different denominations, and he said he was
            about to go shopping.

            Q.    Do you know how much money he had in that bundle
            you were talking about that he was going shopping with?

            A.    It was -- he told me later on in the traffic stop, I think
            he said $372.

            Q.     And when he told you he was going shopping, when
            did he say that to you?

            A. Right when I grabbed the money, that he was going
            shopping.

            Q.     And what kind of indicator was that to you?

            A.    Through my experience, a lot of times guys who are
            involved in activity of transporting or either be a courier or
            be involved in it will have large sums of money in their
            pockets.

      I do not believe an officer unnecessarily extends a traffic stop by conducting a

consensual search prior to running a driving history check or warrants check on a

motorist.


                                           4
                                  STATE V. BULLOCK

                            McCULLOUGH, Judge, dissent


      The majority opinion quotes from Rodriguez emphasizing that a traffic stop

may not be unnecessarily extended while an officer conducts an unrelated

investigation. Rodriguez also noted however that the officer may conduct certain

routine actions, stating:

             Beyond determining whether to issue a traffic ticket, an
             officer’s mission includes “ordinary inquiries incident to
             [the traffic] stop.”    Typically such inquiries involve
             checking the driver’s license, determining whether there
             are outstanding warrants against the driver, and
             inspecting the automobile’s registration and proof of
             insurance. These checks serve the same objective as
             enforcement of the traffic code: ensuring that vehicles on
             the road are operated safely and responsibly. (A “warrant
             check makes it possible to determine whether the apparent
             traffic violator is wanted for one or more previous traffic
             offenses.”).

Rodriguez, __ U.S. at __, 191 L. Ed. 2d at 499, (internal citations omitted).

      It should also be noted that Officer McDonough’s questioning defendant about

his travel plans, usually referred to as “coming and going” questions are part and

parcel of a traffic stop as the questions and answers given can impact driver fatigue

and other traffic related issues. See U.S. v. Barahona, 990 F.2d 412, 416 (8th Cir.

1993); Ohio v. Carlson, 657 N.E.2d 591, 599 (Ohio Ct. App. 1995). In the case at bar

the officer was also confronted by an unauthorized operator of a rental vehicle. The

use of rental vehicles by unauthorized users was one of the major indicators of

unlawful activity that the officer stressed in his suppression hearing testimony.

Depending on what his data base checks revealed, Officer McDonough might have an


                                           5
                                   STATE V. BULLOCK

                            McCULLOUGH, Judge, dissent


individual who was in violation of several motor vehicle laws, N.C. Gen. Stat. § 14-

72.2 (unauthorized use of motor-propelled conveyance) or even N.C. Gen. Stat. § 20-

106 (possession of stolen vehicle). In other words, the officer is not obligated to credit

the motorist’s version of how he came into possession of the vehicle, but is entitled to

conduct a short investigation into the circumstances. See United States v. Sharpe,

470 U.S. 675, 84 L. Ed. 2d 605 (1985).

      With this background in mind, we must face the issue presented by the

majority opinion, namely whether Officer McDonough had the authority to direct

defendant to sit in the patrol car with him as he wrote him a warning ticket and

conducted his background checks. For if he had that authority, almost immediately

after sitting down in the patrol car defendant provided information that evolved into

reasonable suspicion. If the encounter is to be limited to what the officer knew

roadside, the majority opinion is correct and the trial court should be reversed. As

far as delaying the mission of the traffic stop, directing a motorist to sit in the police

vehicle does not in any way delay the traffic stop. The majority recognizes that the

traffic stop is not unnecessarily extended while the officer prepares the ticket and

runs his data base checks. Directing the motorist to accompany the officer does not

create unnecessary delay as the two (motorist and officer) will walk to the police car

in the same length of time as if the officer had walked alone.




                                            6
                                   STATE V. BULLOCK

                            McCULLOUGH, Judge, dissent


      Whether an officer can direct a motorist to sit in the police vehicle while these

actions are taken, is an open question in North Carolina. The courts that have

considered this issue view it through the prism of an additional seizure. Many cases,

state and federal, have implicitly recognized that officers have the authority to direct

a motorist to sit in the police vehicle while the ticketing process is accomplished. See,

Barahona, 990 F.2d at 414 (in which the officer asked the defendant to exit the car

and accompany him to the patrol car). Several federal courts have concluded that an

officer needs a reasonable justification, normally a specific, articulable safety concern,

before the officer may direct a motorist to sit in the patrol vehicle, see U.S. v. Cannon,

29 F.3d 472, 476-77 (9th Cir. 1994), U.S. v. Ricardo D., 912 F.2d 337, 340-41 (9th Cir.

1990), while other courts have determined that if an officer’s request is merely part

of the ticketing procedure, then having the motorist sit in the police vehicle is within

the permissible scope of a Terry stop. See U.S. v. Rodriguez, 831 F.2d 162, 166 (7th

Cir. 1987), U.S. v. Rivera, 906 F.2d 319, 322-23 (7th Cir. 1990), U.S. v. Bloomfield, 40

F.3d 910, 915 (8th Cir. 1994) (reasonable investigation includes requesting that the

driver sit in the patrol car), Ohio v. Lozada, 748 N.E.2d 520, 523 (Ohio Ct. App. 2001).

Even those jurisdictions which believe the officer needs some justification to direct a

motorist to accompany him or her to the patrol vehicle recognize some exceptions.

