{ "id": 8300960, "name": "STATE OF NORTH CAROLINA v. MONICA D. BRANCH", "name_abbreviation": "State v. Branch", "decision_date": "2006-04-04", "docket_number": "No. COA03-350-2", "first_page": "104", "last_page": "110", "citations": [ { "type": "official", "cite": "177 N.C. App. 104" } ], "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": "614 S.E.2d 498", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633156 ], "weight": 4, "year": 2005, "pin_cites": [ { "page": "499" }, { "page": "586" }, { "page": "500" } ], "opinion_index": 0, "case_paths": [ "/se2d/614/0498-01" ] }, { "cite": "595 S.E.2d 438", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631291, 12631292, 12631293 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/595/0438-03", "/se2d/595/0438-01", "/se2d/595/0438-02" ] }, { "cite": "358 N.C. 236", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12631226, 12631290, 12631286 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/594/0188-03", "/se2d/595/0437-02", "/se2d/595/0154-02" ] }, { "cite": "614 S.E.2d 500", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "334 S.E.2d 235", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "76 N.C. App. 668", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527813 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/76/0668-01" ] }, { "cite": "2 S.E. 170", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1887, "opinion_index": 0 }, { "cite": "97 N.C. 374", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650469 ], "year": 1887, "opinion_index": 0, "case_paths": [ "/nc/97/0374-01" ] }, { "cite": "261 S.E.2d 839", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "299 N.C. 319", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574426 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/299/0319-01" ] }, { "cite": "359 N.C. 583", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3798706 ], "year": 2005, "pin_cites": [ { "page": "585" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0583-01" ] }, { "cite": "311 S.E.2d 552", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1984, "pin_cites": [ { "page": "555" }, { "page": "556" } ], "opinion_index": 0 }, { "cite": "310 N.C. 284", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2402923 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "287" }, { "page": "289" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0284-01" ] }, { "cite": "77 L. Ed. 2d 110", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 6193241 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/462/0696-01" ] }, { "cite": "802 N.E.2d 202", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "205" } ], "opinion_index": 0 }, { "cite": "160 L. Ed. 2d 846", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2003, "opinion_index": 0 }, { "cite": "610 S.E.2d 198", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "opinion_index": 0 }, { "cite": "359 N.C. 406", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3794500 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/359/0406-01" ] }, { "cite": "163 L. Ed. 2d 314", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 3, "year": 2005, "pin_cites": [ { "page": "409" } ], "opinion_index": 0 }, { "cite": "126 S. Ct. 411", "category": "reporters:federal", "reporter": "S. Ct.", "weight": 2, "year": 2005, "opinion_index": 0 }, { "cite": "543 U.S. 405", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5902584 ], "weight": 7, "year": 2005, "pin_cites": [ { "page": "847" }, { "page": "406" }, { "page": "407" } ], "opinion_index": 0, "case_paths": [ "/us/543/0405-01" ] }, { "cite": "591 S.E.2d 923", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 2004, "pin_cites": [ { "page": "924" }, { "page": "926" }, { "parenthetical": "\"Prior knowledge of the defendant alone would not constitute such a reasonable suspicion. Neither would the presentation of a duplicate license, standing alone. Both together, however, may form reasonable suspicion to justify investigation of the validity of the license.\"" }, { "page": "927" }, { "page": "926" } ], "opinion_index": 0 }, { "cite": "162 N.C. App. 707", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8919933 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "709" }, { "page": "712-13" } ], "opinion_index": 0, "case_paths": [ "/nc-app/162/0707-01" ] } ], "analysis": { "cardinality": 723, "char_count": 14916, "ocr_confidence": 0.749, "pagerank": { "raw": 4.4011399708111657e-07, "percentile": 0.9199167596257543 }, "sha256": "b9d29fda4228ca1c236754a9fe891e40fdfc8b060977511d4b88cab2fb151559", "simhash": "1:83f1141c3f5f9605", "word_count": 2462 }, "last_updated": "2023-07-14T22:32:29.259677+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BRYANT and CALABRIA concur." ], "parties": [ "STATE OF NORTH CAROLINA v. MONICA D. BRANCH" ], "opinions": [ { "text": "ELMORE, Judge.