                                NO. COA13-721

                     NORTH CAROLINA COURT OF APPEALS

                            Filed: 1 July 2014


STATE OF NORTH CAROLINA

     v.                                 Forsyth   County
                                        Nos. 12   CRS 6423
ANTHONY DUWANE COTTRELL,                     12   CRS 6424
          Defendant.                         12   CRS 55278


     Appeal by defendant from judgment entered 11 February 2013

by Judge Susan E. Bray in Forsyth County Superior Court.             Heard

in the Court of Appeals 21 November 2013.


     Attorney General Roy Cooper, by Associate Attorney General
     Gayle Kemp and Assistant Attorney General Joseph L. Hyde,
     for the State.

     Appellate Defender Staples Hughes, by Assistant Appellate
     Defender Katherine Jane Allen, for defendant-appellant.


     GEER, Judge.


     Defendant Anthony Duwane Cottrell pled guilty to possession

of a firearm by a felon, possession of a schedule II controlled

substance, and possession of up to one-half ounce of marijuana.

He also admitted being a habitual felon.        On appeal, he contends

that the trial court erred in denying his motion to suppress.

He   argues   that   he   was   unconstitutionally   seized   when    the

investigating officer extended a traffic stop after addressing
                                        -2-
its original purpose without (1) a reasonable and articulable

suspicion of criminal activity or (2) defendant's consent to

being further detained.          We agree with defendant and hold that,

under State v. Myles, 188 N.C. App. 42, 654 S.E.2d 752, aff'd

per curiam, 362 N.C. 344, 661 S.E.2d 732 (2008), because the

officer    continued     to    detain   defendant        after    completing    the

original    purpose      of    the   stop      without     having      reasonable,

articulable     suspicion       of   criminal     activity,       defendant    was

subjected to a seizure in violation of the Fourth Amendment.

Since defendant's consent to the search of his vehicle, given

during the unlawful seizure, was necessarily invalid, the trial

court should have granted defendant's motion to suppress.

                                      Facts

    At 11:37 p.m. on 28 May 2012, Officer Jordan Payne of the

Winston-Salem    Police       Department      observed    defendant     driving   a

Dodge Intrepid with the car's headlights off.                      Officer Payne

initiated a traffic stop, and defendant pulled into a nearby

parking lot.      The dashboard video camera on Officer Payne's

patrol car recorded the subsequent stop.

    Officer      Payne        approached      defendant's        car   and    asked

defendant, who was the car's sole occupant, for his license and

registration.     The officer told defendant that if everything

checked out, defendant would soon be cleared to go.                      Defendant
                                         -3-
did not smell of alcohol, he did not have glassy eyes, he was

not   sweating    or     fidgeting,      and        he   made   no    contradictory

statements to Officer Payne.

      Officer    Payne     then    returned         to   his    patrol      car,    ran

defendant's identification, and learned that defendant's license

and   registration       were   valid.          Officer     Payne     also    checked

defendant's criminal history and learned that defendant had a

history of "drug charges and various felonies."                       Officer Payne

returned to defendant's           car and asked defendant to keep his

music down since the officer had heard loud music coming from

either defendant's car or the car in front of defendant's car as

they drove down the street.

      While    Officer    Payne    spoke       to    defendant,      he   smelled   an

extremely     strong   odor     coming    from       defendant's      car    that   the

officer described as "like a fragrance, cologne-ish," but "more

like an incense than what someone would wear."                        Officer Payne

believed the odor was a "cover scent" -- a fragrance released in

a vehicle to cover the smell of drugs like marijuana.                         Officer

Payne asked defendant about the odor, and defendant showed him a

small, clear glass bottle with some liquid in it and a roll-on

dispenser.      Defendant stated it was an oil he put on his body.

Officer Payne told defendant that fragrances were typically used
                                         -4-
to mask the odor of marijuana, but defendant claimed he was not

trying to hide any odors.

    Officer      Payne,   who      still    had    possession      of    defendant's

license   and    registration,       then      asked   for   consent         to       search

defendant's      car.     When     defendant       refused    to      give    consent,

Officer Payne said defendant was not being honest with him and

indicated   he    could   call     for     a   drug-detection         dog     to      sniff

defendant's car.        Defendant replied that he did not want the

officer to call for a dog and that he just wanted to go home.

When Officer Payne insisted he was going to call for the dog,

defendant then consented to a search of the car.

    Officer Payne had defendant step out of the car and frisked

defendant   for    weapons,      finding       none.      Officer       Payne         began

searching defendant's car at 11:41 p.m., roughly four minutes

after he first observed defendant's car driving down the street.

He looked first in the driver's side and then went around to the

passenger's side.         He removed the key from the ignition and

unlocked the glove box with it.                 When the officer opened the

glove box, a handgun and a baggy containing a white powdery

substance, later determined to be cocaine, fell out.                              Officer

Payne then placed defendant under arrest.                    After defendant was

arrested,   he    admitted    to    Officer       Payne   that   he     had       a    small
                                       -5-
baggie of marijuana in his sock.                    The officer never returned

defendant's license and registration to defendant.

