{ "id": 9441556, "name": "STATE OF NORTH CAROLINA v. FELIX FISHER", "name_abbreviation": "State v. Fisher", "decision_date": "2000-12-29", "docket_number": "No. COA99-1222", "first_page": "448", "last_page": "459", "citations": [ { "type": "official", "cite": "141 N.C. App. 448" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "458 S.E.2d 519", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "119 N.C. App. 395", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915438 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc-app/119/0395-01" ] }, { "cite": "501 S.E.2d 358", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1998, "pin_cites": [ { "page": "360" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 813", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11653264 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/nc-app/129/0813-01" ] }, { "cite": "517 S.E.2d 128", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "350 N.C. 630", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132043 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/350/0630-01" ] }, { "cite": "502 S.E.2d 902", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1998, "pin_cites": [ { "page": "906-07", "parenthetical": "citations omitted" }, { "page": "907", "parenthetical": "citation omitted" }, { "page": "907" }, { "page": "908" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 368", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11467624 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/nc-app/130/0368-01" ] }, { "cite": "531 U.S. 32", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9505377 ], "weight": 4, "year": 2000, "pin_cites": [ { "parenthetical": "No. 99-1030" }, { "parenthetical": "No. 99-1030" }, { "page": "40" } ], "opinion_index": 0, "case_paths": [ "/us/531/0032-01" ] }, { "cite": "259 S.E.2d 572", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "parenthetical": "finding, pre-Place, that canine sniff of safety deposit box was not a search" } ], "opinion_index": 0 }, { "cite": "43 N.C. App. 475", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552724 ], "year": 1979, "pin_cites": [ { "parenthetical": "finding, pre-Place, that canine sniff of safety deposit box was not a search" } ], "opinion_index": 0, "case_paths": [ "/nc-app/43/0475-01" ] }, { "cite": "312 S.E.2d 202", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "parenthetical": "lawfully detained airplane" } ], "opinion_index": 0 }, { "cite": "66 N.C. App. 608", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525722 ], "year": 1984, "pin_cites": [ { "parenthetical": "lawfully detained airplane" } ], "opinion_index": 0, "case_paths": [ "/nc-app/66/0608-01" ] }, { "cite": "413 S.E.2d 799", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "331 N.C. 112", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2499101 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/331/0112-01" ] }, { "cite": "405 S.E.2d 358", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "parenthetical": "briefcase" } ], "opinion_index": 0 }, { "cite": "103 N.C. App. 175", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520024 ], "year": 1991, "pin_cites": [ { "parenthetical": "briefcase" } ], "opinion_index": 0, "case_paths": [ "/nc-app/103/0175-01" ] }, { "cite": "468 S.E.2d 245", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "343 N.C. 116", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798857 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/343/0116-01" ] }, { "cite": "459 S.E.2d 826", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "parenthetical": "canine sniff of a train passenger's luggage" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 676", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917063 ], "year": 1995, "pin_cites": [ { "parenthetical": "canine sniff of a train passenger's luggage" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0676-01" ] }, { "cite": "462 U.S. 696", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6193241 ], "weight": 9, "year": 1983, "pin_cites": [ { "page": "707" }, { "page": "121" }, { "page": "707" }, { "page": "121" }, { "page": "707" }, { "page": "121" } ], "opinion_index": 0, "case_paths": [ "/us/462/0696-01" ] }, { "cite": "525 U.S. 113", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11076351 ], "weight": 5, "year": 1998, "pin_cites": [ { "page": "116-18" }, { "page": "498-99" } ], "opinion_index": 0, "case_paths": [ "/us/525/0113-01" ] }, { "cite": "414 U.S. 218", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11715586 ], "weight": 3, "year": 1973, "opinion_index": 0, "case_paths": [ "/us/414/0218-01" ] }, { "cite": "291 S.E.2d 581", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "583" } ], "opinion_index": 0 }, { "cite": "306 N.C. 144", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567763 ], "year": 1982, "pin_cites": [ { "page": "147" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0144-01" ] }, { "cite": "69 L. Ed. 2d 1036", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1981, "opinion_index": 0 }, { "cite": "453 U.S. 950", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11730819, 11730922, 11730699, 11730731, 11730773, 11730872 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/us/453/0950-04", "/us/453/0950-06", "/us/453/0950-01", "/us/453/0950-02", "/us/453/0950-03", "/us/453/0950-05" ] }, { "cite": "453 U.S. 454", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11722898 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/us/453/0454-01" ] }, { "cite": "446 S.E.2d 579", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "587", "parenthetical": "citing New York v. Belton, 453 U.S. 454, 69 L. Ed. 2d 768, reh'g denied, 453 U.S. 950, 69 L. Ed. 2d 1036 (1981) and State v. Andrews, 306 N.C. 144, 147, 291 S.E.2d 581, 583 (1982)" } ], "opinion_index": 0 }, { "cite": "337 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2550000 ], "year": 1994, "pin_cites": [ { "page": "144", "parenthetical": "citing New York v. Belton, 453 U.S. 454, 69 L. Ed. 2d 768, reh'g denied, 453 U.S. 950, 69 L. Ed. 2d 1036 (1981) and State v. Andrews, 306 N.C. 144, 147, 291 S.E.2d 581, 583 (1982)" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0132-01" ] }, { "cite": "423 S.E.2d 58", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "332 N.C. 583", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2503651 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/332/0583-01" ] }, { "cite": "297 S.E.2d 540", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "548", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "307 N.C. 130", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561131 ], "year": 1982, "pin_cites": [ { "page": "143", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0130-01" ] }, { "cite": "418 S.E.2d 491", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "497", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "332 N.C. 24", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2505339 ], "year": 1992, "pin_cites": [ { "page": "36", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0024-01" ] }, { "cite": "291 S.E.2d 618", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1982, "opinion_index": 0 }, { "cite": "306 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567694 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/306/0132-01" ] } ], "analysis": { "cardinality": 999, "char_count": 27988, "ocr_confidence": 0.749, "pagerank": { "raw": 3.0284171616735074e-07, "percentile": 0.8543841745213717 }, "sha256": "bf1f229ea62176a63663fdc8637646714d43b6d1caea0d438ba4d8ae4d96dc68", "simhash": "1:b2f35206c75c00fb", "word_count": 4471 }, "last_updated": "2023-07-14T21:28:13.659098+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge EAGLES and Judge FULLER concur." ], "parties": [ "STATE OF NORTH CAROLINA v. FELIX FISHER" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nThe State, pursuant to section 15A-979(c) of the North Carolina General Statutes, appeals from the trial court\u2019s pre-trial order granting Felix Fisher\u2019s (\u201cdefendant\u201d) motion to suppress evidence. Having reviewed the arguments and materials submitted on appeal, we affirm.\nThe facts, as found by the trial court, are as follows: On 29 November 1998, Investigator John Smith (\u201cInvestigator Smith\u201d) of the New Bern Police Department\u2019s narcotics unit observed a White Chevrolet Blazer, belonging to defendant, parked in an area of New Bern, North Carolina, known for its drug trade. The investigator knew defendant had a reputation for dealing drugs. Investigator Smith did not see defendant at the time, but suspecting that defendant was in the area, he ran a \u201crecord check\u201d on defendant, which revealed that his driver\u2019s license had been revoked.\nOn the night of 1 December 1998, while patrolling an area known for its drug trade, Investigator Smith observed defendant driving his Blazer, accompanied by a passenger. Investigator Smith immediately radioed uniformed patrol Officer Ernest Tripp (\u201cOfficer Tripp\u201d), also of the New Bern Police Department, requesting that Officer Tripp stop defendant for operating his vehicle while his driver\u2019s license was revoked.