\nOn 11 October 2005 the United States Supreme Court vacated this Court\u2019s 17 February 2004 opinion in State v. Branch, 162 N.C. App. 707, 591 S.E.2d 923 (2004), and remanded the matter to this Court for further consideration in light of the decision in Illinois v. Caballes, 543 U.S. 405, 160 L. Ed. 2d 842 (2005). See North Carolina v. Branch, 126 S. Ct. 411, 163 L. Ed. 2d 314 (2005). At the direction of the Supreme Court, we now undertake that review.\nThe facts of this case have been laid out in our prior opinion, but we will restate those applicable to this review. On 4 November 2000 officers of the Rockingham County Sheriffs Department conducted a drivers license checkpoint near the intersection of Bethlehem Church Road and Harrington Highway. The officers were stopping all cars approaching the intersection and quickly assessing whether the driver\u2019s registration and license were valid. During the time the officers were performing this duty, officers with the K-9 unit were available for assistance. Determining the validity of the driver\u2019s information presented typically took approximately forty seconds.\nAt approximately 11:00 p.m. defendant approached the checkpoint and was stopped by Deputy Marshall. Deputy Marshall recognized defendant as someone he had previously arrested for drug possession .and whose drivers license might be revoked. Defendant presented a duplicate license and a car registration bearing her sister\u2019s name. Deputy Marshall testified at the motion to suppress that duplicate licenses can often be used by drivers whose originally issued license was taken by the Department of Motor Vehicles during a period of suspension or revocation.\nDeputy Howell with the K-9 unit testified at the hearing on the motion that seeing defendant driving through the checkpoint stood out in his mind as well. He recalled that upon previously issuing defendant a citation for a moving violation she had failed to appear in court, an act that would normally result in a suspension or revocation of her driving privileges.\nAfter conferring with one another, Deputy Marshall directed ' defendant to the side of the road and he attempted to verify over the radio whether defendant had any outstanding warrants or was otherwise legally able to drive. While he was verifying this information, Deputy Howell took his dog \u201cToon,\u201d a well-trained K-9 officer, around the exterior of defendant\u2019s car. Toon alerted Deputy Howell to the presence of contraband by scratching on the passenger\u2019s side door. Deputy Howell and Toon\u2019s walk around the car occurred during Deputy Marshall\u2019s investigation,- and the alert came before Deputy Marshall was finished verifying defendant\u2019s status. The entire incident resulted in an overall stop of less than five minutes.\nBased on Toon\u2019s alert to contraband, Deputy Howell asked defendant and her passenger to step out of the car while he searched it. He found small amounts of marijuana in the ash tray. He further inquired about the contents of a purse that was taken out of the car by defendant. She denied ownership of it, but upon Deputy Howell\u2019s search confessed that the purse was hers. The purse contained more marijuana. Defendant was placed under arrest.\nJust after the search of the car, Deputy Marshall notified Deputy Howell there were no warrants for defendant\u2019s arrest and her drivers license was valid. Since defendant was under arrest at this point, a female officer was asked to conduct a personal search of defendant. This search revealed a small amount of cocaine in defendant\u2019s bra.\nAfter defendant\u2019s motion to suppress was denied by the trial court, she pled guilty, but pursuant to N.C. Gen. Stat. \u00a7 15A-979(b) sought review of that denial before this Court. Defendant failed to except to any of the trial court\u2019s findings and thus, we reviewed the trial court\u2019s conclusions of law. See Branch, 162 N.C. App. at 709, 591 S.E.2d at 924; see also N.C.R. App. R 10(c)(1).\nBased on that limited review, we held that the license checkpoint was proper and defendant\u2019s detention beyond the initial review of her license and registration was for the valid and checkpoint related purpose of verifying the status of her driving privileges. Id. at 712-13, 591 S.E.2d at 926. We stressed, however, that the detention was not just based on presentation of a duplicate license, or the sole fact that the officers\u2019 recollection was defendant might have failed to appear in court; it was the interaction of these two facts that supported detaining defendant for further investigation. Id. (\u201cPrior knowledge of the defendant alone would not constitute such a reasonable suspicion. Neither would the presentation of a duplicate license, standing alone. Both together, however, may form reasonable suspicion to justify investigation of the validity of the license.\u201d). We next held that the facts did not support the conclusion that a reasonable ar-ticulable suspicion existed to use the K-9 unit to search the exterior of the car, and failure to meet that standard required suppression. Id. at 714, 591 S.E.2d at 927 (\u201cWe therefore determine that the initial stop was justified, as found by the trial court. The trial court erred, however, in finding that no reasonable suspicion was necessary to conduct the dog sniff and subsequent searches. Because this conclusion is contrary to our caselaw, we must reverse the ruling of the trial court.