by Defendant from judgment entered 20 July 2015 by Judge
Thomas H. Lock in Johnston County No. 14 CRS 54773, 14 CRS
54776 Superior Court. Originally heard in the Court of
Appeals 6 June 2016. By opinion issued 20 September 2016, a
divided panel of this Court reversed the decision of the
trial court denying Defendant's motion to suppress
evidence. Upon discretionary review granted by the Supreme
Court and by judgment dated 27 November 2017, the Supreme
Court of North Carolina vacated and remanded the case to the
Court of Appeals for reconsideration in light of the Supreme
Court's decision in State v. Bullock, __, __
N.C. __, S.E.2d (2017) (194A16).
Attorney General Roy Cooper, by Special Deputy Attorney
General E. Burke Haywood, for the State.
Patterson Harkavy LLP, by Paul E. Smith, for
N. HUNTER, JR., Judge.
Michael Reed ("Defendant") filed a motion to
suppress evidence found during a traffic stop. On 14 July
2015, the trial court entered an order denying
Defendant's motion to suppress. On 21 July 2015,
Defendant pleaded guilty to trafficking more than 200 grams
but less than 400 grams of cocaine by transportation, and
trafficking more than 200 grams but less than 400 grams of
cocaine by possession. The trial court sentenced Defendant to
70 to 93 months imprisonment and imposed a $100, 000.00 fine
and $3, 494.50 in court costs. On appeal, this Court held the
trial court committed reversible error by denying
Defendant's motion to suppress.
October 2016, the State filed a petition for writ of
supersedeas and a motion for temporary stay with the
Supreme Court of North Carolina. The same day, the Supreme
Court allowed the State's motion for temporary stay. On
25 October 2016, the State filed notice of appeal, pursuant
to the dissenting opinion. On 2 November 2016, the court
allowed Defendant's petition for writ of
supersedeas. In an opinion filed 3 November 2017,
the court vacated the opinion of this Court and remanded for
reconsideration in light of the Supreme Court's recent
decision in State v. Bullock, __ N.C. __, __S.E.2d
__(2017) (194A16). On remand, after reviewing
Bullock and the arguments advanced by the parties,
we reverse the decision of the trial court.
Factual and Procedural Background
a.m. on 9 September 2014, Defendant drove a rented Nissan
Altima faster than the posted sixty-five miles per hour speed
limit on Interstate 95 ("I-95") in Johnston County,
North Carolina. His fiancée, Usha Peart, rode in the
front passenger seat and held a female pit bull in her lap.
Trooper John W. Lamm, of the North Carolina State Highway
Patrol, was parked in the median of I-95. Trooper Lamm used
his radar to determine Defendant was traveling seventy-eight
miles per hour, and performed a traffic stop for
Defendant's speeding infraction. Trooper Lamm's
patrol car had a camera that faced forwards towards the hood
of the vehicle, and recorded audio inside and outside of the
pulled over on the right shoulder of I-95, Trooper Lamm
pulled behind him, and Trooper Lamm approached the passenger
side of the Nissan. Trooper Lamm saw energy drinks, trash,
air fresheners, and dog food scattered on the floor of the
vehicle. He asked if the dog in Peart's lap was friendly
and Defendant and Peart said the dog was friendly.
Lamm stuck his arm inside the vehicle to pet the dog and
asked Defendant for his driver's license and the rental
agreement. Defendant gave Trooper Lamm his New York
driver's license, a registration card, and an Enterprise
rental car agreement. The rental agreement listed Peart as
the renter and Defendant as an authorized driver. Trooper
Lamm told Defendant "come on back here with me"
motioning towards his patrol car.
exited the Nissan and Trooper Lamm asked if he had any guns
or knives on his person. Defendant asked Trooper Lamm why the
frisk was necessary, and Trooper Lamm replied, "I'm
just going to pat you down for weapons because you're
going to have a seat with me in the car." Trooper Lamm
found a pocket knife, said it was "no big deal, "
and put it on the hood of the Nissan.
Lamm opened the passenger door of his patrol car. His K-9 was
in the back seat of the patrol car at that time. Defendant
sat in the front passenger seat with the door open and one
leg outside of the car. Trooper Lamm told Defendant to close
the door. Defendant hesitated and said he was
"scared" to close the door; Lamm replied,
"Shut the door. I'm not asking you, I'm telling
you to shut the door. I mean you're not trapped, the door
[is] unlocked. Last time I checked we were the good
guys." Defendant said, "I'm not saying
you're not, " and Trooper Lamm said, "You
don't know me, don't judge me." Defendant said
he was stopped before in North Carolina, but he was never
taken to the front passenger seat of a patrol car during a
stop. Following Trooper Lamm's orders, Defendant closed
the front passenger door.
Lamm ran Defendant's New York license through record
checks on his mobile computer. While doing so, Trooper Lamm
asked Defendant about New York, and "where are y'all
heading to?" Defendant said he was visiting family in
Fayetteville, North Carolina. Trooper Lamm noted the rental
agreement restricted travel to New York, New Jersey, and
Connecticut, but told Defendant the matter could likely be
resolved with a phone call to the rental company.
Trooper Lamm asked Defendant about his criminal history.
Defendant admitted he was arrested for robbery in the past,
when he was in the military. Trooper Lamm asked Defendant
about his living arrangements with Peart, and whether he or
Peart owned the dog in the Nissan. Trooper Lamm noticed the
rental agreement was drafted for a Kia Rio not a Nissan
Altima. Trooper Lamm exited the patrol car to ask Peart for
the correct rental agreement, and told Defendant to "sit
Lamm approached the front passenger side of the Nissan Altima
and asked Peart for the correct rental agreement. He asked
about her travel plans with Defendant and the nature of their
trip. She said they were visiting family in Fayetteville but
might also travel to Tennessee or Georgia. She explained the
first rental car they had, the Kia Rio, was struck by another
car and the rental company gave them the Nissan Altima as a
replacement. She could not find the rental agreement for the
Nissan Altima and continued to look for it. Trooper Lamm told
Peart he was going to issue Defendant a speeding ticket and
the two would "be on [their] way."
Lamm returned to the patrol car, explained Peart could not
locate the correct rental agreement, and continued to
question Defendant about the purpose of the trip to
Fayetteville. Then, Trooper Lamm called the rental company
and the rental company confirmed everything was fine with the
Nissan Altima rental, but informed Trooper Lamm that Peart
still needed to call the company to correct the restricted
travel condition concerning use of the car in New York, New
Jersey, and Connecticut. After the call, Trooper Lamm told
Defendant his driver's license was okay and he was going
to receive a warning ...