    Defendant was indicted for possession of a firearm by a

felon,     possession    of    a    schedule         II   controlled      substance,

possession of up to one-half ounce of marijuana, and being a

habitual felon.         Defendant filed a motion to suppress on 30

January 2013 and an amended motion to suppress on or about 4

February 2013.

    At a 5 February 2013 hearing on the motion to suppress, the

State presented the testimony of Officer Payne and the video and

audio recording of the stop taken by the patrol car's dashboard

camera.     Defendant testified in support of his motion.                       After

the trial court denied the motion to suppress, defendant pled

guilty to the charges and admitted being a habitual felon.                          The

trial court consolidated the charges into a single judgment and

sentenced    defendant    to    a   mitigated-range          term   of    76   to   104

months imprisonment.           After entry of the judgment, defendant

gave oral notice of appeal from the denial of his motion to

suppress and filed written notice of appeal.

                                           I

    We must initially address this Court's jurisdiction over

this appeal.       "An order finally denying a motion to suppress

evidence    may   be   reviewed     upon       an   appeal   from   a    judgment   of
                                        -6-
conviction, including a judgment entered upon a plea of guilty."

N.C. Gen. Stat. § 15A-979(b) (2013).              Our Supreme Court has held

that "when a defendant intends to appeal from the denial of a

suppression motion pursuant to this section, he must give notice

of his intention to the prosecutor and to the court before plea

negotiations are finalized; otherwise, he will waive the appeal

of right provisions of the statute."                State v. Tew, 326 N.C.

732,   735,    392   S.E.2d   603,   605      (1990).     Further,      since    "[a]

Notice of Appeal is distinct from giving notice of intent to

appeal" the denial of a motion to suppress, a defendant who has

properly      preserved   his    right     to    appeal     the    denial       of   a

suppression     motion    must   also    properly       appeal    the   subsequent

judgment pursuant to Rule 4 of the Rules of Appellate Procedure.

State v. McBride, 120 N.C. App. 623, 625, 463 S.E.2d 403, 405

(1995), aff'd per curiam, 344 N.C. 623, 476 S.E.2d 106 (1996).

       In other words, in order to properly appeal the denial of a

motion to suppress after a guilty plea, a defendant must take

two steps: (1) he must, prior to finalization of the guilty

plea, provide the trial court and the prosecutor with notice of

his intent to appeal the motion to suppress order, and (2) he

must timely and properly appeal from the final judgment.                             In

this case, defendant concedes that he did not properly give the
                                                   -7-
required notice of his intent to appeal the denial of his motion

to suppress.1

       Defendant          has,    however,          filed       a    petition    for       writ    of

certiorari with this Court to which he has attached affidavits

from       his    trial    counsel          and    the     prosecutor,          both       of   which

indicate that defense counsel gave the prosecutor verbal notice

that if the motion to suppress was denied, defendant would enter

a    plea    of    guilty        and    appeal       the    denial         of   the    motion      to

suppress.           In    addition,          during       the       plea    colloquy,       defense

counsel generally advised the trial court of defendant's intent

to appeal without referencing the motion to suppress.

       The State has filed a motion to dismiss defendant's appeal,

asserting that there is no dispute that defendant waived his

right to appeal by failing to properly give notice of his intent

to   appeal       the     denial       of    his    suppression            motion.         Based   on

defendant's         concession,             we    grant     that       motion        and    dismiss

defendant's appeal.              See McBride, 120 N.C. App. at 625, 626, 463

S.E.2d      at    405     (dismissing            appeal    from      denial     of    suppression

motion followed by               guilty plea for failure to properly give

       1
      We note that the record does contain some notice of
defendant's intent to appeal prior to entry of the guilty plea,
but since defendant has not argued that the notice given was
adequate, we do not address that issue. See Viar v. N.C. Dep't
of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005) ("It
is not the role of the appellate courts . . . to create an
appeal for an appellant.").
                                          -8-
State   and    trial   court     notice    of   intent   to    appeal   denial   of

suppression motion).            Nevertheless, because it is apparent that

the State was aware of defendant's intent to appeal the denial

of the motion to suppress prior to the entry of defendant's

guilty pleas and because defendant has lost his appeal through

no fault of his own, we exercise our discretion to grant the

petition      for   writ   of    certiorari     and   address    the    merits   of

defendant's appeal.        See State v. Atwell, 62 N.C. App. 643, 645,

303 S.E.2d 402, 404 (1983) (dismissing appeal but issuing writ

of certiorari to reach merits of defendant's appeal from denial

of suppression motion since, although record did not demonstrate

proper notice of intent to appeal, "[t]here [was] at least some

evidence that the district attorney's office and the Court had

notice of a possible appeal of the denial of the suppression

motion before the guilty plea").

                                          II

    Defendant's sole argument on appeal is that the trial court

erred in denying his motion to suppress.                      Defendant contends

that, while the traffic stop was valid, Officer Payne violated

the Fourth Amendment when he detained defendant further after

determining that defendant's license and registration were valid

and defendant had no outstanding warrants.                      Defendant argues

that Officer Payne had no reasonable, articulable suspicion of
                                              -9-
criminal activity sufficient to justify detaining defendant once

the purpose of the traffic stop was completed.

