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,

 Defendant.

 12 CRS 6424

 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 
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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
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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 
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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 
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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 
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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 
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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 

 

1We 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.").
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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 
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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. 
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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).
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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 
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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 
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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 
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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 
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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 
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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 
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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 
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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 
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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 
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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, 
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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 
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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. 
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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. 

 

2We 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 

 

3Although 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. 
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and remand to the trial court for entry of an order vacating 

defendant's guilty pleas.

Reversed and remanded.

Judges STEPHENS and ERVIN concur.