\u201d). As such, we reversed the trial court\u2019s denial of the motion to suppress.\nFollowing the issuance of our opinion, the State first sought discretionary review before our Supreme Court. That review was initially granted, see State v. Branch, 358 N.C. 236, 595 S.E.2d 438 (2004), but then deemed improvidently allowed, see State v. Branch, 359 N.C. 406, 610 S.E.2d 198 (2005). The State next sought review before the United States Supreme Court, which granted certiorari for the limited purpose of vacating the opinion and remanding the case to this Court for further consideration in light of Illinois v. Caballes, 543 U.S. 405, 160 L. Ed. 2d 842 (2005), a case that was decided while Branch was pending review before the North Carolina Supreme Court. See North Carolina v. Branch, 126 S. Ct. 411, 163 L. Ed. 2d 314 (2005).\nIn Caballes, the Supreme Court held that the Fourth Amendment does not give rise to a legitimate expectation of privacy in possessing contraband or illegal drugs, and as such, a well-trained dog that alerts solely to the presence of contraband during a walk around a car at a routine traffic stop \u201cdoes not rise to the level of a constitutionally cognizable infringement.\u201d Id. at 409, 160 L. Ed. 2d at 847. There, the defendant had been stopped for speeding by an Illinois State Trooper. While the trooper was issuing a citation, another trooper arrived on scene and, without prolonging the traffic stop, walked his well-trained K-9 officer around the car. The dog alerted to the presence of contraband in the trunk. Id. at 406, 160 L: Ed. 2d at 845-46.\nThe defendant argued unsuccessfully to the trial court that the drugs should have been suppressed. The Illinois Supreme Court concluded, however, that \u201cbecause the canine sniff was performed without any \u2018specific and articulable facts\u2019 to suggest drug activity, the use of the dog \u2018unjustifiably enlarged] the scope of a routine traffic stop into a drug investigation.\u2019 \u201d Id. at 407, 160 L. Ed. 2d 846 (quoting People v. Caballes, 802 N.E.2d 202, 205 (Ill. 2003)). The United States Supreme Court granted certiorari to determine \u201c[w]hether the Fourth Amendment requires reasonable, articulable suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop.\u201d Id. The Court answered the question in the negative.\n[T]he use of a well-trained narcotics-detection dog \u2014 one that \u201cdoes not expose noncontraband items that otherwise would remain hidden from public view,\u201d Place, 462 U.S., at 707, 77 L. Ed. 2d 110, 103 S. Ct. 2637 \u2014 during a lawful traffic stop, generally does not implicate legitimate privacy interests. In this case, the dog sniff was performed on the exterior of respondent\u2019s car while he was lawfully seized for a traffic violation. Any intrusion on respondent\u2019s privacy expectations does not rise to the level of a constitutionally cognizable infringement.\nId. at 409, 160 L. Ed. 2d at 847.\nAlthough Branch arises from a different set of factual circumstances than Caballes \u2014 one involves a detention at a license checkpoint and the other a stop for a traffic violation \u2014 the Supreme Court\u2019s analysis is no less applicable. In Branch, we determined that the officers\u2019 detention of defendant to verify whether her driving privileges were valid was reasonable under the circumstances. See Branch, 162 N.C. App. at 712-13, 591 S.E.2d at 926. And once the lawfulness of a person\u2019s detention is established, Caballes instructs us that officers need no additional assessment under the Fourth Amendment before walking a drug-sniffing dog around the exterior of that individual\u2019s vehicle. This is directly contrary to what we held in Branch. Thus, based on Caballes, once Ms. Branch was detained to verify her driving privileges, Deputies Howell and Marshall needed no heightened suspicion of criminal activity before walking Toon around her car. Yet, this does not end our inquiry; upon remand we must address the second issue related to the suppression order that we did not need to address previously.\nDefendant asserts that she is entitled to a new suppression hearing because the order denying her motion to suppress was null and void since it was entered out of county, out of term, and out.of session. We agree.\nOn 8 August 2001 defendant filed her motion to suppress in Rockingham County Superior Court and that motion was heard before Judge Anthony M. Brannon, serving as an emergency recalled judge, on 5 October 2001. No ruling was issued at that time; instead, with the counsel\u2019s consent, the trial judge said he would take the matter under advisement and issue a ruling and order shortly. Yet, it was not until 29 August 2002 that the trial court\u2019s order was entered, nearly a year after the hearing on the motion. The order signed in Durham County was quite thorough, containing forty-seven findings of fact and sixteen conclusions of law.