\nFollowing Investigator Smith\u2019s directive, Officer Tripp effectuated the stop. Investigator Smith approached defendant and requested that defendant produce his driver\u2019s license. Defendant provided the investigator with a \u201climited driving privilege,\u201d which allowed defendant to operate a motor vehicle until 8:00 p.m. When asked where he was going, defendant responded that he was transporting his passenger to obtain kerosene.\nThe court specifically found that the time of the stop was approximately 8:20 p.m. The court further found the following facts in relation to the stop:\n[Investigator Smith] instructed the defendant to exit the vehicle and turned him over to [Officer Tripp] and directed [Officer Tripp] to cite the defendant for operating a motor vehicle while his driver[\u2019]s license was revoked and placed the defendant under arrest for such charge.\n. . . [T]he defendant was taken by [Officer Tripp] back to his patrol car. [Officer Tripp] proceeded to write out the citation charging the defendant with operating his motor vehicle while his driver[\u2019]s license was revoked. That there was no indication that the defendant was anything but cooperative with the officers during this encounter. He displayed no act of violence or force of violence and did not attempt to retrieve any firearm or other deadly weapon from his person. There is no evidence before the Court that the defendant was personally searched at this time.. . . [N]or were there any observations by any other law enforcement officers at the scene that anything was observed openly exposed in the automobile to indicate the presence of any contraband, stolen goods, deadly weapons, firearms, or any other matters which would have alerted the officers that any violation of the law other than the one for which the defendant was stopped had occurred.\nWhile Officer Tripp issued defendant a citation for driving while license revoked, Investigator Smith radioed a dispatcher and requested the assistance of \u201ca K-9 unit.\u201d \u201c[S]hortly thereafter,\u201d Officer John Carlstead (\u201cOfficer Carlstead\u201d) and his canine, Kiko, arrived. The court found that Kiko was \u201cproperly trained and utilized by the New Bern Police Department in the detection of controlled or illegal drugs[.]\u201d Under the direction of Officer Carlstead, Kiko \u201c \u2018sniff[ed]\u2019 the automobile\u201d and \u201calerted on\u201d the vehicle\u2019s front end.\nThe officers noticed a spring devise attached to the front bumper, and upon the officer\u2019s inquiry, defendant stated that the devise was used to secure the hood. Without obtaining defendant\u2019s consent or informing him of their intent to search the Blazer, the officers searched under the hood, where they located 135 grams of marijuana inside the vehicle\u2019s firewall.\nThe court found the following additional facts in connection with the encounter:\nThat other than such suspicion as [Investigator Smith] might have held based upon his personal knowledge of the defendant\u2019s past, there is nothing before the Court to indicate that upon the stop of the defendant for driving while his license was revoked, there was any indication in the officer\u2019s mind, nor is there anything in which the Court can discern, that he saw any evidence of any illegal drugs or controlled substances located in or about the defendant\u2019s vehicle, and that other than the fact that the defendant was operating his vehicle at a time after the expiration of the limited license, there is nothing to indicate any illegal conduct on behalf of the defendant.\n... There was no indication that there was any need to disarm the defendant in order to take him into custody nor any need to preserve evidence for later use at trial. Since after stopping the defendant and determining that he was outside the scope of his limited driving privilege, no further evidence would have been necessary.\nDefendantwas charged with possession of marijuana with intent to sell and deliver, maintaining a vehicle for the purpose of keeping controlled substances, and possession of drug paraphernalia. Bond was set, and defendant was released from custody on the drug-related charge. However, defendant\u2019s citation for driving while license revoked was never \u201csworn to before a magistrate.\u201d Nor, was a release order issued or a bond set on that charge.\nBased on the aforementioned factual findings, the trial court granted defendant\u2019s motion to suppress.