       Our    review       of   a   trial     court's     denial      of    a    motion   to

suppress is "strictly limited to determining whether the trial

judge's underlying findings of fact are supported by competent

evidence,      in    which      event      they     are   conclusively          binding   on

appeal, and whether those factual findings in turn support the

judge's ultimate conclusions of law."                     State v. Cooke, 306 N.C.

132,   134,    291        S.E.2d    618,     619    (1982).        "The    trial   court's

conclusions of law . . . are fully reviewable on appeal."                             State

v. Hughes, 353 N.C. 200, 208, 539 S.E.2d 625, 631 (2000).

       Defendant      does      not   challenge       any     of    the    trial    court's

findings of fact and they are, therefore, binding on this Court.

See State v. Robinson, 187 N.C. App. 795, 797, 653 S.E.2d 889,

891 (2007) (explaining that unchallenged findings of fact are

"conclusive         and    binding      on    appeal").            Defendant,      however,

challenges the following conclusions of law made by the trial

court:

              3.     Generally, an initial stop concludes
                     after    the   officer    returns    the
                     detainee's license and registration.
                     State v. Jackson, 199 N.C. App. 236[,
                     681 S.E.2d 492] (2009)[;] State v.
                     Kincaid, 147 N.C. App. 94[, 555 S.E.2d
                     294] (2001). In this case, because the
                     initial seizure had not concluded (no
                     return     of   Defendant     Cottrell's
                     license), a [State v.] McClendon[, 350
                                     -10-
                   N.C.   630,  517  S.E.2d   128  (1999)]
                   analysis about developing reasonable,
                   articulable  suspicion   that  criminal
                   activity is afoot is inapplicable. . .
                   .

            . . . .

            5.     Officer Payne was going to call for a
                   dog to sniff Defendant Cottrell's car.
                   This was permissible, so long as dog
                   [sic] would get there in under five
                   minutes.     However,  Defendant  then
                   consented to search.

            6.     Defendant's consent was not coerced.
                   Officer   Payne  was   not  threatening
                   something (a dog sniff) he didn't have
                   the right to do. The threat to do what
                   an officer has a legal right to do does
                   not constitute duress.      It is not
                   duress to take any measure authorized
                   by law and the circumstances of the
                   case. . . .

    This Court has held that, "'[g]enerally, the scope of the

detention     must    be     carefully     tailored   to    its   underlying

justification.       Once 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.'"

Myles, 188 N.C. App. at 45, 654 S.E.2d at 754 (quoting State v.

Falana, 129 N.C. App. 813, 816, 501 S.E.2d 358, 360 (1998)).               We

must, therefore, first address whether the initial purpose of

the stop was completed prior to the time defendant gave consent

to search.
                                          -11-
       In Myles, the officer conducted a traffic stop for weaving,

indicating possible impaired driving.                     Id., 654 S.E.2d at 755.

The    car    stopped   by   the    officer      was      rented   by       the    defendant

passenger.       Id. at 43, 654 S.E.2d at 753.                During the stop, the

officer detected no odor of alcohol and described the driver and

the defendant as cooperative.                  Id. at 45, 654 S.E.2d at 755.

The officer did not find any weapons or contraband on the driver

when    he    frisked   him,      and    the    driver      had    a    valid        driver's

license.      Id.   The officer issued a warning ticket.                          Id. at 43,

654 S.E.2d at 753.           The officer then proceeded to question the

defendant, separately from the driver, about his travel plans

and the rental car agreement.             Id., 654 S.E.2d at 754.

       On appeal, this Court in Myles observed that since there

was    no    evidence   to   indicate       that     either       the       driver    or    the

defendant was impaired, the officer "considered the traffic stop

'completed'      because     he    had   'completed         all    [his]       enforcement

action of the traffic stop.'"                  Id. at 45, 654 S.E.2d at 755.

The    Court,    therefore,       held    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. (quoting Falana,

129 N.C. App. at 816, 501 S.E.2d at 360).
                                    -12-
       Here, the trial court has misapplied this Court's decisions

in Jackson and Kincaid.       In each of those cases, this Court held

that   once   an   officer   returned      the   defendant's   license     and

registration, the seizure had ended because the defendant was

free to go, and any further communications between the officer

and the defendant were, as a result, consensual.               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."); Kincaid, 147 N.C. App. at 100, 555 S.E.2d at

299 ("A reasonable person, under the circumstances, would have

felt free to leave when [his license and registration] were

returned.     Therefore,     the   first   seizure   concluded     when    [the

officer] returned the documents to defendant.").

       While Jackson and Kincaid hold that return of a person's

license and registration may mean that the traffic stop has

concluded,    nothing   in   Jackson    and   Kincaid   suggests    that    the

officer may prolong a traffic stop, after the original purpose

of the stop has been completed, simply by not returning the

driver's documentation.       Indeed, Jackson sets out the applicable

rule overlooked by the trial court: "Once the original purpose

of the stop has been addressed, in order to justify further

delay, there must be grounds which provide the detaining officer
                                          -13-
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.

