Traffic stop ‘unlawfully extended’

The North Carolina Attorney General’s Office plans to seek Supreme Court review of a recent appeals court decision that threw out an accused heroin trafficker’s conviction on Fourth Amendment grounds.

In a 2-1 decision handed down May 10, the North Carolina Court of Appeals overturned the conviction of Michael Bullock after finding that the Durham police officer who pulled him over in 2012 had unlawfully extended the traffic stop that led to Bullock’s arrest.

The appeals court found that the arresting officer did not have sufficient “reasonable suspicion” to detain Bullock after issuing him a warning citation for two traffic violations.

But rather than let Bullock leave the scene, the officer asked Bullock to submit to a pat down and sit in the police car while he ran his name and vehicle information through law enforcement databases.

The delay resulted in a search of the rental car Bullock was driving, ultimately leading a K-9 dog to detect evidence of drugs in a bag Bullock had with him.

However, the Court of Appeals said the drug evidence — which the trial court said included up to 1,500 bindles of heroin — should have been suppressed in keeping with recent U.S. Supreme Court decisions dealing with police search procedures.

The appeals court’s decision in State v. Bullock is likely to have far-reaching consequences, criminal defense attorneys said, because a significant number of drug cases hinge on evidence uncovered during traffic stops—meaning many more criminal defendants may be able to argue their rights were violated if the decision is upheld.

But attorneys who represent law enforcement officials said the majority’s decision will have a “crippling effect” on police officers’ ability to do their job.

Kevin Smith of Smith Rodgers Law Enforcement Attorneys in Greensboro offered a blunt assessment of the opinion, calling it the “judicial coup de grâce” of the recent trend among courts to “minimize” traffic encounters.

License and registration

It was Nov. 27, 2012, when Bullock was pulled over while driving south on Interstate 85 through Durham in his rented white Chrysler.

Officer John McDonough, a 14-year veteran of the Durham Police Department, clocked Bullock as traveling about 70 mph, even though the posted speed limit was 60 mph.

McDonough also took note that Bullock moved from the far left lane to the middle lane “even though there was no car in front of him.”

McDonough pulled in behind Bullock and followed him for about a mile. Court records say Bullock maintained a speed of 70 miles per hour, although the speed limit increased to 65 mph.

The officer also allegedly observed Bullock commit several other traffic offenses, including crossing over the white shoulder line and following a truck too closely.

That’s when McDonough hit the lights and sirens.

According to McDonough, Bullock’s hand was “trembling a little” when he turned over his license and rental agreement. McDonough also noticed Bullock had two cell phones with him in the car.

When asked where he was going, Bullock allegedly said he was on his way to meet a girl, but he had missed his exit.

Bullock’s paperwork didn’t look right to McDonough, court records say. McDonough later testified that the rental agreement said the car had been rented by one “Alicia Bullock” and “it looked like [the defendant] had written his name in at the date part down where the renter signed her name.” Court records say the rental agreement did not list Michael Bullock as an authorized driver.

After telling Bullock he would be receiving a warning for the traffic violations, McDonough allegedly asked him to step back to the patrol car while his information was run through the police computer.

Bullock agreed to join McDonough in the patrol car. But before Bullock got into the vehicle, McDonough asked him to consent to a pat-down. Bullock gave his permission, and McDonough conducted the search. The only thing Bullock had on him was cash—$372 in all.

Bullock allegedly said he was going to use that money to go shopping.

Another look

Bullock sat with McDonough while he ran the information through several law enforcement databases. McDonough later testified he had Bullock join him in the patrol car so he could observe him.

McDonough began chatting with Bullock, and from his perspective, the things Bullock was telling him didn’t add up.

For one thing, Bullock allegedly stated he had just moved down from Washington, D.C. But law enforcement databases allegedly told McDonough that Bullock has had a North Carolina driver’s license since 2000. McDonough also allegedly found that Bullock had been arrested in North Carolina in 2001.

Bullock allegedly admitted he had been in the area for a while and that he was actually on his way to “meet a girl he met on Facebook for the first time.” Yet court records say Bullock later stated that same woman would occasionally visit him in Henderson.

Court records say McDonough thought Bullock looked nervous throughout the interview in the patrol car.

The officer then asked Bullock if he could search the rental car. Bullock consented to the search, but he said McDonough could not search his personal belongings in the vehicle. McDonough called for backup, telling Bullock he couldn’t conduct the search without another officer present.

The surveillance tape of the traffic stop indicated it was about 10 minutes before the other officer arrived.

Once the other officer arrived, McDonough began searching the rental car. When he got to the trunk, Bullock allegedly yelled out, “It’s not my bag.” Bullock allegedly explained that it was his sister’s bag, and he couldn’t give McDonough permission to search it.