\nThe State appeals the order of the trial court granting defendant\u2019s motion to suppress. Our review of an order suppressing evidence is strictly limited. State v. Cooke, 306 N.C. 132, 291 S.E.2d 618 (1982). In evaluating such an order, this Court must determine whether competent evidence supports the trial court\u2019s findings of fact. Id. Findings of fact supported by competent evidence are binding on appeal. Id. \u201cInconsistencies or conflicts in the testimony do not necessarily undermine the trial court\u2019s findings, since such contradictions in the evidence are for the finder of fact to resolve.\u201d State v. Bromfield, 332 N.C. 24, 36, 418 S.E.2d 491, 497 (1992) (emphasis added)(citation omitted). \u201cIf there is a conflict between the [S]tate\u2019s evidence and defendant\u2019s evidence on material facts, it is the duty of the trial court to resolve the conflict^] and such resolution will not be disturbed on appeal.\u201d State v. Chamberlain, 307 N.C. 130, 143, 297 S.E.2d 540, 548 (1982) (citation omitted). Although the trial court\u2019s findings of fact may be binding on appeal, we review its conclusions of law de novo. State v. Mahaley, 332 N.C. 583, 423 S.E.2d 58 (1992). We must not disturb the court\u2019s conclusions if they are supported by the court\u2019s factual findings. Cooke, 306 N.C. 132, 291 S.E.2d 618.\nThe State does not challenge the court\u2019s findings of fact on appeal, but assigns as error the court\u2019s conclusions of law concerning the propriety of the search of defendant\u2019s vehicle. Based on the State\u2019s assignments of error and defendant\u2019s responses on appeal, we discern two dispositive issues: (I) whether defendant was actually arrested; and (II) whether the canine sniff of the perimeter of defendant\u2019s vehicle in a public place during a traffic stop was proper in light of the circumstances surrounding that traffic stop.\n(I)\nWe first address whether defendant was actually arrested. In its factual findings, the trial court found the following:\n[Investigator] Smith instructed the defendant to exit the vehicle and turned him over to [Officer Tripp] and directed [Officer Tripp] to cite the defendant for operating a motor vehicle while his driver]\u2019] s license was revoked and placed the defendant under arrest for such charge. (Emphasis added.)\nAlthough not specifically asserting that the aforementioned finding was erroneous, defendant contends on appeal that he was not arrested. Given the court\u2019s specific finding that Investigator Smith \u201cplaced\u201d defendant under arrest, we find that defendant is in essence arguing that the above cited factual finding was not supported by competent evidence. We must agree.\nThe testimony of Investigator Smith and Officer Tripp at the suppression hearing was replete with internal contradictions concerning whether defendant was actually arrested. Investigator Smith testified that he informed defendant that he was under arrest for driving while license revoked at 8:54 p.m., the time written on the uniform citation. Investigator Smith further testified, \u201cWe placed him under arrest. We wrote him a citation. The arrest was written on the citation, a Magistrate\u2019s Order we\u2019ll call it.... It\u2019s written on a uniform ticket, but the magistrate signs off on it.\u201d Investigator Smith also stated that \u201cOfficer Tripp wrote the ticket, wrote the charge on an uniform ticket, that\u2019s true, but we took [defendant] to the magistrate\u2019s office where she signed off on the ticket, making it a Magistrate\u2019s Order, not the uniform ticket.\u201d\nInvestigator Smith later acknowledged, contrary to his own testimony, that although the officers procured a magistrate\u2019s order for the drug-related charges, the citation for driving while license revoked was never signed by a magistrate. See N.C. Gen. Stat. \u00a7 15A-511(c) (1999) (\u201cIf the person has been arrested, for a crime, without a warrant [the] magistrate must determine whether there is probable cause ...Nor, was there a release order signed or bond set pursuant to defendant\u2019s alleged warrantless arrest for driving while license revoked. See N.C.G.S. \u00a7 15A-511(e) (If magistrate finds that arrest is supported by probable cause, \u201cthe magistrate must release him in accordance with Article 26 of this Chapter, Bail, or commit him to an appropriate detention facility . . . pending further proceedings . . . .