       The trial court erred, therefore, in basing its decision on

the    premise    that     because      the    officer       had    not   yet       returned

defendant's license, the underlying purpose of the stop was not

yet     complete,       and     the    officer       could    continue         to     detain

defendant.       See also State v. Jarrett, 203 N.C. App. 675, 676,

682-83, 692 S.E.2d 420, 422, 426 (2010) (holding initial purpose

for stop at checkpoint "was addressed when defendant produced a

valid    North    Carolina       driver's      license     and     registration"          even

though     that        occurred       "[b]efore      [the     officer]         return[ed]

defendant's documentation").

       Turning to the question of when Officer Payne completed the

purpose of the underlying stop in this case, the trial court

found that Officer Payne had observed defendant driving without

headlights       and    that    the    officer,      during      the   stop,    had       told

defendant to keep his music down because "he had heard loud

music    from     either       Defendant's     car    or     the    one   in    front      of

Defendant as they drove down Trade Street, and that this would

violate    a    local    noise     ordinance."         For    the      purposes      of   our

analysis, we assume that Officer Payne stopped defendant for
                                            -14-
both    the       headlights       infraction       and      the    potential          noise

violation.

       With respect to the two reasons given for the officer's

stop,       the   trial    court     found   that     defendant         had    turned      his

headlights on before he actually stopped and that defendant told

the    officer     he     realized    his    headlights      had   not        been    on   and

apologized for having them off.                The trial court found that upon

taking defendant's license and registration, Officer Payne told

defendant that "if everything checked out, he would be [sic]

soon be cleared to go."                 Officer Payne then determined that

defendant's license and registration were valid and defendant

had    no    outstanding      warrants.        When    the    officer         returned      to

defendant's car, the officer asked defendant to make sure to

keep his music down because of the noise ordinance.                            The officer

then    smelled     a     strong     fragrance,     and     all    of    the     officer's

questions and statements after that point had to do with the

fragrance,        whether    defendant       had    drugs    in    the    car,       whether

defendant would consent to a search, and whether the officer was

going to call for a drug-sniffing dog.

       Given the facts found by the trial court, we hold that once

Officer Payne told defendant to keep his music down, the officer

had    completely       addressed     the    original       purpose      for    the    stop.

Defendant had turned on his headlights, he had been warned about
                                       -15-
his music, his license and registration were valid, and he had

no outstanding warrants.           Consequently, Officer Payne was then

required to have "defendant's consent or 'grounds which provide

a   reasonable    and   articulable        suspicion     in   order     to    justify

further delay'      before"      asking defendant additional questions.

Myles, 188 N.C. App. at 45, 654 S.E.2d at 755 (quoting Falana,

129 N.C. App. at 816, 501 S.E.2d at 360).

       The trial court erred in concluding otherwise.                        See also

Jackson, 199 N.C. App. at 242, 681 S.E.2d at 496-97 (holding

stop    was    unlawfully       extended      beyond    original        purpose    of

determining     whether       driver   had   valid     driver's    license      when,

after officer had dispelled suspicion of invalid license, she

asked driver whether there was anything illegal in vehicle).

       Turning next to whether Officer Payne had a reasonable and

articulable suspicion of criminal activity in order to extend

the    stop   beyond    its    original      scope,    our    Supreme    Court    has

explained:

                   Reasonable    suspicion  is    a   less
              demanding standard than probable cause and
              requires a showing considerably less than
              preponderance of the evidence. The standard
              is satisfied by some minimal level of
              objective   justification.      This   Court
              requires that [t]he stop . . . be based on
              specific and articulable facts, as well as
              the rational inferences from those facts, as
              viewed through the eyes of a reasonable,
              cautious officer, guided by his experience
              and training.     Moreover, [a] court must
                                       -16-
             consider the totality of the circumstances -
             - the whole picture in determining whether a
             reasonable suspicion exists.

State   v.   Styles,   362    N.C.    412,    414,     665   S.E.2d    438,   439-40

(2008) (internal citations and quotation marks omitted).                          In

addition,    "[t]he    requisite      degree    of     suspicion    must   be   high

enough 'to assure that an individual's reasonable expectation of

privacy is not subject to arbitrary invasions solely at the

unfettered discretion of officers in the field.'"                          State v.

Fields,   195   N.C.   App.    740,    744,    673     S.E.2d   765,    767   (2009)

(quoting State v. Murray, 192 N.C. App. 684, 687, 666 S.E.2d

205, 208 (2008)).

       Here, the trial court found that as of the time Officer

Payne told defendant about the noise ordinance, the officer knew

that defendant's license and registration were valid, defendant

had no outstanding warrants, defendant had turned his headlights

back on prior to being stopped and had apologized, defendant had

no odor of alcohol or glassy eyes, defendant was not sweating or

fidgeting, and defendant did not make contradictory statements.

The court also found that Officer Payne knew defendant "had a

history of 'drug charges and various felonies'" and the officer,

upon    speaking      with    defendant        after     checking      defendant's

documents, "noticed an extremely strong odor coming from the

vehicle."     The trial court found that the officer "described it
                                              -17-
as 'like a fragrance, cologne-ish, strong[,]'" and "more like an

incense     than       what    someone      would     wear."       Officer   Payne    also

"believed the odor was what is commonly referred to as a cover

scent   --    a    fragrance         or    air   freshener       typically   sprayed    or

released in a vehicle to mask or cover the smell of drugs like

marijuana."