At this point, the two officers dispatched a K-9 dog to sniff the car. The K-9 didn’t react at first. But when the dog approached the bag, court records say, the K-9 “immediately” indicated there was an odor of narcotics. A search of the bag uncovered at least 100 bindles of heroin having a combined weight of more than 28 grams, court records say.

Book him

Bullock was arrested and charged with three separate counts: trafficking heroin by possession, trafficking by transportation and possession with intent to sell or deliver a Schedule I controlled substance (heroin).

At trial, Bullock moved to have the drug evidence suppressed, arguing it was uncovered by means of an unlawfully extended traffic stop in violation of his Fourth Amendment rights. The trial judge denied that motion.

Bullock ultimately pleaded guilty to all three charges and was sentenced to 225 to 279 months in prison.

On appeal, Bullock again sought to argue the 2012 traffic stop was unlawfully extended.

Bullock cited the U.S. Supreme Court’s 2015 decision in Rodriguez v. United States, which held that absent reasonable suspicion, extending a traffic stop to conduct a dog sniff violates the Fourth Amendment’s shield against unreasonable seizures.

The Court of Appeals agreed, finding that the search in Bullock’s case was improper under Rodriguez.

Writing for the Court, Judge Martha Geer said traffic stops may last only as long as necessary to complete “the mission” of a stop and to conduct certain “checks.” Those checks are limited to checking a defendant’s driver’s license, determining whether there are any outstanding warrants and inspecting the vehicle’s registration and insurance, Geer said.

“Officer McDonough completed the mission of the traffic stop when he told [Bullock] that he was giving the defendant a warning for the traffic violations as they were standing at the rear of defendant’s car,” Geer said.

Subjecting Bullock to a pat down, having him sit in the police car while his information was run and searching the vehicle “unlawfully prolonged the detention” because McDonough did not have reasonable suspicion, Geer said. The majority held that driving on an interstate known for transporting drugs, having two cellphones, Bullock’s trembling hand, misstatements about his destination and the unauthorized use of a rental car was not enough to qualify as reasonable suspicion.

Geer went on to say that the court did not need to determine whether Bullock’s alleged consent to those searches made them acceptable because “the moment Officer McDonough asked if he could search defendant’s person, without reasonable suspicion that defendant was armed and dangerous, he unlawfully prolonged the stop.”

As such, any evidence uncovered after that moment should have been suppressed, Geer said.

Based on that finding, the majority vacated Bullock’s guilty plea and remanded the case to the trial court.

Bullock’s attorney, Assistant Appellate Defender Jon Hunt, said he thinks the majority’s opinion was based on “clear and principled” reasoning. “I think they got it right,” Hunt said.

‘Respectfully dissent’

Judge Doug McCullough viewed the case differently. His 11-page dissent argues that several aspects of the traffic stop should have led the majority to conclude McDonough acted within “constitutional parameters.”

McCullough said a consensual pat-down search should not qualify as an unlawful extension.

McCullough also argued that the apparent unauthorized use of a rental car was enough to allow McDonough to investigate how Bullock came into possession of the vehicle.

But the primary issue raised by McCullough was whether an officer can direct a driver to sit in a patrol car while his or her information is checked, which he said remains an “open question” in North Carolina.

McCullough said several federal courts have held that an officer needs a “reasonable justification” before a driver can be directed to sit in the patrol car.

In this case, McCullough argued, Bullock’s unauthorized use of a rental car provided just such a reasonable justification.

“Officer McDonough was justified in directing defendant to sit in the patrol car, even if it was only to be of assistance in determining if defendant had permission to use the vehicle from the renter,” he said.

McCullough added that once Bullock was seated in the patrol car he “almost immediately” provided enough information to provide reasonable suspicion to extend the traffic stop.

Further review?

Given the potential ramifications of the case, the Attorney General’s Office has already moved to stay the appeals court’s decision in Bullock, pending an appeal.

The North Carolina Supreme Court granted that request on May 23.

Seth Blum, a criminal defense attorney with Raleigh-based Kurtz & Blum, said the Bullock case is important because “the majority took the strong position that bringing someone back to the patrol car is not part-and-parcel of a traffic stop—it’s an extension.”

He said the case is “one more data point” defense attorneys can use to determine what Fourth Amendment rights their clients can argue in court.

“Police have to justify each step of the process when they’re invading our privacy,” Blum said. “If they can’t do that, as in this case, they don’t get to use what they uncovered through illegal means.”

But Smith said the Bullock decision could hamstring law enforcement going forward. He said many of the techniques at issue in the case have been “recognized as lawful for decades” and are vital to the effort to stem the nationwide flow of drugs.

“Law enforcement officers conducting these traffic stops recognize that drug overdose deaths are presently at record levels,” Smith said.

The 35-page opinion is State v. Bullock. A digest opinion is available at nclawyersweekly.com

Follow Jeff Jeffrey on Twitter at @NCLWJeffrey.