\u201d)\nConcerning the subsequent search of defendant\u2019s vehicle, Investigator Smith first testified that the search took place after the citation was written. However, upon being confronted with a State Bureau of Investigations report noting that the marijuana was seized at 8:30 p.m., and the citation for driving while license revoked indicating that it was completed at 8:54 p.m., Investigator Smith contradicted his own testimony by responding, \u201cI don\u2019t recall if [the citation] was written at the scene of the incident or if it was written at the police station or whether it was written at the magistrate\u2019s office. That\u2019s something you have to inquire through Officer Tripp.\u201d\nOfficer Tripp likewise testified that Investigator Smith informed defendant that he was going to place him into custody, meaning he \u201cwas going to be transported.\u201d When asked whether he placed defendant in custody for driving while license revoked, Officer Tripp answered, \u201cNo.\u201d Officer Tripp then stated that defendant \u201cwas being taken into custody for purposes of doing [sic] the citation for driving while license revoked\u201d and that he issued the citation while at the police station. However, Officer Tripp subsequently testified that the time appearing on the citation indicated when it was written.\nThe following exchange also took place during Officer Tripp\u2019s testimony:\nQ [the State]. So, [Officer Tripp], was it your intent to take the defendant to jail for driving while license revoked?\nMr. Willey [defendant\u2019s attorney]: Objection.\nThe Court: Well, I thought he said that\u2019s when [Investigator] Smith arrested him.\nIns\u2019t that what he said, \u201cI arrested him[?\u201dJ Who arrested him here, both of them, one, or Officer Tripp?\nMrs. Hobbs [the State]: Well, Judge, not always the same officer does everything. I mean, Investigator Smith is the one with the prior knowledge, radios that to [Officer] Tripp. He pulls him over.\nIt\u2019s basically a team effort here, Judge. He knows the license was revoked. [Officer] Tripp\u2014\nThe Court: I think the evidence is Officer Tripp did what [Investigator] Smith told him to do, is the way I get the picture. Go ahead.\nA. Yes .... I just took him into custody and transported him to the police department . . . for the purpose to complete the processing of the charge that he was being charged with.\nWe recognize that contradictions and inconsistences rarely render a court\u2019s factual findings erroneous. However, the testimony presented at the suppression hearing concerning defendant\u2019s arrest contained material inconsistencies in the State\u2019s own evidence, not simply contradictions between the State\u2019s evidence and defendant\u2019s evidence. For example, Investigator Smith testified that he and Officer Tripp place defendant under arrest. Howeyer, Investigator Smith stated that the arrest was by virtue of a magistrate\u2019s order, which he later admitted was never signed. Nor, was a bond set or release order issued pursuant to defendant\u2019s alleged arrest for driving while license revoked. That kind of evidence would have clearly indicated that a warrantless arrest had been effectuated. Officer Tripp likewise testified that defendant was placed in custody for the purpose of issuing a citation, but never clearly testified that he or Investigator Smith actually arrested defendant.\nOther than the officers\u2019 self-contradicting testimony, there was no other evidence signifying that defendant was arrested. In fact, the officers\u2019 complete failure to procure a magistrate\u2019s signature on the citation indicates that defendant was never arrested. Given the material, internal contradictions in the State\u2019s evidence and the complete lack of other evidence supporting the court\u2019s finding, we conclude that competent evidence did not support the court\u2019s finding that defendant was arrested.\n(II)\nNext, we examine whether the perimeter canine sniff and subsequent search of defendant\u2019s vehicle was reasonable under the Fourth Amendment in light of our conclusion that defendant was never arrested.\nIt is well established that \u201c[i]f officers have probable cause to arrest the occupants [of a vehicle], they may search \u2014 incident to that arrest \u2014 the entire interior of the vehicle, including the glove compartment, the console, or any other compartment, whether locked or unlocked, and all containers found within the interior.