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State v. Cox

Court of Appeals of North Carolina

May 15, 2018


          Heard in the Court of Appeals 2 April 2018.

          Appeal by Defendant from order entered 29 July 2016 by Judge William H. Coward and from judgments entered 4 November 2016 by Judge Robert G. Horne in Superior Court, Macon County. Nos. 15 CRS 51404, 51405 and 16 CRS 00036.

          Attorney General Joshua H. Stein, by Special Deputy Attorney General Adren L. Harris, for the State.

          Guy J. Loranger for Defendant.

          McGEE, Chief Judge.

         Leslie Junior Cox ("Defendant") appeals from an order denying his motion to suppress evidence recovered during a traffic stop from a vehicle in which Defendant was a passenger. For the reasons discussed below, we affirm.

         I. Factual and Procedural Background

         First Sergeant Clay Bryson ("Sergeant Bryson") and Deputy Sheriff Josh Stewart ("Deputy Stewart") of the Macon County Sheriff's Department ("MCSD") were patrolling U.S. Route 441 in separate patrol cars in Macon County, North Carolina, on 10 December 2015. Sergeant Bryson had been employed by the MCSD for over sixteen years, had extensive training in the area of drug interdiction, and had investigated more than one hundred drug cases for the MCSD. According to the trial court's unchallenged findings, U.S. Route 441 is a major thoroughfare for traffic from Atlanta, and Atlanta is "a major source of controlled substances for western North Carolina." Sergeant Bryson testified there was "a lot of drug activity on [U.S. Route] 441." While on patrol on 10 December 2015, Sergeant Bryson had with him a police dog trained to detect controlled substances.

         Sergeant Bryson was parked in his patrol car on the east side of U.S. Route 441, perpendicular to the road, when he noticed a gold Pontiac ("the vehicle") traveling northbound around 3:00 p.m. Sergeant Bryson testified that, as the vehicle approached, he "noticed the female driver . . . was slumped back and over toward the center console [and] the male passenger . . . [who was wearing] . . . a cowboy type of hat[, ] . . . tilted his head slightly, almost to block his face." Sergeant Bryson testified this behavior by the driver, later identified as Melanie Pursley ("Pursley"), and the passenger, later identified as Defendant, suggested "nervousness" and "aroused [Sergeant Bryson's] suspicion somewhat [based on] some of the [drug interdiction] training [he had] been through." Sergeant Bryson pulled his patrol car onto the road and into the far left lane, behind the vehicle. When Pursley did not voluntarily switch lanes, Sergeant Bryson moved over into the right-hand lane and pulled up alongside the vehicle. Sergeant Bryson testified that, as he pulled up beside the vehicle, Pursley "swerved over into [Sergeant Bryson's] lane with the two right[-]side tires of [Pursley's] vehicle crossing the dotted white line in the center of the roadway into [Sergeant Bryson's] lane." This caused Sergeant Bryson to pull his patrol car to the right "over the fog line in order to keep from having a [] collision with the vehicle and [to] abruptly hit[] [his] brakes." After hitting his brakes, Sergeant Bryson pulled back into the passing lane, behind the vehicle. Using a radar device, Sergeant Bryson clocked the vehicle's speed at sixty-two miles per hour in a fifty-five mile per hour speed limit zone. Sergeant Bryson initiated a traffic stop for Pursley's unsafe movement and the speeding violation, and Pursley pulled off the road into a vacant parking lot.

         Sergeant Bryson approached the driver's side of the vehicle and asked Pursley for her driver's license and vehicle registration. Pursley produced a registration card and began "fumbling all through the vehicle . . . searching for a driver's license." Sergeant Bryson testified that, as Pursley was searching for her license, he "was watching her behavior" and "note[d] a lot of [] nervousness[.]" Pursley's "hands were shaking" when she handed Sergeant Bryson her registration card, and he could "see her heartbeat[.]" Pursley eventually stopped searching for her driver's license and told Sergeant Bryson she believed she had left it at a gas station in Georgia.

         Because Pursley had no driver's license or other form of personal identification, Sergeant Bryson asked her to exit the vehicle. While standing behind the vehicle, Sergeant Bryson "engaged [Pursley] in general conversation[, ] . . . ask[ing] . . . where [she was] coming from, [and] where [she was] going[.]" Pursley gave Defendant's name and indicated Defendant was her boyfriend. She stated they were traveling from Georgia, "headed to Kentucky . . . [for Pursley] to meet [Defendant's] parents for the first time." Pursley indicated that was "the reason for her nervousness[.]" Sergeant Bryson wrote Pursley's name and date of birth on the back of her registration card.