     Based on these findings, the trial court noted that, "[f]or

argument's sake," it "would find that Officer Payne did not have

reasonable,        articulable           suspicion    that     criminal    activity    was

afoot -- mere cologne odor and previous felony conviction aren't

enough."      The court further noted there was "[n]o evidence of

extreme      nervousness,           failure      to   maintain     eye    contact,    [or]

conflicting stories about registration[] [or] destination," and

there were "no invalid documents."

     We agree with the trial court that a strong incense-like

fragrance, which the officer believes to be a "cover scent," and

a   known     felony          and   drug      history      are    not,    without    more,

sufficient        to    support      a    finding     of   reasonable      suspicion    of

criminal activity.              Instead, our case law tends to show that

some additional evidence of criminal activity is necessary for

an officer to develop a reasonable and articulable suspicion.

Compare Myles, 188 N.C. App. at 47, 50, 51, 654 S.E.2d at 756,

758 (holding no reasonable suspicion existed to extend traffic
                                     -18-
stop when rental car occupants' stories did not conflict, there

was no odor of alcohol, officer found no contraband or weapons

upon frisking driver, and driver's license was valid, despite

fact that driver's "heart was beating unusually fast" and rental

car was one day overdue), Jackson, 199 N.C. App. at 242-43, 681

S.E.2d at 497 (holding officer did not have reasonable suspicion

to extend traffic stop when "occupants of the vehicle had been

cooperative     with    the    officers   throughout    the    stop,"    officer

"confirmed 'there were no problems with any of these folks'"

while checking validity of driver's license, and "there were no

pending warrants for any of the vehicle's occupants"), State v.

Sinclair, 191 N.C. App. 485, 491, 663 S.E.2d 866, 871 (2008)

(holding   no    reasonable      suspicion    existed    where    only     facts

tending to show criminal activity were that officers "'received

information     about   drug    activity[,]'"   "scene    of    the   attempted

stop was a known drug activity area," and officer "had made

prior drug arrests in the area") with State v. Fisher, ___ N.C.

App. ___, ___, 725 S.E.2d 40, 45 (2012) (holding reasonable

suspicion present based on defendant's nervousness, "smell of

air freshener, inconsistency with regard to travel plans," and

"driving a car not registered to the defendant"), cert. denied,

___ U.S. ___, 187 L. Ed. 2d 279, 134 S. Ct. 420 (2013); State v.

Euceda-Valle, 182 N.C. App. 268, 274-75, 641 S.E.2d 858, 863
                                          -19-
(2007)     (holding       reasonable            suspicion        present     based     on

defendant's extreme nervousness, refusal to make eye contact,

smell of air freshener from vehicle, and conflict in defendant's

and     passenger's      stories        about    their        trip),   and    State    v.

Hernandez, 170 N.C. App. 299, 309, 612 S.E.2d 420, 426, 427

(2005)     (holding       reasonable            suspicion        present     based     on

defendant's       acting       "'very           nervous,'"        defendant        giving

conflicting statements, and trooper's observation of several air

fresheners in vehicle giving off "'strong odor'").

      Thus,     the    trial   court      correctly      determined        that   Officer

Payne did not have reasonable, articulable suspicion to extend

the traffic stop after the original purposes for the stop had

been completely addressed.              We note that although the State does

not   expressly       challenge    the     trial    court's       determination       that

Officer Payne did not have reasonable suspicion to extend the

stop, the State does argue that,                    given the court's findings

about     the    fragrance        and     the     loud        music,   the    officer's

"observations . . . required investigation" and that "Officer

Payne would have been remiss in his duties had he not asked

questions to complete his investigation."                        To the extent that

the     State    contends      that       the      officer       could,      under    the

circumstances of this case, continue to question defendant in

the   absence    of    reasonable        suspicion       or    consent,    the    State's
                                     -20-
argument is foreclosed by Myles and the Supreme Court's decision

in 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.").

    Since Officer Payne did not have reasonable suspicion to

extend the stop, we next address whether defendant consented to

further detention after Officer Payne had fully addressed the

initial purpose of the stop.         The trial court concluded that up

until the time defendant consented to the search, he remained

seized by Officer Payne.            In support of its conclusion, the

trial court found that Officer Payne never returned defendant's

license.      The court also found that defendant denied consent to

search, indicated he did not want the officer to call a drug

dog, and "told the officer he just wanted to go home."                Further,

defendant "confirmed he didn't get his license back and never

felt free to leave."       The State does not contend that defendant

was free to leave at any point.

    "Generally,      an   initial    traffic     stop   concludes     and   the

encounter becomes consensual only after an officer returns the

detainee's     driver's   license    and    registration."     Jackson,     199

N.C. App. at 243, 681 S.E.2d at 497.           Indeed, at times, even the

return   of    documentation   is    not     sufficient   to   make    further
                                             -21-
detention      during         a     traffic      stop       consensual.              See     id.

