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State v. Downey

Court of Appeals of North Carolina

February 7, 2017


          Heard in the Court of Appeals 8 September 2016.

         Appeal by defendant from order entered 16 September 2015 by Judge Thomas H. Lock and judgment entered 1 October 2015 by Judge Reuben F. Young in Johnston County, No. 11 CRS 54463 Superior Court.

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

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

          DIETZ, Judge.

         Defendant Glenwood Earl Downey appeals the denial of his motion to suppress. Downey argues that law enforcement impermissibly extended the duration of his traffic stop without reasonable suspicion that he committed some other crime.

         As explained below, there is ample competent evidence in the record to support the trial court's findings on various factors that this Court (and others) have found sufficient to establish reasonable suspicion. Before and during the time in which the officer prepared the warning citation, the officer observed the following: Downey's nervous behavior; Downey's use of a particular brand of powerful air freshener favored by drug traffickers; Downey's prepaid cellphone; the fact that Downey's car was registered to someone else; Downey's vague and suspicious answers to the officer's questions concerning what he was doing in the area; and Downey's prior conviction on a drug offense. These findings, supported by the record, readily support the trial court's conclusion that the officer had reasonable suspicion to detain Downey before the traffic stop concluded.

         Facts and Procedural History

         On 26 July 2011, Deputy Brian Clifton of the Johnston County Sherriff's Office stopped Defendant Glenwood Earl Downey for a traffic violation. Deputy Clifton approached Downey's vehicle and asked to see his driver's license and registration. As Downey handed over the requested documentation, Deputy Clifton noticed that Downey's hands were shaking, that his breathing was rapid, and that he failed to make eye contact.

         Deputy Clifton also noticed a prepaid cellphone inside the vehicle and a Black Ice air freshener hanging from the rearview mirror. Deputy Clifton had received special training in drug interdiction, during which he learned that Black Ice air fresheners, because of their strong scent, are frequently used by drug traffickers. As a result of that same training, he also knew that prepaid cellphones were commonly used by persons involved in narcotics trafficking.

         Deputy Clifton further noted that the car was not registered to Downey. Based on his training, Deputy Clifton had learned that third-party vehicles are often used by drug traffickers because it makes it more difficult for police to track those individuals or tie them to a specific address.

         Deputy Clifton asked Downey to exit the vehicle and accompany him to his patrol car. Once inside the patrol car, Deputy Clifton asked Downey why he was in the area. Downey vaguely responded that he was searching for a place to rent. Deputy Clifton asked Downey his motive for moving and offered the high cost of living in Downey's current town as a potential motive. Downey indicated that the expensive cost of living in his current town was indeed the reason he wanted to move. When Deputy Clifton further inquired as to whether Downey was able to find any places for rent, he vaguely responded that he had seen a few places on "what's that, 231?"

         Based on indicators gleaned from a warrants check, Deputy Clifton also asked Downey about his criminal history. Downey responded (honestly) that he had served prison time for several breaking and entering convictions and that he had a cocaine-related drug conviction.

         Deputy Clifton issued Downey a warning ticket for the traffic violation and returned his documentation. But Deputy Clifton continued to question Downey about his criminal history and eventually asked Downey for consent to search his vehicle.

          Downey declined to give consent. Deputy Clifton then asked Downey if he would consent to a canine sniff of the exterior of the vehicle. Again, Downey declined.

         Deputy Clifton then called for a K-9 unit. The K-9 team arrived fourteen minutes after Deputy Clifton retuned Downey's documentation and issued him the warning citation. A dog sniffed the exterior of the vehicle and alerted to the presence of drugs inside. Officers searched the vehicle and found a digital scale, several cellphones in the glove compartment, and a paper napkin containing approximately 3.2 grams of crack cocaine in the center console ashtray area.

         On 6 September 2011, the State indicted Downey for possession with intent to sell and deliver cocaine, maintaining a place to keep controlled substances, possession of drug paraphernalia, and attaining habitual felon status.

         On 21 September 2012, Downey filed a motion to suppress all evidence obtained from his traffic stop. On 3 December 2012, the trial court held a hearing on Downey's motion to suppress and, on 31 December 2012, issued an order denying the motion.

         Downey pleaded guilty but reserved his right to appeal the denial of his motion to suppress. He then timely appealed.

         On 3 March 2015, in an unpublished opinion, this Court vacated the trial court's judgment and instructed the trial court on remand to determine whether Deputy Clifton had developed reasonable articulable suspicion of criminal activity before the officer returned Downey's documentation and issued the ...

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