\u201d State v. Brooks, 337 N.C. 132, 144, 446 S.E.2d 579, 587 (1994) (citing New York v. Belton, 453 U.S. 454, 69 L. Ed. 2d 768, reh\u2019g denied, 453 U.S. 950, 69 L. Ed. 2d 1036 (1981) and State v. Andrews, 306 N.C. 144, 147, 291 S.E.2d 581, 583 (1982)); see also United States v. Robinson, 414 U.S. 218, 38 L. Ed. 2d 427 (1973). In Knowles v. Iowa, 525 U.S. 113, 142 L. Ed. 2d 492 (1998), the United States Supreme Court recently announced that warrantless searches incident to the issuance of a citation violated the Fourth Amendment. In so holding, the Court reasoned that where a citation is issued, unlike when an arrest is effectuated, the two historic rationales for a search incident to an arrest, i.e., the need to disarm defendant and the need to collect evidence, do not per se exist. Id. at 116-18, 142 L. Ed. 2d at 498-99. The Court held that this was true even if the officers issuing the citation had probable cause to arrest the defendant. Id.\nThe trial court concluded the following concerning the search of defendant\u2019s vehicle:\n[T]he search of the defendant\u2019s vehicle on the night of December 1, 1998, although conceivably being a search incident to arrest, does not fall within the exception set out by the United States Supreme Court in United States v. Robinson, 414 U.S. 218 (1973), since there was no need to disarm the defendant in order to take him into custody and there was no need to preserve any evidence for later use at a trial, and further, that there was no indication on the part of the arresting officers at the time of the stop that the defendant had violated any of the criminal laws of this state other than driving while his license was revoked, and there was no other indication that the defendant was committing any other illegal act which would require a full \u201cfield search\u201d of his vehicle, and the search later carried out was done without consent of the defendant and without probable cause.\nThe court\u2019s reasoning was not entirely correct, given its reliance on the erroneous factual finding that defendant was arrested. However, its ultimate conclusion, that the search of defendant\u2019s vehicle was not justified by the historic rationales supporting a search incident to an arrest, i.e., a need to disarm defendant or preserve evidence, was accurate. Because defendant was never arrested, the search of his vehicle was not justified as a search incident to a lawful arrest. Furthermore, in accordance with Knowles, the officers were not justified in searching defendant\u2019s car based upon the issuance of the citation. This is true even though the officers may have had probable cause to arrest defendant.\nThe State contends that even if we find defendant was not arrested, no justification was necessary to conduct the canine sniff of the exterior of his car in a public place, because such a limited investigatory measure is not a search under the Fourth Amendment. With this argument, we must disagree.\nIn United States v. Place, 462 U.S. 696, 77 L. Ed. 2d 110 (1983), the United States Supreme Court found that a canine sniff of a airport passenger\u2019s luggage was not a search. In so finding, the Court reasoned that it was \u201caware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure.\u201d Id. at 707, 77 L. Ed. 2d at 121. This Court has adopted the Place analysis in at least three cases, finding that canine sniffs are not searches. State v. Odum, 119 N.C. App. 676, 459 S.E.2d 826 (1995) (canine sniff of a train passenger\u2019s luggage), rev\u2019d on other grounds, 343 N.C. 116, 468 S.E.2d 245 (1996); State v. McDaniels, 103 N.C. App. 175, 405 S.E.2d 358 (1991) (briefcase), aff'd, 331 N.C. 112, 413 S.E.2d 799 (1992); State v. Darack, 66 N.C. App. 608, 312 S.E.2d 202 (1984) (lawfully detained airplane); see cf. State v. Rogers, 43 N.C. App. 475, 259 S.E.2d 572 (1979) (finding, pre-Place, that canine sniff of safety deposit box was not a search).\nIn City of Indianapolis v. Edmond, 531 U.S. 32, 148 L. Ed. 2d 333 (U.S. Nov. 28, 2000) (No. 99-1030), the United States Supreme Court, relying on Place, declared that a canine sniff of an exterior of a car is not a search. The Edmond court noted that \u201can exterior sniff of an automobile does not require entry into the car and is not designed to disclose any information other than the presence or absence of narcotics.\u201d Edmond, 531 U.S. at 40, 148 L. Ed. 2d at 343 (citing Place, 462 U.S. at 707, 77 L. Ed. 2d at 121). The court therefore concluded that \u201c[l]ike the dog sniff in Place, a sniff by a dog that simply walks around a car is \u2018much less intrusive than a typical search.\u2019 \u201d Id. (quoting Place, 462 U.S. at 707, 77 L. Ed. 2d at 121).\nGiven our previous application of the principles articulated in Place to a variety of analogous situations, we adopt the United States Supreme Court\u2019s recent declaration that a canine sniff of a vehicle\u2019s perimeter is not a search. Despite this deduction, we are unpersuaded by the State\u2019s argument that no justification is needed to conduct a canine sniff of a vehicle\u2019s perimeter.