\nOur Supreme Court has held that:\n\u2018an order of the superior court, in a criminal case, must be entered during the term, during the session, in the county and in the judicial district where the hearing was held.\u2019 State v. Boone, 310 N.C. 284, 287, 311 S.E.2d 552, 555 (1984). Absent consent of the parties, an order entered in violation of these requirements is null and void and without legal effect. Id.\nState v. Trent, 359 N.C. 583, 585, 614 S.E.2d 498, 499 (2005). The State does not dispute this rule, nor the fact that this order was entered out of term, but argues that defendant consented to entering the order out of term. Defendant did consent to the trial court\u2019s request to take the motion under advisement and issue a later order, but did not explicitly consent to the order\u2019s entry out of term.\nWhen presented with a strikingly similar scenario in Trent, our Supreme Court rejected the notion that an agreement to have the court take an issue under advisement was the same as consenting to the order being entered out of term. See id. at 586, 614 S.E.2d at 500. In fact, the Court stated \u201cthe decisions of our appellate courts adequately demonstrate that defendant\u2019s failure to object does not affect the nullity of an order entered out of term and out of session.\u201d Id. (citing State v. Saults, 299 N.C. 319, 261 S.E.2d 839 (1980); Bynum v. Powe, 97 N.C. 374, 2 S.E. 170 (1887); State v. Reid, 76 N.C. App. 668, 334 S.E.2d 235 (1985)). Further, even though the prejudice to defendant in this circumstance is marginal \u2014 she pled guilty to the charges on 15 October 2005 \u2014 since the order is null and void, any prejudicial analysis is misplaced. See id. 587, 614 S.E.2d 500 (quoting State v. Boone, 310 N.C. 284, 289, 311 S.E.2d 552, 556 (1984)).\nAccordingly, we vacate the trial court\u2019s order denying defendant\u2019s motion to suppress and remand the matter for a new suppression hearing. Any hearing that occurs pursuant to this opinion will not be bound by our previous opinion in this case nor the prior suppression order, and should necessarily address whether the officers\u2019 investigative detention of defendant at a license checkpoint while verifying her driving privileges was constitutional.\nVacated and Remanded.\nJudges BRYANT and CALABRIA concur.\n. In Caballes, the Supreme Court prefaced its analysis of whether the dog sniff infringed on defendant\u2019s Fourth Amendment rights by plainly stating, \u201c[a] seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.\u201d Id. at 407, 160 L. Ed. 2d at 846. The Court did not address that issue, concluding that the Illinois Supreme Court had already determined the traffic stop was not prolonged. Id. at 407-08, 160 L. Ed. 2d at 846. We also need not address that concern today since the trial court conclusively found that the dog sniff was completed within the time necessary to investigate defendant\u2019s driving privileges.", "type": "majority", "author": "ELMORE, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General J. Allen Jemigan, for the State.", "Barbara S.- Blackman for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MONICA D. BRANCH\nNo. COA03-350-2\n(Filed 4 April 2006)\n1. Search and Seizure\u2014 lawful detention \u2014 use of drug-sniffing dog around exterior of vehicle\nOnce the lawfulness of a person\u2019s detention is established, including td verify driving privileges at a license checkpoint or a stop for a traffic violation, officers need no additional assessment under the Fourth Amendment before walking a drug-sniffing dog around the exterior of that individual\u2019s vehicle.\n2. Criminal Law; Search and Seizure\u2014 motion to suppress\u2014 drugs \u2014 null and void order entered out of county, out of term, and out of session\nThe trial court erred in a drug case by denying defendant\u2019s motion to suppress, and the case is remanded for a new suppression hearing, because the order denying her motion to suppress was null and void since it was entered out of county, out of term, and out of session. Defendant\u2019s agreement to the trial court\u2019s request to take the motion under advisement is not the same as consenting to the order being entered out of term, and defendant\u2019s failure to object does not affect the nullity of an order entered out of term and out of session.\nAppeal by defendant from order entered 29 August 2002 by Judge Anthony M. Brannon in Rockingham County Superior Court. Originally heard in the Court of Appeals 3 December 2003. Now on remand from the United States Supreme Court by order issued 11 October 2005, vacating this Court\u2019s 17 February 2004 opinion.\nAttorney General Roy Cooper, by Special Deputy Attorney General J. Allen Jemigan, for the State.\nBarbara S.- Blackman for defendant-appellant." }, "file_name": "0104-01", "first_page_order": 138, "last_page_order": 144 }