("'Furthermore,         the       return    of   documentation          would       render     a

subsequent        encounter       consensual        only    if    a    reasonable         person

under the circumstances would believe he was free to leave or

disregard      the     officer's       request        for     information.'"         (quoting

Kincaid, 147 N.C. App. at 99, 555 S.E.2d at 299)).

      Since defendant was not given his license back; defendant

was   not     told     he     could        leave;     defendant        was    continuously

questioned by the officer after the original purpose for the

stop had been addressed until defendant ultimately consented to

a search, despite defendant's statements that he wanted to go

home and that he did not want a drug dog called; and defendant

was told the officer was going to call a drug dog to sniff

defendant's        car,       the     trial      court        correctly           found     that

defendant's detention never became consensual in this case.                                  See

id.   ("As    a    reasonable        person      under      the    circumstances           would

certainly not believe he was free to leave without his driver's

license and registration, [the officer's] continued detention

and   questioning       of    [the     driver]       after       determining       that     [the

driver]      had   a   valid        driver's     license       was     not    a    consensual

encounter.").

      Recognizing that defendant remained seized throughout the

encounter      and     that       Officer     Payne     did      not   have       reasonable,
                                             -22-
articulable       suspicion      that      defendant       was   engaged    in    criminal

activity, the trial court concluded, and the State argues on

appeal, that this case is controlled by this Court's precedent

allowing for a "de minimis" extension of a traffic stop for the

purpose of conducting a drug dog sniff even without reasonable

suspicion or consent.             See State v. Brimmer, 187 N.C. App. 451,

455, 653 S.E.2d 196, 198 (2007) (adopting rule that if detention

is prolonged for very short period of time in order to complete

a   dog    sniff,      intrusion      is   considered       de   minimis);       State     v.

Sellars, ___ N.C. App. ___, ___, 730 S.E.2d 208, 212 (2012)

(following        Brimmer       and   applying        de    minimis    rule),       appeal

dismissed and disc. review denied, 366 N.C. 395, 736 S.E.2d 489,

cert. denied, ___ U.S. ___, 187 L. Ed. 2d 317, 134 S. Ct. 471

(2013).      We disagree.

       The      United     States     Supreme       Court    held     in    Illinois       v.

Caballes, 543 U.S. 405, 410, 160 L. Ed. 2d 842, 848, 125 S. Ct.

834,      838    (2005),     that     "[a]     dog    sniff      conducted       during     a

concededly lawful traffic stop that reveals no information other

than the location of a substance that no individual has any

right to possess does not violate the Fourth Amendment."                               This

Court subsequently followed Caballes in State v. Branch, 177

N.C. App. 104, 108, 627 S.E.2d 506, 509 (2006) ("[B]ased on

Caballes,       once     [the    defendant]         was    detained    to    verify       her
                                    -23-
driving    privileges,    [the    two   deputies]   needed   no   heightened

suspicion of criminal activity before walking [the drug dog]

around her car.").

       In Brimmer, this Court adopted the United States Court of

Appeals for the Eighth Circuit's interpretation of Caballes in

United States v. Alexander, 448 F.3d 1014 (8th Cir. 2006), and

held that if a traffic stop is prolonged for only a very short

period of time in order to conduct a dog sniff, the intrusion is

considered "de minimis" such that "even if the traffic stop has

been effectively completed, the sniff is not considered to have

prolonged the detention beyond the time reasonably necessary for

the stop."    187 N.C. App. at 455, 653 S.E.2d at 198.            Since the

dog sniff in Brimmer only extended the stop for slightly over

one and a half minutes, the Court held that the extension was de

minimis,    and   the   officer   needed   no   reasonable   suspicion   or

consent in order to prolong the stop for the dog sniff.              Id. at

457, 458, 653 S.E.2d at 199, 200.          This Court again applied the

de minimis rule in Sellars and held that the extension of a

traffic stop for four minutes and 37 seconds for the purpose of

a dog sniff was de minimis and did not violate the defendant's

Fourth Amendment rights.          ___ N.C. App. at ___, 730 S.E.2d at

213.
                                      -24-
    We do not believe that the de minimis analysis applied in

Brimmer and Sellars should be extended to situations when, as

here, a drug dog was not already on the scene.                    Brimmer was

based, in part, on Caballes' holding that a dog sniff conducted

during an otherwise lawful stop did not implicate the Fourth

Amendment, 543 U.S. at 410, 160 L. Ed. 2d at 848, 125 S. Ct. at

838, and the reasoning of that holding is inapplicable in the

absence of an actual dog sniff or the immediate availability of

a drug dog.

    As     this     Court   noted    in    Sellars,    the   Court's   earlier

decision in Falana, 129 N.C. App. at 816, 501 S.E.2d at 360,

held that an officer could not conduct a dog sniff after the

original purpose of a traffic stop had been completed without

grounds    providing    reasonable       and   articulable   suspicion.    The

Sellars Court concluded, however, that "[t]he difference between

Falana and Brimmer is that Brimmer incorporated the analysis

contained in later United States Supreme Court and federal cases

that were not in existence at the time Falana was decided," with

the "[m]ost significant" being Caballes and "subsequent federal

District    Court    and    Court   of    Appeals     decisions   interpreting

Caballes."    ___ N.C. App. at ___, 730 S.E.2d at 211.

