Opinion
No. COA10-479
Filed 3 May 2011 This case not for publication
Appeal by defendant from judgment entered 2 December 2009 by Judge Kevin M. Bridges in Davidson County Superior Court. Heard in the Court of Appeals 13 October 2010.
Attorney General Roy Cooper, by Assistant Attorney General John F. Oates, Jr., for the State. Cheshire, Parker, Schneider, Bryan Vitale, by John Keating Wiles, for defendant-appellant.
Davidson County No. 08 CRS 58591.
Following the trial court's denial of his motion to suppress, defendant Robert Lee Little, Jr. pled guilty to the charge of possession of a firearm by a felon, but specifically reserved the right to appeal the order denying his motion to suppress. Defendant challenges the trial court's conclusion that the law enforcement officer reasonably extended his traffic stop in order to permit a dog to sniff defendant's car for drugs. We hold that the trial court's findings regarding the officer's observations of defendant's agitation and nervousness together with the presence of 10 air fresheners hanging from the car's rearview mirror amply supported the court's conclusion as to the lawfulness of the stop. We, therefore, hold that the trial court did not err in denying defendant's motion to suppress.
Facts
On 8 December 2008, defendant was indicted for possession of a firearm by a felon. Subsequently, on 10 July 2009, defendant filed a motion to suppress the evidence obtained in a search of his vehicle on 31 August 2008.
Following the hearing on defendant's motion, the trial court entered an order containing the following findings of fact. On 31 August 2008, at 4:00 a.m., Officer Adam T. Kallfelz of the Thomasville Police Department observed an older model Buick traveling along the highway with only one front headlight burning. Officer Kallfelz initiated a traffic stop of the vehicle at 4:03 a.m. As Officer Kallfelz asked for defendant's driver's license and registration, he observed approximately 10 "`tree' air fresheners" hanging from the rearview mirror. Defendant, who said that he was returning from a trip to Charlotte, North Carolina, was "agitated, nervous and acting as if he was in a hurry to complete the traffic stop."
Based on his training and experience, Officer Kallfelz recognized that the multiple air fresheners were a possible indicator of narcotics activity. Because of these air fresheners, defendant's agitation, and defendant's returning from Charlotte, Officer Kallfelz called Officer Christopher S. Leonard at 4:07 a.m. and asked that he come and perform a "free air sniff" of defendant's car with his canine, Rambo. While waiting for Officer Leonard, Officer Kallfelz went to his patrol car and began the routine checks necessary for the traffic stop.
Officer Leonard arrived at the scene at 4:12 a.m. Officer Leonard immediately conducted the free air sniff with Rambo. Rambo gave a positive indication for the presence of narcotics on the driver's door of defendant's vehicle. Officer Kallfelz was still completing his routine checks for the traffic stop when Officer Leonard informed him of Rambo's positive indication. Officer Kallfelz then approached defendant and asked him if there was anything illegal inside the vehicle. Defendant told Officer Kallfelz that there was a handgun under the driver's floorboard mat. Officer Kallfelz recovered the handgun from under the mat.
Based on these findings of fact, the trial court concluded that Officer Kallfelz had conducted a valid traffic stop of defendant based on defendant's vehicle having only one burning headlight. The court further concluded that the stop "was within the scope of a normal traffic stop," the stop "was carefully tailored to the underlying justification," the dog sniff was conducted "during a lawful traffic stop," and "Officer Leonard['s] conducting a dog sniff did not change the character of the traffic stop that was lawful at its inception and otherwise executed in a reasonable manner." Finally, the trial court concluded that once Rambo gave a positive indication of contraband in defendant's vehicle, Officer Kallfelz had probable cause to search the vehicle. The trial court, therefore, denied defendant's motion to suppress the evidence seized from his vehicle.
Subsequently, pursuant to a plea agreement in which defendant reserved his right to appeal the denial of his motion to suppress, the trial court sentenced defendant to a presumptive-range term of 15 to 18 months imprisonment. The court suspended the sentence and placed defendant on supervised probation for 36 months. Defendant timely appealed to this Court.