         Sergeant Bryson asked Pursley "if [Defendant] had an ID on him because [Pursley did] not . . . and asked if [he] could . . . speak to [Defendant]." According to Sergeant Bryson, Pursley responded, "of course." Sergeant Bryson approached the passenger side of the vehicle and tapped on the window "to get [Defendant] to roll it down." Sergeant Bryson testified:

I asked [Defendant] just a couple of general questions after asking for his ID. He [told] me [he and Pursley were] headed to his camper on Big Cove in Cherokee[.] [I] asked him if he was going to do any gambling over there, just ask[ed] him some general questions. He said they were going over there to work on his camper for the week. . . . As I first walked up to the vehicle - I've been working dope for an extended period of time now. When I walked up to the vehicle I noticed [] [Defendant] had a sore, [an] open sore on the side of his face . . . [that] looked to me [like] that of a meth[amphetamine] sore.

         Sergeant Bryson indicated one of his purposes in speaking with Defendant was to see if Defendant could "vouch" for Pursley. According to Sergeant Bryson, when asked to verify Pursley's name, Defendant replied: "I guess that's her name." Sergeant Bryson testified that when, at the end of their initial conversation, he again asked Defendant for Pursley's name, Defendant stated "he [did not] remember." Sergeant Bryson testified he "didn't see a great deal of nervousness with [Defendant]."

         Sergeant Bryson returned to his patrol car to enter Pursley's name and date of birth into his mobile data terminal. Sergeant Bryson testified it took longer to run a data search using a name and date of birth rather than a driver's license number. Sergeant Bryson also testified he had to search "in the correct [S]tate that [Pursley] was out of, Georgia[, ]" and that "[a] lot of times Georgia is slow to respond and . . . I have no control over that." The search revealed Pursley's driver's license expired the previous day. Sergeant Bryson prepared a written warning citation. He testified that an out-of-state citation takes longer to prepare because the information must be entered manually rather than by automatically accessing a database of the North Carolina DMV.

         While preparing Pursley's warning citation, Sergeant Bryson asked Deputy Stewart to run Defendant's driver's license "to see if [Defendant's license] was valid [such that Defendant would] be able to drive [Pursley's vehicle] off from that location." Sergeant Bryson issued the printed citation to Pursley and returned Defendant's license. Sergeant Bryson testified that, "[i]n the process of getting the [license] back [to Defendant][, ] I asked him if there was anything illegal in the vehicle, anything I needed to know of[.]" Defendant responded: "Not that I'm aware of." Sergeant Bryson testified this was a "red flag[, ]" based on his drug interdiction training, because it was "a yes or no question." Pursley continued to engage Sergeant Bryson in unsolicited conversation about her expired license. As they continued speaking, Sergeant Bryson asked Pursley whether she was "responsible for everything in the vehicle." Pursley "hesitated and [said], my stuff." Pursley stated Defendant "ha[d] his own stuff." Sergeant Bryson testified this response from Pursley was another "red flag, " because "[a] typical response in a situation like that[] [would be][, ] I know what's in my vehicle. . . . [M]ost people will give you a straight up yes or no answer." Sergeant Bryson asked Pursley "if [the drug-sniffing] dog was going to . . . alert on her vehicle, and [Pursley] said, 'I don't reckon.'" This equivocal response from Pursley was "another red flag."

         Sergeant Bryson told Pursley he would ask Defendant to exit the vehicle and he would then conduct a dog sniff around the exterior perimeter of the vehicle. Sergeant Bryson testified Pursley's "level of nervousness was elevated" and Pursley continued "engaging [him] in conversation at that point." Pursley indicated Defendant might be in possession of some "personal use" marijuana and that there might be a hunting knife in the vehicle. Sergeant Bryson's dog "[s]howed [] indicators that he smelled illegal controlled substances there inside [Pursley's] vehicle." Sergeant Bryson returned the dog to his patrol vehicle and called for assistance to begin searching the vehicle. Inside the vehicle, officers found "[a] large amount of illegal contraband including methamphetamine, some marijuana, [and] some paraphernalia, including baggies, scales, . . . [and] pipes."

         Defendant was arrested and subsequently indicted on charges of trafficking in methamphetamine by possession, possession of marijuana, possession of drug paraphernalia, trafficking in methamphetamine by transportation, and possession of methamphetamine with intent to manufacture, sell, or deliver. Defendant filed a motion on 23 March 2016 seeking "to suppress the use as evidence of any and all items seized from the vehicle of the co-defendant [] Pursley." Defendant contended Sergeant Bryson unlawfully extended the 10 December 2015 traffic stop without reasonable suspicion of criminal activity by either Pursley or Defendant. The trial court held a hearing on Defendant's motion to suppress on 26 July 2016 and denied the motion by order entered 29 July 2016. A jury convicted Defendant on all ...

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