Here Officer McDonough was faced with an unauthorized user of a rental vehicle. At

the moment he directed defendant to proceed to the police vehicle, as stated earlier,



                                            7
                                   STATE V. BULLOCK

                            McCULLOUGH, Judge, dissent


he did not know if the data base check might reveal a reported theft. Even verification

of defendant’s story that he borrowed the car from a relative who was the renter could

be facilitated by defendant’s presence.

      Thus, I maintain that an officer acts within the constitutional parameters of a

“Terry stop” when he directs a motorist to accompany the officer to the police vehicle

during the ticketing process. Based on the line of cases cited previously, it is my

position that under either line of cases, Officer McDonough was justified in directing

defendant to sit in the patrol car, even if it was only to be of assistance in determining

if defendant had permission to use the vehicle from the renter. We know he did not

have the owner’s permission as he was not on the rental agreement. Upon entering

the vehicle, defendant almost immediately provided enough information to provide

the officer with enough reasonable suspicion to extend the stop until he received

consent to search. It is not contested that consent was given, the only issue concerns

whether the stop was unnecessarily extended in violation of Rodriguez so that the

officer was never in a position to ask for consent.

      At the suppression hearing Officer McDonough testified as follows:

             A.     I told him to have a seat in the patrol car.

             Q.     And did he comply?

             A.     Yes, sir.

             Q.   And when you had him in your patrol vehicle, what
             happened?


                                            8
                     STATE V. BULLOCK

              McCULLOUGH, Judge, dissent



A.    At that point, I started -- got his license and started
running his license and other information in my mobile
computer.

Q.    Can you walk the Court through when you're
running someone’s name like how many programs are you
running the names through?

A.    There’s about three databases that I usually use.
One is for our police program, CJ Leads, and I use a
program called “TLO”, also.

Q.     What do those programs actually tell you?

A.    CJ Leads will give all criminals in North Carolina.
Our program will have driver’s -- had arrested in Durham,
and TLO usually helps with people from out-of-state,
shows their criminal history from out-of-state.

Q.   Do you have an idea how long it takes you to run a
CJ Lead or how long it takes to run somebody’s license?

A.      It takes a little bit because we have to go in and out,
log in, run a wire -- so it takes a little bit.

Q.    You said it takes a little bit, like are you talking
seconds, minutes?

A.     It takes minutes.

Q.    So while you’re running his name through various
databases, what is happening?

A.     Well, I remember when he first got in the car and --
where he was going, he said he just moved down here from
Washington. So I started running that in CJ Leads and
TLO, he said he was from Washington. When I ran his
driver’s license, it was issued back in 2000, and he had been
arrested in North Carolina starting 2001. So he’s already


                              9
                    STATE V. BULLOCK

             McCULLOUGH, Judge, dissent


been down here 12 years when he said he just moved down
here from Washington.

Q.    What does that tell you?

A.     I just thought I [sic] was strange because you just
moved down here from Washington, but you’ve been here
for 12 years. You didn’t just move down from Washington.
I don’t know if he’s just trying to throw that out at me, to
throw me off or not.

Q.     And what happened after you noticed that he had a
license since 2000, and you were looking at records, an
arrest record that started from 2001, and had indicated to
you on November 27th, 2012 that he had just moved from
DC?

A.     We started having some conversation. He did later
say that he’s been down here awhile, started talking about
how he met this girl, he said he met her on Facebook,
known her about two weeks, and he said it’s the first time
he came down here to meet her because she always comes
to Henderson. And I think we were discussing his criminal
history. He mentioned about the gun, he said he had two
occasions where his ex-wife had put the gun in the glove
box, and he was driving the car and got arrested for it in
Vance County, and I think South Carolina -- and he started
asking me questions about why I think that happened in
Vance County while it was running his information.

Q.      So taking a step back, so you are discussing you
mention about how he met the girl he was apparently going
to see on Century Oaks. Was there anything of note in your
discussion about the woman he was apparently going go
see?

A.    Like I said, he said he just met her on Facebook. He
never met her face-to-face, but he confused me when he
says, well, she always comes up to Henderson; if he never
met her face-to-face, how does she always come to


                            10
                                  STATE V. BULLOCK

                           McCULLOUGH, Judge, dissent


             Henderson. And later on in the conversation, he said she’s
             come to Henderson, but he’s never met her I believe.

             Q.    So when you're speaking in regards to the girlfriend,
             what does that tell you?

             A.     That tells me that that story is -- he’s not telling the
             truth about that story.

      After having this conversation and running defendant’s driver’s license record

as Rodriguez permits while also checking for warrants, Officer McDonough obtained

reasonable suspicion to extend the stop and request consent to search. To summarize,

the officer not only had that information he obtained prior to proceeding to the police

vehicle, he also knew defendant had a sum of cash ($372), defendant had not just

come down from D.C. as claimed initially, but had been here since 2000, thus his story

about not being that familiar with the roads is likely to be untrue, and defendant

made contradictory statements about the girl he was going to meet. Also, during this

dialogue, the officer twice mispronounced the name of the street defendant said he

was going to without any correction being made by defendant.              Contradictory

statements regarding one’s destination are a strong factor in providing reasonable

suspicion.   See U.S. v. Carpenter, 462 F.3d 981, 987 (8th Cir. 2006). After the

conversation, while the data base for defendant’s drivers license was checked, the

officer had reasonable suspicion to detain defendant and ask for consent to search. I

would then affirm the decision of the trial court to deny the motion to suppress.




                                           11