\nIn State v. McClendon, 130 N.C. App. 368, 502 S.E.2d 902 (1998), aff'd, 350 N.C. 630, 517 S.E.2d 128 (1999), and State v. Falana, 129 N.C. App. 813, 501 S.E.2d 358 (1998), this Court indicated that although a canine sniff of the exterior of an automobile may not constitute a search, a defendant\u2019s detention during a traffic stop for the purpose of conducting a canine sniff must be justified by a reasonable suspicion, based on objective, specific, and articulable facts that criminal activity is afoot. The circumstances presented by both Falana and McClendon are similar to those sub judice.\nIn Falana, 129 N.C. App. 813, 501 S.E.2d 358, a state trooper stopped a vehicle based on suspicion of a traffic violation. After a brief investigation, the trooper confirmed his suspicion and issued a warning ticket. Based upon the defendant\u2019s nervousness, the trooper retrieved a canine from his vehicle and conducted a dog sniff of the exterior of the defendant\u2019s car. The canine alerted to the vehicle\u2019s passenger door, at which time the trooper searched the car finding a gun in the glove compartment and a bag of cocaine. This Court did not specifically discuss the canine sniff, but noted that the trooper\u2019s reasons for extending the traffic stop beyond the issuance of a warning ticket \u201cwere insufficient to support a further detention of the defendant once the warning ticket was issued and the defendant\u2019s papers were returned.\u201d Id. at 817, 501 S.E.2d at 360.\nIn McClendon, 130 N.C. App. 368, 502 S.E.2d 902, an officer observed the defendant speeding while following too closely behind a mini-van. Deducing that the defendant\u2019s vehicle and the mini-van were traveling together, the officer and one of his colleagues stopped both vehicles. One officer first spoke with the driver of the mini-van and issued him a warning ticket for speeding. The other officer spoke with the defendant, whose hand was trembling and who was unable to find the vehicle\u2019s registration or identify the vehicle\u2019s owner.\nThe officer further questioned the defendant and ran a license check of defendant\u2019s driver\u2019s license and the vehicle registration. The address on the defendant\u2019s license matched that of the registration. Still, the name specified by the defendant as the vehicle\u2019s owner did not appear on the title. The officer issued a warning ticket for speeding and following too closely. After the defendant refused to consent to a search, the officers performed a canine sniff of the vehicle\u2019s exterior, and the canine alerted to the rear of the defendant\u2019s vehicle. A subsequent search of the car floorboard revealed a quantity of marijuana.\nThis Court noted that although the scope of the defendant\u2019s detention must be \u201c \u2018carefully tailored to its underlying justification[,]\u2019 \u201d the investigating officers \u201c \u2018may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer\u2019s suspicions.\u2019 \u201d Id. at 375, 502 S.E.2d at 906-07 (citations omitted). These questions and other similarly limited investigatory measures must be \u201c \u2018legitimately aimed at confirming the defendant\u2019s identity\u2019 \u201d and must be \u201c \u2018reasonably related to the purpose of issuing a warning ticket,\u2019 \u201d i.e., the purpose of the underlying stop. Id. at 375, 502 S.E.2d at 907 (citation omitted).\nThe Court found that the questions asked by the officers following the initial traffic stop were \u201clegitimately aimed at confirming\u201d the officer\u2019s suspicions that criminal activity was afoot. Id. at 376, 502 S.E.2d at 907. The Court found that the detention of the defendant subsequent to the issuance of the warning ticket (during which time the canine sniff was performed) was also justified by a reasonable suspicion. The Court noted that the officers\u2019 suspicion was based on facts gleamed from the questioning of the defendant during the traffic stop, including defendant\u2019s nervousness, inconsistent and vague answers, and other factors. Id. at 378, 502 S.E.2d at 908.\nWe find Falana and McClendon controlling. In the present case, the officers clearly possessed reasonable suspicion or even probable cause to believe defendant was driving while his license was revoked. The officers stopped defendant, performed limited measures to further investigate and confirm their suspicions concerning defendant\u2019s non-drug related criminal activity, and began issuing him a citation.