Discussion
The sole issue on appeal is whether the trial court erred in denying defendant's motion to suppress. "The standard of review in evaluating a trial court's ruling on a motion to suppress is that the trial court's findings of fact are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting. If the trial court's conclusions of law are supported by its factual findings, we will not disturb those conclusions." State v. Goodman, 165 N.C. App. 865, 867, 600 S.E.2d 28, 30 (internal citation omitted), disc. review denied, 359 N.C. 193, 607 S.E.2d 655 (2004). Where, as here, a defendant does not specifically challenge any of the findings of fact made by the trial court, those findings are "binding on appeal, and our review is limited to whether the findings of fact support the trial court's conclusions of law." State v. Brown, 199 N.C. App. 253, 256-57, 681 S.E.2d 460, 463 (2009).
Defendant argues that Officer Kallfelz improperly extended the traffic stop in order to allow the dog sniff to take place. We assume for purposes of our analysis, without deciding, that the traffic stop was extended. Generally, the scope of a detention, including its length, "`must be carefully tailored to its underlying justification.'" State v. Morocco, 99 N.C. App. 421, 427-28, 393 S.E.2d 545, 549 (1990) (quoting Florida v. Royer, 460 U.S. 491, 500, 75 L. Ed. 2d 229, 238, 103 S. Ct. 1319, 1325 (1983)). "In order to further detain a person after lawfully stopping him, an officer must have reasonable suspicion, based on specific and articulable facts, that criminal activity is afoot." State v. McClendon, 350 N.C. 630, 636, 517 S.E.2d 128, 132 (1999).
The specific and articulable facts, and the rational inferences drawn from them, are to be "viewed through the eyes of a reasonable, cautious officer, guided by his experience and training." State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 70 (1994). In determining whether the further detention was reasonable, the court must consider the totality of the circumstances. McClendon, 350 N.C. at 636, 517 S.E.2d at 132. "Facts giving rise to a reasonable suspicion include nervousness, sweating, failing to make eye contact, conflicting statements, and strong odor of air freshener." State v. Hernandez, 170 N.C. App. 299, 308, 612 S.E.2d 420, 426 (2005).
Here, after executing a lawful traffic stop, Officer Kallfelz observed approximately 10 air fresheners hanging from the rearview mirror of defendant's vehicle. Defendant does not dispute the trial court's finding that "[b]ased on Officer Kallfelz's training and experience, he recognized the multiple air fresheners as an indicator of possible illegal narcotics activity." In addition, during the stop, defendant "was agitated, nervous and acting as if he was in a hurry to complete the traffic stop."
Our courts have held that similar circumstances supported a trial court's conclusion that an officer had reasonable suspicion to further detain a defendant following a lawful stop. See, e.g., McClendon, 350 N.C. at 637, 517 S.E.2d at 133 (holding facts supported reasonable suspicion when, inter alia, defendant was "extremely nervous, sweating, breathing rapidly, sighing heavily, and chuckling nervously in response to questions" and also "refused to make eye contact when answering questions"); State v. Euceda-Valle, 182 N.C. App. 268, 274-75, 641 S.E.2d 858, 863 (holding facts supported reasonable suspicion when, inter alia, defendant was "extremely nervous and refused to make eye contact with the officer" and "there was smell of air freshener coming from the vehicle"), appeal dismissed and disc. review denied, 361 N.C. 698, 652 S.E.2d 923 (2007); Hernandez, 170 N.C. App. at 309-10, 612 S.E.2d at 426-27 (holding facts supported reasonable suspicion when defendant was "`very nervous'" and gave officer conflicting explanations for where he was going, and officer "noticed Christmas tree air fresheners emanating a strong odor in Defendant's vehicle").
We, therefore, conclude that the trial court's findings, which established that Officer Kallfelz had a reasonable suspicion of criminal activity to extend the stop, support the court's conclusion that the stop was executed in a reasonable manner. Accordingly, we affirm the denial of the motion to suppress.
Affirmed.
Judges ROBERT C. HUNTER and CALABRIA concur.
Report per Rule 30(e).