    In Caballes, the Supreme Court was addressing a dog sniff

that occurred during the course of a lawful traffic stop.                  The
                                     -25-
Court, however, specifically noted a distinction between a dog

sniff occurring during a routine traffic stop and one occurring

during an "unreasonably prolonged traffic stop."                  543 U.S. at

407, 160 L. Ed. 2d at 846, 125 S. Ct. at 837 (citing People v.

Cox, 202 Ill.2d 462, 782 N.E.2d 275 (2002)).

      In addition, the federal decisions on which Brimmer relied

in adopting the de minimis exception limited that exception to

situations in which the officer "ha[d] at his immediate disposal

the     canine   resources     to        employ   this     uniquely      limited

investigative procedure" of a drug sniff.                  United States       v.

$404,905.00 in U.S. Currency, 182 F.3d 643, 649 (8th Cir. 1999)

(emphasis added).     In that case, the canine was already on the

scene at the time of the stop.              Id. at 645-46.        Likewise, in

Alexander, 448 F.3d at 1015-16, the defendant was stopped by a

canine officer who had his drug-sniffing dog in his patrol car,

and the stop was prolonged by only four minutes to conduct a dog

sniff after the defendant was notified that he would receive a

warning ticket.

      Consequently, Brimmer must be limited to the situation in

which   a   drug-sniffing    dog    is    available   at   the   scene   of   the

traffic stop prior to completion of the purpose of the stop.

Indeed, no North Carolina appellate court has held, as the trial

court ruled here, that the de minimis exception applies when a
                                                 -26-
canine    has       not    already            been    called          to    the   scene      prior       to

completion of the lawful stop.                             In Brimmer, 187 N.C. App. at

453,    653       S.E.2d       at    197,       the    canine          had     arrived       prior       to

completion of the lawful purpose of the stop, while in Sellers,

___ N.C. App. at ___, 730 S.E.2d at 209, the dog was present in

the back of the patrol car during the entire stop.

       Moreover,          in    Williams,            the    Supreme           Court       specifically

considered        the     constitutionality                of    an        officer's      extending       a

stop    after       its    lawful         purpose      was        completed          by     (1)    asking

questions, (2) requesting consent to search the defendant's car,

(3) subsequently calling for a drug-sniffing canine, and (4)

having a drug sniff conducted.                             366 N.C. at 112, 116-18, 726

S.E.2d at         164, 166-68.                Although the officer's conduct only

extended      the       stop    by       14   minutes,          the    Supreme       Court        did   not

conduct       a    de     minimis         analysis,         but        rather        held    that       the

extension, including the drug sniff, was only permissible if

supported by reasonable, articulable suspicion or consent.                                              Id.

at 116, 726 S.E.2d at 166.                           In support of this holding, the

Court, id., 726 S.E.2d at 166-67 (emphasis added), cited Florida

v. Royer, 460 U.S. 491, 498, 75 L. Ed. 2d 229, 236, 103 S. Ct.

1319,    1324      (1983),          as    "declaring        that,           absent    consent       to    a

voluntary conversation or to a search, a law enforcement officer

may not detain a person 'even momentarily without reasonable,
                                      -27-
objective    grounds    for   doing   so.'"    Thus,   when   the    dog   was

summoned after completion of the purpose of the traffic stop,

the Supreme Court required a showing of reasonable, articulable

suspicion for the stop to be prolonged in order to conduct the

dog sniff.

    Here, however, the State appears to be arguing that even in

the absence of reasonable, articulable suspicion, defendant's

consent to a search was valid because it was obtained by Officer

Payne threatening to have a dog sniff defendant's car -- an

action the State contends, based on the de minimis cases, that

Officer Payne was constitutionally allowed to do.             As this Court

has acknowledged, "'[a]s a general rule, it is not duress to

threaten to do what one has a legal right to do.                  Nor is it

duress to threaten to take any measure authorized by law and the

circumstances of the case.'"            State v. Paschal, 35 N.C. App.

239, 241, 241 S.E.2d 92, 94 (1978) (quoting 25 Am. Jur. 2d.,

Duress & Undue Influence, § 18, p. 375).

    The State has not, however, shown that Officer Payne had a

legal right to conduct a dog sniff at the time that defendant

gave his consent to a search.          "'[A]t the suppression hearing,'"

the State has the burden "'of demonstrating with particularity a

constitutionally       sufficient     justification    of   the     officers'

search. . . .'"        State v. Crews, 66 N.C. App. 671, 675, 311
                                        -28-
S.E.2d 895, 897 (1984) (second emphasis added) (quoting Cooke,

306 N.C. at 136, 291 S.E.2d at 620).

       First,   Officer      Payne      did    not   have     a     canine       at   his

"immediate disposal" since he had not yet called for a canine.

