in the Court of Appeals 8 September 2016.
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
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.
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.
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
and Procedural History
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.
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.
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.
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?"
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.
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.
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.
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.
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.
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
pleaded guilty but reserved his right to appeal the denial of
his motion to suppress. He then timely appealed.
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