\nHowever, while the officers investigated their suspicions related to the subject of the initial traffic stop and detained the defendant for the purpose of issuing the citation, \u201cthere [was] nothing to indicate any illegal conduct on behalf of the defendant.\u201d The trial court duly noted that defendant was cooperative and nonviolent and that the officers did not observe any contraband, firearms, or other evidence related to criminal activity in defendant\u2019s vehicle. Accordingly, the officers did not possess reasonable suspicion based upon objective facts to detain defendant for investigative measures outside the scope of the initial traffic stop. Likewise, the officers did not obtain any evidence which would justify extending defendant\u2019s detention beyond the time it took to investigate the initial traffic stop. Thus, defendant\u2019s detention during the canine sniff was an illegal seizure, and the trial court properly suppressed evidence subsequently found as a result of that canine sniff.\nThe State contends on appeal that the officers possessed a reasonable suspicion to detain defendant based on Investigator Smith\u2019s knowledge that the area of the traffic stop was notorious for its drug trade and that defendant was previously involved in drug-related activity. We recognize that under the totality of the circumstances, a trial court may consider the above cited factors in determining whether officers possess reasonable suspicion to detain a defendant beyond the scope of the initial traffic stop. See State v. Watson, 119 N.C. App. 395, 458 S.E.2d 519 (1995). However, those two factors standing alone are insufficient to justify detaining an individual for the purpose of conducting a canine sniff or other limited, investigative measures outside the scope of the initial stop.\nBased on the foregoing reasons, we affirm the trial court\u2019s order suppressing evidence recovered in the search of defendant\u2019s vehicle.\nAffirmed.\nChief Judge EAGLES and Judge FULLER concur.", "type": "majority", "author": "TIMMONS-GOODSON, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General T. Brooks Skinner, Jr., for the State.", "Joshua W. Willey, Jr. for defendant-appellee." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. FELIX FISHER\nNo. COA99-1222\n(Filed 29 December 2000)\n1. Arrest\u2014 warrantless search \u2014 inconsistent testimony\u2014 failure to procure magistrate\u2019s signature on citation\nThe trial court\u2019s finding at a suppression hearing that defendant was placed under arrest for driving while license revoked prior to the search of defendant\u2019s vehicle was not supported by competent evidence, because: (1) the testimony of two officers contained material inconsistencies in the State\u2019s own evidence; and (2) the officers\u2019 complete failure to procure a magistrate\u2019s signature on the citation indicates that defendant was never arrested.\n2. Search and Seizure\u2014 canine sniff of exterior of car \u2014 illegal seizure\nThe trial court did not err by suppressing evidence of marijuana found as a result of the warrantless search of defendant\u2019s vehicle by a canine sniff of the exterior of the car in a public place, because: (1) defendant was never arrested; (2) the officers were not justified in searching defendant\u2019s car based upon the issuance of a citation even if the officers may have had probable cause to arrest defendant; (3) the officers did not possess reasonable suspicion based upon objective facts to detain defendant for investigative measures outside the scope of the initial traffic stop; (4) the officers did not obtain any evidence which would justify extending defendant\u2019s detention beyond the time it took to investigate the initial traffic stop; and (5) the two factors that one officer knew that the area of the traffic stop was notorious for its drag trade and that defendant was previously involved in drug-related activity standing alone are insufficient to justify detaining an individual for the purpose of conducting a canine sniff or other limited investigative measure outside the scope of the initial stop.\nAppeal by State from order granting defendant\u2019s motion to suppress entered 13 September 1999 by Judge Clifton W. Everett, Jr. in Superior Court, Craven County. Heard in the Court of Appeals 18 September 2000.\nAttorney General Michael F. Easley, by Assistant Attorney General T. Brooks Skinner, Jr., for the State.\nJoshua W. Willey, Jr. for defendant-appellee." }, "file_name": "0448-01", "first_page_order": 478, "last_page_order": 489 }