$404,905.00 in U.S. Currency, 182 F.3d at 649.                     While in Brimmer

and Sellars, the canine was already on the scene, Officer Payne

testified at the suppression hearing that "[a]s a general rule,

it typically takes no more than ten minutes, typically five,

sometimes less" for a canine unit to arrive at the scene after

it has been called.          Since Brimmer approved extension of a stop

for only slightly over one and a half minutes, 187 N.C. App. at

457, 653 S.E.2d at 199, and Sellars approved only an extension

of four minutes and 37 seconds, ___ N.C. App. at ___, 730 S.E.2d

at 213, just the projected time for arrival of the canine, in

this   case,    was    substantially      in    excess   of       the   time     periods

previously found to be de minimis by North Carolina courts.

       Moreover,      at   the   time   defendant    consented          to   a   search,

approximately two minutes had already elapsed since the purpose

for the traffic stop had been achieved.                  Consequently, even if

Brimmer and Sellars could apply despite the failure to summon a

canine unit before the traffic stop was completed, the State's

evidence indicated that the stop would have to be extended by

between seven and 12 minutes in order for the canine to arrive.
                                      -29-
In other words, just waiting for the canine would have more than

doubled   the   length     of   the   stop.     In    addition,   the   State

presented no evidence regarding how long it would take for the

canine to deploy and alert.

      Thus, even assuming that the de minimis rule could apply in

the absence of immediate availability of a dog, the State did

not   present   evidence    that   Officer    Payne    obtained   defendant's

consent to search by threatening to do something -- a dog sniff

-- that he had a legal right to do.                   Based on the State's

evidence, Officer Payne did not have the legal right to conduct

a dog sniff because he did not have a canine at his immediate

disposal and, in any event, the State did not establish that

Officer Payne could have completed the dog sniff in a de minimis

period of time.      The State has cited no case suggesting that

consent may properly be obtained by a threat to perform an act

that might or might not be legal depending on how the threatened

event hypothetically could unfold.2            The State has, therefore,

failed to prove that defendant's consent was valid.

      2
      We also note that the State's argument requires that we
review the videotape of the encounter with a stopwatch in hand
calculating the minutes and seconds elapsing for each stage of
the stop and then adding to the time by which the stop was
actually extended estimates of the additional time that might
typically be necessary for a canine unit to arrive.    Then, we
must determine how many additional minutes of detention are too
many.    Is seven minutes waiting for a dog too much?     Eight
minutes?    Nine minutes?  What is the basis for making that
                                        -30-
    The State nonetheless cites State v. Barden, 356 N.C. 316,

572 S.E.2d 108 (2002), State v. McMillan, 214 N.C. App. 320, 718

S.E.2d 640 (2011), and State v. Cummings, 188 N.C. App. 598, 656

S.E.2d 329 (2008), in support of its argument that defendant's

consent to search was valid in this case.                       However, in Barden,

McMillan,       and    Cummings,     there   was     no    indication     that    the

respective defendants were unconstitutionally seized when they

gave consent to searches or seizures of items.                      See Barden, 356

N.C. at 341, 572 S.E.2d at 125-26 (holding defendant's consent

to seizure of his shoes was valid when defendant voluntarily

drove     to    site    of    police    interview         and     voluntarily    gave

statements concerning crime); McMillan, 214 N.C. App. at 331,

718 S.E.2d at 648 (holding defendant's consent to seizure of

physical       items   was   valid   when    defendant      voluntarily    went    to

sheriff's department, was informed he was under "'investigative

detention,'" and was told he could either consent to seizure of

items or officers would detain him until they could prepare and

execute    search      warrant   for   items,      since    officers    "reasonably

believed they had sufficient probable cause" to obtain search

warrant); Cummings, 188 N.C. App. at 603-04, 656 S.E.2d at 332-


decision?    Constitutional rights should not hinge on such
arbitrary calculations and determinations.      With Brimmer and
Sellars, since the dog was already there and the stop was
extended only by the time necessary for the dog to sniff the
vehicle and alert, such arbitrariness was not present.
                                        -31-
33   (holding       defendant's      consent     to    search     of    his   vehicle

voluntarily given when defendant agreed to go to law enforcement

headquarters for questioning and while at headquarters, signed

consent     form     for    search     of   vehicle).           Those    cases      are,

therefore, inapplicable here.3

     In   sum,      after    Officer    Payne    had    addressed       the   original

purpose for the traffic stop, he continued to detain defendant

without either (1) defendant's valid consent or (2) reasonable,

articulable suspicion of criminal activity.                      Accordingly, the

officer's continued detention of defendant violated defendant's

Fourth    Amendment         right    against     unreasonable          seizures     and

defendant's      subsequent     consent     to    a    search    of     his   car   was

involuntary as a matter of law.             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.").

     Because       defendant's       consent    to    search    his     car   was   the

product of an unconstitutional seizure, the trial court erred in

denying defendant's motion to suppress.                 Accordingly, we reverse




     3
      Although the State also cites State v. Wrenn, 316 N.C. 141,
146, 147, 340 S.E.2d 443, 447, 448 (1986), the defendant in
Wrenn was lawfully arrested at the time his car was searched,
and the search was, therefore, a valid search incident to the
defendant's arrest.
                             -32-
and remand to the trial court for entry of an order vacating

defendant's guilty pleas.


    Reversed and remanded.

    Judges STEPHENS and ERVIN concur.
